1. ' SYED PIR ALI SHAH, J.-By this order I propose to decide both the C.M.As being C.M.A. No,9385/2007 and C.M.A. No, 1269/2008. Through this application (C.M.A. No,9385/2007) plaintiffs have prayed that the defendant has misappropriated the money of the plaintiff and directed the same to purchase the flat No,S-1, 2nd floor, Iqra Complex; Plot No, 10/7, Nazimabad No,3, Karachi. It is apprehended that the defendant in order to avoid the decree may transfer the flat in question to someone during the pendency of the suit. It is stated that the plaintiff has got prima facie case and the balance of convenience is in her favour. That the injunction sought is to protect the interest of the plaintiff. An affidavit in support of this application has been filed by Mst. Farhat Jamal.
2. ' Upon notice of this application, defendant filed counter affidavit. It is stated that the suit is bad in law for nonjoinder of parties and is not maintainable without showing the cause of action against her and suit is also hit under section 56(1) of the Specific Relief Act. It is contended that the / plaintiff has not shown any contractual relation with the defendant and the vague and false claim and allegations have been made against her without any proof and plaintiff has got no right and claims of any nature in the suit property. It is further contended that the present suit has been filed just to harass and blackmail her with the preplanned scheme of the plaintiff by mentioning and manipulating the real facts in the plaint. That the suit is not maintainable under Order YII Rule 11, C.P.C, read with section 151 C.P.C, and liable to be rejected with cost. It is contended that the plaintiff is the real sister of the mother of the defendant namely Mrs. Rifat Jamal, she never discussed any things before providing financial help to the poor and needy persons within the family members and close relatives. That the plaintiff has failed to join the concerned person (s) in the plaint and without implementation the said person (s) the said claim will not be proved by her. It is also contended that plaintiff wants to marry with her consent and choice but the defendant was not ready to fulfil her said unjustified wish and demand, under such proposition the plaintiff was annoyed and started her harsh and negative attitude and discontinued family relations with the defendant and her family members. That the plaintiff further adopted harsh attitude and gave instructions to her brothers and sisters to discontinue the family relations with the defendant and her family members and plaintiff threatened to the defendant for indulging her into the false litigation and will continue the litigation till her death and under such program the plaintiff has filed the present suit on false grounds and fabricated story by manipulating the real facts without any legal justification against the defendant. Defendant further stated that Muhammad Khan father of the defendant was earlier married with one Mst. Afshan Jehan from whom eight children were born and she has died, this fact was well within the knowledge and information to the plaintiff. That the mother of the defendant Mrs. Rifat Jamal, who is the elder real sister of the plaintiff was earlier married and thereafter she got divorced, due to some family reasons, which is also well within the knowledge of the plaintiff. That the plaintiff tried her best and she arranged marriage of the father of the defendant with her said divorced elder sister namely Mrs. Rafat Jamal, (the real mother of tlje defendant). That the plaintiff was well aware about the earlier eight children of the father of the defendant, but by undertaking and due assurance given by plaintiff to the father of the defendant for providing financial help to his all family members, then he had agreed and married with the said elder sister of the plaintiff's from whom (8) children were born. That the plaintiff in order to maintain her super power in the family members and close relatives, she always gave financial assistance to the poor and needy persons but as per her own wishes and choice. That the defendant has given respect to the plaintiff every time, the defendant is still surprised, how and under what circumstances the plaintiff has filed the present suit against the defendant on false grounds. That the young brother aged about 24 years of the defendant namely Shahidullah Khan has died on 24-2-2003 to whom the plaintiff was giving financial help for his treatment, on death some U.S. Dollars were found in his articles. That the defendant presumed that the same were definitely given by the plaintiff to him and on inquiry with the plaintiff, the said presumption of the defendant was correct, the plaintiff in this respect advised to the defendant to encash the same in the market, and a sum of Rs,98,325 was received by the defendant for encashment of the said dollar. That the defendant has opened Bank Account No,02000819 with Prime Commercial Bank Ltd, Site Branch, Karachi on 21-1-2004 with Rs,1000 and deposited the said amount Rs,98,325 on 20-1- 2004 and the said amount is utilized as per the specific instructions on telephone given by the plaintiff to the defendant upto 24-9-2004. It is further stated that the defendant for her convenience also opened Bank Account -No, 1007101 with Prime Commercial Baiik Ltd, North Nazimabad Branch, Karachi on 17-1-2004 with cash of Rs,1000 and operation'of the said account upto 30-12-2006 and thereafter closed the said Bank account. The plaintiff has given some dollars directly to the defendant and due to difference with the real sister of the defendant namely Mrs. Shafaq Khan, the plaintiff has retained some dollars with her and as per instructions of plaintiff has handed over the U.S.$ to the defendant and as per specific instructions of the plaintiff, the said dollars were encashed for Rs,3,42,340 and the said amount was deposited in the United Bank account on 29-1-2004 with the clarification that the defendant has not personally enchased and delivered a cheque of ABL to the defendant, which fact has also not been disclosed by the plaintiff in her plaint. The plaintiff thereafter remitted some money directly in the said Bank Account of defendant and o also, from time to time given US dollars to the defendant, which were encashed and deposited in the said Bank Account too. It is contended that Mehmood the cousin of the plaintiff's husband dealing in Estate property (selling and purchasing) according to the defendant's knowledge he has given him money for the plaintiff to sell her house/property, which the defendant has deposited in the Bank account, as per plaintiff's instructions. It is further contended that as per specific instructions of the plaintiff, the defendant has paid the huge amount of Rs,50,98,960 to persons to whom the plaintiff has given specific instructions for payment. That the said huge amount of Rs,50,98,960 has been paid by the defendant to Mrs. Zakia the real sister of Fahim Ahmed Khan, the husband of the plaintiff (Fakhr-ul-Islam), who is the sister- in-law of the defendant and the son-in-law " of the plaintiff. It is further contended that a huge amount has also been paid by the defendant to the builder in respect of booking Flat in the name of the plaintiff, which fact plaintiff might not be remembering the said payment being aged lady taking thyroxin tablet, the medicine of high depression in which she is indulging and plaintiff is using high temper medicine for the other diseases and under such proposition she has created the so-called claim of Rs,40,00,000 against the defendant by filing the present suit. The plaintiff must have made party to the said Asif Saeed, Mrs. Zakia, Fakhur-ul-Islam and Irfan Lakhani and also the Builder in order to adjudicate the matter on merits. That the said amount has been paid by the defendant to the plaintiff according to her instructions and advised as the plaintiff has incurred all her requirements of money payment through defendant as well as received amount for her personal expenses, her husband on coming from U.S.A, on their every visit to Pakistan and no such procedure in writing was adopted by plaintiff but from time to time as per her visit from U.S.A, to Karachi she has taken full information and accounts with the defendant and the defendant herself gave such information to the plaintiff in detail and there is no complaint in this regard. The defendant has preferred to reflect the payment/debit entries of the said Bank Account No, 1007101, with specification of payment of Rs,69,53,146, details of which are mentioned in the written statement.
3. ' Now coming to the other application under Order Vll rule 11 C.P.C. (C.M.A. No, 1269 of 2008), defendant has prayed to reject the plaint as the plaintiff has not disclosed the cause of action against the defendant in the plaint and she has also not claimed the possession of the flat in question and as such, the suit for permanent injunction alone would not lie without prayer for declaration with regards to title and possession and the suit is hit by section 56(1) of Specific Relief Act.
4. ' An affidavit in support of this application has been filed by Mrs. Amber Khan.
5. ' Upon notice of this application, plaintiff filed her objections and contended that the application under Order Vll rule 11 C.P.C, is misconceived and not legally maintainable as the. Cause of action has been properly and legally disclosed in para 7 as under:- "The cause of action accrued to the plaintiff against the defendant in 2003 subsequently in 2006 and lastly on 1-10-2007 when the defendant gave her writing disowning her liability."
6. ' Plaintiff further stated that there is no question for claiming the possession of the flat as the plaintiff has claimed that the defendant misappropriated her Rs,40 lacs and purchased the flat in question. It is stated that the application U/O Vll Rule 11 C.P.C, is liable to be dismissed with cost.
7. I have heard learned advocates for the parties and have also gone through the case law. It is settled position of law that while seeking relief by way of grant of injunction, one has to establish that he has got good prima facie case, at least arguable case and balance of convenience lies in his favour. Besides, Court has to see whether parties seeking relief of injunction will haVe to suffer irreparable loss or not. The instant Suit has been filed by the plaintiff for declaration, injunction and recovery of damages to the tune of Rs,40,00,000 with following reliefs:--
(i) Declaring that the defendant has purchased the flat No,S-1, 2nd floor, Iqra complex. Plot No, 10/7, 2-F Nazimabad No,3, near Iqra School, Gole Market, Karachi from the money of plaintiff.
(ii) Restrain the defendant from transferring the flat No,S-1, 2nd floor, Iqra Complex, Plot No, 10/7, 3-F Nazimabad No,3, near Iqra School, Gole Market, Karachi.
(iii) Be further pleased to pass a decree of Rs,40,00,000 by way of damages against the defendant.
(iv) Be further pleased to direct the defendant to provide the statement of accounts of two banks providing full information regarding her statements of accounts upto date from the two Banks namely Prime Bank, North Nazimabad and Shershah Branches.
(v) Be fiirther pleased to grant special cost to the plaintiff;
(vi) Any other relief or reliefs, which this Honourable Court deem fit and proper, in the nature and circumstances of the case.
8. It is also settled principle of law that while rejection of the plaint Court has to take into account contents of the plaint from which if it appears that the suit is barred by any law and that the plaint does not disclose cause of action and that the plaint has been improperly and insufficiently stamped. Application for rejection of the plaint has been made on the ground that the suit is bad due to nonjoinder and mis-joinder of the necessary parties and the plaint does not disclose cause of action. It has further been pleaded that the plaintiff's suit is barred by section 56 of Specific Relief Act 1877 without seeking by declaration with regard to title and possession.
9. The contents of the plaint prima facie shows that the defendant had entered into sale transaction with the plaintiff from the money of the plaintiff. The matter requires proper appraisal by way of evidence to be lead by both the parties in support of their contentions. Besides through this suit liquidated damages of Rs,40,00,000 (Rupees Forty lacs) have been claimed, which also has to be proved by way of oral as well as documentary evidence. In these circumstances, plaintiff has got prima facie arguable case for grant of injunction and balance of convenience seems to be in her favour. Obviously, she will suffer irreparable loss, in case defendant is not restrained from creating any third party interest in the suit property.
10. ' In these peculiar circumstances of the case plaintiff is entitled for the relief of restraining order.
11. According, such restraining order dated 29-11-2007 is confirmed and C.M.A. No,9385/2007 stands disposed of accordingly.
12. As regards rejection of the paint I have made certain observations as stated above, to the effect that the plaintiff has got good prima facie arguable case for grant of relief prayed in this suit. ##TE# ' With regard to the legal pleas regarding cause of action and maintainability of suit, it will be appropriate that such legal pleas are reflected in the form of issues to be settled by the Court and the same will be decided on merits after documentary as well, as oral evidence by both the sides has brought on record.