1998 PLP 441 (CLC)

5. In the counter‑affidavit, respondents raised pleas regarding non maintainability of the suit, absence of cause of action, lack of jurisdiction, want of locus standi or legal character on the part of the appellants to file the suit and bar by law under the provisions of sections 42 and 56 of Specific Relief Act, Order VII, rules 19, 21 and 26, C.P.C., and also under sections 66 and 67 of the H.D.A. Act (XIII of 1976). They also pleaded bar under the provisions of Sindh Disposal of Plots Ordinance, 1980 and Limitation Act. They denied a prima facie case for the grant of restraint orders; balance of convenience and irreparable loss if injunction was refused. It was asserted that ever since cancellation of Joint Venture Scheme on 2‑6‑1994 appellants did not raise any objection to the allotments of more than 40 plots which established that they had completely lost interest in the Joint Venture Scheme. It was lastly urged that as no allotment was made in the name of the appellants they could not lay any claim, lien, right and interest, etc. in the land of Joint Venture Scheme.

6. On assessment of the material on record and hearing the parties, learned Senior Civil Judge by the impugned order dismissed the injunction application.

7. Alongwith memo. of appeal, Civil Miscellaneous Application No.360 of 1995 was filed praying for a restraint order against respondents Nos.2 to 4 from disposing of the plots of the Joint Venture Scheme and from confirming the allotments or auction and restraining respondents Nos.5 and 6 from registering the documents and mutating the record in respect of the said Joint Venture Scheme. This application came up for hearing on 18‑7‑1995 before Abdul Rahim Kazi, J. (as he then was) who passed an order directing the parties to maintain status quo. During the pendency of the appeal on 20‑11‑1996 appellants moved Civil Miscellaneous Application No.275 of 1996 against various officials of H.D.A. as well as 15 private persons soliciting an order that properties of the alleged contemners be attached; that they may be detained in prison; that they be directed to maintain status quo and also to demolish the construction raised thereon after the status quo orders.

8. On behalf of the alleged contemners, counter‑affidavits were filed on various grounds of fact and law. This application as well as injunction application and Civil Miscellaneous Application No. 110 of 1997 under Order I, rule 10, C.P.C., moved on behalf of Munir Ahmed Shah were listed alongwith the hearing of main appeal. It is in this context that M/s. Abdul Sattar Shaikh, Jhamat Jethanand and Partab Rai, Advocates were afforded audience at the hearing.

9. Mr. Hassan Mehmood Baig, learned counsel for the appellants mainly raised the following contentions: (i) that in the face of an irrevocable contract between the parties respondents could not lawfully cancel the contract without any notice and except with the consent of the appellants, (ii) that the letter of cancellation of the contract issued on the directive of Chief Minister, Sindh was provisional in nature and expected to be followed by a final decision which was not communicated, (iii) that the appellants acquired a valid right, title and interest in the suit land and in the absence of any breach of contract on their part they are entitled to the protection of their rights as to ownership and possession; (iv) that the H.D.A. could not lawfully dispose of the plots by auction or otherwise hand over to the appellants for raising construction pending the decision of this appeal in the face of prohibitory order; (v) that the appellants had made out a strong prima facie case; balance of convenience lay in their favour and that they would suffer irreparable loss if temporary injunction was not granted notwithstanding their claim as to damages.

10. On the other hand, learned counsel for respondents Nos.2 to 4 as well as Assistant Advocate‑General submitted that the agreement was executed in violation of sections 18, 19 and 20 of H.D.A. Act, 1976 as well as sections 11 and 12 of Sindh Disposal of Plots Ordinance, 1980; that the physical possession of the plots on the site was not handed over to the appellants; that the H.D.A. plots being public property could not be disposed of except by way of public auction and that no vested right accrued to the appellants to maintain a suit for declaration, injunction and specific performance.

11. On behalf of the Intervenors/ alleged contemners, it was agitated that on appellants' own showing out of 87 plots, 40 plots were disposed of on which construction was raised after approval of the building plans by H.D.A.; that it would not be just and equitable to demolish such bungalows; that the contract in favour of the appellants was without any consideration as none was alleged in the plaint; that allottees/plot owners were not joined as party to the suit; that the appellants being not a registered firm on the date of agreement, suit could not be filed in the name of the registered firm; that even according to para. 15 of the contract transfer of the land was contingent upon making full payment; that the possession of the site was required to be handed over for development of site office, demarcation of plots, preparation of site for advertisement and for construction of housing units with the signing of the agreement which did not take place. It was urged that Civil Miscellaneous Application No.275 of 1996 for taking penal action was made mala fide in order to deprive lawful occupants, allottees and transferees of their plots who had raised construction on their plots and that this was a device to obtain possession of the plots under the garb of status quo order without impleading such persons as party to suit whose rights could not be affected. On behalf of Mr. Khalid Halim, alleged contemner No. 17 in Civil Miscellaneous Application No .275 of 1996 it was pointed out that a valid lease was executed in his favour by H.D.A. on 18‑5‑1995 much before the filing of the suit which could not be cancelled at the instance of the appellants.

12. There is considerable force in the submission of the learned counsel for the appellants that in the face of an irrevocable contract respondent H.D.A. could not unilaterally cancel the contract without any notice to appellants and without their consent particularly when no breach of contract was alleged on their part. On perusal of the contract document it seems that the contract was concluded and complete. It was valid in nature and neither against public policy nor against the interests of the respondent H.D.A. Seemingly H.D.A. had already advertised the scheme for sale of flats, shops and housing units along 150‑00 feet wide Qasimabad Road and it was only in the wake of poor response from the general public which prompted the appellants to initiate a Joint Venture Scheme which was duly accepted and partly acted upon. However, the letter leading to cancellation of the contract stated that the Joint Venture Scheme known as H.D.A. Comfort and H.D.A. Sohni Apartments in collaboration with the appellants to be treated as cancelled till further directions, which implied that the decision was provisional in nature and would be followed by a final decision which never saw the light of the day. Indeed respondent H.D.A. cannot be permitted to raise the argument that the contract was lawfully cancelled or that it was unlawful and in violation of sections 18, 19 and 20 of the H.D.A. Act, 1976 as well as sections 11 and 12 of Sindh Disposal of Plots Ordinance, 1980. To my mind by their own conduct respondents Nos.2 to 4 are legally estopped from agitating any position to the contrary as they had allowed the appellants to believe that the terms and conditions of the contract shall be honestly observed and acted upon who had to set up the site office, employ some administrative/technical staff and even to purchase certain machinery for raising construction. Obviously the appellants with the consent and knowledge of the H.D.A. had advertised and publicised the sale of flats, shops and housing units in the media which could not be done except with huge investments.

13. There is, however, another difficulty in the way of the appellants inas much as the contract between the parties may not be considered as a contract for transfer of immovable property. Essentially contract between the parties is a concluded contract under which on the one hand H.D.A. had to part with the possession of vacant plots, and on the other hand appellants with their own initial investments, employment of labour and technical staff and by use of building machinery had to build shops, flats and housing units for sale to general public with a stipulation for share in the profits. Handing over of vacant possession of some of the plots on the site by an officer of H.D.A. may not tantamount to transfer of exclusive possession in furtherance of a contract conferring transfer of interest in the property. For this reason argument advanced on behalf of the appellants that they were put in exclusive possession of the property may not appear to be sound. In this context reliance by learned counsel for the appellants on Explanation to section 12 of the Specific Relief Act which postulates that: "Unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, and that the breach of contract to transfer movable property can be, thus, relieved." is of no real assistance. Likewise reference to section 19 of Specific Relief Act providing for power to award compensation in certain cases of breach of contract on the part of defendant is equally not attracted in the circumstances. For more or less similar considerations it is difficult to subscribe to the view that the liquidation of damages would not operate as a bar to specific performance of contract within the purview of section 20 of Specific Relief Act. This circumstance, however, would not be enough by itself for the grant of temporary injunction as in my view apparently case of the appellants is hit by the category of contracts which cannot be specifically enforced within the mischief of clause (b) of section 21 of Specific Relief Act and the bar of injunction as provided in clause (f) of section 56 of Specific Relief Act. Now, under the former provision a contact which runs into such minute or numerous details, or which is so dependent on the personal qualification or volition of the parties or otherwise from its nature is such that the Court cannot enforce specific performance of its material terms. The second provision referred to hereinabove, lays down that an injunction cannot be granted to prevent the breach of a contract, the performance of which would not be specifically enforced. Obviously contract between the parties runs into minute and numerous details spread over a large number of statements which may be difficult for a Court of law to direct their specific performance. Admittedly no mechanism is provided for supervision of the construction to be raised by the appellants under the contract. No doubt H.D.A. may be possessing necessary infrastructure to supervise the execution of the contract it being a party to the contract itself, it is difficult to conceive of specific performance of contract on the part of the Court. Likewise policy of law as reflected in section 56 of the Specific Relief Act is to withhold an injunction to prevent the breach of a contract, the performance of which would not be specifically enforced. Prima facie, therefore, it is difficult to say that the contract in its present form is capable of specific performance. For these reasons it would follow that the appellants have not been able to make out strong prima facie case for the grant of temporary injunction pending the decision of the suit.

14. Learned counsel for the appellants relied upon Universal Trading Corporation (Pvt.) Ltd. v. Beechem Group PLC (1994 CLC 726) decided by Mukhtar Ahmad Junejo, J. (as he then was in the Sindh High Court). Dispute in the reported case related to the termination of agency/distributorship in which the plaintiffs had prayed for the grant of a temporary injunction against the termination of agency in violation of the provisions contained in the Contract Act. To my mind the case is completely distinguishable on ‑facts and of no assistance to the appellants. A reference may however be made to Hussain Naseer v. Shamim Yaqoob (1989 CLC 2125) decided by Wajihuddin Ahmed, J. This was a suit for specific performance resisted by the defendant on the ground that the plaintiff had committed breaches of the agreement in dispute and that before the institution of the suit, the plaintiff had opted to forego specific performance by expressly claiming damages only. In this context it was observed as under: "The precise question involved in the case pertains to election on the part of the plaintiff, after the parties had come to the stage where they had to decide to embark upon one or the other options open, and the plaintiff did not opt for specific performance. On the question of balance of convenience the normal rule in suits for specific performance is that such balance lies in favour of one who seeks specific performance but, then, that is only one of the considerations for grant of interim injunctions whereas all the three ingredients aforementioned are to be satisfied. Taking up the question of irreparable loss since the plaintiff himself has chosen, and that too before the institution of the suit, the alternative remedy for refund of earnest money and damages etc., no element of irreparable loss has come to subsist. Findings on interim injunction which, of course, are of a tentative nature would not bind the plaintiff on trial of the action. "

15. In PIA Corporation v. Hazir (Pvt.) Ltd. (PLD 1993 Karachi 190) which was a case of award of contract for opening Fast Food Services Shop and Burger Shop, a Division Bench of this Court took the view that the equitable remedy by way of an injunction whether mandatory or interlocutory in nature is discretionary in nature and is never granted as a matter of course. An injunction is not to be granted only on the basis that a prima facie case exists but it is incumbent upon the Court to take into account the other questions. At page 205 of the reported case, Syed Haider Ali Pirzada, J. (as he then was) observed that on such satisfaction, the Court considers whether the plaintiff if he succeeds would be adequately compensated by the award of damages for the loss for the defendant .continued to do what was sought to be injuncted. If damages recoverable in law is an adequate remedy and the defendant is in a financial position to pay them, no interlocutory order should be normally granted however strong the plaintiff's case appears to be at that stage.

16. Adverting to the second essential condition for grant of temporary injunction namely the balance of convenience it appears that on appellants own showing third party interest has been created in respect of at least 40 plots out of 87 plots. Some of the plot owners have even raised the construction of bungalows on their respective plots. In respect of Mr. Khalid Abdul Haleem, opponent at Serial No.17 in Civil Miscellaneous Application No.275 of 1996 a valid lease has been registered in his favour by H.D.A. on 18‑5‑1995 long before the filing of the suit.'

17. In para. 12 of the plaint, appellants specifically pleaded that after the receipt of cancellation letter they stopped the work of the Joint Venture Scheme and after some time came to know that Plot No.26 was given free of cost to one Amanullah Sial. In para. 15 of the plaint appellants averred that they had come to know that a number of plots of the Joint Venture Scheme had been allotted or otherwise given to some persons and remaining plots of the Joint Venture Scheme had been disposed of in auction held on 2‑7‑1995 without any lawful authority to certain persons. It would, thus, appear that the appellants were fully aware of creation of third party interest in the property. In case temporary injunction is granted in favour of appellants, interests of such persons are most likely to be adversely affected. This course of action would not only create hardship and inconvenience for such persons who were not made party to the suit but also create serious complications for the H.D.A. The grant of prayer of the appellants may also violate the well settled principle of natural justice as interest of third parties who parted with valuable amounts for acquiring immovable properties would be seriously prejudiced without an opportunity of hearing.

18. There is another aspect of the case. In paragraph 36 of the counter affidavit filed on behalf of H.D.A., it was stated that the plaintiff had itself actively participated in the auction held on 2‑7‑1995 without taking any objection to it as such under the law they are now estopped from challenging the same before this Court. It was clarified at the bar that plaintiff's partner Dr. Irshad Haroon had offered a bid for the purchase of a plot which was not accepted. Aforesaid version of the respondents remained uncontroverted as no affidavit in rejoinder was filed on behalf of the appellants. Without going deeper into this aspect of the case, it may suffice to observe that by reason of not challenging this circumstance valuable rights appearing to have been created in favour of third parties, the balance of convenience would not lie in favour of the appellants. Even otherwise relief of injunction being equitable and purely discretionary in nature, it would neither be just nor fair and equitable to jeopardise the interest of persons not joined as party to suit and instead dragged to this Court ' in Civil Miscellaneous Application 275 of 1996 under Order XXXIX, rule 2(3), C.P.C.

19. Reverting to the contentions raised on behalf of intervenors and opponents in Civil Miscellaneous Application 275 of 1996, I am not inclined to agree with the submission that the contract between the parties to suit was void for want of consideration. The term consideration does not necessarily refer to monetary consideration for acquiring an interest in the property. The services rendered by the appellants for performance of the contract in furtherance of a Joint Venture Scheme by huge investments are a complete answer to the submission advanced at the bar. Unfortunately some of the plot owners had moved applications for injunction against respondent H.D.A. from demolishing the construction raised by them and for being impleaded as party to appeal, under Order I, rule 10, C.P.C., but without any success. Main reason for disallowing their applications perhaps was the circumstance that they were not party to the suit. Be that as it may, as the interest of intervenors by reason of having acquired valuable interests in respect of the plots before the filing of the suit was definitely involved, they could be possibly joined as party to this appeal since their interests were adversely affected by the interim order of injunction passed in this appeal. At any rate, since the appellants dragged them to this Court for violation of the interim order despite the rejection of earlier applications moved by some of the plot owners intervenor Muneer Ahmed Shah has filed Civil Miscellaneous Application 110 of 1997 for his joinder as respondent to the appeal by reason of purchase of four plots of lands from four different allottees from H.D.A. for valuable consideration.

20. Lastly adverting to the third necessary ingredient for the grant of temporary injunction namely irreparable loss or injury in the event of injunction being refused during the pendency of the suit, I am of the view that it is well-established that the appellants themselves having estimated the damages/losses suffered by them on account of breach of agreement in the sum of Rs.43‑60 million, learned Senior Civil Judge was right in observing that no case for temporary injunction had been made out in the circumstances.

21. I have already dealt with the position in law with regard to the principles for grant of injunction in cases where the relief asked for can be measured in terms of coins. Notwithstanding the fact that the appellants claimed damages in the suit in the alternative to the reliefs claimed in paragraphs (a) to (c) of the prayer clause, I am of the considered view that the facts and circumstances do not warrant and justify the grant of a restraint order during the pendency of the suit. I would not like to burden this judgment with more cases as reference to some of them in the earlier part of this judgment should serve the purpose.

22. In view of what has been stated hereinabove, which for all intents and purposes is tentative in nature and without any bearing on the trial of the suit, I am of the view that no case for temporary injunction is made out. Civil Miscellaneous Application 360 of 1995 is, therefore, liable to be dismissed. It is ordered accordingly. Civil Miscellaneous Application No.275 of 1996: Official as well as the private persons arrayed as opponents in this application have completely denied the violation or breach of injunction order in their respective counter‑affidavits. In fact, private persons in this application were not joined as party to suit, therefore, they cannot be said to be bound by the interim order passed against H.D.A. Such persons cannot be held to be conscious of the Court order for maintenance of status quo by the parties. On their part, H.D.A. officials having categorically acted in good faith and taken steps prior to the passing of the interim order in this appeal, in my view may neither be liable to punishment nor for any other penal action. Moreover no affidavit in rejoinder appears to have been filed on behalf of the appellants to controvert the position taken in the counter‑affidavits. I am, therefore, of the view that in view of observations made in the appeal arising out of the impugned order, no further action on this application is called for. It is accordingly disposed of. This is an application under Order I, rule, 10, C.P.C., on behalf of Munir Ahmed Shah which is rendered infructuous and unnecessary as the appeal itself stands disposed of. A.A./Q‑11/K Order accordingly.