' NADEEM AZHAR SIDDIQI, J.--- This matter was heard on 17-12-2008, when the Nazir's Report dated 1- 11-2008 was ordered to be taken on record and after hearing the arguments of the learned counsel for the parties, orders were reserved on C.M.As. Nos.1818 of 2007 and 2390 of 2008.
C.M.A. No,1818 of 2007 ' This is an application under Order XXXIX, rules 1 and 2, C.P.C. Read with section 151 thereof, praying for ad interim injunction in favour of the plaintiff, "restraining the defendants, their employees, their agents, their attorneys, persons working under them from demolishing the boundary wall of the plaintiff, or from interfering in the peaceful possession of the plaintiff of Plots Nos.ZC-1 to ZC-6, K.D.A.
Scheme No,35, Sector 7, Karachi during pendency of this suit".
2. Brief facts of the case are that the plaintiff claim to have purchased from the successful bidders in the auction held on 5-5-1997 six plots, measuring 200 square yards each, bearing Nos.ZC-1, ZC-2, ZC-3, ZC-4, ZC-5 and AC-6, situated in K.D.A. Scheme No,35, Sector 7 ("the plots"), located in Lines Area Re-development Project, near 602 Army Workshop. She obtained possession thereof from K.D.A. And the plots were transferred/mutated in her name. The plaintiff further claims that a boundary wall was constructed on three sides of the Plots Nos.ZC-1 and ZC-2 in the year 2003 which was rebuilt in 2007. The plaintiff claims that a big amenity plot adjacent to the plots was leased out by Army Welfare Trust to the defendant for building a huge wholesale store thereon. The defendant on 18-2-2007 demolished the wall erected by the plaintiff around her said plots for which a complaint was lodged with the area police. The plaintiff claims that even earlier also, in the year 2006, some portion of the rear wall on the said plots was broken by the defendant for which an application was submitted to the area police. When all persuasions to convince the defendant not to indulge in the illegal activities of demolishing the wall of the plaintiff around the said plots, had gone in vain, the plaintiff filed the present suit with the above listed application for interim relief.
3. The defendant has filed counter-affidavit to the listed application and stated that defendant is the lessee in respect of the property bearing Survey No,148/1, Tunisia Lines, Karachi Cantonment, measuring about 4.958 acres with open space in front thereof upto Mubarak Shaheed Road, Karachi, including Masjid Saffa situated in the middle front of the plot and the subject Plots Nos.ZC- 1, ZC-2, ZC-3 and ZC-4 (part) by virtue of lease deed dated 31st July, 2006 executed with the Army Welfare Trust. It was also stated therein that there is no entity known as Messrs Makro and that the address of the defendant in the plaint is the branch office of Messrs Makro-Habib Pakistan Limited.
It was submitted that the suit is therefore, incompetent and the plaint is liable to be rejected. The defendant has also submitted that the transfer of Plots Nos.ZC-1 to ZC-4 (part) is illegal, invalid and without jurisdiction and the plaintiff cannot claim legal character or right in respect of the above mentioned four plots on the basis of documents issued by LARP/K.D.A. Or any other agency/authority.
4. Learned counsel for the plaintiff submitted that the defunct Karachi Development Authority published three advertisement announcing auction of a number of plots including the above mentioned six plots. The auction was held and different persons succeeded in giving the highest bid for the said six plots. The plaintiff purchased the plots from such highest bidders/allottees whereafter the same were duly transferred/mutated in her name and possession was also handed over to her and boundary wall on three sides was constructed. The plaintiff is in possession of the transfer orders in respect of the all the said plots. He submitted that the said plots formed part of K.D.A. Scheme No,35 and were put to auction together with other plots situated in different parts of Karachi.
5. On the other hand Mr. Mushtaq A. Memon, learned counsel for the defendant, submitted that at the time of finalizing K.D.A. Scheme No,35, known as Lines Area Re-development Project, about 200 acres of military land was transferred by the Ministry of Defence of defunct K.D.A. But substantial land, including the subject land, was retained by the Ministry of Defence. He stated that some of the land was leased out to Karachi Grammar School as play ground which lease expired in 1982. He also submits that objections were raised by Military Authority when advertisements containing the auction of said plots were published by K.D.A. He referred to Annexure "D-12" to the counter-affidavit to show the area which formed part of the Lines Area Re-development Project and the area which was not included therein. He also referred to a letter of the Town Nazim of the area stating that the said plots do not form part of the area of City District Government, Karachi.
6. I have heard the learned counsel and have gone through the record minutely with their help.
7. The plaintiff claims to be allottee/owner of Plots Nos.ZC-1 to ZC-6 while the defendant claims that it was leased Plot No,148/1 by the Army Welfare Trust.
' The defendant also claim that the said plots do not fall within the area of K.D.A./C.D.G.K. However, it cannot be denied that Plots Nos.ZC-1 to AC-6 were put to auction by the defunct K.D.A. And were allotted to the highest bidders. Even during the arguments and in the counter-affidavit to this application it is stated that "as regards Plots Nos.ZC-1, ZC-2, ZC-3 and ZC-4 (part) abut on the land which had continued to vest in the Ministry of Defence, Government of Pakistan and was not transferred to LARP/K.D.A."
8. The superior Courts of Pakistan have laid down the following factors which are to be considered whilst considering the question of grant of a temporary injunction:---
(1) 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.
(2) That irreparable damage or injury will accrue to the applicant if the injunction is not granted.
(3) That the inconvenience which the applicant will undergo from withholding the injunction will be comparatively grater 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.
9. It is also well-settled that the Court need not closely examine the merits of the case. The applicant is to prove prima facie existence of the right claimed in the suit-land and also its infringement. Even otherwise, if any finding is given on any aspect of the case at this stage it will prejudice the case of one or the other party to the suit and, therefore, no such exercise is being carried out.
10. The plaintiff claims that the said plots were put to auction by defunct K.D.A., they were purchased by various highest bidders from whom all the six plots were purchased by the plaintiff and the same were transferred/mutated in her name. She has filed such transfer/mutation letters with the plaint. Prima facie there is a presumption of correctness attached to official acts and it has to be presumed unless contrary is proved that the plots were auctioned and transferred in favour of the plaintiff in exercise of power vested in the officials in accordance with law and the necessary documents were issued.
11. In view of the above, if a temporary injunction is not granted, there is every likelihood that the plaintiff shall suffer irreparable loss and inconvenience, however, if, a temporary injunction is granted, it will cause claim harm to the defendant. If ultimately, the case is decided against the plaintiff, the said plots would be restored to its lawful owner.
12. Thus, the plaintiff has been able to prove the prima facie existence of the right claimed in the suit. She has also shown its infringement, and that the balance of convenience is in her favour.
13. Before parting with this order it may be once clarified that I have intentionally refrained from commenting on the pleas raised by the learned counsel for the parties as it will prejudice the case of any of the parties.
14. In view of the above, this application is allowed and the parties are directed to maintain status qua in respect of Plots Nos.ZC-1 to ZC-6.
C.M.A. ;No,2390 of 2008 ' This is an application under Order XXXIX, rule 2(3), C.P.C., filed by the defendant, praying for initiation of penal proceedings against the plaintiff and her representative for wilful disobedience of order, dated 8-3-2007 as well as for restoration of status quo as was existing on the date when the status quo order was passed i,e, 8-3-2007.
2. Learned counsel for the defendant states that after filing of the present suit the plaintiff also filed an application under Order XXXIX, rules 1 and 2, C.P.C., seeking interim injunction and this Court, vide order, dated 8-3-2007, was pleased to direct the parties to maintain status quo. Learned counsel states that the plaintiff along with the plaint, had filed photographs of the suit plots which depict the position thereof obtaining on 8-3-2007, i,e, when the status quo order was passed. He then submits that the plaintiff, in defiance of the status quo order passed by this Honourable Court, raised boundary wall around the suit plots thus, rendering herself liable to proceedings under Order XXXIX, rule 2(3), C.P.C.
3. On the other hand the learned counsel for the plaintiff states that the plaintiff filed an application under Order XVIII, rule 18, C.P.C., seeking appointment of Nazir as Commissioner to inspect the suit plots and to submit his report regarding demolition of the boundary wall by the defendant.
' Learned counsel then submits that in the said application it was also stated that the plaintiff wants to built a boundary wall around the suit property. He states that a boundary wall existed which was demolished by the defendant and the same confirmed by the Nazir's report, dated 5-3- 2008. He also states that the boundary wall raised subsequently was demolished and the position existing at the time o passing of the status quo order has been restored.
4. The claim of the defendant is that after passing of the status quo order the plaintiff started raising boundary wall around the land which did not exist at the time of inspection while the case of the plaintiff is that she has rebuilt the boundary wall on the portion which was earlier demolished by the defendant. Learned counsel for the plaintiff submits that the wall which was rebuilt was demolished and refers to Nazir's report dated 31-10-2008.
5. The dispute appears to be that which portion of the boundary wall was in existence at the time of passing of the status quo order and which portion has been constructed/rebuilt after passing of the status quo order. At this stage this controversy cannot be decided. The learned counsel for the plaintiff has also made a statement that certain portion of the boundary wall was demolished which is confirmed by the Nazir's report dated 31-10-2008.
6. In my opinion it would be appropriate if an issue is framed on this point and is decided along with the main case after recording of evidence. Accordingly, both the learned counsel are directed to submit issues on this point as well while filing their respective proposed issues.
7. This application also stands disposed of in the above terms.