1992 PLP 507 (MLD)

Aijaz Khattak for Defendant No.1. S.H. Qazilbash for Defendant No.2 This application has been moved by the plaintiff for grant of injunction in following terms: (a) Restrain pending the hearing and disposal of the suit the Defendant No.1, his heirs, executors, administrators, agents assigns or any other person claiming through or under him from (i) claiming any right, title or interest in plot of land bearing No.F.48/2 admeasuring 666.67 sq. yds. sitauted in Block No.5 KDA Scheme No.5, Kehkashan Clifton, Karachi; from obtaining and/or having registered a lease‑deed in respect of the said property in favour of himself, his heirs, executors, administrators, agents assigns or any person or persons claiming through or under him and from selling, transferring encumberring or alienating the said property in any manner whatsoever. (b) Restrain, pending the hearing and disposal of the suit, the Defendant No.2 from executing and/or having registered a lease‑deed in respect of the said property in favour of the defendant, his heirs, executors, administrators, assigns, agents or any person or persons claiming through or under him. Briefly the facts of the case are that this suit has been filed for declaration and injunction wherein the plaintiffs claimed to be the real owners of the property in suit i.e. Plot No. F‑48/2 Block No.5, Kehkhsan, Clifton, Karachi and the construction raised thereon through inheritance from deceased Rafiq Ahmad. It is the case of the plaintiffs that deceased Rafiq Ahmad, an illiterate person, had returned from Europe with substantial amount and here he had purchased the suit plot from two ladies vide agreement annexed as "A" with the plaint. The agreement of course shows the name of the purchaser as Muhammad Khalid Oureshi the defendant No.l but the case of the plaintiffs is that since the deceased Rafiq Ahmad was an illiterate person, the defendant No.l, the real cousin of the deceased helped out in the transaction and therefore, got the same in his name. However, it is vehemently argued by Mr. MA.Rehmani, learned counsel for the plaintiffs that the payment for the suit plot was made by the deceased who also made payments to the Contractors and Consulting Engineers. As against this Mr. Aijaz Khattak, learned counsel for defendant No.l has submitted that the agreement of sale stands in the name of defendant No.l and that mutation has been effected by K.DA. sale in the name of defendant No.l and further that the plea taken by K.DA. in this suit is that there is nothing on the record to show that the transaction was Benami in nature. From these submissions, he has submitted that prima facie the defendant No.l is the purchaser of the plot in question and, therefore, also of the construction raised thereon. He further submits that the plan approved by the K.DA. also stands in the name of defendant No.l. I have considered the above submissions made by the learned counsel for the parties. This is a suit wherein the relief claimed by the plaintiff is base on Benami transaction and in order to claim any right in such transaction it is to be supported with the material to show as to who had actually paid for the property and who was receiving the benefits and the usufruct. The learned counsel for the plaintiffs has referred to the documents of payments which are placed on record and include the receipts for payment of Rs.35,000 as consulting charges to Badruddin Shaikh, the Consulting Engineer, payments of Rs.5,00,000 Rs.2,00,000 and Rs.2,00,000 to Messrs Siraj and Baqar, the Contractors with regard to construction raised on the plot in suit. All these receipts show that the payments were received from deceased Rafiq Ahmed. The learned counsel for the plaintiffs has also relied on the two cheques which show that the amount of Rs.3,00,000 was paid through cheque by deceased Rafiq Ahmed to Messrs. Haque and Sons who are also the builders and another cheque shows transfer of an amount of Rs.10,25,000 to the account of Sadiq (Account No.1588 on 22‑5‑1989). He has submitted that the sale agreement was executed on 24‑5‑1989 which shows the payment of this very amount of Rs.10, 25,000 to the vendors. He has also relied upon Annexure B filed by the Department No.l .with his written statement which are photostat copies of the two pay orders for Rs.5,12,500 each through which the payment was made to the Vendors from the account of Muhammad Sadiq. From these documents he has shown the payment of the Vendors from out of the funds of the plaintiffs. The learned counsel for the plaintiffs has also referred to the photostat copies of the Gift Deed executed by Defendant No.1 on 25‑9‑1989 confirming the previous oral gift made on 28th August, 1989 whereby the said property is shown to have been gifted to the deceased by the defendant No.1. The learned counsel for the plaintiffs has also referred to a Declaration, evidencing Benami transaction given by the defendant No.1 on the same day i.e. 24‑9‑1989 whereby he has confirmed the nature of transaction to be benami. Mr. Aijaz Khattak, learned counsel for defendant No.l has submitted that he has denied 'these documents and as above‑stated relies only on the mutation order and the stand taken by the defendant No.2. . It may be observed that in order w consider the case of the parties for grant of injunction under Order XXXIX, rules 1 and 2, C.P.C. the three essential ingredients which are to be taken into consideration arc that the plaintiffs should show prima facie case existing in their favour which means arguable case. From the above discussed material on record prima facie, the plaintiffs have been able to make out an arguable case with regard to payment of the consideration of the property in dispute which has not been adequately rebutted by the defendant No.l nor any other independent material has been brought on record by defendant No.l to show if with regard to plot in suit and construction thereon was made from the funds of the defendant No.l. The second ingredient that would be necessary for consideration is whether the plaintiff would be liable to suffer the irreparable loss and whether the balance of convenience goes in favour of the plaintiff. Balance of convenience in fact means balance of inconvenience and it has to be seen that if the interim relief is denied to the plaintiff, whether he would be a greater sufferer if he succeeds in the suit which it as compared to the case where be losses in the suit. The injunction prayed in this case is only with regard to transfer and subsequent creation of third party interest in the suit property and not with regard to dispossession of any party from the property in suit. In. these circumstances, I find that the three ingredients are in favour of the plaintiffs, I would, therefore, allow this application and grant injunction as prayed for with direction that the defendant No.1, if in possession shall not be dispossessed till disposal of this suit.

2. This application has been moved by the plaintiffs under section 151, C.P.C. with the prayer that the plaintiffs be permitted to place on record photostat copies of the two cheques claimed to have been issued by deceased Rafiq Ahmed. The documents show that the cheques were duly encashed as one of them was issued in the name of Muhammad Rafiq for Rs. 10,25,000 and the other was issued to Messrs Haque & Sons for Rs. 3,00,

000. The learned counsel for the defendant No.l has opposed the application vehemently. Since the documents form part of Bank record I allow this application. Let the documents be taken on record which will be permitted to be produced in evidence at proper stage subject to proof and admissibility. H.B.T./M‑1553/K Application allowed.