1993 PLP R1510 (SCMR)

(c) Declaration that the actions taken by defendants Nos.4 and 5 are a violation of the lease/sub‑lease/bye‑laws and hence the irrevocable General Power of Attorney be declared illegal and void. (d) Permanent injunction restraining defendants Nos.4 and 5 from raising any construction on the property No.63/11 (559), J.M.3, Jamshed Quarters, Karachi and/or selling or transferring the said property to non‑member. (c) In the alternative a declaration and a mandatory injunction be granted that if any construction/constructions are raised, then such construction/constructions be used only for accommodation on lease or ownership basis of members of the Catholic/Christian community who are eligible for membership of the plaintiff Society at reasonable prices acceptable to the plaintiff. (f) Declaration and mandatory injunction that the plans passed by the Controller of Building Authority, K.DA. is in violation of the bye‑laws as well as the lease/sub‑lease of the Karachi Catholic Cooperative Housing Society and the same be declared void and inoperative. The plans should have been submitted through plaintiff. (g) Cost of the suit."

4. Alongwith the plaint of the suit, the appellant Society also filed an application under Order 39, Rules 1 and 2, C.P.C. for an ad interim injunction, which was granted by the learned IVth Senior Civil Judge, Karachi. The operative portion of the order reads as follows:‑‑ "Above position shows that action of defendants Nos.1 to 3 is against the means and object of the society. Therefore, in my humble opinion plaintiff has a prima facie case entitling them to grant of temporary injunction. The balance of convenience is also on the side of plaintiff and they will suffer irreparable loss if injunction is not granted."

5. Against the above order, respondents Nos.4 and 5 filed Civil Miscellaneous Appeal No.109 of 1987, which was allowed by the learned Vth Additional District Judge, Karachi, by his judgment dated 29‑8‑1989 inter alia for the following reasons on the condition that respondents Nos.4 and 5 shall be at liberty to raise construction of the building according to the plan at their own risk and costs on the undertaking that they shall not sell or transfer the newly‑constructed building or any portion thereof to any non‑member of the society or to a non‑Chiristian:‑‑, "In absence of any restriction in the sub‑lease or the bye‑laws of the society, regarding re‑construction of the building it was not proper for the learned trial Court to impose such restriction particularly when no irreparable loss would be caused to the respondent Society by allowing the construction of the building. In case the Society succeeds in its suit, the appellant shall be directed by way of mandatory injunction to accommodate only the Christians in the light of the alternate prayer made in the suit. The balance of inconvenience will also be on the side of the appellants as they shall be put to great inconvenience in the event of the grant of the injunction."

6. Against the above judgment, the appellant Society filed the aforesaid revision application, in which the learned Judge in chambers found that the appellant Society had a very strong prima facie case but maintained the above judgment of the learned Additional District Judge of refusing to grant injunction for the reason that the appellant‑Society failed to show balance of convenience or that it would suffer any irreparable loss.

7. Against the above judgment, the appellant Society filed a petition for leave to appeal, in which the following interim order was passed on 16‑8‑1990 upon hearing of the stay application filed with the petition for leave:‑‑ "Respondents 4 & 5 are restrained from carrying on with the construction on the suit‑property till the main petition is decided. The main petition to be fixed for hearing during the next Session." Upon hearing of the petition for leave to appeal, leave was granted to consider the above question and it was also ordered that the interim order already passed by this Court on 16‑8‑1990 would continue.

8. In support of the above appeal, Mr. Rustom Firoze Virjee, learned ASC appearing for the appellant, has vehemontly urged that the learned Additional. District Judge and the High Court were not justified in holding that the appellant Society failed to show balance of conventance or the factum that it would suffer irreparable loss/injury as admittedly the raising of construction by non‑Christians in violation of the above clause of the sub‑lease would result in causing irreparable injury to the appellant‑Society and that the balance of convenience was also in, favour of granting an ad‑interim injunction. On the other hand, Mr. H.A. Rehmani, learned ASC appearing for respondents Nos.4 and 5, has submitted that the learned Additional District Judge had vacted the injunction on putting respondents Nos.4 and 5 to the above terms in order to safeguard the interest of the app' Society and that under he sub‑lease, the appellate Society has no locus standi either to terminate the sub‑lease on the ground of breach of any covenant of the lease or to stop the construction of a building and, therefore, the appellant‑Society neither had any prima facie caese nor it would have‑suffered any irreparable injury nor the balance of convenience was in his favour.

9. We would not like to express our views on the merits of the case as it may prejudice the parties. However, in our view, in the present case it cannot be denied that the appellant-Society has prima facie case for an interim injunction as was found by the learned Civil Judge and even by the Additional District Judge and. the High Court, and, therefore, we are not inclined to agree with Mr. Rehmani that the appellant‑society has no prima facie case, as admittedly under above quoted clause 2 (A) of the sub‑lease, respondents Nos.1 to 3 could not have parted with the possession of the plot. The learned Civil Judge has rightly quoted Clause 3 of Power of Attorney, which reads as follows:‑‑ "

3. To sell, mortgage, charge, encumber and to convery or transfer by way of sale or gift or otherwise dispose of in any manner whatsoever the said property at such time, in such manner, for such consideration and I to such person or persons as our said attorneys may in their sole, absolute and unfettered discretion deem just and proper and that for this purpose to sign or execute deeds, instruments relating to sale, mortgage, gift, lease and transfer and to get them registered before the Sub‑Registrar at Karachi. To appear or represent before the Sub- Registrar or the Sub‑Registrar at Karachi and to admit execution of the said documents, to acknowledge receipt of consideration to receive money to pass proper and valid receipts to deliver the possession of the said property or part thereof, to effect mutation in the land records and/or record of rights or the property register of the Government and offices subordinate thereto or the revenue Authorities inclusive of the Deputy Commissioner of Karachi East and offices subordinate to him or that of the K.DA., or the K.M.C., or the Excise and taxation Department." A perusal of the above quoted clause with the other clauses of the above irrevocable general power of attorney registered with the Sub‑Registrar prima facie indicates that there has been breach of the above clause 2‑A.

10. As regards the balance of convenience and irreparable injury, we may observe that we inquired from Mr. H.A. Rehmani, learned counsel for respondents Nos.4 and 5 as to who would spend the money on the construction of the proposed building. His reply was that the money would be spent by respondents Nos.4 and

5. If respondents Nos.4 and 5 are going to invest their money on the construction of the building on the conditions provided by the learned Additional District Judge in his above judgment, we are unable to understand as to why the above respondents Nos.4 and 5 are so keen to construct the building without expecting any return in near further from the investment. Admittedly the suit property is situated within Catholic Colony, where appellant‑society members live. In our view, it cannot be urged that the raising of construction by non‑Muslims in the above Colony prima facie in violation of the above Clause 2(a), would not cause any inconvenience to the Society or to its members living in the Colony. The Society has the right to ensure that only Christian members of the Society raise any construction in the Colony managed by the Society.

11. As regards irreparable injury, we may observe that the present case is to be viewed keeping in view the object of the appellant‑society and the factum that the members of the appellant‑society belong to a minority community, who are to be extended all protection instead of causing harassment to them. In our view, prima facie the object of raising construction by respondents Nos. 4 and 5 is to make it difficult to the appellant‑society to get the building demolished after its completion, otherwise the above respondents prima facie will not gain any benefit by raising construction by investing their money without getting any return.

12. We are inclined to hold that even the element of resulting irreparable injury to the appellant‑society and its members is present in the instant case, whereas no irreparable injury will be caused to respondents if an interim injunction is granted. In our view, the order of the learned Civil Judge was in consonance with law and, therefore, the learned Additional District Judge was not justified in interfering with the discretionary order. of the learned Civil Judge, and the High Court was not justified in not interfering with the above order of the learned Additional District Judge. We would, therefore, allow the above appeal and set aside the judgments of the learned Additional District "Judge and the High Court, and would restore the aforesaid order dated 3‑5‑1989 of the learned Senior Civil Judge. However, there will be no order as to costs. We may also observe that the learned Senior Civil Judge may try to dispose of the above suit as early as possible so that the above controversy may be resolved without any delay. M.BA./K‑214/S Appeal allowed.