1. C.M.A. No,10901 of 2008 ' TUFAIL H. EBRAHIM, - J.--- This application under Order XXXIX, rules 1 and 2 read with section 151, C.P.C. Has been filed by the plaintiff seeking restraining order against the defendant and his employees, workers, subordinates, person(s) from selling, encumbering, letting, gifting, mortgaging, transferring or dealing in any manner with any person in respect of second and third floor portion along with the roof of the suit property situated on Plot No,27, Bihar Colony, Jamshed Road No,3, Karachi. Ad interim orders were passed on 18-11-2008 and the defendant was restrained from creating third party interest in respect of the second and third floor and from parting with possession of the second floor.
2. ' It is the case of the plaintiff that he had entered into a sale agreement dated 6-2-2008 for the purchase of second (comprising of two flats) and third floor comprising of two flats of the building along with the roof proposed to be constructed on Plot No,27, Bihar Colony, Jamshed Road No,3, Karachi, (hereinafter referred to as the suit property) for total sale consideration amounting to Rs,38,00,000. The plaintiff has paid to the defendant a sum of Rs:17,50,000 in instalments as on 15- 5-2008 in terms of the said sale agreement although he was only required to pay a sum of Rs,10,00,000. The defendant was required to construct second and third floor of the building and possession of the suit property was to be handed over to the plaintiff within a period of four months and plaintiff was required to pay to the defendant the balance sale consideration.
3. ' The learned counsel of the plaintiff has argued that the defendant had not completed the construction of the suit property in terms of the sale agreement and as per mutual arrangement defendant had arranged a Flat No,G-2, Ground Floor, Labbaik Plaza, Plot No,36-39-64 opposite Sulemania Masjid, Ganj Shakar Colony, Zeera Chowk, Jamsheed Road No,1, Karachi for occupation of plaintiff, with the assurance that possession of the two flats on the second floor would be handed over to the plaintiff within 25 days. Thereafter, the plaintiff approached the defendant for the delivery of possession of the flats on the second floor of the building as per mutual agreement but the defendant with ulterior and mala fide reasons refused to hand over possession of the second floor and also further committed breach of the agreement by not construction the third floor.
4. ' It has been argued by the learned counsel for the plaintiff that after receipt of the sum of Rs,17,50,000 the defendant became dishonest and wanted to sell third floor and roof top to some other person to make unlawful gains and to usurp the right of the plaintiff. The agreements of sale between the defendant and Mrs. Farzana Shahid and Mr. Altaf are forged, fabricated and sham documents prepared by the defendant to play fraud. The learned counsel has argued that no evidence of payments have been produced by the defendant as no sale consideration was paid by the said purchasers, the market value of flats on second and third floor could not be the same.
5. Surprisingly both the plots were sold and identical agreements were executed on the same date with two different purchasers. The learned counsel further submits that no title has been transferred in favour of the purchasers as only alleged sale agreements have been executed fraudulently. Even otherwise on 19-11-2008 flat on the third floor was not constructed (which is evident from Nazir's report dated 19-5-2009) and therefore defendant could not possibly hand over possession of the third floor to the alleged purchaser and it is for this reason the defendant has not produced the bills of utilities as undertaken given to Nazir. Learned counsel further states that the plaintiff has not received any notice of cancellation of the sale agreement therefore defendant cannot unilaterally cancel the agreement of sale without first giving any notice and refunding the sum of Rs,17,50,000 to the plaintiff. He also referred a decision of Union Administration, Union Council No,10 Jamshed Town, wherein it has been admitted that defendant agreed to sell the suit property and had received a sum of Rs,17,50,000. In the said decision nothing has been mentioned as to cancellation of the said agreement of sale or to the completion of the third floor.
6. ' In the written statement the defendant has stated that there was an oral agreement whereby the plaintiff had agreed to give loan amounting to Rs,38,00,000 to the defendant so that the defendant could construct second and third flpors and after constructing the plaintiff would have the option to purchase the same. Since plaintiff did not pay the entire loan amount of Rs,38,00,000 therefore, he allotted the flat to some other persons as defendant was in need of urgent funds for construction of the building, vide two separate sale agreements both dated 19-11-2008. However, in the counter-affidavit the execution of Agreement of sale dated 6-2-2008 and receipt by the defendant are denied. It has been stated that the defendant had entered into an Agreement for sale of two flats on second floor and two flats on the third floor only (each flat for Rs,9,50,000) and since the plaintiff failed to pay the balance sale consideration therefore the defendant had cancelled the agreement vide legal notice dated 8-10-2008 and after the decision of the Union Council the said flats on the second and third floors were sold to two different persons vide agreements dated 19-11-2008.
7. ' It is contended by the learned counsel for the defendant that sale agreement dated 6-2-2008 was fabricated, forged and fake document and no such document was executed by the defendant. Since the plaintiff failed to pay the balance amount of Rs,20,50,000 the defendant had cancelled the agreement vide legal notice dated 29-9-2008 and thereafter defendant sold the flats constructed on second and third floor on 19-11-2008 to Mrs. Farzana Shahid and Mr. Altaf respectively. The learned counsel for the defendant submits that no stay can be granted as the defendant has sold the said flats on the second and third floors to the above named persons vide agreements of sale dated 19-11-2008 before notice of stay application was served on the defendant.
8. ' After hearing the arguments of the learned counsel, perusal of the documents, it can be prima facie concluded that (a) there was some agreement between the plaintiff and the defendant whereby the suit property was to be sold by the defendant to the plaintiff after completion of the suit property by the defendant (b) there was some delay on the part of the defendant to complete the construction, (c) a sum of Rs,17,50,000 was paid by the plaintiff to the defendant, (d) no title has been transferred in favour of alleged purchasers by the defendant and (e) the defendant had also delivered the possession of all that Flat No,G-2, Ground Floor, Labbaik Plaza, Plot No,36-39-64 opposite Sulemania Masjid, Ganj Shakar Colony, Zeera Chowk, Jamsheed Road No,1, Karachi for occupation of plaintiff, which is still in the possession of the plaintiff.
9. ' Plaintiff has made out a prima facie case and the balance of convenience lies in his favour as he paid a sum of Rs,17,50,000 to the defendant which has been admitted by the defendant. For the aforesaid reasons defendant is hereby directed not to hand over the possession of the roof top to any person and further not to dispose of, convey or transfer the suit property to any person by way of sale-deed, sub-lease deed or any other transfer deed. The above restraining order shall be subject to the plaintiff depositing the balance sale consideration amounting to Rs,19,00,000 with the Nazir of this Court within one month from the date hereof. The Nazir shall invest this amount along with the earlier amount of Rs,1,50,000 deposited by the plaintiff in some government profit bearing security.
10. C.M.A. No,10902 of 2008 ' In view of above order this application is also disposed of with the direction that the defendant and all persons claiming through under the defendant are hereby restrained from removing or evicting the plaintiff from Flat No,G-2, Ground Floor, Labbaik Plaza, Plot No,36- 39-64, opposite Sulemania Masjid, Ganj Shakar Colony Zeera Chowk Jamsheed Road No,1 till disposal of the suit.
11. The plaintiff shall be liable to pay all utility bills in respect of this flat directly to the relevant authorities.