1. ' MUHAMMAD TASNIM, J---This is an application under Order XXXIX, Rules 1 and 2, C.P.0 r/w section 151, C.P.C., whereby plaintiff has prayed for interim injunction restraining the defendants, jointly and/or severally, their representatives, attorneys, officers/employees, administrators, executors and assignees or any person or persons claiming for an under them, from disposing of, alienating, creating any third party interest or parting with the possession, changing the position, status or category of residential Plot No,4/50, measuring 1157 Sq. Yards, Survey Sheet No,35/P-1, Block-3, Khalid Bin Waleed Road, Maniya Cooperative Housing Society, Karachi, or carrying out any construction work thereon, or acting in any manner prejudicial to the interest of the plaintiff.
2. ' Facts as stated by the plaintiff in the plaint are that defendant No, 1 being owner of property i,e,, residential Plot No,4/50, measuring 1287 Sq. Yards, Survey Sheet No,35/P-1, Block-3, Khalid Bin Waleed Road, Maniya Cooperative Housing Society, Karachi (hereinafter called "Suit Plot"), acquired vide registered sale-deed dated 30-6-1996 executed General Power of Attorney dated 29-8-1997 duly attested by Pakistan High Commission at London and pursuant thereto the said attorney executed irrevocable General Power of Sub-Attorney, registered with the Sub-Registrar T. Division Karachi in favour of Haji Abdul Latif (defendant No,5), Haji Arif (defendant No,7), Mohammad Aftab (defendant No,6) and Mohammad Iqbal Kamdar (plaintiff). It is further case of plaintiff that after execution of aforesaid irrevocable General Power of Sub-Attorney dated 9-12-1997. The four sub- attorneys viz. Defendants Nos.5, 6, 7 and plaintiff had executed deed of partnership dated 1-11-1997 for constructing a multistorey building and selling the units to general public. However for the reasons mentioned in the plaint required permission from K.B.C.A. For raising construction could not be obtained and finally partners of the firm entered into an agreement dated 1-3-2001, with the intervention of the sole arbitrator, whereby the partnership between the parties was dissolved. It is further case of the plaintiff that in the year 2006 defendant No,1 approached the plaintiff and defendants Nos. 5 and 6 and proposed them to sale the suit plot to the defendants Nos.2, 3 and 4 at the current market price of Rs,1,22,000 per square yard. It is further case of the plaintiff that in the meanwhile a ' public notice dated 18-1-2006 , notifying the purported sale of the said plot by the defendant No,l. Consequently the plaintiff through his Advocate raised objection vide letter dated 20-1-2006 and intimated to concerned Sub-Registrar and sent notice to defendant Nos.8, 11 and 12 that he being the co-vendee of the suit plot, holding the aforesaid irrevocable General Power of Sub-Attorney had objection to the purported sale of the said plot by defendant No,l. It is the case of plaintiff that defendant Nos.1, 5, 6 and plaintiff signed a deed of settlement dated 27-2-2006, wherein it was agreed between the parties that defendant No,1 shall pay an amount of Rs,68,874,290 to defendants Nos.5, 6 and the plaintiff as under:-- "(a) Mr. Haji A. Latif Rs, 600,000 (Def. No, 5)
(b) Mr. Muhammad Aftab Rs, 25,945,202 (Def. No, 6)
(c) Mr. Muhammad Iqbal Kamdar Rs, 42,329,088 Plaintiff"
3. ' It is further case of the plaintiff that it came to the knowledge of the plaintiff that defendants Nos.1 to 6 in collusion with each other fraudulently concealed from the plaintiff and sold the suit plot at the rate of Rs,1,44,000 per square yards. Such fraudulent transaction was finalized at the total sale consideration of Rs, 185,328,000 between the defendants Nos. 1, 2, 3 and 4 vide sale agreement dated 5-1-2006. It is further case of the plaintiff that defendant No,6 had received additional substantial amount in addition to his share as per the deed of settlement executed between the parties. It is the case of plaintiff that defendant No,1 in breach of his undertaking contained in para- 6 of the deed of settlement paid Rs,35,000,000 through three pay orders all dated 15-7-2006, out of plaintiff's share of Rs,42,329,088 and on the instructions of the defendants Nos.2, 3 and 4 withheld a balance of Rs,7,329,088 which he promised to pay soon. It is further case of the plaintiff that defendant No,1 once again acting fraudulently and in breach of trust reposed by the plaintiff in him, paid a sum of Rs,5,502,088 through pay order dated 24-1-2007 leaving a balance of Rs,18,27,000 which amount is still due and payable by defendants Nos.1 to 4 'to the plaintiff. In the circumstances plaintiff filed present suit for Cancellation of Documents, Permanent, Mandatory Injunctions, Appointment of Receiver and Damages along with present application.
4. ' After the service of the notice defendants Nos.1 and 2 filed their respective written statements as also counter-affidavit to present application but no written statement was filed by defendants.
5. Nos.3 to 13 and were debarred from filing of written statement.
6. ' Defendant No,2 filed counter-affidavit to the present application and denied the allegations levelled in the plaint by the plaintiff. In the counter- affidavit defendant No,2 has stated that plaintiff purchased the suit plot from defendant No,1 against the valuable consideration as bona tide purchaser. It was further stated that defendant No,2 has never entered into any transaction with the plaintiff in respect of suit plot. It is the case of defendant No,2 that alleged dispute/transaction relating to the suit plot if was between the plaintiff and defendant No,1 and defendant No,2 has no concern with the same. It is further stated in the counter-affidavit that plaintiff himself had admitted that he expressly waived his right and had no objection for execution of the sale deed in favour of defendant No,2. It is further case of defendant No,2 that sale-deed in respect of suit plot was executed by consent of the plaintiff. Defendant No,2 has also stated that entire sale consideration has been paid to the defendant No,1 by defendant No,2. He has further stated that on the instruction of defendant No,1, two payments out of total sale consideration were made to the plaintiff by defendant No,2, one for Rs,35,000,000 and second for Rs,5,502,088. Defendant No,2 further stated that he has purchased the suit plot against valuable consideration and all due care was taken prior to purchase of suit plot, including notice in press inviting objection and other legal formalities. Defendant No,1 has also filed his counter-affidavit to the application and has supported the case of defendant No,2.
7. ' Mr. Badar Alam, learned counsel for plaintiff has submitted that defendants in collusion with each other have defrauded the plaintiff and have caused financial loss to the plaintiff. He further argued that defendant No,1 has given an understanding to the plaintiff that plot is being sold at the lesser price but practically the same was sold on the higher price. He further submitted that entire sale transaction in favour of defendant No,2 by defendant No,1 is mala fide. He further argued that the registered documents, whereby suit plot has been conveyed to defendant No,2, be cancelled and injunction be granted against the defendants. In support of his contention, learned counsel for plaintiff has invited my attention to the deed of settlement dated 27-2-2006 entered into between the defendant Nos.1, 5,6 and the plaintiff and has stated that through this understanding an amount of Rs,68,874,290 was agreed to be distributed amongst the parties to settlement. Learned counsel for plaintiff has further submitted that no doubt share of the plaintiff out of above sale consideration has been paid to the plaintiff, but suit plot has been sold on the much higher price to defendant No, 2 by defendant No,1, thereby serious financial loss has been caused to the plaintiff.
8. Learned counsel for the plaintiff has further argued that present suit was filed on 3-3-2007 and counter-affidavit to such application was filed by the defendant No,2 on 26-3-2007 but the documents which have been filed alongwith written statement were not brought on record hence documents which defendant No,2 have filed with their written statement on 7-11-2007 may not be considered for the disposal of this application. He has further submitted that along with written statement defendant No,2 has brought on record an agreement to sale entered into between defendant No,1 and one Mohammad Saleem. He argued that Mohammad Saleem has been planted and he is fictitious person. He has further submitted that no such sale-agreement was entered into. The receipt dated 24.01.2007 allegedly executed by the plaintiff is not genuine document. In the end learned counsel prayed that present application be allowed.
9. ' Learned counsel for the plaintiff has relied upon the following case law:--
(i) 1996 SCM R 354 (HAKIM ALI V. SAKHI MUHAMMAD, ETC.)
(ii) 1992 CLC 2540 (Mrs. NAZ SHAUKAT KHAN and 3 others v. Mrs. YASMIN R. MINHAS and other)
(iii) PLD 1970 Supreme Court 139 (SHAHZADA MUHAMMAD UMAR BEG v. SULTAN MAHMOOD KHAN AND ANOTHER)
(iv) 1997 SCM R 1508 (ISLAMIC REPUBLIC OF PAKISTAN through Secretary, Establishment Division, Islamabad and others v. MUHAMMAD ZAMAN KHAN and others)
(v) 1982 SCM R 741 (RIAZ AND OTHERS v. RAZI MUHAMMAD)
(vi) 2003 SCM R 549 (TALIB HUSSAIN and others v. MEMBER, BOARD OF REVENUE and others)
(vii) 1993 SCM R 710 (LAL DIN and other v. MUHAMMAD IBRAHIM)
10. ' As against the above submissions, Mr. Arshad Tayably, learned counsel for defendant No,2 has submitted that he holds the suit plot under the registered documents having purchased the same against the valuable consideration. Learned counsel has further submitted that prior entering into agreement to sale and registration of sale-deed in favour of defendant No,2, all possible care was taken and the suit plot was purchased after observing all the legal formalities. Learned counsel for defendant No,2 has invited my attention to sale agreement dated 5-1-2006 entered into between plaintiff and Mohammad Saleem. He further invited my attention to clause-11 of said sale agreement, whereby it has been stated that conveyance-deed of the said property shall be executed in favour of vendee or his nominee. He further submitted that Mohammad Saleem got the suit plot conveyed in the name of defendant No, 2 as nominee of Mohammad Saleem. He has further invited my attention to receipt dated 24-1-2007 executed by plaintiff, wherein it has been clearly stated that a sum of Rs,4,23,29,088 was received by the plaintiff. From defendant No,1 in terms of deed of settlement dated 27-2-2006 against all his claim in respect of suit plot. In the said receipt plaintiff has stated that "I hereby surrender, release, relinquish, disclaim any right, title or interest in the subject property in any manner whatsoever". It is further stated that plaintiff and all persons claiming through or under him have no objection or claim or demand of any nature whatsoever for the sale and transfer of the suit plot in favour of defendant No,2. Defendant No,2 has also invited my attention to legal notice addressed by plaintiff's Advocate on 19-7-2006, wherein in paragraph-1, on instruction of plaintiff, learned Advocate has stated that his client has amicably settled all matter with defendant No,1, owner of the suit plot. It is further stated in the said letter that the sale-deed was executed in favour of defendant No,2 in respect of suit plot, which was registered with Sub-Registrar T.Div.II Jamshaid Town 1, Karachi. It is further stated that plaintiff withdraw all his objections which might have been filed before the Cooperative Society concerned or the concerned Sub-Registrar on any action or deal by defendant No,1 concerning suit plot. He has further stated in the letter that plaintiff has no objection if defendant No,1 or the new buyer of the suit plot namely defendant No,2 or their nominee/representatives deal with the society or the concerned authorities in future. Learned counsel for defendant No, 2 has further submitted that no case for injunction is made out by the plaintiff. He further submits that there is no dispute between plaintiff and defendant No,2. Dispute, if any, is between plaintiff and defendant No,l. He also submitted that plaintiff has also claimed damages in this suit and further submitted that if plaintiff proves his case against defendant No,1 he shall be compensated in terms of money, hence stay application is liable to be dismissed. In support of his contention, learned counsel for defendant No,2 has placed reliance on a Division Bench Judgment of this Court reported as 2007 CLC 1568 (NAVAID HUSSAIN and 5 others v. JAHARGIR SIDDIQUI through Attorney and 9 others). The learned Division Bench on page 1572 has concluded as under:- "The balance of convenience is also not in favour of the appellants as great inconvenience will be caused to the owners of the property in exercising their legal rights to deal with the property as per law. Furthermore, we have been informed by the learned Advocates for the respondents that the entire building is complete; third party interest has already been created as is clear from the arguments of the learned Advocate for the respondents Nos.7 to 10. No irreparable loss will be caused to the appellants, if the injunction is refused because the loss, if any, can be compensated in the shape of damages as claimed by the appellants in the prayer clause of the plaint."
11. ' Mr. Asim Mansoor, learned counsel for defendant No, 1 has mainly adopted arguments of learned counsel for defendant No,2. However learned counsel has invited my attention to irrevocable General Power of Attorney executed by the owner in favour of defendant No,5, 6, 7 and plaintiff. He particularly invited my attention to clause-9 emphasizing that under such sub-power of attorney said attorneys were entitled to sale, mortgage or transfer the property in any manner. Learned counsel has stated that there is no 'dispute with the plaintiff and defendant No,2. He has stated that defendant No,2 has paid entire sale consideration to defendant No,1 and on his instructions defendant No,2 had also made payment directly to the plaintiff for his entitlement of share as per deed of settlement dated 27-2-2006. Learned counsel further submitted that plaintiff subsequently became greedy and to extract money from defendants Nos.1 and 2, filed the present suit. Learned counsel has submitted that application merits no consideration and is liable to be dismissed.
12. ' Defendant No,6 is present in person and has made his submissions. He submitted that he was declared ex parte and no written statement was filed on his behalf, however he was permitted to address the Court. Defendant No,6 has submitted that defendant No,2 had made payment of Rs,25,945,202 being his share in sale-consideration. He has received such amount from defendant No,2 on the instruction of defendant No,
1. Defendant No, 6 has also admitted that he has never entered into any sale-agreement with defendant No,2. However he invited my attention to the Irrevocable General Power of Attorney claiming to be sharer through that document and has further invited my attention to deed of settlement dated 27-2-2006, whereby amount sought to be distributed was agreed upon between the parties, whereby share of defendant No,6 was determined. Defendant No,6 had submitted that no doubt his share determined per deed of settlement dated 27-2-2006 has been received by him but he argued that defendant No,1 has sold the property on the higher price, thereby financial loss has been caused to the defendant No,6 by defendant No,1, defendant No,6 supported the case of plaintiff and prayed that injunction as prayed for be granted.
13. ' I have heard the arguments of the parties and have gone through the record.
14. ' From the perusal of the deed of settlement dated 27-2-2006 it is, prima facie, clear that same was executed by plaintiff, defendants Nos.l, 5 and 6, whereby the amount sought to be distributed amongst the parties to the deed of settlement was agreed upon. It is further clear from the perusal of pay orders dated 15-7-2006 that share of the plaintiff was delivered to him through pay orders.
15. From the perusal of the agreement to sale dated 5-1-2006 between defendant No, 1 and Muhammad Saleem, the sale consideration of the property was agreed to Rs,157,014,000 at the rate of Rs,1,22,000 per square yard and in consequent to the above sale-agreement, sale-deed was executed by defendant No,1 in favour of defendant No,2. From the perusal of receipt dated 24-1- 2007 executed by the plaintiff clearly shows that a sum of Rs,4,23,29,088 being the share of the plaintiff was received by him in terms of deed of settlement dated 27-2-2006. It further appears from the perusal of receipt mentioned above that plaintiff had already surrendered, released, relinquished his right, title or interest in the suit plot in favour of defendant No,2. It is further clear from the perusal of letter dated 19-7-2006 addressed by the Advocate of the plaintiff whereby it was communicated that plaintiff had amicably settled all the matters with the defendant No,1, owner of the suit plot, and further stated his no objection if the suit plot is sold to defendant No,2. No doubt plaintiff has admitted that his share as per deed of settlement dated 27-2-2006 has been received, but his allegation is that defendant No,1 in connivance with other defendants has defrauded him and has caused financial loss. According to the plaintiff the suit plot was sold on much higher price than it was shown in the deed of settlement entered into between the plaintiff and defendants Nos.1, 5 and 6. The plaintiff in the present suit has raised a question of fact as to whether the suit plot was sold by defendant No,1 on the price shown in the deed of settlement dated 27-2-2006 or the same was sold at a higher price. Such question cannot be decided without recording evidence. It is admitted position that defendant No,2 has not caused any loss to plaintiff.
16. ' It is an admitted position that plaintiff had never entered into agreement to sale with defendant No,2. It is also an admitted position that with the consent of the plaintiff, defendant No,1 has sold the property to defendant No,2. It is also an admitted position that share of the plaintiff has been paid to him by defendant No,2 on the instruction of defendant No,l. If there is any shortfall in payment of share of the plaintiff or if there is any fraud on the part of defendant No,1 or other defendants that can not be resolved without recording evidence of the parties. Even otherwise no prejudice shall be caused to the present plaintiff if injunction is refused. The case law cited by the learned counsel for plaintiff do not advance the case of the plaintiff as all the Judgments cited by him are distinguishable on facts and are not applicable in the circumstances of the case. On the contrary judgment cited by learned counsel for defendant No,2 supports his arguments to the effect that no prejudice shall be caused to plaintiff if injunction is refused because the loss, if any, can be compensated in shape of damages as claimed by the plaintiff in the suit. Plaintiff has failed to make out prima facie case and balance of convenience also does not lie in his favour. In the circumstances no case for grant of injunction is made out by the plaintiff against defendant No,2.
17. Consequently the present application merits no consideration, which is accordingly dismissed.