2005 PLP 1115 (YLR)

Granted, subject, however, to all just exception. Granted. 2 and

4. Plaintiff has moved an application under Order XXXIX, rules 1 and 2, C.P.C. seeking ad interim injunction against the defendants, restraining them from raising any construction, creating charge or create any third party interest over Plot No.ST-1-A/1, admeasuring 5319 sq. yards, situated at Main Shahrah-e-Faisal, Karachi, hereinafter referred to as the suit plot , till the disposal of the main suit. Mr. Rasheed A. Rizvi, learned counsel for defendants Nos. 6, 9 and 10, has filed an application under Order VII, rule 11, C.P.C. for rejection of the plaint on the grounds mentioned therein. He has filed counter-affidavit to the application under Order XXXIX, rules 1 and 2, C.P.C. On receipt of notice, Mr. Mansoorul Arifin, Advocate has appeared on behalf of defendants Nos. 3 and 4 who has also filed counter-affidavit to C.M.A. No.5720/2004. The remaining defendants were called but are not present. As the listed applications can be disposed of after appearance of the above-mentioned counsel, learned counsel advanced their respective arguments for and against the above applications. The suit filed plaintiff is for specific performance with the following prayers:-- (a) This Hon ble Court may be pleased to direct the defendants Nos.1 to 4 perform their part of contract and specifically perform their obligation of the contract and undertaking dated 28-10-2003 and 23-10-2003 in case of failure the Nazir of this Court be directed to get the documents registered in favour of the plaintiff, in alternate the defendant No.1 may be directed to return the amount of Rs.10 million along with profits incoming thereon at the bank rate till the first payment to the plaintiff is made. (b) To issue parmanent injunction restraining the defendants or any body else on their behalf from interfering with the rights of the plaintiff over the property which is undivided plot No.ST-1-A/2, admeasuring 5319.54 sq. yrds., situated on Main Shahrah-e-Faisal, Karachi. (c) That the defendants may be restrained from further raising construction or creating charge or the third party interest over the said property till final deposal of the suit. (d) To grant means profits at rate of Rs.10,00,000 per month on the investment of Rs.1 crore (10 Million) made by the plaintiff in the year 1996-97, for the last three years and till the date of final adjudication of the case. (e) To award damages of Rs.50,00,000 as the plaintiff has been put to mental torture and agony since he has invested Rs.10 million with the defendants Nos. 1 and 2 and has unnecessarily upon the mala fide acts of the defendants, dragged into this litigation. (f) Costs of the suit. (g) To any other relief or relieves this Hon ble Court deem fit and proper for the redressal of the plaintiff. Contention of Mr. Ali Bin Adam Jafri, learned counsel for the plaintiff, is that the plaintiff is an investor and against the property allotted by KDA to defendants Nos. 1 and 2, the plaintiff made investment in pursuance to an agreement dated 4-6-1996. He submits that the investment so made has been duly acknowledged by receipts dated 4-6-1996, acknowledging receipt of Rs.40 lac borrowed by defendant No.1 and three receipts dated 4-1-1997, 1-2-1997 and 1-3-1997 each for a sum of Rs.20 lac respectively. He further submitted that due to impediment and hurdles, the construction could not be raised and subsequently an undertaking for repayment was executed by defendant No.1 on 15-5-2003. As the amount was required to be secured, an agreement for repayment was also executed on 28-10-2003 whereby Mohsin Abbas, defendant No.3 undertook to transfer 300 sq. yrds., out of his 40% share in the suit plot, in favour of the plaintiff in case of failure to repay Rs.10 million on or before 25-5-2004. At the same time, a promissory note was executed along with a receipt for a sum of Rs.10 Million on 23-10-2003 by defendant No.1. Under the circumstances narrated above, the learned counsel for the plaintiff, has submitted that the plaintiff has now learnt about sale and transfer of the suit property by the defendants to third parties, the plaintiff seeks specific performance of the undertaking rendered by the defendants Nos.1, 2, 3 and 4 with respect either to the payment of Rs.10 million or in the alternative, to transfer of 300 sq. yrds. Out of the suit plot in favour of the plaintiff. Mr. Mansoorul Arifin, Advocate for defendants Nos. 3 and 4, has referred to the discrepancies appearing in the documents relied upon by the counsel for the plaintiff. He has particularly referred to the fact that all the documents pertaining to borrowing of the amount of Rs.10 million, allegedly invested by the plaintiff, speak of the investment as being made by the plaintiff with defendant No.1 or, at the most with the defendant No.2 in their personal capacities and not with the private limited company namely Swiss Hotels and Resorts (Pvt.) Limited, to whom the suit plot was allotted. He has also referred to the agreement of sale showing that the suit plot was not being sold by the defendant No.1 or the defendant No.2 in their personal capacity but the private limited company to whom the suit plot was originally allotted. He also contended that the receipt, dated 1-3-1997 for Rs.20 lac bears a date on which the defendant No.1 was confined in prison and the receipt does not show any endorsement by the Prison Authorities to support the veracity of the document. He proceeded further to show that the signatures of the executants were also put while thumb impression is available on the agreement, the same does not appear in subsequent documents. As to the interest of the plaintiff, he has vehemently opposed the application on the ground that the averments in the counter-affidavit have not been rebutted in spite of the fact that opportunity to this effect was afforded to the plaintiff who preferred to proceed with the application without filing any rejoinder. To name a few, he has referred to the averments that the plaintiff has no source of income. He also refuted the genuineness of the documents providing for financing of a project that was envisaged to be completed within a period of two years but where even an iota of progress was not made during the entire period of two years but the plaintiff allegedly continued to advance the amount. He has referred to illustration (c) to section 127 of the Contract Act. Mr. Mansoorul Arifin, learned counsel for defendants 3 and 4 has relied on the following case law:

(1) K.D.A. v. Hadi Buix Memon 1992 CLC 1036, (2) Trustees of Port of Karachi v. Gujranwala Steel Industries 1990 CLC 197, (3) Agha Saiduddin Khan v. Pak Suzuki Motors 1997 CLC 302 and (4) Mach Minerals Enterprises and others v. Untied Minerals Company and others 1993 SCMR 2078. Mr. Rasheed A. Rizvi, learned counsel for defendants Nos. 6, 9 and 10 in addition to the objections raised by Mr. Arifin, has placed reliance on the provisions of subsections (h) and (i) of section 56 of the Specific Relief Act, providing for cases where an injunction may not be granted. His contention is that the suit to the extent of relief pertaining to transfer of land is time-bared. That the area of 300 sq. yards, allegedly proposed to be transferred to the plaintiff, cannot be specifically identified and under the circumstances, a contract for specific performance even if valid otherwise, becomes unenforceable. He has further submitted that the present case suffers from further infirmities inasmuch as the plaint is hit by the provisions of sections 12 and 19 of the Specific Relief Act. The agreement relief upon by the plaintiff became time-bared, there was no acknowledgement during the period of limitation and the subsequent promissory note, undertaking and the agreement, executed after the expiry of limitation, could, at best, be taken as a promise to repay the amount which would not call for any order for specific performance. He submitted that after considering the above, the remedy left for the plaintiff is at best to file a suit for recovery as no irreparable loss is likely to be caused to the plaintiff and in the absence of such irreparable loss, the question of grant of an ad interim injunction does not arise. Mr. Rasheed A. Rizvi, learned counsel for defendants Nos.6, 9 and 10 has relied on the following case-law:

(1) Rai Bahadur Mohan Singh Oberaoi v. Rai Bahadur Jodha Mal Kuthalia and others PLD 1961 SC 6 and Yusuf Hussain Shirazi and another v. Lt.-Col. Muhammad Alam Shaikh PLD 1966 Kar.472. As regards the application under Order VII, rule 11, C.P.C. Mr. Jafri has submitted that in view of the prayer for recovery of Rs.10 million, made specifically by the plaintiff in the plaint of the suit, which, according to the learned counsel, is also supported by documents executed by the defendants, the application is liable to be rejected as even if some of the prayers in the plaint may not be maintainable, the suit is maintainable to the extent of recovery of the sum of Rs.10 million. He submitted that the rejection of the plaint cannot be effected in piecemeal. He, therefore, submitted that the application under Order VII, rule 11, C.P.C. is liable to be rejected. Mr. Rasheed A. Rizvi, learned counsel for defendants 6, 9 and 10, has candidly conceded to the fact that the application under Order VII, Rule 11, C.P.C., would not envisage rejection for the plaint in grounds. However, he contended that the other grounds raised therein may be taken as the ground for opposition of the application under Order XXXIX, rules 1 and 2, C.P.C. I have heard the learned counsel for the parties, gone through the record of case and perused the case-law cited before me. In the case of Yousuf Hussain Sherazi (supra), a Division Bench of High Court of West Pakistan (Karachi) held as under:

A The next question which remain is and which is what is the principle one for decision in this appeal, namely, whether this is a fit case in which a temporary injunction should have been granted. Merely because it might be thought fit to grant a perpetual injunction after the hearing in a case it, does not follow that a temporary injunction before the hearing must necessarily be granted. To justify a temporary injunction, not only must the case be such that an injunction is an appropriate relief but there must be the further ingredient that unless the defendant is, restrained forthwith by a temporary injunction irreparable injury or inconvenience may result to the plaintiff before the suit is decided upon its merits. A The next important ingredient for grant of a temporary injunction is the existence of a prima facie case. Thus, the application was required to prove the prima facie existence of the right claimed in the suit and also its infringement. See Pakistan Railways and others v. Ittefaq Foundries (Pvt.) Limited 1990 SCMR

355. The plaintiff has claimed that the suit property belongs to defendant No.1. He further claims that he invested a sum of Rs.10 million for construction of a building/plaza on the suit plot. These claims do not find support from the documents on record. The case of the defendants is that he suit plot belongs to Messrs Swiss Hotel and Resorts (Pvt.) Limited. The documents relied upon by the plaintiff himself also reveal the same position. Apart from above, the plaintiff himself has quantified his claims on account of the principal amount of Rs.10 million as well as mesne profit at Rs.10,00,000 per month on the said investment. He has not filed any document to prima facie establish that the suit plot is owned by defendant No.1 personally. For the foregoing reasons the application under Order VII, rule 11, C.P.C. as well as the application under Order XXXIX, rules 1 and 2, C.P.C. are dismissed. M.H./M-189/K Applications dismissed.