2022 PLP 2094 (CLC)

ANWAAR HUSSAIN, J.

The present appeal arises from order dated 17.06.2022 passed by the learned Civil Judge, Sambrial, District Sialkot, whereby application of the appellant, under Order XXXIX, Rules 1 and 2, Code of Civil Procedure, 1908 ("C.P.C"), in a suit instituted by him for specific performance of the contract, based on a written agreement to sell ("the agreement") dated 29.11.2021, was dismissed on the ground that the appellant failed to establish a prima facie arguable case in his favour.

2. Learned counsel for the appellant submits that the learned Trial Court has erred by not appreciating that the suit instituted by the appellant for specific performance of contract was based on a written agreement for which the stamp paper used, for recording of the transaction in writing, between the parties, was purchased by the respondent himself through the scheduled bank that requires biometric verification, under the law at the time of issuance of the stamp paper, which implies that the appellant clearly established a prima facie case and this fact has escaped notice of the learned Trial Court. Adds that the learned Trial Court did not consider the fact that the appellant had not only paid a huge sum of money to the respondent but the latter had also delivered possession of his share of the suit property. Further contends that both the parties are enjoying the possession of the property and, therefore, it is in fitness of things that status quo shall be directed to be maintained in order to avoid any law and order situation particularly when the parties have already got registered criminal cases against each other.

3. Conversely, learned counsel for the respondent submits that the impugned order is well-reasoned and has been passed by the learned Trial Court after appreciating the factual matrix of the case as well as the law on the subject. Adds that the appellant has misstated that the possession of the suit property was given to him in pursuance of the agreement and the respondent will suffer irreparable loss as he is in the process of raising construction at the suit property to ensure that business plans of the respondent qua establishment of the academy and/or college at the suit property is completed in timely manner enabling the students to commence their studies, which will be jeopardized if the present appeal is accepted and application of the appellant under Order XXXIX, Rules 1 and 2, C.P.C. is accepted. In this regard, learned counsel submits that the respondent be allowed to raise the construction at his own cost and risk and also undertakes that the respondent will not be alienating the property during the pendency of the suit. Concludes that the appellant failed to establish prima facie case in his favour inasmuch as an agreement to sell does not create any right in favour of the appellant. In support of his contentions, learned counsel for the respondent has relied upon case reported as "Tahira Begum v. Syeda Saira Awais" (2010 M LD 82).

4. In rebuttal, learned counsel for the appellant submits that nowhere in the written statement filed by the respondent, it has been referred that the respondent is having an operational school/academy and in this manner, contents of the C.M. No.3-C/2022 filed for vacation of the status quo order by this Court is an afterthought.

5. Arguments heard. Record perused.

6. Learned Trial Court has dismissed the application of the appellant seeking grant of temporary injunction. Temporary injunction, by its nature, is a preventive remedy with the object to maintain the status quo and prevent irreparable damage or preserve the subject-matter of the litigation until the trial is concluded. In order to succeed in obtaining temporary injunction in a case, a plaintiff has to establish co-existence of three conditions/ingredients i.e., (i) prima facie case; (ii) possibility of suffering irreparable loss if temporary injunction is declined; and (iii) the balance of convenience leans in his favour. Of the above referred three conditions, existence of prima facie case is foundational and the other two conditions are considered once the plaintiff establishes a prima facie case in his favour. In case titled "Chairman, Municipal Committee, Taxila v. Mohammad Jan and 4 others" (1987 CLC 2416), it has been held as under: " It has been repeatedly held that the discretion to grant temporary injunctions has not to be exercised as a matter of mere course but has to be regulated by the existence of a prima facie case in favour of an applicant and the likelihood of his having to suffer irreparable loss as also the balance of convenience " Similarly, in case titled "Aijaz Hussain Bhatti and another v. Haji Bagh Ali and 9 others" (1985 CLC 261), it has been held that if a plaintiff fails to establish a prima facie case, no occasion arises for attending to the other two conditions.

7. The words 'prima facie' means 'at first sight' or 'on the first impression'. Therefore, the existence of the right of the plaintiff is to be adjudicated on the first sight on comparative consideration of pleadings of the parties. The Court has to form its opinion as to who has a better case after tentatively analyzing from the rival contention of the parties as contained in their pleadings. If the Court is satisfied that the case of plaintiff is on a better footing, and on conclusion of the trial relief may be granted to him in all likelihoods, then the Court can infer that the plaintiff has a prima facie case. To ascertain whether a plaintiff has a prima facie case, the Court tentatively examines not only the pleadings of the parties but their affidavits, counter-affidavits and the documents appended with the plaint and the written statement.

8. Having observed so, it is imperative to analyze the factual matrix of the instant case. The appellant instituted the suit for specific performance on the basis of the agreement with the contention that the respondent executed the same with his free will and the sale price was fixed as Rs.160,000,000/- out of which Rs.158,000,000/- was paid in cash to the respondent and possession of the suit property was given to the appellant and it was agreed that on or before 10.02.2022, remaining amount of Rs.2,000,000/- will be paid whereupon sale deed will be executed. The reason put forth for not making the balance payment of consideration and registration of the sale deed at the time when huge amount of price consideration was purportedly paid at spot was a dispute regarding family settlement (partition) viz. the suit property between the respondent and other shareholders. In the plaint, the appellant has taken the stance that huge amount was paid in cash due to financial need of the respondent to settle the said dispute. Relevant portion of the agreement is reproduced hereunder: (Emphasis supplied) In the written statement filed by respondent/defendant, the respondent has categorically denied the execution of the agreement or receipt of any cash amount pursuant thereto. It further avers that the respondent purchased the suit property through registered sale deed bearing No. 4196 dated 23.08.2021 and intended to establish a college and academy in the name of KIPS College and KIPS Academy and for this purpose entered into an agreement with M/s Quality Brands (Private) Limited dated 25.02.2022 and when the respondent was carrying on necessary construction for the said purpose, unknown goons came with deadly weapons along with the appellant and tried to dispossess the respondent from the suit property and in respect thereof, FIR No.391/2022, dated 23.02.2022, was registered under Sections 342/337-F(i)/337-L(ii)/148/149, P.P.C. at Police Station Sambrial, District Sialkot where after the appellant instituted the suit for specific performance on the basis of the agreement and obtained a status quo order and later on also register a criminal case bearing FIR No.769/2022 dated 04.06.2022, against the respondent for raising construction on the suit property, in contravention of the said status quo order.

9. In the above referred factual background, the learned Trial Court while deciding the application under Order XXXIX, Rules 1 and 2, C.P.C. has based its decision on the two grounds: an investigation report as well as the report of Revenue Officer, Sambrial dated 26.04.2022, qua the possession of the suit property, which as per the impugned order, lies with the respondent; and the shallowness of the argument of the appellant qua the payment in cash to the respondent in terms of the agreement. Learned counsel for the appellant denies existence of such reports and said reports have been appended with C.M No.3/2022, which already stands dismissed, therefore, documents appended therewith are not being taken into consideration by this Court while deciding the present appeal. Even otherwise, since the present controversy relates to whether the appellant has a prima facie case in his favour in terms of Order XXXIX, Rules 1 and 2, C.P.C., therefore, this Court feels appropriate to confine the examination and the decision to that extent and not to opine or analyze the effect of registration of criminal cases as well as the investigation report or the report of Revenue Officer lest it may prejudice the stance of either party qua the final decision of the case by the learned Trial Court. It is trite law that an agreement to sell does not create any right in respect of the immovable property and its importance while deciding an application for grant of the interim injunction has to be measured up and weighed in by tentative examination of the attending circumstances.

10. It is worth mentioning that the analysis of the learned Trial Court qua the assertion of the appellant viz-a-viz payment of Rs.158,000,000/- in cash at the time of execution of the agreement is apt. The operative part of the impugned order reads as under: "The alleged payment of an earnest amount of Rs.15,80,00,000/- also remain shallow since it is not supported by any document of any bank transaction. Even otherwise, it remains unfathomable that a huge amount of Rs.15,80,00,000/- had been paid by the plaintiff at once without any bank transaction but a period of about two and half month had been gained by him for the payment of the remaining sale price of two million only." (Emphasis supplied) At this stage, for the purpose of establishing a prima facie case, it certainly belies all logic that a huge amount of Rs.158,000,000/- is paid in cash, which comes to around 98.75% of the total purported consideration qua suit property in respect of which, admittedly, a family dispute is pending. More so, when admittedly no documentary proof qua financial capacity of the appellant to have such a huge amount on the date of the agreement has been appended with the plaint of the suit. Dealing with somewhat similar situation, this Court in case of Tahira Begum supra, held as under: "The only documents that she has relied upon in support of her claim are the agreement to sell which have specifically been denied by the respondent. There is complete absence of proof of payment of a sum of Rs. Seventy lacs to the respondent. In this day and age it is not possible to believe that such a substantial amount was paid either in cash or through a mode of which documentary evidence is not available. The fact that nothing has been appended with the plaint to support the contention that the entire sale consideration was paid is a factor that goes against the petitioner's attempt to plead existence of a prima facie case at this stage." (Emphasis supplied) The above referred decision was rendered by this Court in the year 2010 and the agreement in this case has been purportedly executed in the year 2021 when the law is more stringent in ensuring that the economy is properly documented. The ratio laid down in case of Tahira Begum supra applies on all fours to the present case.

11. As regards assertion of the appellant that possession of part of the suit property has been given to him pursuant to the agreement, suffice to state that apart from the agreement, there is no document appended with the plaint regarding possession of the appellant. Moreover, it is admitted position that there is family dispute qua partition of the suit property. Neither in the agreement nor in the plaint, it has been mentioned as to which specific portion of the suit property has been given to the appellant when admittedly the respondent and other co-sharers have a dispute qua the same and without partition, it was not possible to hand over possession over any specific portion to the appellant. This Court is also mindful of the position that the learned Trial Court has refused the application for grant of interim injunction in exercise of its discretion which this Court would not interfere in as a routine matter unless such exercise is found to be perverse and against the law. The appellant has failed to prove a prima facie case in his favour and his application for grant of temporary injunction has been rightly dismissed through the impugned order by the learned Trial Court. However, it is observed that the construction being raised by the respondent at the suit property will be at his own cost and risk and the suit property shall not be further alienated by the respondent during the pendency of the trial as undertaken before this Court today by learned counsel for the respondent.

12. In view of the aforesaid discussion, the order of the Trial Court does not suffer from any illegality, therefore, the present appeal has no merit and is accordingly dismissed. Before parting with, it is also made clear that the observations and findings in this judgment are tentative in nature and made only for deciding the application for interim injunction which has been dismissed as the appellant failed to plead existence of a prima facie case at this stage, only. The learned Trial Court shall not be prejudiced by the said observations while finally deciding the suit of the appellant, on merits. SA/K-23/L Appeal dismissed.