2013 PLP 319 (YLR)

The appellant has impugned the order dated 17-5-2011, whereby C.M.A. No. 4711 of 2010 under Order XXXVIII Rules 5 and 6, C.P.C. seeking attachment before judgment of Office No. 114, 1st Floor, Nice Trade Orbit, Main Shahra-e-Faisal and corner of Razi Road and so also seeking directions for depositing the amount of rent being received in view of renting out the subject property to the defendant No.

5. The application was seriously contested. To appreciate the contentions of both the parties, brief facts may be necessary. It appears that plaintiff Rukhsana Yasmeen on 16-2-1998 booked an office and parking in subject project announced by defendant No.2 company Messrs Khursheed and Associates, of which defendants Nos. 1 and 2 were owners and Chief Executive. It, however, transpires that subject premises were further transferred in favour of respondents Nos. 6 to 8, therefore, they have been added as party to the proceedings. It seems that defendants Nos.6 to 8 are successors-in-interest of the original owner of subject premises, of which plaintiff had entered into an agreement to purchase. Learned trial Court, in view of undertaking given by the defendants Nos. 7 and 8 to the effect that "said defendants shall not alienate or create further third party interest in the premises of the demised floor." Defendant No. 1 has concurred to such undertaking. The learned Judge in chambers, therefore, formed an opinion that attachment in the circumstances is not called for and was satisfied with the undertaking given by defendant No.1 and defendants Nos. 6 to 8, as noted above, and dismissed the application. It was contended that since the application under Order XXXVIII Rules 5 and 6, C.P.C. has been dismissed, therefore, the undertaking recorded will be of no consequences and plaintiff apprehension is not attended to by the learned single Judge. Mr. Rehmani, learned counsel for defendants 1, 6, 7 and 8 contends that Order XXXVIII Rule 5, C.P.C. requires that security is offered and/or furnished in cash as may be satisfied in the order to produce the property as may be required by the court or the value of the same or such valuation thereof as may be sufficient to satisfy the decree. It is stated that in case such security is offered and/or furnished, the attachment under Rule 6 of Order XXXVIII C.P.C. cannot be invoked and since the security has been furnished in the form of undertaking, which has been accepted by the learned single Judge, therefore, no cause remains. He reaffirmed and reiterated such undertaking that said defendants shall not create any third party interest and/or charge in respect of fifteen offices situated on the first floor whereupon the office of plaintiff is situated. It may be observed that undertaking not to create third party interest is as effective as an injunctive order against any party and has all its implication and ramification as may flow out of such order including, consequences under Order XXXIX Rule 4, C.P.C. in addition to contempt for violating such undertaking. The only contention of counsel that is causing some concern that the learned single Judge recorded that the said application is dismissed. Although the application in fact was decided in view of undertaking as recorded in the order and as noted herein above, therefore, to that extent such grievance is redressed and application shall be deemed to have been disposed of in view of undertaking recorded in the order of learned Judge in chamber and so also herein above, According to learned counsel it was not only the relief claimed in the application according to him, the subject premises was contracted to be acquired against Rs.1.15 million out of which he has already paid Rs.1.1. million and it is for all practical purposes the property of appellant and he is entitled to reap the benefit thereof, as the respondents Nos.6 to 8 have let out the property and drawing profit out of it. On the specific query of court whether plaintiff/appellant has claimed mesne profit or rental for letting out of subject premises, it is fairly conceded that he has not so claimed, however, he has claimed a compensation for the period of delay as prayed in prayer clause (viii) perhaps if at all the appellant succeeds in establishing such claim at trial such prayer clause may ultimately come to rescue him to claim compensation, if at all for the loss allegedly suffered on account of letting out the premises by the defendant. In view of the forgoing, the appeal stands disposed of. KMZ/R-24/K Order accordingly.