1986 PLP 2923 (CLC)

(i) Mst. Hamid Begum v. Mst. Murad Begum and others reported in P L D 1975 S C 624, in which, the following observations were made: Pages 639-40. In observing that the right' to sue had accrued to the plaintiff during the lifetime of her father, the learned Judge has overlooked a basic principle of Muslim Law, namely, that the right of an heir-apparent or presumptive comes into existence for the first time on the death of the ancestor, and he is not entitled until then to any interest in the property to which he would succeed as an heir if he survived the ancestor". (Section 52 of Mulla's Mohammedan Law, 13th Edn. The Mohammedan Law does not recognise spes successionis, i.e. an expectation or hope of "succeeding to the property of another by survival. Till that death occurs a presumptive heirs has no right at all in the property of his ancestor. It is interesting to observe that the illustration given by the learned author under this section is almost identical with the facts of the instant case. He has observed that a suit brought by a son, during the lifetime of his father, to challenge a gift made by the latter on the ground of undue influence was bound to be dismissed as the son had no interest in praesent in his father's property during the latter's lifetime." (ii) Muhammad Farooq Khan v. Sulaiman A.G. Panjwani and 2 others reported in P L D 1977 Kar.

88. In the above case, the facts were that the plaintiff who was a partner of a dissolved firm filed a suit, inter alia, for declaration to the affect that he was not liable to Messrs Habib Bank Limited for the over draft amounting to Rs.2,50,000 and interest thereon and that the action of the Bank to advance the above draft to him ex-partner was collusive and not binding upon him. A learned Single Judge of the Sind High Court while construing section 42 of the Specific Relief Act held that the declaration sought neither with respect to plaintiff's legal character in sense of status, nor with regard to any right to property and, therefore, the same was not available by way of relief under the above section. (iii) Abdur Rehman Mobashir and 3 others v . Syed Amir Ali Shah Bokhari and 4 others reported in P L D 1978 Lah. 113 in which a Division Bench of the Lahore High Court after reviewing the case-law on the scope of section 42 of the Specific Relief Act observed as follows: - PARA-36. "It is clear from these authorities that section 42 would be attracted to a case in which the plaintiff approaches the Court for the safeguard of his right to legal character or property but where right to his own legal character or property is not involved, the suit is not maintainable. The suit must be one which must bring benefit to him in regard to these two rights. No suit involving any other right, hypothetical or abstract would be competent under that section. The Court will not therefore, entertain suits in which no benefit accrues to the plaintiff or where the plaintiff sets up merely an abstract right to satisfy his ego or satisfy his grudge against another person. Section 42 cannot be invoked in matters of mere sentiments which have no concern with the vendication of the plaintiff's title to status and property."

6. It may be observed that the applicant have filed some additional documents in the above appeal alongwith the appeal and during the pendency of the above appeal in order to demonstrate that the above Power of Attorney was not factually executed by respondent No-1/defendant No-1 in the manner reflected therein. The above documents, inter alia include Photostat copy of identity card of the above respondent /defendant and also a Photostat copy of the identity card of one of the alleged witnesses to the above Power of Attorney, namely, Muhammad Zahir Khan to indicate that the alleged Power of Attorney do not contain the signatures of the above executant and the witness. Affidavits on four rupees non-judicial stamp paper of Muhammad Zahir Khan and of one Ghulam Muhammad have also been filed, in which, Muhammad Zahir Khan has averred that he had not attested any Power of Attorney and that respondent No-1/defendant No.1has been mentally, sick for the last five years. In the second affidavit, the deponent has also averred about the legal mental ailment of the above respondent /defendant. Two Medical Certificates have also been brought on record, one dated 9th October, 1985 and the other, dated 18th February, 1986 signed by three doctors to show that the respondent No.l/defendant No.1was not fit to have executed the power of Attorney. The above certificates read as follows:- "Secret. No. DMS/6302/3 OFFICE OF THE MEDICAL SUPERIN TENDENT, SANDEMAN (PROVINCIAL) HOSPITAL, QUETTA, Dated Quetta the 9th October, 1985. To, Dr. D.K. Riaz Baluch, Secretary, Government of Baluchistan, Health Department, Quetta. SUB:- MEDICAL BOARD. On clinical grounds Mr. Jam Mir Khan is suffering from Parkinsons On clinic Disease possibly associated with Cerebral arterio Sclenosis as a normal ageing process. The patient may be referred to a Neurologist for second opinion and for Neuro Physiological Investigation at Jinnah Post-Graduate Medical Centre, Karachi. (Sd.) Medical Superintendent, Sandeman (Provincial) Hospital, Quetta.

1. Member. (Sd.) (Dr. Allah Din, Physician) 2.Member. (Sd.) (Dr. Abdul Malik Achak;

3. Member. (Sd.) (Dr. Habib-ur-Rehman) Copy to the Additional Registrar, High Court of Baluchistt Quetta with reference to his Memo No. 9896/Jdl. M.A.7/84, day 6-10-1985." "MEDICAL BOARD OPINION IN RESPECT OF MR. JAM MIR KHAN SON OF JAM YAQOOB KHAN. Mr. Jam Mir Khan son of. Jam .Yaqoob Khan has been examine by the Standing Medical Board on this 18th day of Februari 1986. He is an old man and appears to be of the age of eight (approximately). He is suffering from Parkinsons Disease Cerebral anther sclehosis and seniladementian. (Sd.) 18-2--1986 Medical Superintendent Sandeman (Provincial) Hospital, Quetta (President of Board). 1. (Sd.) Dr. A.J.Jaffar, Professor of Surgery, Consultant Surgeon, Civil Hospital, Quetta. 2. (Sd.) Member. 3.(Sd.) Member. 18-2-1986. (Sd.) Deputy Secretary (General) Health. "

7. Mr. Iftikhar Muhammad , learned counsel for the respondents Nos.4 to 8/defendants Nos. 4 to 8 has pointed out that since the above documents were not filed before the learned trial Court, same cannot be filed in an appeal against an interlocutory order passed by the learned trial Court and, therefore, this Court should not look into the same. It is true that in an appeal against an interlocutory order, the Appellate Court is to examine the correctness of the order on the basis of the material which was made available by the parties before the trial Court. The parties cannot file additional documents as a matter of right in such appeal. However, I may observe that an Appellate Court in a fit case, if the dictates of justice so demand, may permit the filing of additional documents by both the parties and may either examine itself or may remand the case to the trial Court for fresh appraisement of the matter. In the present case, in my view, it is not necessary to dilate upon the above additional documents at this stage of the trial of the suit, as I am inclined to hold that since respondent No.l/defendant No.1is still alive, the appellants /plaintiffs have no, prima facie, case to challenge the validity of the gift. The ratio decidendi of the above Supreme Court case referred to hereinabove, and the case of Hasan Ali v. Nazo (1889) 11 All. 456, referred to by Mulla as an illustration to the above-quoted para. 52, is on all fours applicable to the instant case. Muhammadan law does not recognize spes successionis, i.e. an expectation or hope of succeeding to the property of another by survival. The above hope/ expectation is contingent on the happening of two things, which may or may not happen, namely; (i) that the heir apparent will out live his ancestor whose property he expects to inherit and (ii) that the ancestor at the time of death will leave behind some property, Prima facie, the right to sue accrues to an heir apparent on the death of the ancestor whose property he may be entitled to inherit. During the lifetime of an ancestor, a legal heirs cannot challenge the validity of a gift made by his ancestor. However, once the ancestor concerned dies and the succession opens, the validity of the gift can be impugned by any of the legal heirs. In this regard, reference may be made to the Privy Council case, namely, Kurrutulain Bahadur v. Nuzbat-ud-Dowla Abbas Hossain Khan, reported in (1905) 33 Cal. 116.

8. In this view of the matter, prima facie, the appellants /plaintiffs have no legal right of the nature, of which, a declaration can be sought. Additionally I may also observe that there is no material before me, on the basis of which, it can even tentatively be concluded that in 1982 when the Power of Attorney in question was allegedly executed, respondent No. l/defendant No. l was not fit to form any view in relation to his property. It may also be pointed out that none of the other legal heirs has come forward to support the present appellants /plaintiffs.

9. This lead us to the last submission of Mr. Tahir Muhammad Khan that since the suit was, inter alia, for permanent injunction, ad interim injunction should have been granted as a matter of course. In this regard, it may be observed that a well-settled principle of law is that for the purpose of grant of an ad interim injunction under Order XXXIX, Rules 1 and 2, C.P.C. read with section 151, C.P.C., the Court has to examine the case on the basis of the following three D ingredients: - (i) Whether the plaintiff has a prima facie case? (ii) Whether withholding of ad interim injunction would result irreparable loss to him? and (iii) the balance of convenience between the parties. Additionally the Court may also look into the conduct of the plaintiff and the question of delay i.e. whether the plaintiff has approached the Court with clean hands and whether he has so approached promptly or after delay. The plaintiff may be declined the relief of an ad interim injunction, if he has not approached the Court with clean hands, or he is guilty of laches. If the Court comes to the conclusion that the plaintiff has no prima facie case. Injunction is to be refused. The above principles cannot be deviated even in a suit, in which, a plaintiff may claim a permanent injunction. If I were to hold that a plaintiff is entitled to an ad interim injunction invariably as a matter of course in a suit, in which, he has, inter alia, sought a permanent injunction, this will lead to miscarriage of justice, inasmuch as, that a defendant may be restrained from doing some act, which he may be otherwise legally entitled to do so. It will not be out of context to refer to a judgment of Dorab Patel, J (as he then was) of the erstwhile High Court of West Pakistan at Karachi in the case of Arts Council of Pakistan v. Riazuddin Pirzada, reported in P L D 1969 Kar. 349, in which the petitioner, Arts Council of Pakistan had filed a Revision against an ad interim injunction granted by the learned trial Court in a suit for declaration and permanent injunction. It was contended by the respondent /plaintiff before the learned Judge (Dorab Patel, J) that if the injunction would not have been granted, the suit would have become infructuous. The above contention was repelled and the following observations were made:- "

6. If this argument is accepted, a plaintiff, with a flimsy cause of action can harass a defendant by filing a suit at the eleventh hour and then contend that the suit will become infructuous unless interim orders are passed in his favour, and if this Court cannot examine the conduct of such a plaintiff, or whether he has a prima facie case, it will put a premium on false claims and lead to absurd results."

10. I am, therefore, of the view that the appellants /plaintiffs cannot claim ad interim injunction as a matter of course though in the suit one of the prayers is for permanent injunction unless I am satisfied that the appellants /plaintiffs have, inter alia, prima facie case. My tentative view is that the appellants/plaintiffs have failed to make out a prima facie case in view of the above clear pronouncement of the Honourable Supreme Court of Pakistan. The order under appeal seems to be in consonance with law and does not call for an interference by this Court. The appeal is, therefore, dismissed, but there shall be no orders as to cost. Before parting with the above discussion, I may observe that the observations contained hereinabove are of tentative nature and they are to be ignored by the learned trial Court while deciding the suit at the regular hearing. A . A . Appeal dismissed.