2009 PLP 6 (YLR)

GHULAM DASTGIR A. SHAHANI, J.

Revision Application is submitted being aggrieved and dissatisfied with the impugned order dated 18-1-2007 passed in C.M.A. No.51/2006 by the District Judge, Karachi South (Syed Muhammad Ansaruddin v. Razia Khatoon) by which order dated 18-12-2006 passed by VI-Senior Civil Judge, Karachi South in Suit No. 1635/2003 was maintained. Facts in brief are that a suit No.797/1999 was filed by the applicant/ plaintiff alleging therein that a constructed building known as Afandi Manzil consists of five storeys occupied by a different tenants, on. Plot No.10/7, Survey sheet No.RB-7 situated at Ratan Talao Road, Aram Bagh Karachi, purchased by him from the defendant through her husband namely Siraj Salakeen (deceased) by virtue of an agreement of sale dated 29-9-1996 for consideration of Rs.12,00,

000. His further case is that an amount of Rs.300,000 were paid by a receipt, whereas, an amount of Rs.1.00,000 at the time of execution of agreement of sale. As such in all an amount of Rs.400,000 paid by him and remaining amount worth Rs.800,000 were agreed to be paid at the time of execution of registered deed, for which applicant is ready and willing to pay at the time of execution of sale-deed and offered balance amount, but respondent/ defendant always avoided on one or the other reason. Not only this, but notice was also served to the defendant through learned counsel in order to perform her part of contract, but she avoided and refused, subsequently, therefore, suit was filed with prayer to direct the respondent/ defendant to execute a registered sale-deed in respect of building in question on receiving its balance amount and in case of non-compliance, Nazir of the Court be directed to execute the same on her behalf. After service, a written statement was submitted by the respondent/ defendant and disputed the agreement of sale to be forged and fabricated including so-called payment receipts. As per record suit for specific performance of contract was filed and was not prayed for a consequential relief of injunction. However, injunction application might have submitted before the Trial Court subsequently. From record further reveals that after hearing to the learned counsel injunction application was dismissed on 18-12-2006 by the VI-Senior Civil Judge, Karachi South. Being aggrieved and dissatisfied C.M.A. No.51/06 was filed by the applicant/ plaintiff, but that was also dismissed on 18-1-2007 by the learned District Judge, Karachi South, hence present Revision Application. Mr. Abdul Wahab Baloch learned counsel for the applicant mostly repeated same facts as disclosed in the memo. of Revision Application. However, he added that by virtue of an agreement of sale, plaintiff/ applicant is entitled for consequential relief of injunction in order to maintain same position during pendency of suit. Reliance is placed in a case of Anjum Rehmat and another v. RTD . SQN/LDR. Shaikh Ghulam Sadiq (1981 CLC 276), Shaikh Muhammad Rafiq Akhtar V. SQN/LDR (RTD) Shaikh Ghulam Sadiq (1981 CLC 453) and Muhammad Shaheen Aziz Niazi v. Muhammad Baqir and another (1985 CLC 2733). Heard Mr. Abdul Wahab Baloch learned counsel for the applicant and perused the material available on record. Appeal is a right of a person, whereas, Revisional Court may exercise the power, if subordinate Court acted illegally or committed material irregularity or not acted in accordance to law or acted beyond his jurisdiction or order is void or coram non judice and cannot interfere in each and every case and plaintiff has to prove his own case and he cannot be benefited on the weakness of the other side. So far injunction application is concerned, suit for specific performance of contract was filed and no prayer was made for consequential relief. However, injunction application is decided by the Courts below. On perusal of C impugned order passed by the learned District Judge, Karachi South, it reveals that applicant/plaintiff has suppressed the material facts in the memo. of plaint that CPLA No.334-K/2006 (Syed Muhammad Ansaruddin v. Mst. Razia Khatoon and others) and CPLA. No. 335-K/2006 (Mst. Hameeda Begum v. Mst. Razia Khatoon and others) were finally disposed of by the honourable Supreme Court of Pakistan vide judgment dated 12-7-2006, as rent application for ejectment was filed and finally disposed of and a period of (120) days was allowed to the, petitioner for handing over the vacant and peaceful possession of the property to the respondent, subject to payment of usual rent and other charges, failing which any would be liable to be evicted without service of notice. However, for disposal of injunction application, there are three ingredients which are to be considered (i) Prima facie case, (ii) Balance of convenience and (iii) Irreparable loss, which cannot be compensated in terms of money. So far first ground is concerned, the applicant/plaintiff has relied only on agreement of sale, alleged to have executed in his favour by the defendant/respondent but not denied the original ownership of the Defendant, whereas, execution of an agreement is disputed by the other side to be a forged, fabricated and managed document, and it is yet to be determined, whether that has been executed in favour of plaintiff/applicant or same is a forged and fabricated document. Legally, only mentioning in the agreement in respect of transfer of possession in favour of somebody else, does not create a right of the person and is not sufficient, and there must be other material evidence to prove the execution of an agreement and possession. In the present matter, applicant/plaintiff being a party of the proceedings to the level of Honourable Supreme Court must have to disclose the entire facts, but he has suppressed the facts, including orders passed by the apex Court in respect of ejectment, reasons best known to him. Even otherwise, at this stage there is no reasons that version of the original owner be disbelieved. So far rest of the ground is concerned, there will be no inconvenience nor applicant will suffer any loss of such a nature which cannot be compensated in terms of money, as possession of the property can be resorted to the applicant/plaintiff. So far law relied upon by the learned counsel is concerned, facts of the present matter are not similar and identical and will not help to the applicant/plaintiff. Under the aforesaid facts and circumstances, when respondent/defendant is admittedly original owner of the property, collecting the rent as per terms and conditions, agreement of sale is in. dispute, the entire facts in respect of ejectment proceedings to the level of Honourable Supreme Court of Pakistan including order passed time to time have been suppressed and in a main suit, not prayed for a consequential relief, the lawful owner cannot be restrained from his legal right of transfer and etc, only on the basis of an agreement which is in dispute, though possession always follows title and agreement at this stage not create any right, as stated above. Even otherwise from the face of impugned orders prima facie no illegality or material irregularity is committed by the Courts below nor acted without jurisdiction and orders are not void or coram non judice, hence no interference is required at this stage and that was the reason that Revision Application was dismissed by a short order dated 29-9-2008 along with listed applications. These are the reasons for the same. H.B.T./M-169/K Application dismissed.