1. ' MS. SOOFIA LATIF, J.---By this order I will dispose of two listed C.M.A. No,10648/2007 under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. Filed by the plaintiff and C.M.A. No,3804/2008 under Order VII Rule 11, C.P.C. Filed by the defendant.
2. ' The circumstances giving rise to these C.M.As. Are that the plaintiff Ali Sher filed the present suit for specific performance of contract and permanent injunction against the defendant with the following prayers:--
(a) To direct the defendant to issue transfer letter in respect of two Exvators Hitachi Machines bearing Nos. 1244EX/100 and 220EX/100 in favour of plaintiff perform the contract as per sale agreement dated 10-3-2005.
(b) That the plaintiff is ready to pay the remaining balance amount of Rs,300,000 before the Nazir of this Court and the defendant be directed to deposit the original documents of the machines with the Nazir of this Court.
(c) To restrain the defendant, his persons, assignees, or any other authority not to snatch two Exvators Hitachi Machines bearing Nos. 1244Ex/100 and 220Ex/100 illegally, unlawfully, forcibly without due course of law, which are in possession of the plaintiff and mostly he has 'deposited the amount of the machines shapes of advance amount and instalments through cheques.
(d) Any other relief deems fit and proper in favour of the plaintiff.'
(e) Costs of the suit.
3. ' Along with the suit plaintiff has also filed the above listed C.M.A. Bearing No,10648/2007. The defendants were duly served and filed the counter affidavit to the above listed C.M.A. And also listed C.M.A. No,3804/2008 challenging the maintainability of the suit.
4. ' C.M.A. No,10648/2007 ' Heard learned counsel for the parties and perused the record very carefully.
5. ' The contention of Mr. Ghulam Nabi learned counsel for plaintiff is that the defendant has sold out two Exvators Hitachi Machines bearing Nos.1244Ex/100 and 220Ex/100 to the plaintiff and the possession thereof was handed over to him after receiving advance amount of the machines and thereafter, he had paid most of the instalments as per agreement through cheques and cash amount to the defendants. It is urged by Mr. Ghulam Nabi Shaikh that the defendant has attempted to snatch two Exvators Hitachi Machines bearing Nos.1244Ex/100 and 220Ex/100 illegally, unlawfully, forcibly without due course of law, which are in his possession, to which he has deposited most of the amount of the machines in shape of advance amount and instalments through cheques. It is further urged that the plaintiff has made out a prima facie case and the balance of convenience is also in his favour and if injunction is not granted he will suffer irreparable loss.
6. ' On the other hand Mr. Ghulam Shabbir Babar. Advocate appearing for' defendants has vehemently opposed the above C.M.A. And urged that the defendants have neither sold out the above said Hitachi Machines to the plaintiff nor made any agreement of sale with the plaintiff in consideration of any amount. He has also denied that the plaintiff has given any receipt of payment slip, whereas he himself has signed his forged signature on the sale agreement with intention to deprive him and banks from the right of ownership on the machines. It is further urged that the plaintiff has sold out one of the Hitachi Machines to another person towards complicating this matter. He has denied that the plaintiff has made out any prima facie case in his favour and if injunction is granted the defendant will suffer irreparable loss.
7. ' By filing the above suit the only anxiety of the plaintiff which is evident from the plaint is that the defendant be restrained not to snatch two Exvators Hitachi Machines bearing Nos. 1244Ex/100 and 220Ex/100 illegally, unlawfully, forcibly without due course of law, which are in possession of the plaintiff. According to the plaintiff he has deposited and paid most of the amount to the defendant through cheques and cash. It appears from the prayer of the plaint that the plaintiff has not sought for any direction, restraining the defendant from taking any legal course. In such a situation, the only plea which is to be examined by this Court is to see whether the plaintiff is in prima facie possession of the said machines and whether the plaintiff has made out a case for the grant of interim injunction or not.
8. ' The principle which governs the exercise of the direction conferred by Order XXXIX, Rules 1 and 2, C.P.C. Are to the effect that a person who seeks a temporary injunction must satisfy the Court:-- "Firstly that there is a serious question to be tried in the suit and that on the facts before the Court, there is probability of his being entitled to the relief asked for by him; ' Secondly, that the Court interference is necessary to protect him from that species of injury which the Court calls irreparable, before his legal rights can be established on trial; ' Thirdly, that the comparative mischief or inconvenience which is likely to issue from withholding the injunction will be greater than that which is likely to arise from granting it.
9. ' As regards the question of prima facie case is concerned, the plaintiff has produced prima facie existence of the right claimed in the suit and also its infringement. The Court need not to closely examine the merits of the case and it has only to look at the nature and difficulty of pointes which may arise in the case and if the plaintiff has got an arguable case, that is enough for the purpose of a temporary injunction. The plaintiff should show that substantial questions are to be investigated or required to be resolved. It is also to be seen that the plaintiff will suffer more inconvenience by withholding of the injunction than that would be by granting it. Reference in this connection may be made to the case of Chief Administrator Auqaf Department and 4 others v.
10. Abdul Rauf and 3 others (2005 MLD 1219). Shahzada Muhammad Umer Baig v. Sultan Mehmood Khan and another (PLD 1970 SC 139) and Malik Muhammad Ishtiaq v. Abida Parveen (2006 YLR 20).
11. ' In the instant case the plaintiff being in possession of the said Hitachi Machines prayed that the machines may not be snatched from him illegally, unlawfully, forcibly and without due course of law. In the suit he has also prayed that a direction be issued to the defendant to issue transfer letter in respect of said machines in favour of the plaintiff and perform the contract as per sale agreement dated 10-3-2005. To obtain an injunction in a suit for specific performance plaintiff must prove the existence of contract and plaintiff is B required to prime facie show that agreement upon which he is basing his claim for specific performance is a lawful contract and has a binding force in law. Reference has been made to the case of Khayaban-eIqbal (Pvt.) Ltd. v. Mustafa Haji Muhammad (PLJ 1996 Karachi 801), ' In support of his claim along with the plaint plaintiff has filed photocopy of sale agreement alleged to have been signed by the defendant in presence of two attesting witnesses. He has also filed photocopy of F.I.R. Lodged by the defendant against the plaintiff under sections 420, 406 and 506-B, P.P.C. The contents of F.I.R. Show that there is dispute regarding sale of the said machines between the plaintiff and defendant. In the F.I.R. The defendant has reported that the machines in question were given to the plaintiff on rent at Rs,79,000 and Rs,80,000 whereas the claim of the plaintiff is that he has purchased the said machines from the defendant vide sale agreement dated 10-3-2005. I am conscious of the fact that both these documents are still to be proved, however, can be relied upon for the limited purposed of holding that there is prima facie case in favour of plaintiff. In order to make out a prima facie case, necessary for granting interim injunction, the plaintiff need not establish his title. It is enough if he can show that the has fair question to raise as to the existence of the right which he alleged and can satisfy the Court that pending the decision of the suit his right in the disputed machines be preserved. This principle has been laid down in the case of Delbaz Khan v. The State (PLD 1959 Lah. 264) in the following words:-- "Temporary injunction:-- are regulated by Rules 1 and 2 of Order XXXIX of Civil Procedure Code. The principles, governing the granting of a temporary injunction are now well settled. The Court is not expected to examine the merits of the case closely. All the Court has to see that on the face of it the person applying for an injunction has a case which needs consideration and the comparative balance of convenience and inconvenience has also to be looked into. In exercising this jurisdiction, the Court does not process to determine the legal rights of the parties in respect of the property, but acts on the assumption that the party seeking its interference has the legal right and need the aid of the Court for the protection of the right until the legal right is finally ascertained".
12. ' Judging the case of plaintiff in the light of above principle. I am clear in my mind that to obtain a temporary injunction he has a good prima face case. He is in possession of two Exvators Hitachi Machines since 10-3-2005. Which should not be interfered with till the decision of the suit. The plaintiff will obviously suffer an irreparable loss if injunction is refused at this stage. The purpose of suit shall be D frustrated and he may not be able to get the possession of the said machines again without difficulty, if he ultimately succeeds to prove his title over the above said machines on the basis of sale agreement though evidence. The balance of convenience which, in fact, is balance of inconvenience is also in favour of the plaintiff. In applying this principle, the Court should weigh the amount of substantial mischief that is likely to be done to the plaintiff, if the injunction is refused and compare it with that which is likely to E be caused to the other side if the injunction is granted.
13. It is alleged by the plaintiff that the defendant wants to get the possession of Exvator Hitachi Machines illegally forcibly and without due course of law. The plaintiff will, therefore, be left with no remedy in case the injunction is not granted and this will also facilitate the object of the defendant, who is proposing the take law in his own hands. On the other hand the defendant will not suffer any injury if the injunction is granted. Even after grant of injunction he can claim possession of the said machines in the manner as required by law, and this order will in no way restrict F his legal right.
14. ' In the circumstances listed C.M.A. No,10648/2008 is allowed.
15. ' C.M.A. No,3804/2008.
16. ' The defendant by filing above C.M.A. Under Order VII Rule 11, C.P.C. Has sought the relief for rejection of plaint on the ground that the suit is hit by sections 12, 55 and 56 of Specific Relief Act.
17. ' Mr. Ghulam Shabbir Advocate appearing for defendant has urged 'that the suit of the plaintiff is hit by sections 12, 55 and 56 of the Specific Relief Act as the defendant has no authority/power to enter into any sale agreement regarding sale of above said Hitachi Machines. It is further urged that the plaintiff has submitted a forged agreement to sell by way of getting advantages and benefits before this Court, therefore, plaint is liable to be rejected.
18. ' Mr. Ghulam Nabi Shaikh Advocate appearing for plaintiff has opposed the C.M.A. No,3804/2008 and has urged that the suit filed by the plaintiff is not hit by any provision of law as it is contractual obligation upon the defendant, who had sold out Hitachi Machines in the sum of Rs . 27,00,000 and Rs . 28, 00,000 respectively vide sale agreement dated 12-3-2005 in presence of attesting witnesses and was counter signed before the competent Magistrate. It is further urged that there is specific contract of sale of machines in between the plaintiff and defendant and the possession was handed over to the plaintiff, who paid Rs,60,00,000 through different cheques to the defendant and had also deposited Rs,3,00,000 with the Nazir of this Court in respect of machines bearing Nos.1244Ex/100 and had also paid Rs,16,13,000 through cheques, articles and cash amount before the Jirga to the defendant in respect of machine No, Exh . 220/Exh .100 towards the satisfaction of contractual obligations, therefore, evidence is required in the case to ascertain the real truth.
19. Learned counsel has requested to dismiss the above C.M.A. Filed by the defendant.
20. ' Under this provision of law, it is necessary to get exact conception of the aim and object of Order VII, Rule 11, C.P.C., which provides:-- "(11) Rejection of plaint.---The plaint shall be rejected in the following cases:--
(a) Where it does not disclose a cause of action.
(b) Where the relief claimed is under-valued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court fails to do so.
(c) Where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by. The Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) Where the suit appears from the statement in the plaint to be barred by any law."
21. ' It is well settled principle of law that while considering the application under Order VII, Rule 11, C.P.C.
22. The averments of plaint are to be considered as true and thereafter, if the plaint comes within any clause of Order VII Rule 11, C.P.C. Then it should be rejected. This rule is mere procedure and may be applied at any stage of the suit. The power to reject the plaint, however, should not be exercised, except in a very exceptional circumstance in a case where the Court comes to the conclusion that even if, all the allegations are to be proved, the plaintiff could not be entitled to any relief. If there is any serious question to be tried, the proper course is to let the suit proceed and then determine the matter on preliminary issues. In AIR 1921 Sind page 106, AIR 1933 Sind Page 1 and PLD 1954 Sind Page 70, this principle is laid down in clear terms. It has been observed by this Court in the case of Pahloomal Motiram v. Abdul Quddus Behari and 8 others (PLD 1971 Karachi 250), that in asking the Court to reject the plaint under this provision the defendant must be taken to admit for the sake of argument that the allegations of the plaintiff made in the plaint are true in manner and form. It has been further observed that the Court should reject the plaint under this provision only if it comes to the conclusion that even if all the allegations which are made in the plaint were proved to be correct, the plaintiff will not be entitled to get the relief. Similar observations have been made in the case of Shahnaz Abbas v. Pace (Pakistan) Limited through General Manager (2005 CLC 856), Mst.
23. Nasreen Begum and others v. Province of Punjab through District Collector (2006 MLD 775). Farzand Ali v. Fateh Muhammad (2005 CLC 1223), Sarwar Khan v. Habibullah (2004 CLC 1312). Abdul Rehman v. Sher Zaman and another (2004 CLC 1340), Haji Shaukat Ali v. Abdul Rasheed (2004 CLC 755).
24. Rafiq Ahmed Khan v. Province of Punjab and others (2004 SCMR 1065), Mst. Kulsoom Fatima v.
25. Wazir Ali (1991 MLD Karachi 1810) and Bare Muhammad v. Mst. Aziza Begum 2001 CLC 761.
26. ' In the case of Mst. Bilqees and others v. Bhana (PLD 1980 Lah. 322), it has been held that the Court has to see only whether the plaint disclosed a cause of action or not and where cause of action is disclosed in the plaint, the question whether the plaintiff would be able to prove the case or not cannot be decided without framing issues and without giving them opportunity to produce evidence. Similar principle has been laid down in the case of Mst. Surraya Bai v. Government of Pakistan reported in PLD 1973 Lahore-372.
27. ' In view of above observations, I do not find any substance in the contention of learned counsel for defendant. He has not satisfied me by producing any case law as to why and how the suit is hit by the provision of sections 12, 55 and 56 of the Specific Relief Act. The execution of sale agreement and payment of amount through cheques and cash is to be proved through evidence as discussed above. If at this stage on the grounds taken by the defendant" in the above listed C.M.A.
28. Under Order VII Rule 11, C.P.C. The plaint is rejected then it would amount to rejecting it on the basis H of averments made in the written statement and in the affidavit annexed with the above application and not the plaint itself. However, it will be open for the defendant to raise these issues at the trial and establish them through evidence.
29. ' In the end I may mention that it will be better that the parties be allowed to have decided their case on merits after taking into consideration all pleas and the evidence that may be available with them. Otherwise, litigations will be prolong and literarily to take plea bit to bit which are primarily not in the litigant interest or of either party.
30. ' In the light of what has been discussed above, the listed C.M.A. I No,3804 of 2008 is dismissed. No order as to cost.
31. ' Accordingly C.M.A. No,10648 of 2007 and C.M.A. No,3804 of 2008 are disposed of in the above terms.