P L D 1986 Karachi 358 (PLP)

SAJJAD ALI SHAH, J.‑This High Court Appeal calls in question order, dated 15‑12‑1985 passed by learned Single Judge on an application under Order XXXIX, rules 1 and 2, read with section 151, C. P. C. to a suit. for Specific Performance of Contract and cancellation of sale‑deed. In the impugned order, stay as prayed specifically in the application is not granted but substantial relief has been granted by putting respondent No. 4 (defendant No. 4) on terms and making rule of the Court under taking given by the counsel of respondents. Briefly stated relevant facts giving rise to this appeal as per version of appellants are that appellant No. 1 Mobinul Haq Siddiqui and appellant No. 2 Mrs. Suriya Johan before us who are husband and wife reside in the house which is described in detail in the plaint. Respondent No. 1 Mrs. Hajra Farooqui, is owner of that house and respondent No. 2 Zahir Muhammad Farooqui is her husband and attorney. Respondent No. 3 Ghulam Asghar Khan is also attorney of respondent No.

1. Respondent No. 4 Wasiullah Khan is subsequent purchaser of the house in question. Respondent No. 1 as landlady filed ejectment case against appellant No. 1 on the ground of default under the provisions of Sind Rented Premises Ordinance, 1979, which came to be dismissed against which First Rent Appeal as filed which is right now pending in this High Court. Respondent Nos. 1 and 2 reside in U. S. A. and respondent No. 2 on his visit to Karachi sounded appellant No. 1 that he proposed to sell the house in question to which the latter agreed and in that con nection talks/' took place between the parties mentioned above, with participation of respondent No.

3. Price of the house was set at Rs. 15,50,000 to be paid at the time of execution of sale‑deed. Some other terms and conditions were also settled. Another meeting was held in the office of respondent No. 3, which was attended by Pervaizul Haq son of appellants and Haroon Dawood, Estate Agent. Respondent No. 2 produced documents of title for inspection. Subsequently as agreed copy of draft of sale‑deed for approval was sent to appellant No. 2 alongwith photo copies of lease‑deed, rectification‑deed and no objection certificate. It may be mentioned here that it was agreed that house would be purcha sed in the name of appellant No.

2. Subsequently with the consent. of respondents Nos. 2 and 3 Public Notice was published in Daily "Dawn" of 14‑3‑1985 inviting objections to the proposed sale. On 24‑3‑1985 by letter respondent No. 2 advised that respondent No. 1 never negotiated sale of the house in question and backed out from the transaction. On 13‑4‑1985 appellants through their Advocate replied calling upon respondents 1 and 2 to complete the transaction and execute the sale‑deed. On 30‑4‑1985 appellants were informed by way of letter that respondent No. 4 has purchased the house in question and appellants were called upon to vacate the premises as new landlord required them for his personal need as contemplated under section 14 of the Sind Rented Premises Ordinance, 1979. Appellants found out from the office of the Registrar that though steps were taken but sale‑deed in favour of respon dent No. 4 was not registered as yet. Appellant also came to know that house was being sold for Rs. 6,00,000 (six lacs) only. Consequently the suit has been filed. Documents filed alongwith plaint are Photocopies of draft of sale‑deed, lease‑deed, deed of rectification, No Objection Certificate, public notice, letter, dated 19‑3‑1985, letter, dated 13‑4‑1985 from Advocate of appellants, Notice, dated 13‑4‑1985 on behalf of respondent No. 4, appellants' reply, dated 6‑5‑1985 and order of Rent Controller, dated 26‑5‑1981. Appellants also filed affidavits of Haroon Dawood and Pervaizul Haq. Alongwith plaint, there was application under Order XXXIX, rules 1 and 2, C. P. C. read with section 151, C.P.C. on which notice was directed to be issued with order for maintenance of status quo, which has been ultimately disposed of by order impugned herein. On the other hand in the trial proceedings respondent No. 3 as defendant No. 3 (namely Ghulam Asghar Khan) filed written statement admitting that he had been appointed attorney of respondent No. 1 to act‑as such in the absence of respondent No. 2 while being away from Pakistan further specifically denied having knowledge of or participated in the talks relating to the transaction in question as alleged by appellants. Wasiullah Khan respondent No. 4 as defendant No. 4 filed written statement claiming therein that since 6‑4‑1985 he is the sole owner and transferee of the house in question having purchased the same from respondent No. 1 through her husband respondent No. 2 through duly executed sale‑deed presented for registration. He denied having any knowledge about first transaction in favour of appellants. He claimed that some necessary documents were given to appellant No. 1 as sitting tenant for the purpose of attornment in favour of new landlord from which documents have been forged for use in support of the claim in the Suit as such appellants are not entitled to the equitable relief of Specific Performance of Contract. Alongwith written statement have been filed draft of sale‑deed, capital gains tax, 'paid' challan and two registration receipts. Respondents 1 and 2 (Mrs. Hajra Farooqui and her husband Zahir Muhammad Farooqui) as defendants 1 and 2 have filed joint written state ment from United States of America duly attested in the Embassy of Pakistan at Washington. Stand taker/ in this written statement in nut shell is that appellant No. 1 is sitting tenant in the house in question which has been sold by the respondent No. 1 through respondent No. 2 to respondent No. 4 for consideration of Rs. 6 lacs through sale‑deed duly executed and presented for registration. Sale‑transaction with appellants as alleged by them is denied in totality. Respondent No. 3 Ghulam Asghar Khan and respondent No. 4 Wasiullah on his own behalf and on behalf of respondents Nos. 1 and 2 as their duly constituted attorney filed counter‑affidavits against stay application. Appellant No. .1 Mobinul Haq filed affidavit in rejoinder. Now prayer in. the application under Order XXXIX, rules 1 and 2 read with section 151, C. P. C. filed in the trial Court is that defendants (respondents) be restrained from transferring, encumbering, mortgaging, leasing, completing the registration of sale‑deed, dated 6‑4‑1985 or dis turbing the possession of plaintiffs (appellants) or interfering with property in. suit. Another prayer is that defendants (respondents) be restrained from completing the registration of sale‑deed, dated 6‑4‑1985 which is presently deposited with Sub‑Registrar. After hearing the counsel for both the parties, learned Single Judge passed the impugned order, relevant paragraph therefrom is reproduced as under :‑‑ "I am of the view that the balance of convenience in this case lies against the grant of temporary injunction as prayed for. In this view of the matter the defendant No. 4 cannot be deprived of the same without final adjudication by this Court on the pleas raised by the plaintiffs in their plaint. Mr. Mansoor Ahmad Khan the learned counsel for the defendants has submitted that the defen dants undertake not to alienate, transfer, encumber, mortgage the property in suit till the disposal of the suit. The undertaking is made rule of this Court and breach thereof will be the breach of injunction. In view of the above legal position it is not necessary to restrain the Registrar from completing the registration if there is no other impediment in completing the registration. However, in order to protect the interests of the plaintiffs it would be necessary, in my view, to put the defendants on terms. In the result while refusing to grant the injunction as prayed, I would however, restrain the defendant No. 4 froth transferring alienating, encumbering, mortgaging, leasing the property in dispute. The application is disposed of in the above terms. The status quo order issued earlier stands discharged and substituted as above." We have heard Mr. A. A. Fazeel, Advocate for the appellants and Mr. Mansoor Ahmad Khan, Advocate for the respondents. Mr. Fazeel has assailed the impugned order on many grounds. Firstly that appellants had succeeded before the learned Single Judge in establishing a prima facie case on the basis of which they were entitled to the relief as prayed by them in the interlocutory application. On being so satisfied in the im pugned order substantial relief has been granted by making the undertaking given by Mr. Mansoor Ahmad Khan as rule of the Court and equating the same with injunction making breach thereof to be breach of injunc tion. This rule of the Court envisages that defendants in the suit under take not to alienate, transfer, encumber, mortgage the property in suit. Furthermore, respondent No. 4, who is defendant No. 4 in the Suit proceedings is restrained in the impugned order from transferring, alienating, encumbering, mortgaging, leasing the property in dispute. It is argued that relief stated above has been granted in the impugned order on the basis of the fact that prima facie case was made out, then whole relief as prayed in the application also could have been granted. Secondly it is argued that conclusion in the impugned order that balance of con venience in this case lies against the grant of temporary injunction as prayed for is inconsistent with substantial relief which has been granted in the impugned order. Thirdly as stated in the impugned order, in the rule of the Court, all the defendants in the suit are restrained from acting in the manner described therein but after putting the defendants on terms, only defendant No. 4 in the suit has been finally restrained from trans ferring, alienating, encumbering, mortgaging or leasing the property in dispute leaving room behind for inconsistency. Fourthly perusal of the impugned order shows that some important documents were missed to be noticed such as envelope containing photocopy of draft of the sale‑deed addressed to "Mr. Mobin Siddiqui or Mr. Pervaiz" in the handwriting of respondent No. 3 and further that envelope also has borne in print the name of respondent No. 3's Company. Extract of power‑of‑attorney in favour of respondent No. 2 with note "Mr. Pervaiz/true copy" in the handwriting of respondent No. 3 has not been considered. Passing reference in the impugned order is made to the draft of sale‑deed as alleged to b forged by the other side but the learned Single Judge has not drawn hi own conclusion in this respect. Signatures alleged to be forged or dis puted were not compared with admitted signatures in the document produced by the parties as contemplated under section 84 of Qanun-e-Shahadat, 1984 (section 73 of the Evidence Act) and fifthly this fact was not considered that on behalf of appellants public notice was published in daily "Dawn", dated 14‑3‑1985 and after that respondent No. 4 claims to have purchased the same suit property for consideration on 6‑4‑1985 as such he is not entitled to protection under section 27(b) of the Specific Relief Act. Burden of proof of good faith and lack of notice lies upon subsequent purchaser which has not been discharged. Mr. Fazeel argued that in the circumstances of this case plaintiffs in the suit for Specific Performance of oral contract have made out a prima facie case and are entitled to the relief as prayed by them in the interlocutory application. In support of the proposition reliance is placed by him on the cases of Manik Chandra Bhowmik v. Abhoy Charan Gope ((1913) 24 Cal. L J 90) and Kumar Gokul Chandar v. Haji Muhammad Din ((1937) 42 C W N Weekly Notes 97). On the question of burden of proof of good faith lying on succeeding. purchaser reliance has been placed on the cases of Shankurlal Naravandas v. The New mofussil Co. Ltd. and others (A I R 1946 P C 97), Malik Muhammad Ishaque and another v. Mirza Almas Ali Beg and others (P L D 1969 Lah. 762) with relevant portion at p. 765, para. 4, Gauri Shankar v. Ramsewak and another (A I R 1934 All. 1045) and Marwadi Sumermal Jamatraj v. Thukkappa (A I R 1944 Mad. 391). It was submitted on behalf of the appellants that subsequent transfer is false and fake for the reason that consideration is only six lacs, which is grossly inadequate as compared with consideration of Rs. 15,50,000 agreed in the first transaction. Respondents have done so in collusion with each other in order to defeat the claim of the appellant No. 1 and also to get rid of him as sitting tenant by providing ground of ejectment in favour of Wasiullah as contemplated under section 14 of Sind Rented Premises Ordinance, 1979, which has been already invoked by him under which he has served notice. This could be prevented only when registra tion of sale‑deed in the second transaction is stayed. It was submitted by Mr. Fazeel that in such circumstances pecuniary compensation would not afford adequate relief as contemplated under section 12 of the Specific Relief Act, 1877, and full relief as prayed in the interlocutory application should have been granted because only then intended mischief could be stopped from being committed. In view of such peculiar circumstances of this case balance of convenience would lie in the fact. that the property may be kept available for the plaintiffs in the suit if the suit is decreed. In support of the proposition reliance is placed on the cases of Anjum Rehmat and another v. Gulam Sadiq (1981 C L C 276), Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan (P L D 1956 Kar. 521) and Sheikh Mahammad Rafiq Akhtar v. Gulam Sadiq (1981 C L C 453). Pertinent point for consideration is whether registration of sale‑deed, dated 6‑4‑1985 of the second transaction pending registration with Sub Registrar T‑Division XI, Karachi should be stayed or not. Learned Single Judge has declined to do so. It is urged on behalf of the appellants that this is very necessary otherwise their case will be seriously prejudiced because with registration title will pass on to the subsequent purchaser (respondent No. 4) and he would take in hand ejectment of appellant No. 1 as sitting tenant in the suit property in summary manner on the short ground that the suit property is required for the personal use of the new landlord who has attained the age of 60 years. On the other hand Mr. Mansoor Ahmad Khan, Advocate for the respondents argued that date of execution of sale‑deed in favour of Wasiullah is, dated 6‑4‑1985 and on that date title stood passed to Wasiullab. In this respect sections 47 and 49 of the Registration Act, 1908, are to be read in conjunction with each other. Section 47 envisages that a registered document shall operate from the time from which it would have commenced to operate if no registration thereof had been required or made, and not from the time of its registration. C Section 49 provides that no document required to be registered shall operate to create, declare, assign or extinguish any right, title or interest, unless it is registered. Conjoint reading of both these sections clearly show that if the document is required to be registered it will acquire validity from the date of execution only after registration. Mr. Mansoor Ahmad Khan has argued to the contrary and has submitted in the context of the facts of his case that respondent No. 1 Mrs. .Hajra Farooqui and respondent No. 4 Wasiullah are not at issue because transaction between them is over and is a closed chapter and whatever was required to be done has been done on behalf of vendor and purchaser. So for all the practical purposes, title also has passed to the new purchaser because sale‑deed and other relevant documents have been signed and presented in the Office of Sub‑Registrar and the matter is pending only for ministerial works as contemplated under section 35 of Registration Act. This type of work being routine in nature would not come in the way of title which has already passed to tile Purchaser. Reliance has been placed by Mr. Mansoor Ahmad Khan on the case of Ata Ullah Ualik v. The Custodian Evacuee Property, West Paki tan and Karachi and others (P L D 1964 S C 236), with relevant portion at

254. The facts of the reported case are entirely different and have been discussed in the context of section 61 of the Pakistan (Administration of Evacuee Property) Ordinance, which is not attracted to the facts of this case. On the other hand in support of the proposition that when the document is registered, validity goes back to the date of execution, D Mr. Fazeel has cited the cases of Sadei Sahu v. Chandramani Dei and another (A I R 1948 Pat. 60), Sm. Krishna Subala Bose and others v. Dhanapati Dutta and others (A I R 1957 Cal. 59), Thirumagaral Mudaliar v. Muruga Pillai (A I R 1960 Mad. 55), Ram Saran Lall and others v. Mst. Domini Kuer and others (A I R 1961 S C 1747), Alapati Venkataramiah v. Commissioner of Income‑tax, Hyderabad (AIR1966SC115), Majid Ahmad and 4 others v. Ch. Muhammad Sadiq and another (P L D 1983 Pesh. 108) and Habibur Rehman and another v. Mst. Wahdanta (P L D 1984 S C 424). For the facts and reasons stated above and keeping in view the legal position enunciated in the case‑law quoted above, we set aside the impugned order and grant interim injunction as prayed in the interlocutory applica tion filed in the suit. We also direct that the suit may be disposed of within one year. In the result appeal is allowed but there will be no order as to costs. M. B. A. Appeal allowed.