1999 PLP 2805 (MLD)

I have heard Mr. Gulzar Ahmed for the plaintiff and M/s Zahid Alvi, Afsar Abidi, Alim Akber Shaikh and Raja M. Irshad, Advocates for the defendants. It was contended by Mr. Gulzar Ahmed that the defendants 1 to 18 have separately executed agreements to sell on 16-7-1991 (Annexures P/14 to P/16 filed with the plaint) for selling their respective shares to the plaintiffs. It was further contended that the defendants 1 to 18 have admitted execution of these agreements through their counter-affidavits and, therefore, in order to preserve the suit property it will be in the interest of justice that interim injunction prayed be granted. Initially this application came up for hearing before me on 16-9-1996 when an ex parte ad interim injunction was granted restraining the defendants from creating third party interest in the suit property. Mr. Gulzar Ahmed has placed reliance on the following cases. (1) Muhammad Matin v. Mrs. Dino Maneck Chenoy and others (PLD 1983 Kar. 387), (2) Ferozuddin and another v. Tien Ying Lee and others (1987 MLD 2035 (1)), (3) Mst. Mehmoodi Bibi v. Additional Settlement Commissioner Khairpur and 2 others (PLD 1976 Kar. 181), (4) Muhammad Banaras Khaqan v. Miss ,Rubina Choudhry and others (1997 CLC 997). The most relevant case on the point of grant or refusal of an injunction in suit for specific performance is the case of Muhammad Matin (supra) where a learned Division Bench of this Court after discussing several case law, held, that for the plaintiff of the suit seeking specific performance of a contract as well as interim injunction of prohibitory nature, the burden upon him is not as onerous as the burden would be in obtaining a decree for specific performance. It was held that the requirement of having a prima facie case would be sufficient to grant interim injunction. The term prima facie was interpreted as having an arguable case, as distinct from the plaintiff having no right at all, or, the plaint making fanciful or frivolous claims. It was further held that while making such an enquiry the Court will also keep in its mind the substance of stake involved, for example, the value of the property and the loss that might be occasioned to one or the other party by refusal to grant an injunction. In the case of Ferozuddins (supra) another learned Division Bench of this Court dismissed High Court appeal and upheld order of a learned Single Judge granting interim injunction subject to the condition of depositing balance sale consideration. The same principle was held by my learned brother Mushtaque A. Memon, J, in the case of Muhammad Banaras Khan (supra). With the view to determine presence of all the three ingredients for grant of an interim injunction, I have considered cases of all the parties in detail. The salient features of the case appear to be as follows. (i) There are three plaintiffs in this suit who claim to have individually purchased 25 % shares of defendant No.19 from defendants 1 to 18 through separate agreements. If it is so there must have been 54 agreement in total between plaintiffs and defendants 1 to 18. (ii) That in support of the above point, the plaintiffs have filed only three copies of agreements, namely, Annexures P/14 to P/16 with the plaint which were executed between Muhammad Riaz H. Usman (plaintiff 2) as purchaser and mst. Shaheena (defendant 8) Mst. Farzana (defendant 9) and Mst. Shakila (defendant I 1). (iii) All the three aforementioned agreements were executed on 31st March, 1991 showing that the plaintiff No.2 has paid an amount of Rs.4,17,614 to the seller and that the balance amount was to be p: latest by 25th January, 1992. (iv) Annexures P/22 to P/89 filed with the plaint are either copies receipts, vouchers and pay orders issued and/or executed between December, 1992 to June, 1993 which have been denied by the defendants 3 to 11 who are being represented by Mr. Zahid Alvi. (v) That the instant suit was filed on 28th August, 1996. (vi) That by the end of 1993, plaintiffs 1 and 2 went abroad and that the plaintiff 3 was arrested by the last Government. However, plaintiff No.3 was released on bail on 26th October, 1995. It is not shown in the plaint as to when plaintiffs 1 and 2 returned back to Pakistan. (vii) That against the total sale consideration of Rs.3,25,00,000 the plaintiffs have paid a total amount of Rs.2,80,59,000 and that a balance outstanding is Rs.44,41,

000. During the course of hearing, learned counsel for the plaintiffs, Mr. Gulzar Ahmed has expressed his willingness on behalf of the plaintiffs to deposit this amount with the Nazir of the Court in case of grant of interim injunction. (viii) Case of the plaintiff is silent as to what efforts were done by the plaintiffs during the period June, 1993 till filing of the suit except that on 8th July, 1996 a public notice was printed in daily DAWN Karachi. The case of the defendant No. 3 and defendants 4 to 11 is that they have agreed to sell their shareholding in the partnership firm, defendant No.19, with the two developers, namely, Iqbal Memon and plaintiff No.3, namely, Sikandar Abdul Karim; that on their insistence they agreed to sign agreements with plaintiffs 1 and 2; that the amount of sale price mentioned in the agreements was not paid to the defendants; that the real purchaser was Iqbal Memon who has left country; that since the said purchasers were not able to complete the sale transaction and since the D.H.A. was insisting for payment or otherwise to cancel the land under these circumstances they have sold the land to defendant No.20; that the transfer documents were signed by them before the D.H.A. that the case of plaintiffs is based on bogus documents and on fraud; that the plaintiffs are not entitled in law for interim injunction. The case of defendant No.20, namely, Messrs Al-Kehkashan (Pvt) Ltd. is that they are the, lawful and bona fide purchaser without notice; that they have paid valuable consideration to the defendants 1 to 18 whereafter the transfer documents were filed before the D.H.A. action was restrained by grant of ex parte ad interim injunction; that the suit is barred by Article 113 of the Limitation Act; that the plaintiffs have not filed the remaining agreements of the defendants and, therefore, they have failed to establish a prima facie case. The case of defendant No.21, D.H.A is that the defendants 1 to 18 have executed transfer documents in their office for transfer of their shares in defendant No.19 as well as in the land in favour of defendant No.20 and that they have received their claim against the allotment of suit property. Indeed, on 20-2-1998, plaintiffs have filed their affidavits in rejoinder to the counter-affidavits denying the averments of all the three counter-affidavits filed by the defendants and in addition they have also filed photo copies of some 16 power of attorneys executed by defendants 1 to 18 some time in the month of November, 1991 to show that these documents constitute an intention on the part of the defendants to sell and dispose of their respective shares in the partnership firm and their interest in the suit property to the plaintiffs. Mr. Afsar Abidi and Mr. Raja M. Irshad have objected on filing of these rejoinders at belated stage. It will be seen that the defendant No.3 filed its counter-affidavit on April, 1997 on this behalf as well as on behalf of defendants 4 to

11. The defendant No.20 filed its counter-affidavit of 30th July, 1997 while defendant No.21, namely, D.H.A., filed its counter-affidavit, on 9-9-1997. These rejoinders were filed by the plaintiffs after an unexplained delay of nearly eight months. It has been rightly argued by Mr. Afsar Abidi that a party is not entitled to establish a fresh case through rejoinder affidavit. According to Rule 75(1) of the Sindh Court Rules (O.S.) the counter affidavit must be filed not less than four days before the hearing. Sub-rule (2) of Rule 75 provides that only one affidavit in rejoinder may be filed without the leave of the Court and not less than two days before the hearing and that such rejoinder affidavit should confine strictly to matters of reply. This application became ripe for hearing in the month of November 1997 when on 1st September, 1997 it was adjourned at the request of Mr. Gulzar Ahmed. Again on 9-9-1997 it was adjourned at the request of Mr. Gulzar Ahmed. On 22-12-1997 and 23-2-1998 matter was again adjourned for want of time. In the circumstances, it cannot be said that the rejoinder affidavits were filed within time as provided in Rule 75 of the Sindh Chief Court Rules. Thus, these rejoinders are liable to be ignored. In order to obtain injunction in the cases of like nature, the plaintiff is required to show in order to prove balance of convenience in his favour that he has approached this Court promptly and without unnecessary delay. As discussed above, it is not shown in the plaint as to what efforts were made by the plaintiffs after end of 1993 till filing of the suit. It is admitted in the plaint that the plaintiff No.3 Sikandar Abdul Karim was released on 26th October, 1995 but till the instant suit was filed on 28-8-1996 i.e. after a lapse of 10 months. This in action on the part of the plaintiff No.3 has resulted in transfer to the defendant No.20. The plaintiffs were not able to successfully rebut the allegations of the defendants that they have abandoned their interest and commitments and due to this the contract was breached by the plaintiffs. Mr. Asfar Abidi has relied upon section 27(b) of the Specific Relief Act as well as on the cases Mst. Safia Begum v. Muhammad Ishaq and others (1998 CLC 1915), Muhammad Din and 9 others v. Mst. Absar Fatima and others (1996 CLC 1979). In the case Mst. Safia Begum, it was held, inter alia, by a Division Bench of Lahore High Court that the specific performance of the agreement involved in suit cannot be allowed as there were certain terms and conditions which remained unfulfilled. However, decree for recovery of Rs.60,000 was granted. Mr. Abidi has also argued that the defendant No.20 being a purchaser in good faith and without notice of the so-called earlier contract is entitled for the protection as provided in sub-clause (b) to section 27 of the Specific Relief Act, 1877. Reliance was placed on the case Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaq and 2 others (PLD 1972 SC 25). It will be seen that section 27 provided that a contract may be enforced against a party to the contract; or against a person claiming under such person except a transferee in good faith and without knowledge of the original contract; or against a new company which comes into existence as a result of amalgamation with another public company which has entered into the contract and against a public company which has ratified the contract entered into by its promoters prior to its incorporations. In the case Khair-ul-Nisa (supra) it was held, inter alia, by a Full Bench of the Hon'ble Supreme Court that where a subsequent purchaser appears in Court and states on oath that he had no knowledge of the transfer that would be quite sufficient to discharge the burden and the onus will then shift to the plaintiff to prove that the subsequent transferee had the notice of the original contract. The defendant No.20 has alleged in the opening para. of its written statement that it is a bona fide purchaser for value without notice of the alleged transaction as claimed by the plaintiffs. The same plea was again raised in para. 5 of the counter-affidavit of the defendant No.20. In para. 15 of the plaint it is alleged that after release of the plaintiff No.3 in the month of October, 1995 they started apprehending that defendants Nos. 1 to 18 may sell and transfer their shares. Again in para. 16 of the plaint it is alleged that on 8-7-1996 the plaintiffs got published a public notice in daily DAWN Karachi as they came to know that these defendants have started negotiations with defendant No.

20. On the other hand, the defendants Nos. l and 3 to 11 in their joint written statement vide para. 12 declared that the sale transaction with defendant No.20 was completed on 21-2-1994, prior to release of the plaintiff No.3 from jail. Defendant No.20 has filed a copy of agreement to sell, dated 21-12-1994 with its counter-affidavit. The said defendant has also filed copies of receipts, challans and bank pay orders to show that the sale transaction was completed much prior to publication of the public notice. According to para. 5 of the counter-affidavit of defendant No.21 of D.H.A. the defendants Nos. l to 18 executed the transfer documents in favour of defendant No.20 on 16-7-1995 in the office of the D.H.A. It was stated by Mr. Raja M. Irshad, Advocate for the D.H.A., that all formalities and other necessary requirements for transfer of the said property were completed and now only a formal letter is to be issued in favour of the defendant No.20. In my tentative view, it happened due to inaction on the part of plaintiffs for a period spread over approximately 2-1/2 years. I am of the considered view that the ratio of the case Miss Iqbal Fatima v. Qaiser Tanveer (PLD 1976 Kar. 734) is not attracted in view of the facts discussed hereinabove. It was held by, the Lahore High Court in Mst. Jhandi v. Syed Baqir Ali Rizvi and another (1987 CLC 459) that section 27 (b) of Specific Relief Act caters for the situation where the transferee acquires the property in good faith without having notice of the original contract before institution of the suit and not during its pendency. (See also Muhammad Ramzan v. Muhammad Sharif and others 1987 MLD 403). In view of the above circumstances and facts of the case as noted hereinabove, I am of the considered view that the plaintiffs were not able to establish prima facie that there was any concluded and binding contract between them and defendants Nos. 1 to 8 as it was duty of the plaintiffs to file copies of all agreements as claimed by them. In my tentative view, a power of attorney 6~ will not take place of an agreement to sell as in order to establish a valid and binding agreement a party is required to show that there was a valid offer, its acceptance and a lawful consideration. All these ingredients are not present in the powers of attorney filed by the plaintiffs. The element of delay also disentitles the plaintiffs for equitable and discretionary relief. As such, this application is dismissed but with the following directions. (i) The defendants 1 to 18 shall deposit the amount of earnest money which they have received from the plaintiffs within a period of 30 days with the Nazir of this Court. (ii) After deposit of the above amount, Nazir shall invest the same in some profitable scheme sponsored by the Federal Government and will retain the same till further orders. (iii) That the suit be fixed for regular hearing within three months. Q.M.H./Y-10/K Order accordingly.