1985 PLP 85 (SCMR)

MIAN BURHANUDDIN KHAN, J.--Leave is sought to appeal against the judgment and order of the Sind High Court dated 30-4-1984 passed in H . C . A . No. 6 of 1984 whereby the H . C . A . filed by the present petitioners/ defendants was dismissed.

2. Facts stated in the petition are that on 6-1.2-1983 the respondent/ plaintiff filed a civil suit No. 706/1983 on the original side in the Sind High Court at Karachi for declaration and possession by partition and for issuance of permanent injunction inter alia on the ground that the respondent/ plaintiff was in use and occupation of the premises constructed on half portion of plot No. H.V. 2/56 while the other half portion was claimed to be in the exclusive possession of the father of the respondent/ plaintiff. This entire plot had been leased out on 3-9-1979 by K . M. C . in the joint names of the plaintiff and the first petitioner Ghiasuddin in equal shares. The possession of the portion marked 'A' in the sketch attached to the plaint was, however, claimed to be of the plaintiff alone and the other portion marked 'B' in possession of the father of the plaintiff who were paying taxes for the same. Prior to his departure for Saudi Arabia the plaintiff had agreed to sell his half share in the plot in question, along with its possession, to the petitioners/ defendants for a consideration of rupees two lacs. The plaintiff left for Saudi Arabia on 17-2-1983 but no amount was N ad to him or his brother Naimuddin towards the sale consideration of the said portion of the disputed plot. It was further averred in the plaint that because of the non-payment of Rs. 1,75,000 by the petitioner the advance amount of Rs. 25,000 paid by him, was forfeited.

3. In the written statement filed by the petitioner it was pleaded that a sum of Rs. 1,50,000 had been paid to the plaintiff on 10-2-1983 against a receipt and a formal agreement for sale had also been executed. First suit was however, withdrawn with the permission of the Court for filing a proper suit in the High Court. Consequently, suit was filed in the Sind High Court on 6-12-1983 praying for a decree for possession of the half portion of the disputed plot marked 'A' in the sketch claimed to have been unauthorisedly occupied by the petitioners/ defendants and also for declaration that the construction made over the same plot was illegal, unauthorised and liable to be demolished. A permanent injunction was also sought against the defendants or in the alternative, a decree for a sum of rupees two lacs with interest @ 14% per annum. With this suit, an application was also filed under Order XXXIX, rules 1 and 2, C.P.C. seeking an injunction restraining the defendants from (raking any addition, alteration and construction of any sorts over the portion of the plot marked 'A' and also restraining the plaintiff /defendant from transferring, alienating or giving possession of any constructed or un-constructed portion of the said plot to anybody.

4. On 17-12-1983 the plaintiff /respondent moved an application under Order XL, rule 1 read with section 151, C.P.C. requesting for the appointment of a Receiver of the property in question, with an order to take and manage this property.

5. The learned trial Court by order dated 11-1-1984 dismissed both the applications of the plaintiff holding that there was no case for the grant of injunction in the circumstances of the case. The learned Court, however, in order to safeguard the interest of the plaintiff /respondent directed that a sum of Rs. 1,25,000 be deposited in the Court within lj months. Against the said order the plaintiff /defendant filed H.C.A. No. 6 of 1984 which was dismissed vide the impugned judgment of the Sind High Court dated 30-4-1984.

6. Learned counsel appearing for the petitioner has contended before us that the two learned Courts below have failed to see and appreciate that after the dismissal of the two applications, filed by the plaintiff, no relief could, be granted to the plaintiff /respondent in respect of those applications and if at all the plaintiff /respondent wanted any further relief, he should have moved a fresh application praying for that relief; that the learned trial Court committed a grave error in law by holding. "These applications are accordingly dismissed but in order to safeguard the interest of plaintiff, I direct the defendant 1 to deposit the sum of Rs. 1,25,000 (rupees one lac and twenty-five thousand) which is alleged to be due according to plaintiff towards sale consideration, in Court..." In the said order, the learned counsel contended, it was not stated as to what interest of the plaintiff was to be safeguarded. It was further contended that a sum of Rs. 1,25,000 was deposited in the Court on 29-12-1983 and as such there was hardly any reason much less justification to order on 11-1-1984, to deposit a further sum of Rs. 1,25,000 and hence it calls for interference by this Court. The learned counsel also contended that both the Courts below have failed to appreciate the detailed counter-affidavits, along with its annexure filed by the petitioner/ defendant on 17-12-1983 in reply to the application under Order XXXIX, rules 1 and 2, C.P.C. filed by the plaintiff in which the entire position was explained in detail.

7. We have examined the contentions raised by the learned counsel for the plaintiff and find that the agreement on which the petitioner has laid reliance as well as the receipt are denied by the respondents as being forged documents. Even the amount of consideration of Rs.1,50,000 alleged to have been paid was not paid by any pay order or cheque. It was allegedly paid in cash. Furthermore, when the respondent served notice on the petitioner and made a demand for payment of balance amount of Rs.1,75,000 (rupees one lac and seventy? five thousand). This assertion was not denied and rather an evasive reply was given. In view of this, we are of the view that the impugned order is just and proper in the circumstances of the case and, conse?quently, it calls for no interference with it by this Court. The said order has been passed in the interest of the respondent which in no way, affects the right of the petitioner if they can establish their case during the proceedings before the Court of first instance. Accordingly, this petition is dismissed. M . Z . M .?????????????????????????????????????????????????????????????????????????????????????????? Petition dismissed.