2012 PLP 371 (MLD)

TUFAIL H. EBRAHIM, J.

Through this order I intend to dispose of application under Order XXXIX, Rules 1 and 2, C.P.C. (C.M.A. No.4796 of 2011), filed by the plaintiff. Per learned counsel the plaintiff is the lawful owner of Flat No.B-31, Al-Azam Apartments, constructed on Plot No.FL-5/B, Block 13/A, KDA Scheme No.24, Gulshan-e-Iqbal, Karachi, measuring 138 square yards ('suit property'). Per learned counsel defendant No.1 had taken unlawful possession of the suit property when the plaintiff was out of Pakistan. Thereafter defendant No.1 had filed suit for specific performance and permanent injunction against the plaintiff which was dismissed vide judgment dated 31-10-2008 and the appeal filed by defendant No.1 was also dismissed vide order dated 4-3-2010. Learned counsel for the plaintiff has argued that the plaintiff had filed Criminal Complaint No.31 of 2009 under sections 3 and 4 of the Illegal Dispossession Act against the defendants and possession was restored to the plaintiff during the proceedings of the said Criminal Complaint. Learned counsel for the plaintiff has argued that the plaintiff is the undisputed and lawful owner of the suit property and since the suit of defendant No.1 for specific performance and compensation has been dismissed, therefore, the plaintiff even otherwise is entitled to the possession of the suit property. Learned counsel for the plaintiff has argued that the plaintiff is in possession of the suit property and the balance of convenience is in favour of the plaintiff and the plaintiff will suffer irreparable loss if the plaintiff is dispossessed from the suit property by the defendants and, therefore, the interim orders, passed earlier, should be confirmed. On the other hand, Mr. Z. K. Jatoi, learned counsel for the defendants, has stated that since no counter affidavit or written statement has been filed by the defendants, therefore, he would only make legal submissions against the arguments made by learned counsel for the plaintiff. Learned counsel for the defendants has argued that the defendants at this stage are not disputing the title of the plaintiff. Per learned counsel, the plaintiff had obtained injunctive order by concealing the material facts as well as judgment dated 21-3-2011, passed by the IV-Additional Sessions Judge, Karachi (East) in Criminal Complaint No.31 of 2009. Per learned counsel the plaintiff was able to obtain interim relief of possession in Criminal Complaint No.31 of 2009. However, through judgment dated 21-3-2011, the IV Additional Sessions Judge, Karachi (East) has dismissed the complaint of the plaintiff and has directed that the plaintiff to handover the possession of the suit property to defendant. No.1. He has also placed on record the certified copy of the judgment dated 21-3-2011 in Criminal Complaint No.31 of 2009, passed by the IV Additional Sessions Judge, Karachi (East). Learned counsel has argued that the plaintiff was fully aware of the judgment dated 21-3-2011 in Criminal Complaint No.31 of 2009 at the time of filing of the suit and on 6-5-2011, when the ad-interim order of status quo was passed, but for ulterior and mala fide reasons the judgment dated 21-3-2011 in Criminal Complaint No.31 of 2009 was concealed from this Court and injunctive order was obtained. Per learned counsel in terms of judgment dated 21-3-2011 the plaintiff could not be deemed to be in lawful possession of the suit property. I have gone through the record as well as the judgment dated 21-3-2011, passed by the IV Additional Sessions Judge, Karachi (East) in Criminal Complaint No.31 of 2009. Notwithstanding the fact that the plaintiff might be the true and lawful owner of the suit property and the other contentions of the plaintiff, which would require evidence to be recorded, it could not have been stated on 6-5-2011 when the ad-interim injunction order was passed that the plaintiff was in lawful possession of the suit property or that the defendants were attempting to dispossess the plaintiff from the suit property without due process of law. Admittedly, the suit for specific performance filed by defendant No.1 was dismissed, but the plaintiff was not put in possession of the suit property through any specific order in the said suit nor the plaintiff had filed any suit for possession. The plaintiff had preferred to file Criminal Complaint No.31 of 2009 within the meaning of Illegal Dispossession Act and as an interim measure was given possession of the suit property. The said interim measure was subject to the final outcome of the Criminal Complaint and vide order dated 21-3-2011, the learned IV Additional Sessions Judge, Karachi (East) has directed the plaintiff to handover the possession of the suit property to defendant No.1. In the circumstances as aforesaid it cannot be said that the plaintiff was in lawful possession of the suit property and/or the defendants were attempting to dispossess the plaintiff from the suit property without due process of law, when the suit was filed by the plaintiff. The plaintiff through this injunction application by concealment of facts and judgment dated 21-3-2011 has obtained the ad interim order. For the aforesaid reasons and since the plaintiff has not come with clean hands to this Court, therefore, it cannot be said that the plaintiff has a prima facie case or the balance of convenience is in favour of the plaintiff. Accordingly, the listed application of the plaintiff is dismissed with cost of Rs.10,000, to be paid to the defendants and the ad interim order dated 6-5-2011 is recalled. M.H./T-19/K Application dismissed.