1984 PLP 10 (MLD)

(1) That Plot No. H.V. 2-56, measuring 100 sq. yds. Mama Road, near Allana Masjid, Ramswami Town, is the joint property of you and Moinuddin brother of Naimuddin and son of Haji Aminuddin i.e. 50 sq. yds. belongs to you and 50 sq. yds. belongs to Mr. Moinuddin:

(2) That you agreed to purchase half portion of aforesaid plot belonging to Mr. Moinuddin for Rs. 2,00,000 (Rs. two lacs only) and paid Rs. 25,000 (Rs. twenty-five thousand only) as earnest money to my client on 16-2-1983 and the balance amounting to Rs. 1,75,000 (Rs. one lac and seventy-five thousand only) was to be paid at the time of transferring his rights in your favour. (3) That Moinuddin is out of Pakistan as such his brother Naimud din has accepted the aforesaid amount on his behalf. (4) That you have started construction over the entire plot including 50 sq. yds. of Mr. Moinuddin for which you are not authorised unless and "until you pay the aforesaid balance amounting to Rs. One lac seventy-five thousand only and my client get half of his portion transferred in your name. This act of yours is illegal, unjust and without any authority and you should stop the same at once. In view of the facts mentioned above I do hereby call upon you to desist from encroaching his half portion and making any sort of construction over his portion, failing which there shall be no alternative but to report the matter to the Martial Law Authorities, Police and he would also seek appropriate remedy both in civil and criminal Courts and you shall be responsible for the consequences." Dated 2-9-1983. To Mr. Najamuddin Qureshi, B.Sc. (Alig.), LL.B., Advocate. For and on behalf of Mr. Ghayasuddin son of Riazuddin H.V. 56, Allana Masjid, Juna Road, Ramswami Tower, Nishtar Road, Karachi. Dear Sir, With reference to your notice dated 21-8-1983, on behalf of your above-named client, you are hereby informed as under:

That my client refused to recognize your client Mr. Najmuddin as he has no authority to challenge the transaction, further it appears that he has not given you the complete facts and he is not aware of the exact position. In view of this position, you are hereby requested to advise your client to desist from such mala fide -and unwarranted allegations, else he would land himself in trouble for which he shall be entirely responsible." ' " My client is seriously considering to file a suit for damages, and also criminal case for defamation."

4. On the injunction application the Nazir was appointed as Commis sioner to inspect the site and report the construction made on the appellant's plot of land and on 19-12-1983, the appellants were directed to deposit a sum of Rs. 50,000 being the admitted balance amount of sale consideration.

5. In dismissing the application for temporary injunction what weighed with the learned, Single Judge is the fact that no prayer is made in the suit for recession of the agreement and further fact that respondent was not disputing that he agreed to sell the property and received R9. 25,000 towards sale consideration and that the document "C1" which was filed by the respondent prima facie shows that the possession of the land was delivered by the father of the respondent to the father of the appellants, and the construction of ground floor was completed and first floor was in advance stage of construction. lie however, directed the appellants to deposit a sum 'of Rs. 1,50,000 which was allegedly due according to the respondent towards sale consideration in Court as stated hereinbefore.

6. We have heard Mr. S. Abbas Zia learned counsel for the appellants. He submitted that the order of deposit of Rs. 1,50,000 in Court in the circumstances of the case is not proper. However, we are of the view that in the circumstances of the case the order is just and proper for without obtaining any title to the half portion of the plot of land the appellants have raised construction on the entire plot of land and the Nazir's report shows that they have allowed at least one shop in the building to be occupied by some other person which they may not have done without receiving certain amount by way of advance rent or consideration. Thus, they are enjoying the fruit of property without having a legal title in respect of half portion of the plot of land. Further, it is quite possible that they may admit tenants and/or may agree to sell the same to other persons and thus further enjoy the property giving rise to future litigation and compli cations. The agreement on which the appellants laid reliance as well as the receipt are denied by the respondents as being forged documents. Even the amount of consideration of Rs. 1,50,000 alleged to have been paid was not paid by any pay order or cheque. It was allegedly paid in cash. Further, when the respondent served notice on the appellants and made a demand for payment of the balance amount of Rs. 1,75,000, this assertion was not denied. An evasive reply was given which we have quoted hereinbefore in extenso.

7. In our view it would have been proper for the Court to have ordered maintenance of the status quo but since there is no appeal or cross-objection against the order by the respondent we have to maintain the order which in our view also is just and proper in the circumstances of the case. After we had dismissed the appeal, Mr. Abbas Zia learned counsel for the appellants prayed for two months time to deposit the amount in terms of the order of the learned Single Judge. Mr. Abul Khair Advocate for the respondents has appeared and consents to the grant of the prayer. The deposit of amount as per order of the lower Court may be made on or before 30th June, 1984. M.Y. H. Appeal dismissed.