2009 PLP 648 (MLD)

SYED QALB-I-HASSAN, J.

Brief facts of the case are that appellant filed a suit for specific performance and permanent injunction against the respondent No.1, his real father, and Capital Development Authority with the contention that respondent No.1 was allotted plot No.609, Street No.69, 1-8/3, Islamabad and in order to raise construction the appellant provided funds to his father and in consideration of the above said funds provided by the appellant, respondent No.1 (now deceased) agreed that half portion of the house will be transferred to the appellant in addition to the share that may come to him through inheritance and in this back ground an acknowledgement/agreement was written duly signed by respondent No.1 and the witnesses. The appellant further states that now respondent No.1 is not ready to transfer said share in his name, therefore, he filed the instant suit. The present appellant also moved an application for interim injunction and sought temporary injunction for restraining respondent No.1 from transferring, the suit property to any one else.

2. Respondent No.1 entered appearance and contested the suit on the ground that the acknowledgement/agreement is a forged document and also submitted a copy of the report, dated 10-2-2004 of the handwriting expert of FIA regarding the signatures of respondent No.1. According to this report the signature of respondent No.1 was found forged in characteristics. On the basis of the above said report and in view of the matter that respondent No.1 has already transferred the disputed property to his other son (now respondent No.3), the stay application was dismissed.

3. Thereafter respondent No.1 lodged an F.I.R. against the appellant under sections 380/448/420/468/471 of P.P.C. but the appellant was acquitted in the above said criminal matter.

4. The appellant thereafter moved a fresh application under Order XXXIX, Rules 1 and 2 of C.P.C. on the ground that respondent No.1 has alienated the suit property to respondent No.3 and Judicial Magistrate section 30, Islamabad discarded the said report of handwriting expert and acquitted the appellant from the said criminal case vide order, dated 13-4-2006. Thus, in this back ground new circumstances have been developed and prayed for ad-interim injunction during dependency of the suit. The said application was contested and the learned trial Court again dismissed the application on the ground that there is no justification for filing a new petition as the stay application has already been dismissed vide order, dated 26-5-2005. The appellant impugned the order, dated 7-3-2007 whereby the second application under Order XXXIX, Rules 1 and 2 of C.P.C. was dismissed by the learned trial Court.

5. Learned counsel for the appellant contended that the property was alienated by the deceased respondent No.1 and the appellant was also acquitted from the criminal case by the learned Magistrate while discarding the said report of handwriting expert and in this view of the matter new circumstances have been developed but the learned lower Court decided the application in slipshod manner which discussing the new grounds and circumstances detailed in the petition which resulted in miscarriage of justice. It is maintained that respondent No.3 is now again preparing to alienate the property in dispute to third person which shall result in multiplicity of litigation and induction of stranger also cause irreparable loss to the appellant.

6. Learned counsel for respondent No.3 resisted the appeal and supported the order passed by the learned Court and contended that although the appellant was acquitted from the criminal case but on some other grounds and the report of handwriting expert was not discarded, therefore, there were neither new circumstances nor the fresh application was justified in the presence of earlier order dismissing the application under Order XXXIX Rules 1 and 2 of C.P.C. on the same subject without seeking the remedy of appeal. The learned counsel further argued that in the present circumstances even now the appellant has no prima facie case for grant of ad interim injunction during the pendency of main suit and prayed for dismissal of the appeal. I have heard the learned counsel for the parties and perused the record.

8. Admittedly the appellant has filed a suit for specific performance and permanent injunction on the basis of acknowledgement/agreement and the application under Order XXXIX Rules 1 and 2 of C.P.C. was earlier dismissed on the basis of report, dated 10-2-2004 of the hand-writing expert of FIA regarding signatures of the deceased respondent No.l on alleged agreement was declared forged in characteristics and now the appellant has filed a fresh application on the ground that said report has been discarded by the learned Magistrate from the criminal case initiated by respondents Nos. 1 and

3. The certified copy of the said judgment, is placed on the record and in Para No.8 of the said judgment the learned Magistrate has observed about the said report and acknowledgement/agreement as under:-- "Furthermore civil litigation is pending between the parties on the basis of this document; the civil Court will be in a better position to adjudicate upon the genuineness or the forgery of the document."

9. From the perusal of the said observation it cannot be said that the learned Magistrate has discarded the report but referred the matter to the Civil Court to adjudicate upon the genuineness or forgery of the said agreement/acknowledgement. In this view of the matter, no new circumstances or grounds have been developed to justify the second application on the same subject. The appellant has to prove the said agreement/acknowledgement by rebutting the strong presumption raised against the genuineness of the document by leading evidence in the learned trial Court. The principle regarding the grant of temporary injunction was laid down by Hon'ble Supreme Court in "Mashkoor Khan and others v. Province of Sindh and others" (1971 SCMR 572) as follows:-- "Prima facie case not made out unless evidence recorded-- Court, in circumstances, should refrain from granting temporary injunction" This point was also examined by the Lahore High Court in "Fazal Din v. Mst. Robina Aurangzeb and 2 others (1983 CLC 1280) in the following. "It is well established that temporary injunction cannot be allowed as a matter of course in those cases where even to establish prima facie case evidence has to be produced" and in similar circumstances, the Lahore High Court in "Chairman Municipal Committee Taxila, District Rawalpindi v. Muhammad Jan and others 1987 CLC 2416, the following was observed;

"Suffice it to say that a case standing in need of evidence having to be led for being established, cannot be considered a proper subject for issuing temporary injunction."

10. In view of the above said discussion and law laid down on the subject, if find no force in this First Appeal against the impugned order, therefore, the appeal is dismissed with no order as to costs. Appeal dismissed. S.A.K./A-16/Isl Appeal dismissed.