ORDER SHEET
IN THE HIGH COURT OF SINDH, KARACHI
Suit No.566 OF 2006
Date Order with signature of Judge
For hearing of CMA 8401 of 2010.
Date of hearing: 7th October, 2010.
Plaintiff : Khursheed Ahmed Butt
Defendants: Captain Feroz Aftab & others
Mr. Zaheer Minhas, Advocate for the plaintiff.
Mr. Dilawar Hussain, Advocate for the defendant No.1.
Mr. Ijaz Shirazi, Advocate for the defendant No.3.
Mr. Rehman Aziz Malik, Advocate for the defendant No.4.
Muhammad Ali Mazhar J., The Plaintiff has filed this Suit for specific performance of contract, mandatory and prohibitory injunction and possession and recovery of damages. In the plaint, it is inter alia contended that vide agreement to sell dated 29.4.2003, defendant No.1 agreed to sell to the plaintiff, his property/House No. 18, 38” Street, off Khayaban-e-Mohafiz, Phase-VI, DHA, Karachi measuring 600 square yards, together with double story bungalow constructed thereupon. An amount of Rs.73,00,000/- was mutually agreed upon by the parties as the total sale consideration and Rs.1,00,000/- was received by the defendant No.1 from the plaintiff as earnest/advance money. In pursuance of the aforesaid agreement to sell, the defendant No.1 handed over to the plaintiff, photo copies of the title documents. It is further alleged in the plaint that plaintiff since had paid an amount of Rs.1,00,000/- as earnest money and balance amount of Rs.72,00,000/- was to be paid at the time of signing of sale deed as the “Form-B” Lease was not executed by the defendant No.2 as yet. The defendant No.1 prior entering into sale agreement had availed a credit facility from the defendant No.3 and had placed the original title document of the suit property with the defendant No.3. On 30.4.2003, defendant No.1 had received another amount of Rs.24,00,000/- from the plaintiff. Subsequent to receipt of amount referred to in preceding para, defendant No.1 requested the plaintiff to pay to the defendant No.3, the amount of interest for the facility which he availed. The plaintiff is regularly paying monthly interest to the defendant No.3, which is duly acknowledged by the defendant No.3. It is further contended in the plaint that notwithstanding the plaintiff’s willingness to perform his part of contract, the defendant No.1 is maliciously not completing the sale. Defendant No.1 is also attempting to sell the property to some other party. The plaintiff, in the circumstances requested to the defendant No.1 to complete the sale transaction but the defendant No.1 has failed to fulfill his contractual obligations, hence, the plaintiff was left with no other option but to file the present suit.
From the prayer clause of the suit, it is clear that the plaintiff besides claiming specific performance has also claimed that the plaintiff be put into possession of the suit property. It also transpires from the court file that when the suit was instituted, an application under Order 39 Rule 1 & 2, C.P.C, (CMA No. 3379/06) was filed and it was first time placed in Court for orders on 08.05.2006, and while granting the urgency, notice was issued by this Court on this application, thereafter, the first injunction application was never placed in the court for hearing and it appears that it is still pending without any order of this Court. In the first injunction application, which was filed on 06.05.2006, the plaintiff had prayed that the defendant No. 1 may be restrained from selling, alienating, encumbering, or disposing the suit property in any manner till disposal of the suit which prima facie shows that when the suit was instituted, the plaintiff was not in possession of the suit property.
On 12.8.2010, the plaintiff again moved an application (CMA No. 8401/10) under Order 39 Rule 1 & 2, C.P.C in which, the plaintiff has sought restraining orders against the defendants from dispossessing the plaintiff from the suit property in any manner till disposal of the suit. In a short supporting affidavit, it is nowhere mentioned as to how the plaintiff came into possession of the suit property when it is an admitted position that at the time of filing the suit, the plaintiff was not in possession and only sought the restraining order against defendant No.1 not to create any third party interest. Now, it is to be seen as to how the plaintiff has come into possession of the suit property.
On notice to the second injunction application, the attorney of defendant No. 1 filed his affidavit in which it is inter alia contended that the defendant No.1 filed a Rent Case No.99 of 2007 under Section 17 of the Cantonment Rent Restrictions Act, 1963 before the Rent Controller, Clifton Cantonment Board at Karachi and it was not in his knowledge that the property was sub-let by the tenant Saud Bashir. When the present suit was filed, the name of sub-lettee was disclosed as Khursheed Butt. It is further submitted that the Rent Case filed by the defendant No.1 was allowed with specific direction to the tenant or any person in occupation of the suit property to vacate the same and handover its vacant and peaceful possession to the landlord or his authorized person within 30 days. The learned Controller has clearly mentioned in his order dated 20.10.2009 on which ground the ejectment application was allowed. Against the said order, the tenant, Saud Bashir, filed First Rent Appeal No. 45 of 2009 in this court which was also dismissed vide order dated 21.1.2010. An application for joining party in the rent case was moved by the plaintiff which was also dismissed by the Rent Controller vide order dated 26.1.2008 and against the said order, the plaintiff had filed CP No.S-150 of 2008, in this Court which was also dismissed.
Mr. Zaheer Minhas, learned counsel for the plaintiff, argued that since the plaintiff is in possession of the suit property which fact is clearly reflecting from the order dated 26.1.2009, therefore, restraining order may be passed in favour of the plaintiff that he may not be dispossessed from the suit property till the decision of suit.
The whole suit is based on Annexure P-1, (Page 17) of the plaint, which is a receipt allegedly executed by the defendant No. 1 in favour of plaintiff on 29.04.2003 for the sale of property in question on or before 31.7.2003. In this receipt, it is nowhere mentioned that the possession of the subject property was handed over to plaintiff by defendant No. 1 and except this receipt, there is nothing available on record to show that plaintiff and defendant No. 1 had ever entered into any agreement to sale of the same property with certain terms and conditions including the date of transfer of the property or handing over the possession. It is also an admitted fact that the property was rented out by the defendant No. 1 to one Saud Bashir and the attorney of the plaintiff filed a rent case No. 99/2007 in the Court of Additional Controller of Rent, Clifton Cantonment Board, Karachi on the ground of personal need and default. In the written statement of rent case, the tenant took a plea that on the instructions of landlord, he handed over the possession of the demised premises to one Khursheed Sadiq Butt (Plaintiff), hence, he claimed that there was no relationship of landlord and tenant between him and the defendant No. 1. The learned Rent Controller in his order clearly observed that the tenant took a plea in his written statement that he had handed over the possession of the demised premised to Khursheed Ahmed Butt (plaintiff) on the instructions of landlord but in support of his claim, he produced no evidence and even he had not filed any affidavit in evidence, thus neither he supported the contentions raised in the written statement nor he denied the allegations of landlord on oath and also failed to produce any evidence of handing over possession of demised premises to Khursheed Butt, (plaintiff) on the instructions of landlord. The only claim of the tenant was that he was instructed by the landlord’s wife and later on, by the landlord on telephone to hand over the possession of the demised premises to the Khursheed Butt. The ejectment application was allowed, thereafter, the tenant Saud Bashir filed FRA. No. 45/2009 in this Court which was also dismissed vide order dated 21-01-2010. On the same finding that the landlord asserted in the ejectment application regarding the sub-letting of the demised premises to some unknown person on oath in the witness box by filing affidavit in evidence and submitting himself for cross-examination, therefore, the burden was shifted upon the appellant/tenant to enter into the witness box and prove that on the basis of instructions received from the landlord, he handed over the possession of demised premises to said Khursheed Butt, (plaintiff). Since, the tenant failed to enter into the witness box, therefore, his defence was rightly not considered. On these findings, the First Rent Appeal was dismissed by this court. It is also pertinent to point out that during pendency of rent case, the plaintiff also moved an application for becoming party in the Rent Case No.99/07, which was also dismissed by the Rent Controller and against the said order, the plaintiff/intervener filed a C.P No.S-150/2008 in this Court which was also dismissed.
The learned counsel for defendant No. 1 argued that the plaintiff was never put into possession by the defendant No.1 and in fact, the tenant of the property unlawfully sub-let the premises and since the ejectment application has already been allowed, the First Rent Appeal has also been dismissed and even not only the application moved by the plaintiff in rent case for becoming party has been dismissed but against this order, a constitution petition filed by the plaintiff in this court has also been dismissed, therefore, the plaintiff has no lawful right and authority to claim or retain the possession and since he has unlawfully acquired the possession of the property, therefore, his possession is not protected under Section 53-A of the Transfer of Property Act and he is liable to be evicted from the premises in question for which execution proceedings in rent case are pending. In support of his argument, he relied upon my own Judgment reported in 2010 MLD 1353, (Mohammad Asad vs. Mohammad Tariq and others), in which, I have discussed Section 53-A of the Transfer of Property Act in detail.
Learned counsel for defendant No. 3 has also invited my attention to the written statement filed by the defendant No. 3, Prime Commercial Bank Limited in which it is clearly mentioned that the defendant No.1 had availed financial facility and also mortgaged the same property with the Bank and since the defendant No.1 defaulted in payment, therefore, the bank has already filed a Banking Suit No. 98/2006 against the defendant No.1 under Section 9 of the Financial Institutions (Recovery of Finances) Ordinance, 2001 which is pending adjudication in the Banking Court No. 1, Karachi.
One intervener, Syed Ameer Ali Shah also moved an application under Order 1 Rule 10, CPC (CMA 10890/08), in which he claimed to be a proper and necessary party as according to him, the defendant No. 1 vide agreement dated 14-12-1988, agreed to sell the property in question to him. Vide, order dated 26.01.2009, the intervener was made party as defendant No.4 in this case. The order further shows that the intervener/defendant No. 4 has also filed another suit No.152/08 in this Court, therefore, his application was allowed by consent and he was impleaded as defendant No. 4 in this matter.
The learned counsel for defendant No. 4 argued that since the defendant No. 1 by virtue of an agreement, agreed to sell the property in question to the defendant No.4, therefore, the plaintiff has no locus standi or legal character to claim or retain the possession of the property in question.
The whys and wherefores lead me to a conclusion that the plaintiff has completely failed to demonstrate as to how he came into possession, when at the time of institution of suit, he was not in possession and even in the prayer clause, it has been prayed that the directions be issued against the defendant No. 1 to execute the conveyance deed and handover the possession and even in the earlier injunction application, it was only prayed that during the pendency of the suit, the defendant No. 1 may be restrained not to create any third party interest but in the year 2010, the present injunction application has been moved with altogether different prayer that since the plaintiff is in the possession, therefore, he may not be dispossessed till final adjudication of the suit. In the previous protracted litigation in the rent case, the plaintiff has made all efforts to join the proceedings but failed to succeed and even the tenant Saud Bashir took the plea that he handed over the possession to the plaintiff on the instructions of defendant No. 1 but failed to prove. The ejectment application was allowed and first rent appeal was also dismissed. The plaintiff has also failed to prove that any sale agreement was executed between him and the defendant No. 1 but the whole suit is simply based on Annexure P-1, which is merely a receipt and does not speak about any condition by virtue of which the plaintiff was put into possession of the premises.
An injunction is a writ framed according to the circumstances of the case commanding an act which the court regards as essential to justice or restraining an act which had esteem contrary to equity and good conscious. An injunction as is well known is an equitable remedy and accordingly, is to confirm to the well known maxim of the law of equity “he who seeks equity must do equity”. The law as contained in the Specific Relief Act is governed by the aforesaid maxim, therefore, a plaintiff, who asks for an injunction, must be able to satisfy the court that his own acts and deed in the matter have been fair, honest and free from any taint or illegality and that if any dealing with the person against whom he seeks the relief he has acted in an unfair or un-equitable manner, he cannot have this relief. In a case reported in 1994 CLC 1617, it has been held that the Doctrine of part performance as developed by equity Courts in England, having been given statutory recognition by means of enacting S.53‑A of the Transfer of Property Act, such doctrine had become applicable to the whole of Sub‑continent. Principle of part performance being based upon golden rules of fairness, justness and righteous dealing between the parties. In order to avail the plea under section 53‑A of the Transfer of Property Act, a person had to show there is a contract in writing signed by the transferor in respect of an immovable property, from the writing, transfer can be ascertained with reasonable certainty, in part performance of the contract, the transferee has taken possession of the property or any part thereof or if he was in possession, he continues to be in possession in part performance of the contract and has done some act in furtherance of the contract and the transferee has performed or is willing to perform his part of the contract. The plea of part performance is available to the plaintiff as well as defendant as a shield to protect and maintain possession against the transferor or any person claiming under him.
It is clear in my mind according to the letter of law that in the present controversy, Section 53-A of the Transfer of Property Act has no germane. There is no agreement between the parties whereby the plaintiff may assert any right that after entering into an agreement, he is enjoying the possession as owner or tenant or in part performance of the contract. The plaintiff did not come into the possession of the subject premises by virtue of agreement to sell. Whether the plaintiff is entitled to the specific performance or not, this cannot be resolved unless proper issues are settled and the parties are given ample opportunity to lead evidence. While granting the injunction, court has to consider an old age principle of prima facie existence of right in the plaintiff and its infringement by the defendants or the existence of a prima facie case in favour of the plaintiff, an irreparable loss, damages or injuries which may occur to the plaintiff if the injunction is not granted and the inconvenience which the plaintiff will undergo from withholding the injunction will be comparatively greater than that which is likely to arise from granting it or in other words the balance of inconvenience should be in favour of the plaintiff. All three essential ingredients must be fulfilled. Absence of anyone of such ingredients would not warrant grant of injunction.
As a result of above discussion, I am completely mindful to the fact that the plaintiff has miserably failed to establish that he is in possession of the property in question due to part performance of the contract, therefore, his possession is not protected under Section 53-A of the Transfer of Property Act and I feel no hesitation to hold that the plaintiff has failed to make out any prima facie case, balance of convenience does not lie in his favour and so far as the question of irreparable loss is concerned, the plaintiff has already claimed damages in the suit and in case this court will reach to the conclusion that plaintiff is not entitled to the specific performance, then the plaintiff may be compensated by awarding damages, if the plaintiff succeeds to prove in evidence.
Consequently, injunction application CMA 8401/10 is dismissed.
Karachi:-
Dated.29.12.2010 Judge