P L D 2000 Lahore 195 (PLP)

This civil revision is directed against the judgment dated 19‑10‑1998 passed by learned Additional District Judge, Lahore, whereby the appeal of the petitioners was dismissed and the order dated 8‑3‑1998 passed by learned Civil Judge was affirmed, resultantly, the petitioners' application for the issuance of temporary injunction filed during the pendency of the suit for specific performance was dismissed.

2. The plaint in the suit filed by the petitioners proceeded on the ground that they are owners in possession of land measuring 2 Kanals, 9 Marlas, comprising Khasra No.622/145(min), situate Village Dhana Singhwala, Tehsil Lahore Cantt., District Lahore while the respondents are owners of an adjacent piece of land measuring 3 Kanals, 14 Marlas, comprising Khasra No.623/146. The petitioners had also asserted that they had constructed a boundary wall at the site and installed a gate therein. It was then maintained that in a previous suit filed by the petitioners, the predecessor‑in‑interest of the respondents entered into a compromise with them whereby they mutually agreed to give passage to each other from the parcels of land owned by the respective parties. The abovesaid compromise was stated to have been signed by the petitioners and the predecessor‑in -interest of the respondents on 24‑1‑1994 and was ratified by their respective counsel on 26‑6‑1995 by making statements which were recorded by the Court. According to the petitioners, the predecessor‑in‑interest of the respondents having died, his successors evinced their intention to sell the entire piece of land measuring 3 Kanals, 14 Marlas i.e. inclusive of the strip of land already exchanged with the petitioners and that too at a time when they had delivered the possession thereof to the petitioners. In the abovesaid circumstances the petitioners filed a suit for specific performance of the agreement with permanent injunction thereby seeking to restrain the respondents from selling the piece of land agreed to be exchanged with them. Alongwith the suit, an application for temporary injunction was also filed with the prayer in the nature of permanent injunction as aforesaid to ensure till the decision of the suit.

3. The suit as also the application had been resisted by the respondents inter alia on the grounds that no such compromise was ever reached between the petitioners and the predecessor‑in‑interest of the respondents and that the petitioners have failed to disclose any transaction about the disputed land. The respondents were at pains to narrate the total history of the previous litigation to maintain that the present suit is barred by res judicata. However, in answer to sub‑para. (ii) of paragraph No.2 of the plaint, it was admitted that some compromise was arrived at between the parties but the same was not for any exchange of the land. Then taking advantage of typographical mistake whereby Khasra No.623/145 instead of 623/146 was written, it was maintained that the plaintiffs have no right in respect of the land so described. By and large the plea of the petitioners regarding exchange of land was denied in one way or the other.

4. The learned trial Court having appraised the pleadings of the parties as also the documents produced on the record came to the conclusion that a photo‑copy of "Musalehatnama" could not be relied unless the same is proved by producing the original in evidence. The observation above‑noted became the basis for holding that there is no prima facie case. Another aspect which weighed with the learned trial Court was to the effect that the petitioners had mentioned in their plaint about a sale‑deed while no such sale‑deed was in existence or found on the record and it seems that the denial contained in corresponding para. of the written statement as to any sale‑deed having been executed between the parties did gain magnitude. In the circumstances, the application for the issuance of temporary injunction was dismissed by the learned trial Court. . The appeal filed against the abovesaid order was also dismissed but on a different ground inasmuch the Appellate Court held that the compromise agreement or the statement of the learned counsel were shorn of details inasmuch as it did not mention the dimensions of the strip of land and that simply saying that width of strip of land to be given and taken in exchange should be so large so as to allow a car to pass is not enough to enforce the contract itself and then if any party is to relinquish or surrender any right regarding any immovable property of value of Rs.100 or more, the same could only ,be done through a registered document. It was held that since specific performance of such agreement could not be granted under section 21 of the said Act, the plaintiffs/petitioners could not be held to have a prima facie case.

5. The abovesaid judgments of the two Courts below have been assailed in the present revision petition.

6. At the bar, learned counsel for the petitioners besides relying on the case as set forth in the plaint referred to extensive litigation which was pending between the parties prior to entering into the compromise afore referred. Reference in this regard was made to F.I.R. No.93 of 1991 recorded on 8‑4‑1991, F.I.R. No.104 of 1991 recorded on 25‑4‑1991 and A F.I.R. No.166 of 1991 recorded on 8‑7‑1991 as also to the two civil cases and the contempt of Court proceedings. It was argued by the learned counsel for the petitioners that as per the compromise settled between the parties all these cases were withdrawn thereby establishing that the predecessor‑in interest of the respondents acted in furtherance of the compromise entered into between the parties, therefore it could not be successfully maintained that no compromise was entered into between the parties. It was then submitted that in answer to sub‑para. (ii) of paragraph No.2 of the plaint, it has been admitted that some compromise was entered into between the parties but with the rider that it was not for any, exchange of the land.

7. It would be noted that the parties were locked in litigation which was ultimately patched up between them by way of a compromise. the said compromise is admitted by the respondents with the rider that it was not in regard to exchange of land. There is only one compromise between the parties and it would be highly unjust and unfair to the petitioners to let the respondents reap the fruit of the compromise inasmuch as the various proceedings filed by the petitioners are withdrawn yet they are not allowed to have the fruits of one recital of the agreement settled in their favour i.e. exchange of land. The learned trial Court refused injunction on the ground that only photostat copy of the agreement had been produced, little appreciating that the agreement/compromise had been admitted by the 8 respondents in their pleadings of course with the rider that it was not for the exchange of land but then this matter could be determined at the trial. Need it be reiterated here. that to be entitled to temporary injunction during the pendency of the suit all that is required to disclose a prima facie case, irreparable loss and balance of convenience. The Courts have been cautioned time and again that at this initial stage, no findings of determinative nature was required to be made on the disputed question of law and fact raised in the suit and all that was required was to keep in the background the facts alleged and disputed in a case and to refer to broad principles of law likely to be applied to resolving them with a view to find out whether there existed a prima facie case. In short the party to be entitled to injunction should simply disclose that he has an arguable case in his favour. This was manifestly done by the petitioner by bringing on record the compromise entered into between them and the predecessor‑in‑interest of the respondents. After all, compromise is an agreement between the parties while the order of the Court is super‑added.

8. Apart from the abovesaid general principle for the grant of temporary injunction during the pendency of suits, the rule as to grant of temporary injunction in the case of specific performance has been enunciated with reference to Fry, a celebrated author on specific performance, in the case of Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan PLD 1956 (W.P.) Karachi 521, which is instructive and for that reason may be reproduced as under :‑‑ "The jurisdiction of the Court in injunction is after ancillary to that in specific performance, for the purpose of preventing the defendant making a use of some legal interest of right vested in this in a way inconsistent with the equity claimed by the plaintiff, or embarrassing the plaintiff by dealing with the property during the pendency of the action or obstructing the performance of some act incidental to the execution of the contract. 'The Court will in many cases interfere and preserve property in status quo during the pendency of a suit, in which the rights to it are to be decided and that without expressing, and often _ without having the means of forming, any opinion as to such rights. The injunction is, therefore, granted, upon interlocutory application and until the trial, on the plaintiff showing a prima facie case for specific performance. It is not necessary that it should be clear that the plaintiff will succeed at the trial; it is sufficient if there is ground for supposing that relief may be given. For on this application the Court will not decide delicate points, nor allow it to be resisted on points, such as delay, which can only be decided at the trial. Fry on Specific Performance, 6th Edn., p.538 Held, that for the purpose of deciding the question whether or not a temporary injunction should issue, the Court will not go into the nice questions of whether in a suit for specific performance, the defendant's son, who had negotiated the transaction of a sale of plot of land with the plaintiff and who had received the earnest money by cheque which the defendant had actually cashed, had authority, scope of which could be determined by drawing a line; it was sufficient it the Court was satisfied that a prima facie case had been made out that he had such authority. Held further, that for the same purpose the fact that the cheque had been cashed by the defendant, the agreement to sell had been sufficiently ratified within meaning of section 198, Contract Act." It has also been observed in the said case as follows:‑ "In a case where there is a clear and undoubted contract as to the validity of which no dispute arises for the sale of the property, the Court will not after that contract has been entered into permit the vendor to transfer the legal estate to a third person notwithstanding the lis pendens will operate against that third person, and that is well‑founded in principle, because the effect of the. contract is to pass the whole equitable interest out of the vendor. So long as the contract is an undisputed contract the whole of the property is in equity transferred from the vendor to the purchaser; the vendor then becomes a trustee for the purchaser and the trustee cannot be permitted to deal with the legal estate so as to inconvenience the purchaser. " Hadley v. The London Bank of Scotland 12 LTR 747 at p.748. 8‑A. The learned trial Court did also remain unmindful of the law available on the subject as also the peculiar facts and circumstances of the case inasmuch as the compromise/agreement between the parties was admitted with the rider that no recital as to exchange of land was settled between the parties. As observed earlier, there was only one compromise which had been produced on the record and it did contain the recital as to exchange of land, therefore, the petitioners were able to disclose prima facie case. Needless to add that balance of convenience which in fact means balance of inconvenience was in favour of the petitioner, who was bound to suffer irreparable loss,. if the strip of land agreed to be exchanged with him had been sold to third party. The learned Appellant Court did also proceed with material irregularity amounting to illegality in the exercise of its jurisdiction while proceeding to dismiss the appeal of the petitioners on different grounds. The argument weighed with the, appellate Court was to the effect that the agreement itself was shorn of details as to length and width of strip of land agreed to be exchanged by the parties. I am afraid the question being germane to the main controversy, the application for the issuance of temporary injunction could not be dismissed on the ground that the plaintiffs have yet to prove their case at the trial. There is a difference between the final proof and prima facie case which should always be kept in mind while dealing with an application for issuance of temporary injunction.

9. In the circumstances, this petition is allowed, the orders dated 28‑3‑1998 passed by the learned trial Court as also that of learned Appellate Court dated 19‑10‑1998 are set aside. Resultantly, the temporary injunction as prayed is granted. There shall, however, be no order as to costs. C.M.A./H‑90/L Petition allowed.