2008 PLP 277 (YLR)

MUHAMMAD JEHANGIR ARSHAD, J.

The petitioner is aggrieved of the order, dated 11-1-2005 passed by Additional District Judge-II, Bakkhar by which the learned Additional District Judge, while accepting the appeal of the respondent against the order of the learned trial Court, dated 9-4-2004 whereby their application for temporary injunction was dismissed, allowed the appeal of the respondent and issued order restraining the petitioner from further alienating the disputed property in any manner during the pendency of the suit.

2. The facts in brief are that respondent filed suit for specific performance on the basis of some oral agreement regarding land measuring 18 Kanals situated in Mauza Hyderabad Thal, Tehsil Mankera District Bhakar against the petitioner. According to the plaint out of the agreed amount of Rs.24,000, Rs.20,000 were paid to the petitioner and Rs.4,000 were to be paid on the completion of sale. Along with the plaint respondent also filed application seeking injunctive relief. The learned trial Court, however, vide order, dated 9-4-2004 dismissed the said application and against the said order of the learned trial Court respondent filed appeal which has been allowed by the learned Additional District Judge through the order noted above, hence this civil revision.

3. Learned counsel for the petitioner by placing reliance on case of "Muhammad Aslam v. Muhammad Khan and another" 1999 SCMR 2267, submits that where suit for specific performance has been filed on the basis of oral agreement; and denied by the defendant as held by Hon'ble Supreme Court of Pakistan in the cited judgment; prima facie the plaintiff is not entitled for the grant of interim injunction. Further argues that even the learned Additional District Judge while passing the order failed to take notice of principle of lis pendens which provide sufficient safeguard to the plaintiff/respondent in case of alienation of property during the pendency of the suit.

4. On the other hand learned counsel for the respondent has supported the order of the learned Additional District Judge by arguing that in case if the petitioner is allowed to alienate the property it would entail to the plaintiff/respondent as he has to implead the vendee.

5. Arguments heard record perused.

6. So far as the impugned order of the learned Additional District Judge restraining the petitioner from illegally interfering with the possession of the respondent is concerned the same is maintained having been passed on the admission of the petitioner, however, the learned Additional District Judge while passing order restraining the petitioner from alienating the property in dispute failed to take notice of the fact that the provisions of section 52 of Transfer of Property Act sufficiently safeguard the interest of the respondent/plaintiff even in case the property is further alienated by the petitioner during the pendency of the suit. Even otherwise I am satisfied that at present no prima facie case exists in favour of the petitioner for the grant of temporary injunction. Resultantly this revision is allowed and the order of the learned Additional District Judge to the extent of respondent/petitioner from alienating the property in dispute is set aside. However, in case of any alienation by the petitioner during the pendency of the suit, provisions of section 52 of Transfer of Property Act shall prevail.

7. It has been noticed that the suit was filed way back in the year 2003 but due to the pendency of the civil revision no further proceedings have been taken by the learned trial Court in the suit even without any restraining order having been passed by this Court, therefore, the learned trial Court is directed to be careful in future and should restrain from staying the proceedings in any case on the ground of mere pendency of civil revision unless the proceedings have been stayed by this Court through a specific order. The learned trial Court shall, however, ensure that the suit titled as "Hakim v. Muhammad Bakhsh" is decided expeditiously preferably till 31-7-2008. Disposed of. H.B.T./M-511/L Revision allowed.