2014 PLP 2021 (YLR)

SHAHID JAMIL KHAN, J.

This revision petition is against order dated 26-2-2014, passed in appeal, by Additional District Judge, Attock, against order dated 28-6-2013 of Civil Judge, Attock. An application under Order XXXIX, Rules 1 and 2 of the C.P.C. (filed by the petitioner/ plaintiff in a suit for declaration etc.) was dismissed by the trial Court.

2. Facts briefly, as per averments in the petition, are that the petitioner being in profession of "Hikmat" was running a Dawa Khana in Texila. He having acquired a strong financial position from the profession, decided to enter into the business of real estate. The respondent No.1, being close relative was allegedly appointed as general attorney to look after his properties. The petitioner himself and through his attorney (respondent No.1) purchased land in various areas/localities of Districts Attock and Rawalpindi. The petitioner transferred the said properties in the name of respondent No.1 as a 'Benamidar'. The power of attorney was cancelled vide "Abtal Nama" dated 30-4-2001 by the petitioner due to shaken confidence in respondent No.1. The respondent No.1 was asked to transfer the said properties in the name of the petitioner but he refused to do so. Hence the suit for declaration etc. was filed.

3. The application filed by the petitioner (as plaintiff) under Order XXXIX Rules 1 and 2 of the C.P.C. was dismissed by Civil Judge, Attock. Appeal filed against the said order also met the same fate. The order dated 26-2-2014 by appellate court is impugned in this petition.

4. Learned counsel for the petitioner has assailed the order of the appellate court mainly on the ground that temporary injunction could not have been refused on applicability of the doctrine of 'lis pendens'. He has relied on two judgments of this Court reported as Mst. Nazir Begum and 2 others v. Muhammad Tahir and another (2005 CLC 925), Fateh Muhammad v. Muhammad Hanif and another (PLD 1990 Lahore 82) and a judgment by Hon'ble Sindh High Court reported as Rana Imran and another v. Fahad Noor Khan and 2 others (2011 CLC 933).

5. Orders of the trial Court, as well as, the appellate court were examined in light of arguments at preliminary stage.

6. It is found that the findings of fact arrived at by both the courts below, on merits for deciding the application for temporary injunction, are concurrent. The courts below have found that the petitioner was, admittedly, not in possession of the suit properties. The power of attorney was, admittedly, not misused to transfer the suit properties in the name of respondent No.1. It is further found that no documentary proof was available on record to show that petitioner paid any amount to purchase the suit properties in the name of respondent No.1. Mere payment of tax under an Amnesty Scheme was found not sufficient to make the case of petitioner as prima facie arguable. It was concluded that in case temporary injunction, prayed for, was granted, the respondent (defendant) would have suffered an irreparable loss. The balance of convenience was also found to have leaned in favour of defendant. It was, however, a passing remark that rights of the petitioner would be protected under the doctrine of 'lis pendens', despite rejection of the temporary injunction.

7. Perusal of both these orders shows that the application under Order XXXIX, Rules 1 and 2 of the C.P.C. was dismissed mainly for the reason that three important ingredients for grant of temporary injunction i.e., "prima facie case", "balance of convenience" and "irreparable loss" could not be found established in favour of the petitioner (as plaintiff) from the facts and evidence available on record at relevant time. Ordinarily, absence of even one ingredient may not justify the grant of stay, but in present case all the three were found against the petitioner.

8. So far the remark given by the appellate court regarding application of the doctrine of 'lis pendens' is concerned, it has already been opined that the same was passing in nature. Nevertheless, it was an appropriate remark under the facts of this case. Similar remarks were given by the superior courts, while rejecting interim injunctions, for instance, this Court in Muhammad Bakhsh v. Hakim and others (2008 YLR 277) and learned Sindh High Court in M.Y. Corporation (Private) Ltd. v. Messrs Erum Developers and 2 others (PLD 2003 Karachi 222). Hon'ble Supreme Court of Pakistan in Munawar Hussain and others v. Messrs Nisar and Co. and others (1976 SCMR 239) also affirmed the application of the principle in following words:-- "There is a well-known maxim: "pendente lite nihil innovetur" (pending a litigation nothing new should be introduced). It provides that pendente lite neither party to litigation, in which any right to immovable property is in question, can alienate or deal with the property so as to affect his opponent. In fact section 52 of the Transfer of Property Act, 1882 is based on this principle which is of general application."

9. The judgments relied upon by the learned counsel are also examined. In all cases, the ingredients necessary for grant of interim injunction were available. This Court in Fateh Muhammad v. Muhammad Hanif and another (PLD 1990 Lahore 82), after holding that the plaintiff had prima facie case and balance of convenience was in his favour observed:-- "though rule of lis pendens applied to the suit for specific performance and amply protected the plaintiff against apprehended pendent lite alienations, yet in order to prohibit and avoid introduction of strangers into the lis which was likely to enlarge the scope of dispute between the parties, it was required that injunction be issued to prohibit the defendants from transferring the land in suit." In Mst. Nazir Begum and 2 others v. Muhammad Tahir and another (2005 CLC 925), this Court, after reiterating the opinion of this Court (reproduced ibid) held:-- "provided the petitioner succeeds in establishing his case on the parameters of prima facie case, balance of convenience and irreparable loss and injury, in its favour." Third judgment Rana Imran and another v. Fahad Noor Khan and 2 others (2011 CLC 933) relied upon by learned counsel was passed by learned Sindh High Court while deciding appeal against order of Single Judge of the same Court. The ingredients/ parameters required for grant of temporary injunction are discussed in this judgment.

10. It can safely be concluded, after examining the case law that for granting or refusing an interim injunction, applicability of the doctrine of lis pendens is not directly relevant. The plaintiff has to make out that (i) prima facie case exists at the time of hearing the application (ii) the balance of convenience leans in his favour, and (iii) irreparable loss would be suffered on refusal of the injunction. Rejection or grant of interim injunction cannot affect the applicability of doctrine of 'lis pendens' which is independently available under section 52 of the Transfer of Property Act, 1882. The conditions precedent to attract the principle, under these provisions, as enshrined in Mst. Tabassum Shaheen v. Mst. Uzma Rahat and others (2012 SCMR 983) are, (i) suit or proceeding should be in a court of law; (ii) the court must have the jurisdiction over the person or property; (iii) the property must be specifically described and should be affected by termination of the suit or proceedings; (iv) the right to property should directly and specifically be in question in the suit or proceedings; (v) an alienation of such immovable property without the permission or order of the court; and (vi) the alienation should be during the pendency of such suit or proceeding. The principle of 'lis pendens' itself carries the nature of status quo regarding the properties, which are in litigation to save the plaintiff.s rights, in case he succeeds. Turner, L.J., explained the doctrine in following words:-- "It is as I think, a doctrine common to the Courts both of Law and Equity, and rests, as I apprehend, upon this foundation that it would plainly be impossible that any section or suit could be brought to a successful termination, if alienations pendents lite were permitted to prevail. The plaintiff would be liable in every case to be defeated by the defendant's alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to be defeated by the same course of proceeding."

11. Though powers under section 115 C.P.C. are supervisory and interference can be made where interlocutory order is arbitrary, capricious and against the well settled principle of law (Reference Mustafa Nawaz Khokhar v. Federal Board of Intermediate and Secondary Education, Islamabad PLD 2003 Supreme Court 154), yet it cannot be invoked against conclusions of law or facts, not affecting the jurisdiction of courts. Investigation into the facts found concurrently by the courts below is deprecated by the Apex Court in a recent judgment of Cantonment Board through Executive Officer, Cantt. Board, Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161). No failure or irregularity in exercise of jurisdiction is found, while passing the impugned orders. Interference, therefore, is declined.

12. Petition is dismissed in limine. AG/M-171/L Revision dismissed.