1. ' NADEEM AZHAR SIDDIQI, J.--- This is an application C.M.A. No,8490 of 2004, under Order XXXIX, rules 1 and 2, C.P.C. Filed by the plaintiff. The facts as stated in the plaint are that the plaintiff is the owner of piece of land bearing old Survey No,64. New Survey No,JM-1019, admeasuring 2020 Square yards with bungalow constructed thereon situated at Muslimabad Cooperative Housing Society, Karachi, and that the plaintiff is in possession of one portion and the other is in possession of tenant. It was further pleaded that on the condition that the plaintiff will live in the said property till her last breath the plaintiff agreed to sell the suit property to defendant No,2 against a sale consideration of Rs,3,00,00,000. The plaintiff further states that she is an old illiterate widow over 75 years and had put her thumb-impression on the papers stated to be sale agreement and blank papers in good faith believing that the defendant No,2 had mentioned therein the agreed sale price of Rs,3,00,00,000 and the agreed terms regarding physical possession of the premises was to remain with the plaintiff during her life time. The plaintiff further states that the agreement is a product of fraud and all other documents upon which her thumb marks were obtained are made up as product of fraud and are liable to be cancelled. She also apprehends that the defendants may dispossess her by show of force and cause demolition of the suit property. The plaintiff in her application prayed that defendants may be restrained from dispossessing the. Plaintiff from the suit property in any manner or demolishing or damaging the same in any manner otherwise then in due course of law.
2. ' The defendant No,1 filed his counter-affidavit and has taken certain legal objections with regard to maintainability of the suit. He submits that execution of agreement has not been denied as the plaintiff herself sold the property and have already took hefty amount of sale consideration. He further states that sub-lease of the suit property was registered in his favour on the basis of N.O.C.
3. Given by the plaintiff. The defendant No,1 after acquiring the suit property also got regularized an additional area of 616 square yards. Which was part and parcel of the suit property against consideration of Rs,1,00,000. The defendant No,1 further states that the transaction was complete in all respect and that the plaintiff has not come to this Court with clean hands and that the plaintiff has failed to make out a prima facie case in her favour.
4. ' The plaintiff has filed the rejoinder and in para.Vi she states that it appears that a conspiracy was hatched-up for depriving her from her valuable property.
5. ' Mr. Mushtaq Memon, learned counsel for the plaintiff, states that irrespective of the facts whether the agreement between the parties was executed freely or under duress the plaintiff is in possession of the suit property and cannot be dispossessed by force without due process of law.
6. He states that the plaintiff is a Pardhanasheen old illiterate lady and when her thumb marks were obtained on the agreement some near relatives were not present to advice her. He further states that the plaintiff being an old and illiterate lady is entitled to the protection provided under section 16(2)(b) of the Contract Act. Mr. Mushtaq Memon further contended that for grant of injunction the plaintiff has shown an arguable case and her possession over the property is sufficient to establish a prima facie arguable case. He further submits that from the documents produced by the defendant it is established that even the alleged sale consideration mentioned in the sale agreement was not paid and the property was transferred by the defendant in his name and this fact clearly established that even if the documents allegedly signed by the plaintiff are correct, the same are under undue influence and are void. Mr. Mushtaq A. Memon has relied ,upon the following reported judgments:--
(1) Mst. Farid-un-Nisa v. Munshi Mukhtar Ahmad and another AIR 1925 PC 204, (2) Janat Bibi v.
7. Sikandar Ali and others PLD 1990 SC 642, (3) Mst. Hafiza Bibi v. Ali Hussain and others 1994 SCM R 1194, (4) Taleh Bibi and others v. Mst. Maqsooda Bibi and another 1997 SCM R 459, (5) Ch. Muneer Hussain v. Mst. Wazeeran Mai alias Mst. Wazir Mai PLD 2005 SC 658, (6) Muhammad Nazir v.
8. Khurshid Begum 2005 SCM R 941.
9. ' The above reported cases pertains to right of Pardahnasheen Lady. This point requires evidence and both the parties have to lead evidence in support of their cases. At this stage any discussion and findings may prejudice the case of the parties. The same is left open to be argued by the parties at length after recording of evidence.
10. ' On the other hand, Mr. Kh. Shamsul Islam contended that parties are not issue and the suit should be dismissed on the strength of letter dated 23-4-2004 addressed by the plaintiff to the advocate for defendant in which she admits the execution of sale agreement as well as receipt of sale consideration. He further submits that the pleadings of the plaintiff are contrary to the above letter and that the plaintiff after entering into the agreement becomes dishonest and demanding Rs,3,00,00,000 from the defendants. He further contended that for grant of an injunction it is necessary that party should approach the Court with clean hands. He has also pointed out several documents which he has filed along with the counter-affidavit to show that the defendant has complete title and the plaintiff cannot obtain injunction order against the true owner of the property. Mr. Kh. Sahmsul Islam further argued that the plaintiff has no cause of action in view of letter dated 23-4-2004 and that no fraud Was committed as the sale consideration was paid through proper banking channel and the plaintiff has deposited the amount in her bank account and thereafter withdrawn the said amount from her bank account and refunded the same to the defendant through pay order. Mr. Kh. Shamsul Islam further states that plaintiff is an intelligent lady and recently sold another property. He further submits that plaint is silent in this regard. Mr. Kh.
11. Shamsul Islam has relied upon the following reported judgments:--
(1) Karachi Parsi Cooperative Housing Society Ltd. v. Dina S. Hazari and other 2004 YLR 2071, (2)
12. National Bank of Pakistan v. Mst. Hajra Bai and 2 others PLD 1985 Kar. 431, (3) Federation of Pakistan v. Public-at-large 1988 SCMR 2041, (4) Hem Chandra Roy Chaudhury v. Suradhani Debya Chaudhrani and others AIR 1940 PC 134 (5) Puma Chandra Choudhury v. Sarojini Choudhurani AIR 1935 Cal.
13. 234.
14. ' Mr. Kh. Shamsul Islam further argued that on the basis of admission of the learned counsel for the plaintiff that letter dated 23-4-2004 was written by the plaintiff she has no case and the suit should be dismissed on the basis of such admission. No doubt on a question from the Court Mr. Mushtaq A. Memon states that perhaps this letter was written by the plaintiff but in the same stroke he apologized by saying that this letter was not written by the plaintiff and she could not written this to the learned counsel for the defendants as at that time the said counsel was not on scene and the said counsel came on scene only on 26-4-2004 when he addressed a letter to the plaintiff and return the pay order to her. Mr. Kh. Shamsul Islam has cited following reported cases in favour of his contention that the admission of the counsel is sufficient to dismiss the suit on admission:--
(1) Azad Government v. Abdullah and other PLD 1969 AJ&K 30.
15. In this case it was held that the admission on the pure question of facts made by counsel in the conduct of a case is binding on the government.
(2) Muhammad Bashir v. Muhammad Shafi 1984 CLC 609.
16. ' In this case the Court has held that in civil action, admission is classified in two categories, namely
(i) admissions in pleadings and (ii) evidentiary admissions.
17. ' Mr. Kh. Shamsul Islam further states that the documents which are admitted not to be proved and relied upon the case of Chaudry Muhammad Sharif v. Hasan Ali and others 1999 YLR 1163.
18. ' I have considered the respective submissions of the learned counsel and am of the opinion that this is not the appropriate stage to deal such controversy. I also feels that while arguing a case if learned counsel make some admissions and then immediately correct, himself the same cannot be treated as a clear, unambiguous, unqualified and unequivocal admission on the basis of which the suit can be dismissed. However, I left this point open to be argued by the parties at appropriate time.
19. ' The question before me is whether the plaintiff has been able to establish a prima facie case and is entitled to the injunction. In terms of Clause 2 of the agreement the final payment of Rs,1,20,00,000 shall be payable by the defendant No,1 to the plaintiff on execution of joint agreement of sale and all other required documents before the concerned officials of Messrs Muslimabad Cooperative Housing Society Limited Karachi as well as handing over the vacant physical possession along with original documents of title in respect of the said property within the period of 30 days. From the record of case it is not established that the defendant No,1 has paid the total sale consideration to the plaintiff and from the documents only payment of Rs,1,11,00,000 was established. Even if the payment of Rs,10,00,000 paid to the Secretary of Society and Rs,5,00,000 to Abdul Sattar is considered the total amount comes to Rs,1,26,00,000. Since the total sale consideration was not paid and the property was leased in favour of defendant established some foul play on the part of defendant. From the perusal of the documents produced by the plaintiff it appears that the first payment was made through cheque of Rs,2,00,000 further payment of Rs,18,00,000 was made through cheque dated 22-3-2004 and Rs,91,00,000 though cheque or pay- order dated 30-3-2004. From the perusal of the documents produced by the defendant it appears that the plot was transferred/mutated in the name of defendant on 29-3-2004 along with extra land of 616 sq. Yds. The sub-lease in favour of defendant was handed over to the defendant for affixing stamp duty on 27-3-2004 even before the transfer/mutation in favour of the defendant. It is also evident from Annexure `D/17' to the counter-affidavit that no consent was sought from the plaintiff before regularizing the extra land of 616 Sq. Yds. In favour of the defendant and on the basis of an undated letter by the defendant the society has regularized 616 square yards at a throw- away price of Rs,1,00,000. The plaintiff is in possession of the property and in any case she cannot be dispossessed by force. The defendant has not paid the entire sale consideration to the plaintiff and cannot claim possession in terms of agreement and the plaintiff has every right to protect her possession till the entire sale consideration is paid to her, without going into the validity of the agreement as at this stage any finding in this regard may prejudice the case of the parties, it is sufficient that the plaintiff is in possession of the property and cannot be dispossessed by force or unless due process of law. In the case reported as Ghulam Muhammad v. Ch. Khushi Muhammad and another 1985 CLC 457, a single Bench of Lahore High Court has held as under:-- "---General purpose of the law is that regardless of actual condition of the title to or right of possession of the property, the party actually in peaceful and quiet possession shall not be turned out by strong violence or terror. There is no provision of law which empowers by force 'or show of force to evict a person in actual possession of the immovable property."
20. The plaintiff has made out a prima facie case in her favour and the balance of convenience also lies in favour of grant of injunction. 1, therefore, allow the application under Order XXXIX, Rules 1 and 2 C.P.C. As prayed. I also direct both the parties to maintain the status quo with regard to the title, possession and the position of the property in question as existed on the date of institution of the suit.
21. C.M.A. No,9104 of 2004 ' The defendants by this application have prayed that the plaint in the above suit may be rejected as the same is barred in terms of sections 70 and 70-A of the Cooperative Societies Act and as well as barred under section 42 of the Specific Relief Act and section 105 of the Transfer of Property Act.
22. ' Mr. Kh. Shamsul Islam on the basis of his defence states that the day to day business of a cooperative society has been challenged and the suit is not maintainable without first serving a notice upon the Registrar Cooperative Societies. Learned counsel further states that even if the cooperative society is not a party to the proceedings and its business and day to day affairs are challenged the plaint is liable to be rejected. Regarding section 42 of the Specific Relief Act Mr. Sahms submits that the plaintiff after selling the property to the defendants has not legal character to institute the suit. He further submits that the sale transaction was completed in all respect but the plaintiff with mala fide intention withheld the possession of the property and filed this suit. Regarding section 105 of the Transfer of Property Act he submits that Muslimabad Cooperative Housing Society has executed lease in favour of the defendants and the name of defendant was recorded as owner of the property in the records of rights maintained by the City District Government Karachi. He further submits that since the lease was executed in his favour which was not challenged the plaintiff will not be benefited even if the agreement is declared void.
23. Mr. Kh. Shamsul Islam has relied upon the following judgments:--
(1) Lahore Cantt. Cooperative Housing Society Limited v. Messrs Builders and Developers (Pvt.) Ltd.
24. And other PLD 2002 SC 660, (2) Mst. Qadri Begum v. Province of Sindh 1999 CLC 2023, (3) M.
25. Wahidullah Ansari v. Zubeda Sharif and another 1999 YLR 1127, (4) Metro Cooperative Housing Society Limited v. Bonanza Garments Industries (Pvt.) Limited and 3 others 1996 M LD 593, (5) Punjab teachers, Housing Cooperative Society Limited v. Sultan Ali and other 2000 CLC 517. . On the other hand .Mr. Mushtaq A. Memon has contended that in the present case neither any act of the cooperative society was challenged nor any cooperative society is a party to the proceedings. He further submits that defence cannot be looked into and the plaint can only be rejected if barred on the basis of the averments made in the plaint ' I have perused the contents of the plaint. Mr. Mushtaq A. Memon is correct in saying that neither any action of cooperative society was challenged nor such cooperative society is party to the proceedings. All the case law cited by the learned counsel for the plaintiff pertains to a dispute between a society and its members touching the business of the society and the society is a party to the proceedings. The plaintiff has filed the suit for declaration, cancellation of sale agreements dated 22-3-2004 and the documents prepared on the basis of sale agreements. Mr. Kh. Shamsul Islam is correct in arguing that unless the lease executed by the society in favour of the defendant is challenged no effective relief can be granted in favour of the plaintiff and even if the agreement is declared as void unless the subsequent documents are also declared void the position will remain same. To appreciate the contention of Mr. Kh. Shamsul Islam I have to look into the defence of the defendants which is not permissible while hearing an application under Order VII, rule 11, C.P.C. As far as section 42 of the Specific Relief Act is concerned for maintaining the suit it is sufficient that the plaintiff is claiming that she is the owner of plot and still in possession of the same and that total sale consideration was not passed on to her. In para.15 of the plaint the plaintiff submits as under:-- "That the plaintiff is the lawful owner of the suit property, is in physical possession thereof and is entitled to continue to use and enjoy the same as the owner thereof because she has not agreed to sell the same and to a declaration by this Honourable as such and to grant of permanent injunction restraining the defendants, their employees, servants, agents, contractors ant other persons claiming through both or either of the defendants or on their behalf from interfering with the plaintiff's rights, titles, interests in the suit property and the physical possession thereof."
26. ' The plaintiff also claims damages of Rs,50,00,000 from the defendants on account of special and general damages.
27. ' The third ground urged by Mr. Kh. Shamsul Islam is that since the lease was executed in his favour in terms of section 105 the suit without challenging the lease is not maintainable. To appreciate this argument I have to consider the defence which is not permissible and the plaint is to be accepted or rejected on the basis of facts disclosed in the plaint.
28. ' It is also now well settled principal that plaint cannot be rejected F in part. In the plaint the plaintiff has claimed independent reliefs i,e, declaration, cancellation of agreement, damages and injunction and even G if one relief is permissible the pliant cannot be rejected. The plaintiff has claimed damages and in presence of claim of damages the plaint can not be rejected. In the judgment reported as Gliulam Ali v. Asmatullah 1990 SCM R 1630, the Honourable Supreme Court has held as under:- "After hearing the learned counsel for both the sides we have not been able to agree with the reasoning of the High Court. Whether or not oral evidence could be led to support the assertion made in the afore-reproduced part of the plaint, it is an admitted position that the assertions made in the plaint, as they were, has to be seen for purpose of determining; whether, the plaint disclosed any cause of action. It is not denied that if the said reproduced averments are kept in mind regardless of the fact, whether the respondents/plaintiffs would be able to prove them or not, they do disclose sufficient cause of action to proceed further with the suit. It is also not denied from the respondents' side that lack of proof or weakness of proof in the circumstances of this case does not furnish any justification for coming to the conclusion that there was no cause of action shown in the plaint. That being so, there is no alternative but to accept this appeal, set aside the impugned judgment and restore the order of remand passed by the learned District Judge. . Parties shall bear their own costs."
29. ' The other judgment in this regard is reported as Karachi Development Authority v. Jadi bux Memon and another 1992 CLC 1036, in which a learned :Jingle Bench of this Court has held as under:-- "---It is well-established on long standing authority that in so far as an application under order VII, Rule 11 C.P.C. Is concerned (subject to minor exceptions) the facts in the plaint alone can be looked at and the plaint can be accepted or rejected as being barred or non-maintainable only on such facts."
30. In view of the above discussion I do not find any merits in the application and the same is dismissed with no order as to costs.
31. CMA No,7557 of 2005 ' This is an application under Order XXXIX rule 7, C.P.C. By which the plaintiff has prayed that defendants may be allowed to enter upon the suit property and further prayed that Nazir or any other officer may be directed to inspect the property and to submit report regarding the status of the property. By order dated 26-9-2005 the Nazir was directed to carry out the inspection of subject property and to submit report as to the possession and status of the property. Mr. Kh.
32. Shamsul Islam submits that since the plaintiff is illegally and unauthorisedly occupying the property even after receipt of total sale consideration the defendants may be allowed to enter upon the property. The defendants by this application are indirectly seeking the possession of the property. The purpose of this provision appears to be detention, preservation, inspection, etc. Of subject-matter of suit. The defendants cannot be allowed to take possession of the property without first establishing their right over the property. By way of injunctive order the parties to the suit were directed to maintain status quo with regard to the title, possession and the position of the property in question as existed on the date of the institution of the suit and the order is sufficient to preserve the property so also to safeguard the interest if any of the defendants in the property. The Nazir has already submitted his report which is on record and will be considered at an appropriate stage. The Court cannot allow any party to the suit to occupy the property permanently and can only authorize any person to enter upon the property for the purpose stated in the provision. The purpose of filing this application has already met by inspection of the premises by the Nazir, hence this application is disposed of in terms of order dated 26-9-2005.