2009 PLP 2104 (YLR)

Crl. Misc. No.1268-M of 2009 HASNAT AHMAD KHAN, J.

Through this application a prayer has been made to place on record the appended documents. Allowed. Main case Bashir Ahmed, the petitioner, by submitting this application, has prayed for post arrest bail in case F.I.R. No.101 of 2009, dated 6-2-2009, registered with Police Station Pindi Bhattian, District Hafizabad, in respect of offences under sections 436, 427, 354, 148 and 1.49, P.P.C.

2. Precisely, the prosecution story, as unfolded in the F.I.R. lodged on the written application of one Muhammad Akram, is that the petitioner, along with his co-accused, barged into the house of the complainant after scaling over its walls and thrashed the complainant and his family members including the females whose clothes were also torn off and their hair were pulled by the intruders. The complainant further alleged that Ijaz Ahmed, co-accused, set the "Dhapper"/Thatched cottage, erected in the house, ablaze whereafter the co-accused including the petitioner allegedly set the clothes and beddings etc. on fire. The complainant further claimed that all the accused demolished a residential room and the outer gate with the help of a tractor and before leaving the place of occurrence took away valuables including gold ornaments and cash. The thatched cottage along with bedding, etc., according to the complainant, was burnt to ashes.

3. In support of this petition the learned counsel for the petitioner contends that no occurrence, as claimed by the complainant, ever took place; that the land where the alleged occurrence took place belongs to the accused party. In order to substantiate the said contention learned counsel for the petitioner has placed reliance on record the copies of Record of Right and Khasra Girdawari. Learned counsel for the petitioner further adds that during the investigation the petitioner, who according to his National Identity Card is 63 years old, has already been found innocent.

4. Conversely, the learned Deputy Prosecutor General, assisted by the learned counsel for the complainant, has opposed the bail application vehemently by submitting that the complainant's house was set ablaze causing a huge loss to him, therefore, the petitioner who is fully involved in the said heinous crime, which attracts the provisions of prohibitory clause of section 497, Cr.P.C., is not entitled to the concession of post arrest bail. Learned counsel for the complainant while placing reliance on the copies of Record of Rights and Khasra Girdawari claims that the complainant party was, in fact, in possession of the land in dispute and that the disputed land has already been attached under section 145, Cr.P.C.

5. Heard. Record perused.

6. At the first blush the crime in question appears to be of very heinous nature but on a closer scrutiny of the record, including the police file, it appears the loss caused by the fire is not of that magnitude as claimed by the complainant. A perusal of the recovery memo. of the burnt material reveals that no household article or clothing was burnt in the alleged occurrence rather some building material of "Dhapper"/Thatched cottage was burnt. The said memo. further reveals that some un-burnt pieces of wooden rafters were recovered from the spot. In order to claim their respective ownership over the land where the occurrence took place both the parties have relied upon the documents issued by the revenue authorities. Since complicated issues are involved with regard to the ownership and possession of the parties over the disputed land, therefore, I am intentionally avoiding to return any finding in this behalf, lest it may prejudice the case of either of the parties pending before the civil as well as revenue Courts. Suffice it to observe that there is a serious dispute between the parties regarding the ownership and. possession of the land in dispute. Insofar as the offence under section 436, P.P.C., the prime and non-bailable one, is concerned, a perusal of the contents of the F.I.R. would reveal that the main allegation has been levelled against the petitioner's son, namely Ijaz Ahmed, who according to the complainant put the "Dhapper"/Thatched cottage to torch. According to the final report submitted by the Investigating Officer, the complainant failed to establish as to whether the "Dhapper" was set ablaze by the petitioner or by the principal accused, namely, Ijaz Ahmed. He went on to opine that at the time of occurrence a lot of people had assembled at the place of occurrence, therefore, it could not be established that who set the "Dhapper" ablaze. In view of the said findings returned by the Investigating Officer, the petitioner's case requires further probe. After making out a case of further enquiry the petitioner has become entitled to bail as a matter of right. Reliance in this regard is placed on the cases of Muhammad Sadiq v. Sadiq and others PLD 1985 SC 182 and Ibrahim v. Hayat Gul 1985 SCMR

382. Besides, the involvement of the petitioner being father of Riaz Ahmed and Ijaz Ahmed, co-accused, widening the net by the complainant cannot be ruled out. The petitioner, a fairly old man of 63 years of age, has been languishing in jail since 8-2-2009. The investigation has already been completed, therefore, no useful purpose would be served by detaining the petitioner any further.

7. Consequently, the application in hand is accepted and the petitioner is granted bail after arrest subject to his furnishing bail bonds in a sum of Rs.1,00,000 (Rupees one hundred thousand only) with two sureties each in the like amount to the satisfaction of the learned trial Court. H.B.T./B-37/L Bail granted. 2009 Y L R 2106 [Karachi] Before Amir Hani Muslim, J NSA-CTI CONSORTIUM and 2 others

Plaintiffs Versus NETWORK LEASING CORPORATION LIMITED

Defendant Suits Nos. 1448, 1291 of 2007, 994 and C.M.As. Nos.11059, 11060 of 2008, decided on 25th November, 2008. (a) Specific Relief Act (I of 1877)

S. 12.

Specific performance of contract

Party seeking relief of performance of contract, could not seek the performance of contract as a matter of right

It was the discretion of the court to grant a relief of the nature or in the alternate, if the party was able to quantify the damages by producing material evidence, it could get such claim

Injunction application of the nature, in any way, could be allowed in a suit for specific performance of the contract wherein the party would step into the shoes of the owner or as partner. (b) Civil Procedure Code (V of 1908)

O. XXXVIII, R.5

Furnishing security for production of property

Scope of O.XXXVIII, R.5, C.P. C. dealing with furnishing security for production of property, was limited and a party in the hope that it would get money decree in their favour could not resort to invoke the provisions of O.XXXVIII, R.5, C.P.C., unless it would place on record the material in terms of the said provisions of law

No such material was available on record which could warrant allowing the application of attachment

Law required that an order of attachment could only be passed when the court was satisfied which satisfaction of the court had to be objective and not subjective. Mrs. Sofia Saeed Shah for Plaintiffs. Behzad Haider for Defendant. ORDER AMIR HANI MUSLIM, J.

The present proceedings are offshoot of three cases having chequered history, which cases are pending adjudication before this Court. The defendants in these proceedings have filed suit No.1291 of 2007 in this Court against the plaintiffs for Declaration, Recovery of Money and Damages, inter alia, on the ground that the defendant has failed to comply with the terms of the Agreement for raising construction and the plaintiffs have not been paid money by the defendants according to the terms of agreement. In this regard, an Architect was appointed by the parties, who submitted the report according to which report; an amount of Rs.7,627,934 was found to have been paid excess by the defendant to the plaintiffs. Subsequently, in the said suit an injunction application was filed by the plaintiff, on which ad-interim order was passed by this Court restraining the defendant (plaintiff in the said suit) from raising construction of any nature on the suit plot. This injunction application was heard on 2-9-2008 in Suit No.1291 of 2007 and was dismissed on merits. It is further claimed that in the intervening period contempt application was also filed against the defendant, which contempt application is still pending. During the course of these proceedings, the defendant claims that the plaintiff used to extend threats to the defendant and, therefore, at one point of time the defendant under duress showed willingness and had signed a letter by which Mr. Usman Alvani, was appointed Arbitrator by the parties. It is further contended that before the Arbitrator could enter into reference he was intimated through a letter by the defendant that the proceedings of arbitration be deferred. It is claimed by .defendant that the Arbitrator in spite of the said letter continued with the proceedings in which the defendant did not participate. The Arbitrator had given Award which Award was filed in Court unilaterally by the Arbitrator on its own and notices were ordered and now the proceedings are pending adjudication. This Award filed by the Arbitrator was numbered as Suit No.944 of 2008 to which the defendant has filed the objections. On the other hand, the injunction application in Suit No.1291 of 2007 filed by the plaintiffs was dismissed. In the said order it was observed that the plaintiff (Defendant in Suit No.1291 of 2007) had neither filed any counter claim nor suit for Arbitration, therefore, there was hardly any justification for providing them any interim relief. It is stated at bar that on account of the observations incorporated in the order passed in injunction application the present suit was filed by the plaintiffs, in which initially an injunction application was filed, which is numbered as CMA No.9484 of 2008 and during the pendency of the said injunction application, another application C.M.A. No. 10474 of 2008, under Order XXXIX, Rule 5, C.P.C., was filed on which an ad interim order has been obtained on 5-11-2008 and now another' application C.M.A. No.11060/2008, under Order XXXIX, Rules 1 and 2, C.P.C. has been filed, which is listed today for orders with the prayer that defendant shall not be allowed to enter the premises, which is under construction. The third application even does not disclose that earlier the two other interlocutory applications are pending adjudication. It is contended by learned counsel for the defendant that all the three applications, two of them are listed for orders today and the other two applications CMA No.10474 of 2008 and CMA No.9484 of 2008, which are not listed by the office today, are taken up for hearing with the consent of the learned counsel for the parties. It is contended by learned counsel for the plaintiffs that the injunction in the given case ought to have been granted as the Arbitrator has passed an Award, which has been filed in this Court and the defendant has only one property, and if he is allowed to sell it, it would defeat the claim of the plaintiff. It is further contended that if the defendant is allowed to enter in the suit plot, on which construction has been raised, it may also prejudice the interest of the plaintiff. The learned counsel for the defendant on the other hand submits that these are hardly grounds on which interim relief of the nature can be granted. According to him, the defendant is a financial institution and there is no likelihood of its winding up or otherwise. I have heard the learned counsel and have perused the record. The first order dated 2-9-2008, passed in Suit No.1291 of 2007 by this Court dismissing the injunction application of the plaintiffs (defendants in said suit) and no appeal has been preferred against it, which order has attained finality. The learned counsel for the plaintiffs fairly conceded that issues involves in Suit No.1291 of 2007, are common to the issues involved in the case in hand. Both the cases are between the same parties with the difference that Suit No.1291 of 2007 was filed by the defendant in Suit No.1448 of 2008 whereby Suit No.1448 of 2008 has been filed by the plaintiffs, who are defendant in Suit No.1291 of 2007. Secondly, the entire controversy between the parties rests on an Agreement, executed between the parties and it is pleaded that the defendant has paid excess amount to the plaintiffs, who were required to undertake construction in terms of the agreement. The plaintiffs' claim that the defendant in violation of the terms of the Agreement has not paid any excess amount for the additional construction and in fact they are liable to pay more than Rs.70 lacs towards the additional construction. This is in fact a suit for specific performance of the contract. The party seeking relief of performance of contract cannot seek the performance of contract as a matter of right. It is the direction of the Court to grant a relief of the nature or in the alternate if the party is able to quantify the damages by producing material in evidence it can get such claim. Injunction application of the nature, in no way, could be allowed in a suit for specific performance of the contract wherein the party steps into the shoes of the owner or as partner as has been asked in the present proceedings. The Architect has identified the construction raised by the plaintiffs in the report. Further restrain on construction through another injunction application in another case is impermissible once such application of the plaintiff has been dismissed by this Court in collateral proceedings. The scope of Order XXXVIII, Rule 5, C.P.C. is also limited and party in the hope that it will get money decree in their favour cannot resort to invoke the provisions of Order XXXVIII, Rule 5, C.P.C. unless it places on record the material in terms of the provisions of Order XXXVIII, Rule 5, C.P.C. There is no such material available on record which could warrant allowing the application of attachment as prayed. The law requires that an order of attachment can only be passed once the Court is satisfied which satisfaction of the Court has to be objective and not subjective. I am clear in my mind that the applications referred to herein above, ex facie, for the afore-said reasons are misconceived and are accordingly dismissed. The office shall fix the present suit with Suit No.1291 of 2007 and Suit No.944 of 2008 for hearing and disposal together. H.B.T./N-19/K Order accordingly.