P L D 1994 Supreme Court 592 (PLP)

SAJJAD ALI SHAH, J.‑‑‑Petitioner and respondent herein are plaintiff and defendant respectively in Suit No. 860/91 which is pending. The suit is for specific performance, declaration, permanent injunction and damages. It is averred by petitioner/plaintiff in the suit that respondent/defendant, who is trustee of Bani Israil Trust of Karachi, sold the trust properties called "Magain Shalome Synagogue" alongwith outhouses on area of 793 square yards from total area of 1193 square yards described in detail in the plaint for consideration of Rs. 45 lacs vide sale agreement dated 11‑6‑1988. Respondent/defendant received Rs. 5 lacs as earnest money and the balance was paid by four post‑dated cheques. On the remaining area of, 400 square yards building was constructed by Anwar Ahmed Khan, who noised dispute and for that reason there was litigation. In the circumstances three more agreements were executed between the parties on 11‑6‑1988, 13‑7‑1988 and 16‑10‑1990. Vide agreement dated 13‑7‑1988, it was agreed between the parties to the suit in question that Synagogue would be constructed at the cost of‑Rs. 20 lacs and respondent/defendant would not present abovementioned four post‑dated cheques for encashment.

2. Agreement dated 16‑10‑1990 was executed to enable respondent/defendant to get registered sale deed in favour of petitioner/plaintiff which was not done in spite of the fact that latter handed over possession of Synagogue and two flats on the first floor. It is claimed in the plaint that respondent/defendant is demanding more money and unlawfully refusing to register sale deed in favour of petitioner/plaintiff, who made payments through Mr. A.G. Shaikh, counsel for respondent/defendant. Alongwith plaint, application was filed under Order XXXIX, Rules 1 and 2, C.P.C. for grant of temporary injunction restraining respondent/defendant from dispossessing and interfering with peaceful possession of petitioner/plaintiff of building built on 793 square yards.

3. Application for interim stay was resisted and in that connection respondent/defendant filed counter‑affidavit, in which stand is taken that trust property consists of two buildings known as Building No. 1 and Building No. 2, which were given for the purpose of construction to two contractors namely Anwar Ahmed Khan and Aftab‑ud‑Din Qureshi. Building No. 2 was given to the petitioner/plaintiff for construction of shops on the ground floor and halls and Synagogue on the first floor at the cost to be realized as Pagree from customers/tenants. In that context agreements were drafted by. Mr. A.G. Shaikh, Advocate on behalf of respondent/defendant and it was agreed' between the parties that tenants so inducted would be tenants of the Trust, which would recover rent from them. Construction work was held up due to the litigation in the Courts. As per agreement dated 16‑10‑1990, tenants have been inducted in 75 shops from whom rent will be recovered by the Trust and petitioner/plaintiff was allowed six months time to complete the construction of the building. It is further asserted by the respondent/defendant in the counter‑affidavit that petitioner/plaintiff has violated terms of the agreement and failed to give names of the tenants inducted in the shops and flats and is constructing flats in the hall and to stop that, she had to seek aid of area police. Petitioner/plaintiff also filed rejoinder affidavit.

4. In the suit proceedings in the High Court, learned Judge in the Chamber after consideration of material brought on the record by the parties and hearing the arguments granted injunction to the limited extent that respondent/defendant would not sell or alienate the property in question. This order was passed on 3‑10‑1991 against which H.CA. was filed in the High Court before the Division Bench which was dismissed in limine vide order dated 4‑10‑1993 against which leave is being sought in this Court. Order passed by learned Judge in the Chamber on stay application was not interfered with by Division Bench in High Court Appeal, which was dismissed in limine, hence it would be pertinent to reproduce relevant paragraph from the order of learned Judge in Chamber in the High Court in which plausible reasons are assigned for not granting any other relief to the petitioner/plaintiff except imposing restriction on respondent/defendant not to sell or alienate the property in question:‑‑ . "The plaintiff has failed to establish prima facie case in his favour with regard to sale of the property. The defendant on the other hand by production of the documents, execution whereof has not been denied by the plaintiff, has prima facie established that the agreement was for the construction of the building against the right of the plaintiff to induct the tenants and charge Pagree from them. This agreement was acted upon and the plaintiff had handed over the possession of the constructed shops to the defendant after induction of tenants. At this stage to grant an injunction to the plaintiff restraining the defendant from demanding or realising the rent from the tenants would amount to change the‑existing circumstances. Since the rent is being realized by the defendant, if she is restrained, it would cause great hardship to her. On the other hand if the defendant continues to realise the rent, the plaintiff, if ultimately establishes his case, he can recover the said pecuniary loss and thus it cannot be said that the plaintiff will suffer irreparable loss. Balance of convenience therefore also lies in favour of the defendant. The plaintiff is therefore, not entitled to grant of injunction. As the defendant has undertaken not to sell, transfer, or alienate the property, the injunction is granted only to the extent that the defendant will not sell or alienate the property in question.

5. We have heard learned counsel for the petitioner/plaintiff in the suit and have examined the material available on the record. It is his contention that petitioner/plaintiff had produced sufficient material and documents to establish prima facie case with regard to the sale of the property in his favour vide sale agreement dated 11‑6‑1991 (Annexure `A' to the plaint). There appears to be a mistake in the date and according to the plaint, agreement referred to is dated 11‑6‑1988. In support reliance is placed on the cases of Mst. Feroz Begum v. Mst. Amtul Farooq 1976 SCMR 291 and Syed Alamdar Hussain v. Muhammad Ramzan and others 1976 SCMR

347. In both the reported cases facts are different and distinguishable. In the case of Mst. Feroz Begum, sale deed in respect of disputed house was registered and it was held that such document was good enough to justify inference of a prima facie case in favour of plaintiff. In the case of Syed Alamdar Hussain there was concurrent finding of Courts below in respect of mutation of sale purporting sale of property in dispute, which apparently made out a prima facie case in favour of grant of temporary injunction. On the contrary in the instant case agreement dated 11‑G‑1988 is not registered and is disputed. Secondly, documents have been produced by respondent/defendant which show that agreement was for construction of the building from the money of Pagree to be recovered from tenants with right of recovery of rent to the Trust, hence prima facie case was not in favour of petitioner/plaintiff as rightly held by two Courts below. We are unable to find any flaw or legal infirmity in the order of Division Bench which has upheld the order of learned Judge in Chamber declining interim relief and imposing restriction on respondent/defendant not to alienate or dispose of the property in question as mentioned above. Learned counsel for the petitioner was unable to satisfy us as to how respondent/defendant, who is only trustee, could sell Synagogue which is place of worship. In the circumstances and for the facts and reasons mentioned above, we refuse leave and dismiss this petition which has no merits. M.B.A./A‑1148/S Petition dismissed.