Mr. Justice Mushir Alam, CJ
Mr. Justice Aqeel Ahmed Abbasi
Muhammad Saad and another.…………………………………Appellants
Amna and others …………………………….……...Respondents
Date of hearing : 21.01.2013 & 26.08.2013
Date of order : 29.08.2013
Ms. Sana Minhas, advocate for the appellants
Mr. Khawaja Shamsul Islam, advocate for the respondent No.5.
Mr. Rashid Anwar, advocate for the respondent No.24.
Mr. S. Haider Imam Rizvi, advocate for the respondent No.25.
Mr. Khurram Iqbal, advocate for Board of Revenue.
Mr. Miran Muhammad Shah, Addl. A.G.
Aqeel Ahmed Abbasi, J: Through instant High Court Appeal, the appellants have assailed the order dated 19.09.2007 and 22.09.2007, whereby the injunction application i.e. CMA No.2576/2007 filed by the appellants was dismissed by the learned Judge in Chambers.
2. Brief facts for the purpose of disposal of instant High Court Appeal are that the appellants filed a suit bearing No.374/2007 seeking declaration and injunction against the answering
respondents in respect of land measuring 10-3 Acres in Naclass No.166, Deh Safooran stated to be acquired through registered lease deed dated 17.1.2004 and another piece of land measuring 10-2 Acres from same Naclass acquired through sale deed of the same date. Thereafter the impugned plots were mutated in favour of the appellants in Deh Form-VII vide entries 124 and 125 respectively dated 29.4.2003. It has been further claimed that the possession of the subject land was also handed over to the appellants. Along with plaint of the suit an application under order XXXIX rule 1 and 2 CPC being CMA No.7576/2007 was also filed by the appellants whereby the plaintiffs sought restraining orders against the defendants from raising any further construction on the suit land as well as from creating 3rd party interest till disposal of the suit.
3. Case of the plaintiffs before the learned Single Judge of this Court was that they have acquired subject land as referred to hereinabove through registered sale deed, whereas the possession was also handed over to the plaintiffs by the official defendants. It has been stated that while visiting the subject land the plaintiffs observed that sign board of proposed construction of M/s Alpine Towers and Bismillah Towers, were installed at site, whereafter he carried out an inquiry and came to know that the defendants No.1 to 23 manipulated entry in the revenue record on the basis of judgment of this Court dated 09.05.1979 in C.P.No.254/1974 and thereafter transferred some land to defendants No.24 and 25. It was contended by the plaintiffs that the defendants have no right in respect of the subject land as they have no clear title and specifically the mutation of 9-8 Acres in Naclass No.166 in their favour is fraudulent. It was further asserted that the construction of multi-storied building over the sub divided plot No.328-A and other on Block-10, Deh Safooran, Gulistan-e-Jouhar, Karachi, cannot be carried out by the defendants as they are trespasser on plaintiff’s land. The defendants including the official defendants have taken the defence that the plaintiff has no right or title over the subject land, and all entries in the record of right relating to plaintiff title are bogus, whereas, all the documents and respective entries in the record of right in favour of the defendants are genuine and legal. It was further stated by the defendants that besides plaintiffs, some government officials have also been booked in some FIRs for having committed fraud by showing entries in the name of plaintiff. The Mukhtiarkar filed detailed written statement and learned AAG after having examined the record has also submitted interim charge sheet in FIR No.67/2007, to show that the plaintiffs are wanted by the Police in respect of subject land and they are land grabbers as well fugitive from law.
4. Learned Single Judge, after hearing both the learned counsel for the parties has passed the impugned order dated 19.09.2007 in the following terms:-
“In these circumstances, there is no weight in favour of the plaintiff of all the three factors of injunction while defendants have prima facie case which is being supported through neutral evidence, therefore, if the injunction is granted against them they will suffer irreparable loss hence balance of inconvenience is in their favour.”
5. Being aggrieved by such finding of the learned Single Judge in Chambers the appellants have preferred instant High Court Appeal with the prayer to set-aside the impugned short order dated 19.9.2007 and the detailed order dated 22.9.2007 and have also sought directions to the effect that the respondents may be directed to maintain status-quo till disposal of the suit.
6. It has been vehemently argued by the learned counsel for the appellants that the impugned order is erroneous in law and fact as the learned Single Judge in Chambers has failed to appreciate that all the ingredients required to be taken into consideration while deciding an injunction application i.e. prima-facie case, balance of convenience and irreparable loss an injury were all in favour of the appellants in the instant case. It is further contended that the respondents were not able to establish their claim or entitlement in respect of subject property on the basis of legal documents, whereas all the entries in the record of revenue and the agreements were either erroneous or the same were the result of fraudulent transaction by the respondents to establish their false claim and title over subject property. Per learned counsel, the appellants had produced all the relevant documents and the revenue record before the leaned Single Judge in respect of the subject property to show that the appellants were the owner and also in possession of that property, whereas the respondents had acquired the possession of such land illegally and also raised illegal construction thereon without any lawful authorization. Learned counsel for the appellants while referring to the contents plaint in the suit submitted that appellants came to know about such illegal possession by respondents upon subject land when they noticed construction activity and installation of signboard and hoarding of the project (Bismillah Towers and Alpine Towers) over subject land. However, upon inquiry it is discovered that out of total area of 21-10 acres i.e. the area of impugned land leased to the appellants, an area of 9-10 acres i.e. disputed portion, has been unlawfully transferred in the name of respondent Nos.1 to 23 vide entry No.22 in Deh Form-II dated 11.3.2004 whereafter it has been allotted survey No.328 in revenue record. Per learned counsel, this transfer of disputed portion of the land was made allegedly on the pretext that one Suleman Haji Tar Muhammad, who was a displaced person, purportedly had an unsettled pending claim of 25 acres of agricultural land, however, after his expiry during pendency of his claim, his legal heirs viz. the respondents No.1 to 23 became his successor-in-interest, whereafter such claim was allowed in their favour. Per learned counsel, the entire claim of the respondent was based on erroneous entries and fraudulent transaction shown by the respondents in respect of disputed land, which have been challenged by the appellants by filing a Suit No.374 of 2007 in High Court of Sindh, inter alia, challenging mutation of the disputed portion in favour of respondents No.1 to 23 and approval of building plan for raising construction thereon. Per learned counsel, initially, an ad-interim order dated 6.4.2007 directing the parties to maintain status-quo was passed by the learned Single Judge of this Court on the appellant’s injunction application being CMA No.2576 of 2007, however, when the above said injunction application finally came up for hearing, the same has been dismissed vide impugned order(s) dated 19.9.2007 (being short order) and 22.9.2007 (being detailed order), whereas, per learned counsel, no valid reasons have been assigned by the learned Judge while dismissing injunction application.
7. While making further submissions, learned counsel for the appellants has also referred to the provisions of Evacuee Trust Property Act, orders and letters issued in favour of the respondents in respect of subject land and submitted that the land in dispute which was State land could not be allotted as evacuee land in favour of the respondents, hence mutations and entries in favour of the respondents are illegal and based on managed documents. It has been further contended that the claim of the appellants is based on entries in Government record which have merely been suspended and not cancelled. Learned counsel further submitted that the predecessor of the respondents could not be permitted to take commercial land in lieu of their agricultural land which was allowed to them under judgment dated 6.5.1979 in C.P.No.D-254 of 1974, whereas, the said order of the Court has been wrongly interpreted by the Government officials, who according to learned counsel for the appellants, are in collusion with the respondents. It has been further contended by the learned counsel for the appellants that while dismissing the injunction application of the appellants the learned Single Judge of this Court failed to appreciate that respondents neither have any prima facie case nor the other ingredients required to be taken into consideration while deciding an injunction application i.e. the balance of convenience and irreparable loss and injury were in favour of the respondents, who according to learned counsel could not establish their entitlement and possession over subject land, and inspite of such fact, they have been permitted to occupy and continue to raise illegal construction upon the subject land. It has been further contended by the learned counsel for the appellants that in the absence of any clear title and lawful authorization by the competent authority in favour of the respondents to raise construction upon the disputed land, instead of dismissing the injunction application of the appellants, appellants could have been directed to maintain status-quo to avoid any further loss and injury to the respondents. In support of his contention, learned counsel for the appellants has placed reliance in the following judgments:
1. Mirza Mehboob Baig & others v. Deputy Settlement Commissioner (Land) & others 2002 MLD 1512
2. Muhammad Aslam Gatta & another v. Karachi Building Control Authority (KMC), M.A. Jinnah Road, Karachi & 13 others 1998 MLD 544
3. Muhammad Saleem & 5 others v. Administrator Karachi Metropolitan Corporation, Karachi Building Control Authority (KMC) Karachi and 2 otehrs.2000 SCMR 1748
4. Ardeshir Cowasjee & 10 others v. Karachi Building Control Authority (KMC) & 4 others1999 SCMR 2883
5. Syed Saifullah v. Board of Revenue, Balochistan through its Member (RJT) & 4 others 1991 SCMR 1255
6. Mst. Sardar Begum v. Member (Colonies), Board of Revenue, Punjab, Lahore & 3 others 1994 SCMR 395
7. Mooso through Legal heirs & 2 others v. Allah Ditto through legal heirs & 7 others 1999 CLC 798
8. Syed Mahmood Ali Gerdezi & another v. Syeda Rabia Begum & 10 others 1993 MLD 814 (Lahore)
9. Mst. Salma Abbasi & another v. Ahmed Suleman & 2 others 1981 CLC 462
10. Samar Gul v. Central Government & others PLD 1986 SC 35
11. Dr. Mrs. Nasreen Qureshi v. Deputy Administrator, Evacuee Trust Property, Karachi & another 1987 CLC 213
12. Fazalur Reham v. Younis Ali Gilani & 9 others
1999 MLD 1565.
8. Conversely, Mr. Khawaja Shamsul Islam, learned counsel for respondent No.5 has vehemently opposed the contention raised by the learned counsel for the appellants and submitted that the impugned order does not suffer from any illegality, misreading or non-reading of the evidence, hence does not require any interference by this Court. It has been contended by the learned counsel that the scope of deciding a High Court Appeal against an order passed on injunction application is limited, whereas, it has to be examined as to whether while passing an order on injunction application the learned Judge has taken into account all the ingredients required to be considered while deciding injunction application, i.e. prima-facie case, balance of convenience and irreparable loss and injury to the parties. It is contended by the learned counsel for the respondent No.5 that the appellants could not produce any valid title documents in respect of disputed land in their favour nor could establish a prima-facie case for grant of injunction in their favour. On the contrary, it has come on record that the appellants approached this Court with unclean hands and by concealing material facts. It is further submitted that the appellants are land grabbers who have been involved in similar criminal activities, whereas several criminal cases have already been registered against them and the officials of revenue department. Per learned counsel, the malafide on the part of the appellants can be ascertained from the fact that they have approached this Court and filed an injunction application when the project of the respondent was almost completed as about 12 storeys were already raised, whereas, in order to blackmail the respondents, appellants have filed instant suit, without producing any valid title documents in their favour. It has been argued by the learned counsel that admittedly there is no entry in favour of the appellants in the Revenue Record in respect of subject land, whereas no interim relief has been granted to the appellants in their Suit No.389 of 2005 regarding their claim of title over the subject land. Per learned counsel, the claim of the appellants is contrary to the official record, whereas the official respondents have categorically denied the entitlement and possession of the appellants over subject land. Learned counsel also referred to written statement filed on behalf of Mukhitarkar and the learned AAG to show that the appellants are required by the police in FIR No.67/2007 as they are land grabbers as well as fugitive from law. Per learned counsel, a number of criminal cases have been registered against the appellants and revenue officials on the charges that the appellants, with the connivance of the official respondents, are involved in defrauding and blackmailing the construction companies and builders particularly when their projects are at the stage of completion, by filing frivolous suits and obtaining injunctive orders in their favour on misrepresentation of facts. Per learned counsel, in the instant matter also, the appellants wanted to blackmail the respondents, however, when the respondents refused to accede to their illegal demands the appellants filed frivolous suits on the basis of forged and managed documents and initially succeeded to obtain interim stay by mis-representation. However, per learned counsel, when the entire facts were placed before the learned Single Judge of this Court and the documents of title, possession and lawful construction upon subject land were produced by the respondents, the learned Single Judge of this Court, after having examined all such documents and taken into consideration the three basic ingredients required to be examined at the time of deciding injunction application, has rightly dismissed the injunction application filed by the appellants through impugned order. Learned counsel has also referred to certain documents filed by the appellants in support of their claim and submitted that the same are bogus and managed documents for which the appellants are being prosecuted in criminal cases. It has been contended that the appellants could not establish a prima-facie case in their favour nor could convince the learned Single Judge regarding balance of convenience and irreparable loss and injury for grant of injunction in their favour, whereas, they have raid objections on the title of the respondents and attempt to create doubts with regard to veracity and genuineness of the title documents of the respondents in respect of subject land. Per learned counsel, a party seeking injunctive order in its favour has to establish a prima-facie good case on the strength of its own case and not on the basis of weaknesses of the other party, whereas, according to learned counsel, the appellants in the instant matter have throughout either challenged the title of the respondent or the entitlement of their predecessor in respect of subject land. While making further submissions, the learned counsel has referred to the title documents and the official record of the revenue authorities including mutation in the name of respondents to shows that the respondents have lawful title, possession as well as authorization to raise construction thereon, which fact, according to learned counsel, has duly been acknowledged by official respondents and can also be verified from the official revenue record. While concluding his arguments, learned counsel for the respondent No.5 has also raised an objection with regard to laches and argued that the alleged claim of the appellants, besides being false and frivolous, is also barred by limitation and laches, as the entries and documents in favour of the respondents and their predecessors cannot be challenged at this belated stage by the appellants, particularly when the official respondents and the revenue record, do not support the claim of the appellants.
9. Mr. Rashid Anwar, learned counsel for respondent No.24 has also vehemently controverted the contention of the learned counsel for the appellants and supported the impugned order passed by the learned Single Judge. It has been vehemently argued by the learned counsel for respondent No.24 that none of the ingredients which is required to be taken into consideration while deciding an application of injunction i.e. prima-facie case, balance of convenience and irreparable loss and injury, were in favour of the appellants, therefore, the learned Single Judge was right in dismissing such application through impugned order. Per learned counsel, in the absence of any valid title or lawful possession of the appellants over subject land neither the suit filed by the appellants is maintainable nor they are entitled to any interim injunctive relief as sought by the appellants by filing injunction application. Per learned counsel, it has also come on record that the appellants did not approach this Court with clean hands, whereas they are involved in several criminal cases on the charges of blackmailing, cheating the developers and builders. It is contended by the learned counsel that the appellants are land grabbers, who have also filed similar frivolous suits against other builders and obtained injunctive orders when the projects were almost at the stage of completion and thereafter the appellants by blackmailing the builders and developers, extract illegal money from them, whereafter some of the cases were withdrawn. Per learned counsel, several entries in the revenue record which were managed with the connivance of official respondents in favour of the appellants, have already been cancelled or suspended including the entry in respect of the subject land, whereas, criminal cases are still pending against the appellants and official respondents, who connived with the appellants in such offences. Learned counsel further contended that the appellants are claiming title over subject land on the basis of fake entry dating back to 1925 in terms of which one Khan Muhammad was allotted the suit land in lieu of his land which was reportedly acquired by the Government for the Imperial Airship Aerodrome, whereas the falsity of claim can be proved by the fact that Khan Muhammad was actually given total cash compensation in lieu of his land measuring approximately 200 acres @ Rs.50 per acre. Per learned counsel, Khan Muhammad thereafter filed an Appeal J.M. No.489 of 1926 on February 1, 1926 in which the Court enhanced the compensation amount by another Rs.6 per acre. Therefore, per learned counsel, the claim of the appellants regarding allotment of the subject land in lieu of acquisition of his land is baseless. Learned counsel has also referred to various other documents through which the appellants have claimed title over the subject land to show that all such documents are forged and managed and were got registered through Sub-Registrar, who did not even have the jurisdiction to register such documents. It has been contended by the learned counsel that none of the document which has been produced by the appellants can be regarded as valid title documents nor did inspire any confidence, therefore, the learned Single Judge was justified to decline interim relief to the appellants. Learned counsel has further argued that the appellants are involved in criminal cases of like nature on the charges of establishing false entries in the revenue record with the connivance of the revenue officials and by filing frivolous suits, wherein injunctive orders are obtained by misrepresentation of facts to blackmail the builders/developers and to extract illegal money from them. According to learned counsel, the appellants have not approached this Court with clean hands, hence not entitled to any equitable relief by way of injunction in their favour. While concluding his arguments, learned counsel has submitted that the scope in High Court Appeal against an order passed on injunction application is limited to the extent of determination as to whether the learned Judge deciding such application has taken into consideration the three basic ingredients i.e. prima-facie case, balance of convenience and injury and irreparable loss to the party, whereas no detailed examination of reappraisal of the evidence is required. Learned counsel also referred to chronology of the events and the documents of title in respect of subject land as well as approved building plan for the projects being constructed thereon to show that the respondents have valid title documents which are duly verified by the official respondents, whereas, according to learned counsel, all such entries can be verified from official record. It has been contended by the learned counsel that unless such documents are declared to be illegal and cancelled by the competent Court/Authority. No adverse inference can be drawn nor the appellants can seek any injunctive relief in the absence of any valid title documents and prima-facie case in their favour. Per learned counsel, neither the appellants have any prima-facie case nor the balance of convenience is in their favour, whereas, if any interim relief is granted to the appellants the respondents and the innocence third party purchaser will suffer serious injury and irreparable financial loss, hence instant High Court Appeal may be dismissed with cost. In support of his contention learned counsel for the respondents has placed on record in the following judgments:
1. Abdul Ghafoor Memon v. Mohammed and another
PLD 1975 Karachi 464
2. Mst. Najma Rana v. S.M. Maroof & another 1989 MLD 1317
3. A.E.G TELEFUNKEN Pakistan Ltd. V. Electric Concern Corporation 1985 CLC 155
4. Glaxo Group (Pvt) Ltd. v. Evron (Pvt) Ltd. PLD 1991 Karachi 252
5. MD Anwarullah Mazumdar Tamina Bibi & others
1971 SCMR 94
6. Qadir Bux through attorney & others v. Government of Sindh through Secretary Board of Revenue & 7 others 2007 YLR 525
7. Allah Dino v. Haji Ahmed PLD 2006 Karachi 148
8. Pervaiz Hussain & another v. Arabian Sea Enterprises Limited SBLR 2006 SC 3
9. Marghub Siddiqi v. Hamid Ahmad Khan and 2 others1974 SCMR 519
10. Jawaid Mir Muhammadi v. Haroon Mirza PLD 2007 SC 472
11. Muhammad Umer Saeed v. Pakistan & others 1969 SCMR 141
12. Haji Arbab Ali v. Deputy Director Sindh Agricultural Supplies Organization & others 1998 SCMR 1244
13. Mrs. Shahzadi Baber v. Hina Housing Project (Pvt) Ltd. & others 1994 CLC 1601 (Karachi).
10. Mr. Haider Imam Rizvi, learned counsel for respondent No.25 has adopted the arguments of the learned counsel for the respondents as referred to hereinabove and has supported the impugned order passed by the learned Single Judge.
11. Mr. Miran Muhammad Shah, learned Additional Advocate General Sindh and Mr. Khurram Iqbal, learned counsel for the Board of Revenue have also opposed the maintainability of instant High Court Appeal and supported the impugned order. Both the learned counsel have rebutted the contention of the learned counsel for the appellants and submitted that the claim of the appellants is false and contrary to the official record. It has been contended that the appellants do not have any valid title documents in respect of subject land, whereas, entries in the revenue record in favour of the appellants have either been cancelled or suspended for being erroneous and based on fake documents. Both the learned counsel argued that the learned Single Judge while deciding the injunction application through impugned order has taken cognizance of all the relevant facts and the material produced before him, whereas, the appellants could not establish a prima-facie case to seek any injunction from the Court. It has also been contended that the appellants and official respondents of revenue department are involved in criminal cases of land grabbing and cheating in which they are fugitive from law, therefore, they are not entitled to any discretionary relief which has been rightly declined by the learned Single Judge. It has been prayed that the instant High Court Appeal being devoid of any merits is liable to be dismissed.
12. We have heard all the learned counsel for the parties, perused the impugned order and the record with their assistance. Instant High Court Appeal has been filed by the appellants against an order passed by the learned Single Judge of this Court on CMA No.2576/2007 filed by the appellants in it No.374 of 2007 whereby restraining orders against the respondents from raising any further construction on the subject land were sought by the appellants. Brief facts as recorded by the learned Single Judge are that the appellants are claiming title over land in dispute for having acquired 10-3 acres of land from Naclass No.166, Deh Safooran through registered lease deed dated 17.01.2004 and another piece of land measuring 10.2 acres from same Naclass through another sale deed of the same date and subsequently possession was stated by given to the appellants. However, the appellants came to know that the signboard of proposed construction of Alpine Towers and Bismillah Towers were installed on the subject land and on inquiry the appellants came to know that respondents No.1 to 23 by manipulating entry in the revenue record on the basis of judgment of this Court dated 09.05.1979 in C.P.No.254 of 1974 got subject land transferred in favour of respondents Nos.24 and 25, which according to appellants were based on fraudulent transactions. Appellants filed Suit a No.374 of 2007 alongwith injunction application wherein restraining orders against the respondents for raising any further construction on the subject land was solicited upon which an ad-interim order was passed, whereby parties were directed to maintain status-quo. However, at the time of final hearing of the injunction application, the learned Single Judge vide impugned short order dated 19.7.2007 followed by detailed order dated 22.9.2007 recalled the status-quo order granted earlier and dismissed the injunction application of the appellants. Before the learned Single Judge as well as before us, learned counsel for the appellants argued that the appellants are the owners of the subject land on the basis of entries in revenue record, which according to learned counsel were suspended on the allegations of being suspicious and not finally cancelled by the competent authority. The appellants also filed a Suit No.389 of 2005 against such cancellation by the official respondents, wherein, according to learned counsel for appellants official respondents were restrained from taking any coercive action against the appellants. Learned counsel also referred to Form-VII in respect of subject land to show that the names of the appellants were entered in the record of right. Reference to letter dated 18.11.2005 written by Mukhtiarkar Revenue, Gulshan-e-Iqbal, Karachi, to District Officer Revenue has also been made, wherein, details of transfer of the land in question was given to show that the appellants are the owners of the plot in question. As regards entitlement of the respondents over subject land the same has been seriously disputed by the counsel for the appellants, whereas, it was alleged that the private respondents, with the connivance of official respondents by misinterpreting the judgment dated 6.5.1979 passed in C.P.No.254 of 1974 have managed entries in the revenue record in their favour. It has been argued that in terms of the aforesaid judgment, 25 acres of land was to be allotted towards claim of the predecessor of the respondents i.e. Haji Tar Muhammad, and the legal heirs were satisfied with 25 acres land out of which 15-32 acres land was allotted in 1980 as per Khatoni while 6 acres was allotted in Deh Okewari, hence in total they were allotted 21-31 acres and only 4-8 acres remained to be allotted, whereas, the land in dispute in the instant case is also 9 acres which cannot be claimed towards remaining claim of the predecessor of the defendant. It was also argued that allotment of any land towards claim under evacuee law could not be entertained after repeal of evacuee law on 01.04.1974 by Act XIV of 1975 and the Government was not authorized to distribute the land which came to it after repeal of law. On the other hand, the respondents after having filed written statement and objections to the injunction application vehemently refuted the claim of the appellants, whereas several documents of title in respect of land have been filed in support of their claim. Written statement and objections were also filed on behalf of official respondents who also denied the claim of the appellants and submitted that the appellants do not hold any valid title over subject land, whereas the respondents are lawful owners. It was also stated that the documents produced by the appellants are forged and manipulated and have been managed by the appellants with the connivance of official respondents against whom criminal cases have been registered.
13. We have noted that the claim of the appellants in instant case with regard to their entitlement and possession over subject land has not only been seriously disputed by the private respondents but also by the official respondents, whereas entries in favour appellants have already been either cancelled or suspended by the revenue authorities. Record further shows that prior to filing instant suit the appellants also filed a Suit No.389 of 2005, whereby the cancellation/suspension of the entries in favour of the appellants in respect of subject land by the official respondents was challenged, whereas interlocutory application seeking injunctive orders was also filed, however, the same has not been granted as prayed, whereas, official respondents were only directed not to take any coercive action against the appellants. Thereafter, the appellants filed instant Suit No.374 of 2007 against the present respondents seeking declaration in the following terms:
A. Declaration that the plaintiffs are lessees in respect of land measuring 10.30 acres and 10.20 acres (total 21.10) out of N-Class No.166, Deh Safooran, Tapo Drig Road, Block-10, Gulshan-e-Iqbal, Town, Karachi, and entitled to possession of the said land by virtue of registered lease deeds dated 17th January 2004 (annexures A and B to the plaint);
B. Declaration that the defendants, their agents, subordinates, heirs, executors, attorneys or anyone claiming under or through them have no right to claim title and possession of property bearing survey No.328, A to F out of Na-Class No.166, Deh Safooran, Gulshan-e-Iqbal Town, Karachi measuring 9.08 acres or any part thereof;
C. Declaration that mutation entry No.22 in Deh Form-II for Deh Safooran, Gulshan-e-Iqbal, Karachi dated 11.03.2004 and all actions based thereon in the name of defendants No.1 to 23 are illegal, void and without jurisdiction creating no right in favour of the said defendants or anyone claiming through or under them;
D. Declaration that the building plans approved by the Deputy Controller of Buildings, Gulshan-e-Iqbal Town-I for construction on sub-divided plots No.328-A and 328-C, Block-10, Deh Safooran, Gulistan-e-Johar, Karachi is illegal, void and without jurisdiction, therefore, is liable to be cancelled;
E. Mandatory injunction directing the Mukhtiarkar (Revenue) Gulshan-e-Iqbal, Karachi to cancel entry No.22 dated 11.03.2004 in Deh Form-II purporting to transfer 9.08 acres bearing survey No.328 out of Na-Class No.166 Deh Safooran, Gulshan-e-Iqbal Town, Karachi in favour of defendants No.1 to 23 and or anyone claiming through or under them;
F. Mandatory injunction directing the Deputy Controller of Buildings, Gulshan-e-Iqbal-I, Karachi to cancel building plan approved on 21.04.2005 and 26.05.2005 for construction on subdivided plot No.328-A and 328-C both situated in Block-10, Deh Safooran, Gulistan-e-Johar, Karachi and to refrain from according approval of any plant for construction on survey No.328 or any subdivided portion thereof;
G. Possession of land measuring 9.08 acres bearing survey No.328-A to F situated in Block-10, Deh Safooran, Gulistan-e-Johar, Karachi after restoring the land to its original position by pulling down the construction unauthorizedly raised by them;
H. Cost of the suit; and
I. Any other relief or reliefs as may be considered or found appropriate by this Honourable Court in the circumstances of the case.
14. The appellants also filed an injunction application i.e. CMA No.2576/2007 wherein it was prayed the respondents/defendants may be restrained from raising any further construction on the subject land and not to create any third party interest till final disposal of the suit. Appellant No.1 claimed ownership of land measuring 10.30 acres from Na-class No.166, Deh Safooran, Gulshan-e-Iqbal Town, Karachi, stated to be acquired through registered lease deed executed on 17.1.2004, likewise Appellant No.2 claimed ownership of land measuring 10.20 acres from Na-class No.166, Deh Sufooran, Tapo Drig, Gulshan-e-Iqbal Town, Karachi, stated to be acquired through 99 years lease dated 17th January 2004 duly registered with Sub-Registrar (Agricultural Lands) Karachi East. Reliance was also placed in Deh Form No.VII vide entries No.125 and 126, whereas it was also claimed that physical possession of subject land was also taken from previous owner Badarul Abideen. While placing reliance in the aforesaid documents in support of their claim of entitlement over the subject land the appellants also disputed the documents filed by the private respondents as well as official respondents showing their entitlement over the subject land. The appellants asserted that the respondents have managed of such documents by misinterpreting the judgment of this Court dated 9.5.1979 passed in C.P. No.254 of 1974. The learned Single Judge while deciding the injunction application after having taken stock of material facts and on examination of the documents produced by the respective parties in support of their claim with regard to their entitlement over the subject land formed a tentative opinion with regard to veracity of such documents and claim of the appellants, and dismissed the injunction application of the appellants vide impugned order by holding that there is no weight in favour of the appellants with regard to three factors of injunction i.e. prima-facie case, balance of convenience and irreparable loss and injury.
15. Before we may examine the legality or otherwise of the impugned order passed by the learned Single Judge of this Court, we may observe that while deciding an injunction application or hearing an appeal against such order, Courts are required to take into consideration three basic factors of injunction i.e. prima-facie case, balance of convenience and irreparable loss and injury, whereas no detailed examination of the evidence is to be made nor any final decision or finding is to be recorded with regard to authenticity of the claim of the contesting parties. We are also mindful of the legal position that a party who seeks injunctive relief during pendency of a suit for declaration and injunction, is required to make out a prima-facie case on the strength of its own claim duly supported by the material, documents and the evidence, whereas, such relief cannot be claimed on the basis of weakness of the case of other party. In the instant matter, the appellants claim their entitlement over the subject land and sought injunctive relief on the basis of “two deeds of lease of immovable property” both dated 17.1.2004 executed between one Badarul Abideen son of Zainul Abideen and the appellants wherein Badarul Abideen has been shown as lessor of the subject land which was reportedly acquired from one Mr. Nawabuddin son of Taj Muhammad through sale deed executed on 13.11.1993 before Sub-Registrar (Agricultural Lands) Karachi East. The said document further shows that the subject land was given on lease of 99 years (hand written) at the lease money/premium of Rs.30,000 per acre, whereas the same has been registered by Sub-Registrar (Agricultural Lands) Karachi East. However, it is noted that no demarcation or boundaries of the subject land has been mentioned either in the schedule of property or in the sketch attached therewith. While hearing instant appeal, learned counsel for the appellants was required to satisfy this Court as to the title of Nawabuddin from whom the lessor Badarul Abideen acquired subsequent title through sale deed dated 13.11.1993. However, inspite of number of opportunities having been given to the learned counsel for the appellants, no such document with regard to entitlement of Nawabuddin on the subject land was placed on record, whereas vide statement dated 10.10.2012, the appellants have placed on record copy of Deh Form-VII purported to have been obtained from the record of rights and mutation register, Deh Safooran Tapo Drig Road, Taluka Karachi, District Karachi showing the name of Khan Muhammad son of Khuda Bux in column 3 as transferor. From perusal of such document, it transpired that column No.2, 4 and 7 are blank, whereas in
column No.5 titled as, “kind of rights”, it has been mentioned that the lands as shown in such column were acquired by making payment of compensation amount, whereas, there is no mention of any exchange of land in lieu thereof, as argued by learned counsel for appellants. From perusal of Form-VII filed by the appellants before the learned Single Judge in support of their claim of entitlement over the subject land, it is seen that no detail regarding acquisition of subject land by Nawabuddin in the year 1993 has been given. Similarly, from perusal of letter dated 18.11.2005 issued by Mukhtiarkar (Revenue), Gulshan-e-Iqbal Town, City District Government, Karachi to the District Officer (Revenue), City District Government, Karachi, which was filed in response to Suit No.389 of 2005 filed by one of the appellant namely Muhammad Saad against Province of Sindh and others, we have noted certain discrepancies in the entries particularly in columns showing name of transferee and transferor, which further reflects discontinuity in the chain of entitlement of subject land. Moreover, such document cannot be regarded as proof of title particularly when such entries from the year 1925 have duly been suspended by the officials of revenue authorities. Whereas, criminal cases have also been registered in respect of the said entries in revenue record against the present appellants and the official respondents which were duly challaned before the competent Court of jurisdiction. The appellants and the revenue officials have been charged for having committed fraud and cheating by managing forged and bogus entries in the revenue record. It has also come on record that the entries in favour of the present appellants in the revenue record with regard to such land
have already been suspended for being suspicious, whereafter, the appellants filed a Suit No.389 of 2005 against the official respondents seeking declaration and injunction with regard to their entitlement over subject land. However, no injunctive relief has been granted in favour of the appellants, whereas mere directions were issued to the respondents not to take any coercive action against the appellants. It appears that at the time of filing instant suit and the injunction application the entries No.124, 125 and 126 with regard to lands including the subject land in Na-class No.166 were already suspended by the official respondents, hence the appellants did not have any valid undisputed title documents and supporting entries in the official revenue record to support their claim of entitlement over subject disputed land. Objections with regard to latches in the instant matter raised by the respondents cannot be ignored for the reasons that no explanation whatsoever has been given by the appellant to justify the inordinate delay in filing suit in the year 2007, whereas the respondents after having Advertised the two projects in Newspapers in the year 2005, started to raise construction over subject land, whereas, admittedly, the appellants filed instant suit and sought restraining orders when the construction on the subject land was almost completed upto 12 storeys. It has been further noted that third party interest has already been created in respect of some flats in the projects being constructed by the respondents over subject land.
16. While determining the question of granting a temporary injunction following factors are required to be taken into consideration:-
o The prima facie existence of a right in the applicant and its infringement by the respondent or the existence of a prima facie case in favour of the applicant.
o That irreparable damage or injury will accrue to the applicant if the injunction is not granted.
o That the inconvenience which the applicant 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 applicant.
17. While seeking a favourable injunctive relief the applicant is to prove the prima-facie existence of the right claimed in the suit and also its infringement. But the mere fact that a prima-facie case has been established will not entitle the applicant to an injunction unless the other two factors i.e. balance of convenience and irreparable damage or injury, are fulfilled. The Court is required to balance the inconvenience and to see as to whether applicant will suffer more inconvenience by the withholding of the injunction than that which the respondent would suffer by granting of injunction. The Court is further required to weigh the mischief of either party in case of grant or refusal of the injunction. Normally the balance lies in favour of continuation of a state of things, such as to protect the possession of a party or to allow the continuance of a contract. Similarly, while granting injunction or otherwise it has to be ensured that the grant of injunction to one party may not cause irreparable damage or injury to the other party whose loss cannot be compensated in terms of money.
18. In the case of Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139, the Hon’ble Supreme Court while defining principles for grant or refusal of injunction has held as follows:-
“The well-settled principle for the grant or refusal of temporary injunctions are, firstly, whether the plaintiff had a prima facie good case, secondly, whether the balance of convenience lies in favour of the grant of injunction and thirdly, whether the plaintiff would suffer irreparable loss if the injunction is refused.”
19. In the case of Abdul Ghafoor Memon v. Muhammad and another PLD 1975 Karachi 464, learned Judge of this Court while placing reliance on the judgment of the Hon’ble Supreme Court (supra) and while defining the scope of injunction under Order 39 Rule 1 & 2 CPC has held as under:
“It is the essence of all interim relief that the action in which it is claimed should be brought without unnecessary delay. In the instant case the encroachment in question took place on or about the 24th of September 1970, and it was not till about six months later that the action challenging it was, brought by petitioner. The petitioner, has, therefore, forfeited his right to interim relief by this unexplained delay and during this period the building of the respondent was allowed to reach in an advance stage of construction.”
20. In the case of Marghub Siddiqi v. Hamid Ahmad Khan & 2 others 1974 SCMR 519, the Hon’ble Supreme Court while defining the scope of injunction in terms of Order 39 Rule 1&2 CPC has held as follows:
“We are unable to agree with this contention, for, the trial Court had clearly not taken into account the question of balance of convenience or irreparable loss but based its decision purely upon its finding that the impugned resolution was bad in the eye of the law. An injunction is not to be granted only on the basis that a prima facie case exists but it is incumbent upon the Court to take into account the other questions.
The first is that in a suit where no perpetual injunction is claimed no question of granting ad interim injunction can possibly arise. In the present case, the application for ad interim injunction should have failed on this ground alone.”
21. In the case of Pervaiz Hussain & another v. Arabian Sea Enterprises Limited S.B.L.R 2006 SC 3, it has been held as under:
“8. However, we are of the view that since the suit is pending between the parties and as the dispute i.e. the status of the parties, is yet to be determined in the suit, therefore, we should be careful in making any observations on merits of the case. We are also of the view that on having come to the conclusion that there was no sufficient material on the record to give any prima facie finding about the status of the parties, the learned Division Bench of the High Court ought to have set aside the impugned injunctive order because this conclusion in itself disclosed that plaintiff had failed to make out a prima facie case as it had failed to prima facie establish before the Hon’ble Judges that the petitioners were licensees. Thus, in such a circumstances, the balance of inconvenience, because of the stoppage of business, was in favour of the petitioners and in such a situation, in our view, the learned Division Bench of the High Court erred in directing the parties to maintain status quo other than status quo ante.”
22. Keeping in view of hereinabove facts of the instant case and the ratio of the aforesaid judgments, we are of the tentative opinion that the learned Single Judge vide impugned order has rightly declined the injunctive relief sought by the appellants as they could not make out a prima-facie case for seeking discretionary relief in their favour. Moreover, none of the factors which are required to be taken into consideration for grant of an injunction application were in favour of the appellants. On the contrary, the private respondents did make out a prima-facie case in their favour, whereas the official respondents also supported their claim
and entitlement over subject land. We are of the opinion that the learned Single Judge while passing the impugned order has taken the complete stock of the relevant facts and also made tentative assessment of the material and the documents produced by the parties in support of their respective claim of entitlement and possession over the subject land, whereas three factors i.e. prima-facie, balance of convenience and irreparable loss and injury required to be considered for grant of injunction, have also duly been taken cognizance by the learned Single Judge.
23. The conclusion drawn by the learned Single Judge under the circumstances does not suffer from any error or illegality, hence does require any interference by this Court. Accordingly, we do not find any merits in the instant High Court Appeal, which is hereby dismissed.
24. Before parting with this order, we may clarify that the observations made hereinabove are tentative in nature and the learned Single Judge shall not be influenced by any such observation and may decide the case strictly in accordance with law after examining the evidence produced by the parties.