' KHALID ALI Z. QAZI, J.---This order shall dispose of two listed applications. First application is C.M.A.
No,16/2009 under Order XXXIX Rules 1 and 2 C.P.C. Read with Section 151 C.P.C. Moved by the plaintiff seeking an order to restrain the defendants or any other person working on their behalf from creating third party interest in the piece of land and building standing on commercial plot bearing No,18, admeasuring 460 sq. Yds, situated at Industrial Area Liaquatabad Township, Survey Sheet No,9, Chatta No,19, Liaquatabad No,4, Karachi (suit property) by way of mortgage, gift, transfer sale, etc., and to direct and permanently restrain the defendants No,3 and 4 from causing any entry of transfer of the building/sheds constructed on suit property in the name of any other person, institution, company, or legal person etc., which could create third party interest in the suit-land till disposal of this suit. Second application bearing C.M.A. No,17/2009 is also filed by the plaintiff under Order XI Rule 12, C.P.C. r/w section 151, C.P.C. Seeking directions to the defendants Nos.1 and 2 to produce all original documents of suit property before this Court as the same are in their possession and production and impounding of the title documents including General Power of Attorney is highly necessary for protecting of the valuable rights of the plaintiff, for avoiding future legal complications and for the proper adjudication of this suit.
2. The brief facts giving rise to the listed applications are that plaintiff is real owner of suit property vide registered lease deed dated 8-4-1972. On 17-4-2001 the defendant No,1, contacted the plaintiff and agreed to purchase the suit property for a total sale consideration of Rs,30,00,000. The defendant No,1 paid a total sum of Rs,700,000 to the plaintiff. It was also mutually and specifically agreed that the balance sale consideration of Rs,27,00,000 will be paid within specified period of ninety days as per clause-2 of the agreement of sale dated 17-4-2001.
'Thereafter defendant No,1 introduced the-defendant No,2 with the plaintiff as his partner and requested the plaintiff to execute a fresh agreement of sale with an additional clause that the defendants Nos.1 and 2 will jointly get the suit property vacated from the two tenants who were/ are occupying the suit property after payment of Rs,11,00,000 as compensation to the tenants on behalf of the plaintiff. However, the rest of the terms and conditions remained the same and defendants Nos.2 and 3 were again mutually and specifically agreed that the balance sale consideration of Rs,12,00,000 will be paid within specified period of ninety days as per clause-3, to the plaintiff from the execution of the subsequent/fresh of the second agreement of sale dated 31- 7-2001. Since the plaintiff was planning to go abroad as such he executed a registered General Power of Attorney dated 31-7-2001. Before the defendant No,3, in favour of defendants Nos.1 and 2, in good faith and with a clear understanding that they will make payment of balance sale consideration of the sum of Rs,12,00,000 to the plaintiff within specified period of ninety days as per clauses-3 and 4 of the second agreement of sale dated 31-7-2001.
3. The plaintiff further contended that defendants Nos.1 and 2 jointly and severally failed to make the payment of the balance sale consideration to the plaintiff within specified period of ninety days as per clauses Nos.3 and 4 of the second agreement of sale dated 31-7-2001, despite various verbal requests of the plaintiff, hence feeling mala fide attitude and constant failure of the defendants Nos.1 and 2 to perform their part of contract within the specified period, the plaintiff filed his written objection dated 22-4-2002, before the defendant No,3, requesting him to refrain and abstain' from registering any further transaction in respect of suit property on the basis of registered General Power of Attorney dated 31-7-2001 in favour of defendants Nos.1 and 2. The plaintiff also issued Legal Notice dated 7-3-2008 against the defendants Nos.1 and 2 for surrendering the original registered power of attorney which stands revoked years ago upon failure of the defendants Nos.1 and 2 to perform their part of contract but the defendants have not surrendered the same. Due to mala fide and tyrant acts of the defendants Nos.1 and 2 and their continuous refusal to surrender the power of attorney, the plaintiff has suffered mental torture, financial and monetary losses as the tenants occupying the suit property have created problems for the plaintiff and the tenants are not paying the rents on the boosting and direction of defendants Nos.1 and 2 for which the plaintiff have to face agony of trial on the ill-fated acts of the defendants Nos.1 and 2, thus they are also liable to pay damages to the plaintiff. It is further alleged in the plaint that since the defendants Nos.1 and 2 have jointly and severally failed to surrender the original power of attorney to the plaintiff and have been bent upon to usurp the valuable property of the plaintiff.
4. In rebuttal, Younus Ahmed Khan defendant No,1 filed written statement and counter-affidavits to both the listed applications wherein at the very outset contended that the present suit is time barred and a counter blast of Civil Suit No,772/2008 filed by the defendant No,1 against the plaintiff and defendant No,2 and then in the Court of 1st Senior Civil Judge Karachi Central. He contended that the plaintiff in the listed application has not raised a single reason mentioning that under which ground the stay application is filed.
' He also stated that the defendant No,1 entered into sale agreement dated 17-4-2001 and paid Rs,300,000 to the plaintiff in this respect sale agreement was executed and separate receipt of amount was issued to him. He further contended that the second sale agreement was executed by the plaintiff in his favour(defendants Nos.1 and 2) for which he paid Rs,400,000 from his own pocket for which the plaintiff executed the fresh sale agreement dated 31-7-2001 and separate receipt which are annexed with the plaint as Annexures P/5 and P16 respectively. It is contended that on the same date viz. 31-2-2001 the plaintiff executed irrevocable General Power of Attorney which was registered before SubRegistrar.T-Division Karachi in which the plaintiff assigned the full power of owner to him and defendant No,2 and undertakes that this General Power is irrevocable and shall be binding on him, his legal heirs, executors, administrators and assign and shall not be revoked, or amended by him until and under his said attorney themselves desire to ease to continue as such attorney and their such consent will be produced in writing. After receipt of the amount of Rs,700,000 the plaintiff and defendant No,2 shifted their place of residence without any intimation regarding change of their houses. The defendant No,1, after shift of house of plaintiff made all efforts about the plaintiff, which was traced by the aefendant No,1 in 2007. Thereafter all kinds of efforts were made to settle the dispute and offered for the rest of the payment continuously in case exchanging the name of the defendant No,2 because defendant No,2 failed to get negotiation with the tenants of the plaintiff where whole payment was made by him, Under the compelling circumstances he sent the legal notice dated 26-8-2008 to the plaintiff as well as the defendant No,2 which was replied by the plaintiff and he filed the Civil Suit No,772/2008 before 1st Sr. Civil Judge, Karachi Central, where the summonses were received by the plaintiff and in counter blast this suit was filed by way of increase of value of the suit by adding damages, otherwise the value of the property is Rs,30,00,000 for which this Court has no pecuniary jurisdiction. He contended that the plaintiff has no right to seek the cancellation/stay to the defendant No,1 except the balance amount, therefore, the application for stay is liable to be dismissed with special cost.
5. The defendant No,1 filed the counter-affidavit reply to application under Order XI Rule 12 r/w section 151, Cr.P.C, wherein it has been stated that the plaintiff has not mentioned a single reason under which ground the instant application is filed. Defendant No,2 are the purchaser of the suit property against the sale consideration of Rs,30,00,000 vide sale agreement and irrevocable General Power of Attorney dated 31-7-2001 in their favour, against the sale consideration he has paid Rs,700,000 from his pocket. Except the irrevocable General Power of Attorney dated 31-7-2001 not a single title document of the suit property is with him and nor handed over to the defendant No,1 by the plaintiff. He has submitted that the claim of the plaintiff for recovery of the title documents is not reasonable because said power of attorney is his right and defendant No,2 for which he filed a Civil Suit No,772/2008 which is pending before the 1st Sr. Civil Judge, Karachi Central. The defendant, however, further urged that the suit property is disputed since long where tenants of the building enjoying the possession which are not under the control of the plaintiff who only have the original documents and might he had sold the said property to the said tenants which is not on record but plaintiff failed to initiate proceedings against the tenants, nor he had made any effort to evict them lawfully. According to the sale agreement dated 31-7-2001 the plaintiff agreed to pay Rs,11,00,000 to the tenants through defendants Nos.1 and 2 therefore the present application is filed with mala fide intention because plaintiff have not lawful command over the suit property. It is further added that the defendant No,1 is ready to pay the rest of the amount i.e, Rs,23,00,000 to the plaintiff with peaceful vacant possession either received Rs,12,00,000 as per agreement without physical possession if the plaintiff is ready to execute fresh sale agreement/sale-deed as well as power of attorney in his name excluding the defendant No,2, because previously all payments are made by the defendant No,1 and the name of defendant No,2 was entered with reason that the defendant No,2 would get vacated the suit property by negotiation with the tenants but failed and shifted untraceable place nor sent the intimation regarding fresh address. Therefore the instant application is liable to be dismissed being not maintainable.
6. I have heard the learned advocates for the parties who have reported and reiterated the contents mentioned in their pleadings.
7. I have given due consideration to the arguments advanced by the learned counsel for the parties and minutely examined the material available on record. From perusal of the record it reveals as well as it is an admitted position that the plaintiff is owner of the suit property and entered into sale agreements dated 21-42001 and 31-7-2003 with the defendants Nos.1 and 2 who have jointly and severally failed and neglected to specifically perform their part of contract with the stipulated period as mentioned in the first sale agreement dated 21-7-2001 followed by second sale agreement dated 31-7-2003 and due to failure of the defendants Nos.1 and 2 for the payment of balance sale consideration of the suit property to the plaintiff. The plaintiff made hectic efforts regarding balance sale consideration and to get the fruit of the above deal of sale but no heed was paid by the defendant Nos.1 and 2, hence the plaintiff was constrained to move an application before the defendant No,3 for the cancellation and stoppage of function of general power of attorney executed by the plaintiff in favour of defendant Nos.1 and 2 with regard to property in question and in this respect news was also published in daily Nawa-eWaqt, Karachi dated 12th March, 2008 by the plaintiff.
8. Further, the plaintiff in support of his case filed copy of registered lease deed of suit property and other allied-documents with regard to ownership of plaintiff. The defendant No,1 also admitted the existence of the dispute between the parties it appears from the pleadings of the parties that the disputed questions of facts require deeper appreciation of evidence which can properly be thrashed out at the time of trial. From the tentative assessment of the A material available on the record, I am of the considered view that the plaintiff has made out a prima facie case at this stage.
The balance of convenience is also in his favour as great inconvenience will be caused to the plaintiff being owner of the property, in exercising their legal rights to deal with the property as per law. Irreparable loss will be caused if the injunction is refused. Hence, the instant application being C.M.A. No,16/2009 is allowed as prayed.
9. Simultaneously for the findings mentioned supra when the plaintiff has made out prima facie case in his favour and the defendants Nos.1 and 2 failed to oblige their contractual obligations as well as the dealing of the property in question the great apprehension of misusing of the original documents is involved. Under the peculiar facts and circumstances of the case for the protection of valuable rights of both the parties and for avoiding future legal complications and for the proper adjudication of the case, hence C.M.A. No,17/2009 is disposed of the plaintiff and the defendants Nos.1 and 2 are directed to deposit original title documents of the suit property available in them before the Nazir of this Court within fifteen days from today in order to protect the valuable rights of the succeeding party.
' Order accordingly