' JAWWAD .S. KHAWAJA, J.--- This appeal filed by the appellants plaintiffs challenges the order dated 27-2-2003 whereby an application filed by the appellants under Order XXXIX, rules 1 and 2, C.P.C. Was dismissed by the trial Court.
2. The facts of this case are straightforward. On 10-1-2001 the first respondent namely Jamshed Ali Khan executed an agreement to sell of 80 kanals of land to the appellants for a consideration of Rs,81,60,000. On the same date Malik Abid Hussain respondent No,2 was appointed general attorney by the aforesaid Jamshed Ali Khan. The agency in favour of the respondent No,2 was stated to be irrevocable.
3. The agreement has been admitted by Jamshed Ali Khan in his written statement who has also acknowledged that the entire consideration of Rs,81,60,000 has been received. Possession was also admittedly delivered by the respondent Jamshed Ali Khan to the appellants with the object of enabling the appellants to develop the land and to convert it into plots for the purpose of sale.
Such development, according to learned counsel, has already taken place for extensive expenditure thereon by the appellants. On 28-11-2001 the respondent Jamshed Ali Khan proceeded to cancel the power of attorney executed in favour of Malik Abid Hussain respondent No,2. Learned counsel for the appellants contends that Malik Abid Hussain was a nominee of the appellants and the power of attorney had been irrevocably executed in his favour to enable subsequent execution of sale deeds in favour of the various purchasers to whom the appellants were to sell the plots carved out of the suit-land. The said Malik Abid Hussain also filed a written statement, in which the agreement and the contents of the plaint have been accepted as correct.
4. On the above basis learned counsel contends that the power of attorney in favour of Malik Abid Hussain was irrevocable. Bearing in mind the provision of section 202 of the Contract Act the appellants filed their suit out of which the present appeal arises on 7-12-2001. The said suit sought specific performance of the agreement dated 10-1-2001. An application under Order XXXIX, rules 1 and 2, C.P.C. Was also moved to restrain the respondent Jamshed Ali from interfering in the possession of the appellants over the suit-land. The said application has been dismissed vide the impugned order dated 7-12-2001. Hence this appeal.
5. The learned trial Court has dismissed the aforesaid application on the ground that no irreparable loss is being caused to the appellants through cancellation of the power of attorney in favour of Malik Abid Hussain. Learned counsel argues that the said order has been passed without giving any consideration to the facts narrated above or section 202 of the Contract Act. According to him the appellants-plaintiffs shall without any doubt suffer irreparable loss. If they are not allowed to deal with the suit property under agreement dated 10-1-2001
6. I have heard learned counsel for both sides. The contention of the respondent Jamshed Ali Khan is that the land in dispute is colony land, which was allotted to him by the Colonies Department.
The land was meant for agricultural purposes and by virtue of the letter dated 26-6-1988 issued by the Board of Revenue the same cannot be converted to other uses such as the establishment of a residential colony. Learned counsel for the said respondent has also referred to paragraph 50 of Colony Manual to state that royalty and penalty and other charges are payable if the land is converted from agricultural to other uses without the permission of the Board of Revenue. On this basis, it is argued that the order for status quo sought by the appellants plaintiffs was rightly declined by the learned trial Court.
7. In response learned counsel for the appellants has drawn the attention of the Court to the agreement dated 10-1-2001. From the said agreement it is quite, clear that the same envisaged the development of 'the land for residential purposes. In these circumstances, the respondent cannot at this stage state that he was unaware that the appellants would be converting the land to residential uses. However, the agreement also expressly stipulates that all charges, expenses and other dues which arise. On account of the development of the land of residential purposes shall be borne by the appellants.
8. In the foregoing circumstances, Muhammad Naeem appellant No, 4 and learned counsel for the appellants undertake that the appellants alone shall be responsible for the consequences and for payment of any royalties, penalties and other dues chargeable by the Colonies Department/Board of Revenue or any other government agency in respect of the development of the disputed land and its conversion to residential uses. Based on this undertaking and the contents of the agreement noted above I find the appellants entitled to the interim injunction prayed for. In the circumstances, the impugned order is set aside. The application of the appellants under Order XXXIX rules 1 and 2, C.P.C. Is allowed and the respondent No,1 is restrained from interfering in the possession and development activities undertaken by the appellants on the disputed land.
9. Before parting with this judgment I need to note a submission made by learned counsel for Jamshed Ali Khan (respondent No,1) that an amount of Rs,16,00,000 is claimed by the respondent as per averments contained in paragraph 5 of the written statement. Learned counsel for appellants has however, asserted that the entire amount under the agreement dated 10-1-2001 has been paid and receipts have duly been issued by Jamshed Ali Khan for the said amount. The contention as to the sum of Rs,16,00,000 needless to say, shall be adjudicated upon by the learned trial Court after recording evidence. The dispute however is not germane to the issue in hand. It therefore cannot be pressed into service by Jamshed Ali Khan with the object of resisting the interim order sought by the appellants who have otherwise established their entitlement for such relief.