2013 PLP 2178 (YLR)

MUHAMMAD FARRUKH IRFAN KHAN, J.

Mst. Zubaida Bibi, the petitioner through this civil revision under section 115, C.P.C. impugns the order dated 15-4-2013 passed by learned Addl. District Judge, Ferozwala, whereby the said court while allowing the appeal of respondents against the order of learned Civil Judge, Ferozwala dated 3-12-2012 accepted their application under Order XXXXI Rules 1 and 2 C.P.C. in a suit for specific performance.

2. Facts of the case in brief are that the respondents/plaintiffs filed a suit for specific performance on the basis of agreement to sell dated 12-2-2009 regarding the agricultural land fully described in para No.1 of the plaint. It was alleged in the plaint that the defendant/petitioner entered into agreement to sell regarding the disputed land with the respondents/plaintiffs in consideration of Rs.20,00,

000. Petitioner/ defendant received Rs.5,00,000 as earnest money in the presence of witnesses and the parties and witnesses affixed their thumb impressions/ signatures on the agreement to sell. It was settled between the parties that out of remaining consideration amount of Rs.15,00,000 ten lac rupees will be paid after decision of partition application before the Tehsildar concerned and possession will be handed over to the respondents/plaintiffs. On 24-12-2010 petitioner/defendant received Rs.10,00,000 in the presence of witnesses and handed over the possession of the suit property to the respondents/plaintiffs. According to the terms and conditions of the agreement to sell it was settled that after receiving remaining consideration amount of Rs.5,00,000 within four months sale-deed will be executed and registered in favour of the respondents/plaintiffs. On 22-4-2011 respondents/plaintiffs contacted the petitioner/defendant and asked her to receive the remaining consideration amount and transfer the disputed property in their names, but she refused to honour her commitment. Hence, suit for specific performance of contract was filed. The said suit was also accompanied with an application for temporary injunction.

3. Petitioner/defendant contested the suit as well as application for temporary injunction through filing written statement and written reply raising certain preliminary objections.

4. Learned trial Court after hearing the parties proceeded to dismiss the application of the respondents/plaintiffs for grant of temporary injunction vide order dated 3-12-2012. Being aggrieved the respondents/plaintiffs preferred an appeal before the learned appellate court, who vide impugned order dated 15-4-2013 accepted the same. Hence, this revision petition.

5. The learned counsel for the petitioner contends that the learned lower appellate court committed material illegality and irregularity while passing impugned order; that the petitioner totally denied execution of agreement to sell and receipt of token money, therefore, learned lower appellate court was not justified in granting application of temporary injunction on the basis of said document; that ingredients for grant of temporary injunction i.e. prima facie case, balance of convenience and irreparable loss did not exist in favour of the respondents; that the learned trial Court had passed a well-reasoned order which has illegally been set aside by the learned lower appellate court by misinterpreting Order XXXXI, Rule 1 and 2, C.P.C.

6. Arguments heard. Record perused.

7. The claim of the respondents/ plaintiffs is based on a written agreement to sell which though was denied by the petitioner/defendant yet prima facie her thumb impressions along with number of identity card are available on the said agreement as well as in the register of stamp vendor which on a tentative assessment favours the stance of the former. Moreover, learned lower appellate court while appreciating the material placed before her observed that according to the Khasra Gardwari for the year 2012 the respondents/plaintiffs are in possession of the suit property and the learned counsel for the petitioner is unable to controvert this observation of the learned lower appellate court by placing on record fresh Khasra Gardwari. The copies of Khasra Girdawaries annexed with this revision petition pertain to the year 2009-2010 which prima facie supports the version of the respondents/plaintiffs that on 24-12-2010 after receiving further consideration amount of Rs.10,00,000 the possession was handed over to them. In the presence of written agreement to sell coupled with delivery of possession, the respondents/ plaintiffs have a prima facie good arguable case in their favour. The respondents/ plaintiffs shall suffer irreparable loss in case of non-issuance of temporary injunction as such balance of convenience also leans in their favour. In case reported as Mian Muhammad Latif v. Province of West Pakistan through the Deputy Commissioner, Khairpur and another (PLD 1970 S.C.180) the Hon'ble Supreme Court of Pakistan has ruled that, "plaintiff has only to make out a good prima facie case and show that irreparable injury would ensue if injunction not granted". All the above conditions for grant of temporary injunction co-exist in favour of the respondents, therefore, the learned lower appellate court by relying on the attending circumstances of the case accepted the application of the respondents under Order XXXXI, Rules 1 and 2, C.P.C. read with section 151 C.P.C. which needs no interference by this Court in its revisional jurisdiction.

8. Resultantly, this revision petition fails and the same is dismissed in-limine. AG/Z-11/L Petition dismissed.