P L D 1967 Karachi 821 (PLP)

The injunction that the learned Civil Judge granted was to the effect that status quo be maintained and that neither party shall proceed to effect tiny change in the situation as it existed at the time of the order. This order was passed as I have said on 14‑3‑66 and it was on 11‑7‑66 that the defendant No. 2 Mr. Manzoor Ahmed Shaikh applied for being made a party to the suit. He was so impleaded and it; was on his application under Order XXXIX, rule 4 that the injunction which had been earlier granted by the learned civil Judge was vacated by his older 7‑9‑

66. The learned Civil Judge seems to have been vastly impressed by the fact that in the earlier proceedings neither the plaintiff nor the K. D. A. had disclosed the fact that this plot had been allotted to the ‑defendant No.

2. This allotment, it appears was made on 6‑4‑

65. However, there was no evidence on record to show that the plaintiff was aware of this allotment and as far as the K. D. A. is concerned an affidavit had beta filed opposing the grant of injunction to the plaintiff and the order passed by the learned Civil Judge was in the teeth of opposition by the K. D. A. Yet the learned Civil Judge was pleased to observe that there was force in the contention of the defendant No. 2 that the K. D. A. had colluded with the plaintiff: The learned Civil Judge also went on to observe that there was no document on the side of the K. D. A. to show that the plaintiff had been given possession of this plot. This observation was made in spite of the fact that it was the case of the K. D. A. that possession had been given to the plaintiff. In fact, an affidavit had been filed on behalf of the K. D. A. in the previous suit that possession had not been given to the plaintiff by the K. D. A. Indeed, if possession had no been given the K. D. A. could not have acted in terms of clause 12 of the agreement, because it is only 2 years from the date of possession that the allottee is required to complete the building.

3. The learned Civil Judge observed that "on the plaintiff's site there is neither any document of possession from the K. D. A., nor from the previous allottee whose transfer in her favour was approved by the K. D. A. On the contrary, the later dated 16/17th September 1958 from the Land Manager of the K. D. A. to the plaintiff and subsequent cancellation of allotment letter dated 18‑1‑65 addressed to her by the K. D. A. showed that she was called upon to take possession of the plot when transfer in her favour was approved and after the allotment was cancelled due to her committing breach of certain conditions she was called upon to surrender all relevant documents in respect of the plot and to apply for refund of the balance amount. The cumulative effect of these letters pima facie is that she had never taken lawful possession of the plot from the K. D. A., for if she had taken it she should have been called upon to surrender the possession at the time of cancellation of the allotment order and she would have had some document of possession." This quotation shows that the learned Civil Judge was trying to catch any straw to justify vacating the order of injunction which he himself had passed on a finding that a prima facie case has been made out. At one place, the learned Civil Judge said that on the side of the plaintiff there was no document to show that she had obtained possession from the K. D. A. yet he was aware of the letter of 17‑9‑58, to which he has referred that the‑ K. D. A. on their part had given possession to the plaintiff. Not only that, they had even charged ground rent from the plaintiff and it was the case of the K. D. A. that possession had been given to the plaintiff. As against all this the learned Judge found some material in the circumstances that when the allotment of the plaintiff was cancelled the K. D. A. merely asked the plaintiff to surrender documents and apply for refund and did not ask for possession and therefore, the conclusions was reached that the plaintiff prima facie had never taken lawful possession I am completely at a loss to follow the reasoning of the learned Civil Judge. He further went on to observe. "I do not think these documents would furnish better proof of possession than the actual delivery of possession in favour of the defendant No. 2 by the K. D. A." Upon what material the learned Judge came to the conclusion that actual delivery of possession had taken place in favour of the defendant No. 2 it is not clear. On the other hand, the documents show that the allotment to the defendant No. 2 was made on 6‑4‑65 and on 7‑4‑65 a letter was written to him to contact the Executive Engineer to take over possession. Simultaneously with this another later was signed by somebody on behalf of the defendant No. 2 which contained a statement on behalf of the said allottee: "I accept the plot allotted to the applicant/me in the condition as it, is today." Both these forms of 7th April 1965 are the printed forms of the K. D. A. and prima facie it, would appear that these paper transactions were done in hot haste. It is, however, difficult from these documents to draw an inference that actual possession was given by the K. D. A. to the defendant No.

2. The learned Civil Judge further observed:‑‑‑ "The issue of injunction in favour of the plaintiff would completely knock out the status and position of the defendant No. 2 and would on the one hand dislodge him before he has been given chance to establish his case by disproving the plaintiff's case and on the other hand pre‑Judge that the action of the K. D. A. in cancelling the plaintiff's allotment and granting it to the defendant No. 2 and giving him possession was illegal and pending the suit it would keep the plaintiff in unduly advantageous position."

4. It is plain to me that the learned Civil Judge mis directed himself as to the real question which he was called upon to consider. Admittedly, in this case the plaintiff was in possession at the time of the filing of the suit and on the date when this order was passed the question to consider was whether there was a triable issue on the main question raised by the plaintiff, viz. that the cancellation of her allotment by the K. D. A. was not valid. It is obvious that if the plaintiff succeeded on this question the defendant would fade out from the picture and whatever bad happened in his favour after the cancellation of the allotment of the plaintiff would be of no legal effect and would come upon him no right. On the question of possession having regard to what has been said above and particularly as it was the case of the K. D. A. that possession has been given and ground rent had been charged from the plaintiff, the K. D. A. would have no power to dispossess the plaintiff without recourse to legal process. This position was conceded at the hearing before me having regard to the provisions of the K. D. A. order as they stood at the material time. That being so, it would follow that the K. D. A. would have no power to give possession of the plot to the defendant No. 2.

5. The learned Civil Judge was of the opinion that the plaintiff had not come with clean hands because she had suppressed the fact of allotment to the defendant No.

2. As I have said there was no evidence to show that she was aware of this allotment. Moreover, considering that she was challenging the validity of the cancellation of her allotment the subsequent allot ment to the defendant No. 2 was of very little significance. The real dispute in the suit was between the plaintiff and the K. D. A. and not between the plaintiff and the defendant No. 2.

6. The learned Civil Judge further observed that though there was allotment in favour of the defendant No. 2 and possession was handed over to him either on 7th or 8th April 165 there was completely bill on the side of the plaintiff until August 1965 when she came to Court. This was not a correct statement of facts because the plaintiff had filed her first suit on 30th April 1965.

7. On appeal by the plaintiff against the order of the learned Civil Judge the learned District Judge also failed to see the real issues involved in the case at the stage at which the order of the Civil Judge was passed. With regard to the contention of the plaintiff that she had signed no agreement with the K. D. A. and, therefore, she could not be accused of violating any term, he observed that even if no time limit was fixed the construction had to be completed within a reasonable time. He went on to add that the housing societies bad also prescribed time limit for the purposes of construction by the allottee. He also took the view that the plaintiff prima facie did not acquire possession by lawful means and she had taken advantage of the absence of the defendant No. 2 who had gone abroad. He further observed that the plaintiff in order to recover possession from the defendant No. 2 ought to have had recourse to legal process but instead she took the law into her own hands and trespassed on the plot. From what I have said above I am clearly of the opinion that these observations were completely unjustified.

8. The learned District Judge was also of the opinion that the filing of the first suit without notice and following it up by a second suit after notice showed that the plaintiff had not come with clean hands and particularly because she had not impleaded the defendant No.

2. I am unable to agree. If the plaintiff's suit, assuming it was a bona fide one, suffered from a technical defect of want of notice, there was nothing unclean about withdrawing that suit with the permission of the Court and filing a fresh suit as was done in this case. As to the non‑impleading to the defendant No. 2 I need not repeat what I have already said.

9. Considering that the plaintiff was in possession on the date of the suit the main thing to consider was whether there was a triable issue in the suit and further whether the plaintiff would suffer loss by this possession and whether the balance of convenience was on her side. With regard to the first point there is no dispute that substantial questions of law and fact would arise in the case. Firstly, whether in the absence of the plaintiff having signed the agreement form which contained the penal clause, her allotment was liable to be cancelled with reference to clause

12. Secondly, whether the time limit in clause 12 was intended to be of the essence of the contract, particularly when that clause itself provided that the construction had to be made within 2 years or within such extended period as the Chairman might grant. The further question would be that when time in this respect was not of the essence of the contract as it was obviously not whether the K. D. A. could by a unilateral action make it of the essence of the contract Abdul Hamid v. Abbas Bhai (P L D 1962 S C 1). Thirdly, whether the Court would not in such cases, assuming that the finding on all these points were against the plaintiff, relieve her against forfeiture. Fourthly, whether the cancellation of the allotment of the plaintiff without due consideration of her application for extension of time and the subsequent allotment to the defendant No. 2 of the plot was a bona fide act.

10. With regard to the question of balance of convenience it is sufficient to say that the prices of these plots as was stated at the Bar and is well known have gone up by five to six times. The defendant No. 2 had merely paid the original price. Therefore, the deprivation of possession of the plaintiff would cause an irreparable loss to her and the balance of convenience was on her side.

11. For the reasons given both the orders passed by the learned Civil Judge and the learned District Judge are set aside as having been passed on misapprehension of fact and law and in certain instances upon irrelevant consideration. The temporary injunction first granted by the Civil Judge by his order-dated 14‑3‑66 is restored. The costs of this revision shall be costs in the suit. A. H.