1. ' MUHAMMAD ALI MAZHAR, J.:---By this order, I will dispose of C.M.A. No,9293/2006 filed by the plaintiffs under Order 39 Rules 1 and 2 read with section 151, C.P.C.
2. ' The plaintiffs have filed this suit for Specific Performance Possession, Declaration and Permanent Injunction against the defendants with the following prayers:-
(a) To declare that the defendants are bound to sell the demised property i.e, shop under staircase, Shop No,4, Shop No,17, First Floor Rooms, Hall and Go down against. The balance sale consideration of Rs,42,50,000 and to direct the defendants to execute sale-deed/deeds in respect of demised property being Shop under staircase, Shop No,4, Shop No,17, First Floor Room, Hall and Go dwon in "Sarwar Centre" previously known as "New Castle Building" situated at Survey No,238, Sheet A.M., Frere Road, Artillery Maidan Quarters, Karachi facing the main Road Shahrah-e-Liaquat and Sohrab Katrak Road.
(b) Possession of the above demised property be handed over to the plaintiff and after execution of sale-deeds.
(c) To restrain the defendants from dealing with the said demised property by disposing of or transferring the same by creating third party interest and be further pleased to restrain the defendants from pursuing Rent Cases Nos.213/06, 214/06, 215/06, 257/06, 258/06, 259/06 and 278/06 pending in the Court of Vth SCJ and Rent Controller at Karachi (South).
(d) Cost of the Suit.
(e) Any other/further relief that this Hon'ble Court may deem fit and proper in the circumstances of the case.
3. ' Along with the suit, the plaintiffs have filed this application in which they have stated that the defendants had agreed to transfer Shop No,4, Shop No,7, Shop No,8, Shop No,17 and First Floor Rooms, Hall and Go down, which were owned by them, for which Rs,5 Lacs were paid in cash to defendant No,1 as advance vide Receipt No,(sic) dated 6-4-2004. The defendants out of the said properties transferred Shops Nos. 6, 7 and 8. The defendants filed rent cases for Shop No,4, First Floor Rooms, Hall and Go down against Muhammad Aslam, the father and husband of plaintiffs Nos. 1 and 2 respectively and so also against a relative of the plaintiffs namely Muzafar Rashid in order to avoid sale of rest of the properties. It is also stated in the application that the defendant No,2 filed the rent cases fraudulently, therefore it is prayed that the defendants may be restrained from pursuing/proceeding with the rent cases so also from creating any third party interest in the suit properties.
4. ' In the counter-affidavit filed by defendant No,2 to the :application, it has been denied that the defendants ever agreed to sell shops, first floor rooms, hall and go down or received Rs,5 Lacs in cash as advance against receipt dated 6-4-2004. The said receipt is a forged and fabricated document. It has also been stated that defendant No,1, as an attorney had no legal right or authority to deal with any of the portions or parts of the property except those mentioned specifically in the General Power of Attorney executed in his favour by the defendants Nos. 2 to 4. It is further stated that the shops, first floor room, hall and go downs were never agreed to be sold and since the tenants of the respective portions of the property had failed to pay the rent, the rent cases were rightly filed against them and to save those tenants, the present application has been filed with mala fide intention. It is further stated that defendant No,2 adopted the legal course for eviction of tenants and the plaintiff cannot seek any relief for restraining the defendant No,2 from pursing the rent case. The plaintiffs have neither alleged nor even pleaded that the plaintiffs have any prima facie case, balance of convenience is in their favour or any irreparable loss would be caused to them. Lastly, it is stated that the plaintiffs have not acquired any title in respect of the portions mentioned in the application and even the plaintiffs are not tenants of those portions and cannot seek any relief on behalf of others, ' No counter-affidavit has been filed by the defendant No, 1 to this application nor anyone was present on behalf of the defendant No,1 on the date of hearing of this application.
5. I have heard the learned counsel for the parties. The learned counsel for the plaintiffs has mainly relied upon a receipt dated 6-4-2004 which starts with the opening words that "I, Muhammad Tariq son of Choudhary Ghulam Sarwar Late and on behalf of (1) Muhammad Khalid Sarwar (2) Jawaid Iqbal and (3) Navaid Iqbal, all sons of Chaudhary Ghulam Sarwar late have received with thanks a sum of Rs,500,000 from Muhammad Asad and Samia Aslam as part payment in respect of sale consideration of Ground Floor's Shop under staircase, Shop No,4, Shop No,7, Shop No,8, Shop No,17 and First Floor Rooms, hall, go down, which are at present in possession of Muhammad Aslam". The learned counsel has tried to establish that on the basis of this receipt, his clients have entered into an agreement to sell. To a bare look, the said receipt has been signed solely by Muhammad Tariq for self and on behalf of Muhammad Khalid Sarwar, Jawaid Iqbal and Navaid Iqbal without showing any authority whether he was authorized or entitled to sign on behalf of Muhammad Khalid Sarwar, Jawaid Iqbal and Navaid Iqbal. This receipt was executed on 6-4-2004 while the registered power of attorney was executed by Muhammad Khalid Sarwar, Jawaid Iqbal and Navaid Iqbal in favour of Muhammad Tariq on 3-7-2004. So far as the sale-deed relating' to Shops Nos. 6, 7 and 8 of the Project known as "Sarwar Centre" is concerned, the sale-deeds were executed in the month' of October, 2004 in favour of Samia Aslam and Muhammad Asad (plaintiffs). The sale-deed was executed in favour of plaintiffs by Muhammad Tariq on the basis of registered power of attorney issued in his favour by Muhammad Khalid Sarwar, Jawaid Iqbal and Navaid lqbal in the month of July, 2004, therefore parties are not at issue on these sale-deeds and this fact is also reflecting from the injunction application itself. The plaintiffs have further said in their application that the defendants have filed rent cases in respect of Shop No,4, First Floor Rooms, Hall and Go down against Muzafar Rashid (a relative of plaintiffs), plaintiff No, 1 and Muhammad Aslam, and by this application, he wants that the defendants may be restrained from proceeding with the rent cases and from creating any third party interest.
6. ' The learned counsel for the plaintiffs Mr. Mubarak Ahmed has relied upon section 53-A of the Transfer of Property Act. For the convenience and ready reference, section 53-A of Transfer of Property Act is reproduced as under:-- 53-A. Part Performance. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has, performed or is willing to perform 'his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession other than a right expressly provided by the terms of the contract: ' Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.
7. ' The learned counsel for the plaintiffs argued that since in the aforesaid receipt the defendant No,1 has agreed to sell the properties for self and on behalf of other owners, the plaintiffs have acquired the legitimate right and their possession is protected under section 53-A of the Transfer of Property Act. In support of his arguments, the learned counsel has relied upon a judgment reported in PLD 1971 Supreme Court 114 (Kalimuddin Arisari versus Director, Excise and Taxation, Karachi). The facts of this case are highly distinguishable as in this case the Government had not only allotted the appellants and other sub-licensees to construct masonry building on the lands but also expressly provided in the agreements that on the completion of the buildings, the sub-licensees shall be entitled to obtain a registered lease from Government and the conduct of the parties, in treating the agreement as one for lease in all respects, and in the absence of anything to show that the Government is responsible for not executing, the promised lease, the Hon'ble Supreme Court of Pakistan held that for all practical purposes, the sub-licensees have become the holders of a permanent lease. The appellants and the other sub-licensees were either living in the houses constructed by them or have rented them out to the tenants. The Hon'ble Supreme Court further held that it is technical objection that no registered lease has been executed, the lands are leased out in perpetuity, and it would indeed be very difficult for the Government to oust them. In any proceeding for ejectment, section 53-A of the Transfer of Property Act would afford a valid defence against the ejectment. The agreements clearly show that the Government has intended to divest itself and to vest the lands in the sub-licensees, but the latter have apparently mala fide omitted to execute the lease as they were required to do under the terms of agreement. In the present case, there is no such controversy involved as the plaintiffs have not been transferred the property in question and even the possession of alleged shop or disputed portion had not been given to the plaintiffs in the part performance of contract as this is an admitted fact in the injunction application itself that they are in possession as tenants and not by virtue of alleged receipt dated 6-4-2004. The learned counsel for the plaintiffs also relied upon a judgment reported in PLD 1954 Lahore 414 (Ahmad Din versus Faiz Ali). The facts of this case were that one Nadir, an occupancy tenant of land, and his widow Mst. Mehro having died, the collaterals of Nadir, who had taken possession of the land but in whose favour the Revenue Officer had refused a mutation, filed a suit for a declaration that they were entitled to inherit the land under section 4 of the Punjab Tenancy Act. The trial Court decreed the suit and the decree was upheld on appeal by the learned District Judge. In second appeal, it was held that the common ancestor had not been proved to have occupied the land and dismissed the suit. The collaterals have filed an appeal under the Letters, Patent against that judgment. In the meantime, the landlords have filed suits against the collaterals claiming sum of money equivalent to rent under section 14 of the Punjab Tenancy Act.
8. The collaterals filed an application under section 151, C.P.C. Asking for the issue of an injunction to the landlords to the effect that they should neither execute the decrees they have obtained nor prosecute the suits during the pendency of the Letters Patent Appeal. This matter pertains to the stay of judicial proceedings and the Lahore High Court held that the execution proceedings are judicial proceedings, which may be stayed. The facts and circumstances of the reported case are altogether different than the controversy involved in this case and I do not feel that this judgment is helpful to the case of the plaintiffs. Finally, the learned counsel for the plaintiffs cited a Divisional Bench judgment of this Court reported in 2009 CLC 731 (Dr. Abdul Haki Abrash v. ACE Securities (Pvt.) Ltd.). In the aforesaid reported judgment, the learned Divisional Bench of this Court in High Court Appeal observed that on reading the tenancy agreement dated 1-6-2005 along with the agreement of sale dated 3-6-2006 it appears that the parties entered into tenancy agreement for a fixed period of 11 months expiring automatically on the last date of it i.e, 30-4-2006, where after for any reason possession is not handed over then respondent was liable to pay a sum of Rs,24,000 per day from 8-5-2006 till the date vacant possession will be handed over to appellant and not rent agreed in the agreement. It has been further observed in the same judgment that looking into the agreement of sale, it appears that party agreed that on payment of second installment of sale consideration as per clause (B) of Schedule of Payment, possession of the property in question will be deemed to be possession under the sale agreement and the respondent becomes entitled for protection under section 53-A of the Transfer of Property Act. The facts of this case are also distinguishable as in the present case neither the plaintiffs have produced any agreement to sell nor proved to be transferees or in possession by virtue of an agreement to sell nor they produced any other document to prove that after the execution of alleged receipt, their possession will be treated as a vendee of the property and not as tenant, therefore in all probability section 53-A of the Transfer of Property Act does not help the plaintiffs in the present case.
9. ' The learned counsel for the defendants Nos. 2 to 4 Mr. K.A. Wahab has totally denied that the defendants ever agreed to sell the shops in question on the basis of receipt dated 6-4-2004.
10. Learned counsel further argued that defendant No,1 had no authority to deal with any portion or part of the property except those which were specifically mentioned in the general power of attorney executed in his favour by the defendants Nos. 2 to 4. He further argued that the defendants have adopted a legal course for eviction of the tenants on the ground of nonpayment of rent and the plaintiffs have no right to seek any prohibitory orders against the defendants from pursuing the rent cases.
11. ' The learned counsel for the defendants Nos. 2 to 4 argued that receipt in question is a doubtful document, which is subject to proof by way of convincing evidence and on the basis of receipt, ejectment proceedings cannot be stopped. The learned counsel for the defendants Nos. 2 to 4 has relied upon a judgment reported in PLD 1991 Supreme Court 242 (Iqbal and others v. Mst. Rabia Bibi and others). In this case, the Hon'ble Supreme Court of Pakistan has held that ejectment application could not be stayed or stalled on a plea that tenants in possession were holding agreements to sell. Pendency of a suit for specific performance of agreement would also be no ground to avoid eviction of tenants by Rent Controller. It has been further held that where the sale agreement or any other transaction relied upon by tenants was seriously disputed by landlord, the tenants could not be allowed to retain possession during the litigation. The learned counsel for the defendants further relied upon a judgment reported in 2000 SCMR 1604 (Nabi Bux v. Mst. Naseem).
12. In this judgment also, it has been held that the petitioner was in possession of the disputed property not in pursuance of the agreement but by virtue of his being a tenant in the said property.
13. The Hon'ble Supreme Court quoted the finding of its earlier judgment reported in PLD 1991 SC 242 that plea of the tenants to stay ejectment was declined and the fact that they were tenants in possession and were holding an agreement of sale and had filed a suit for specific performance of such agreement was held to be of no consequence. Finally, leave was refused. The learned counsel for the defendants further relied upon another judgment of this Court reported in 2002 CLC 876 (Imam Bux v. Senior Civil Judge/Rent Controller, District Malir, karachi). In this judgment, the learned Divisional Bench has observed that landlord entering into sale agreement with tenant such contract would not create any interest in or charge on such property. The tenant of premises would continue to be tenant and would be bound to pay rent to landlord. Finally the learned counsel for the defendants Nos.2 to 4 relied upon a judgment reported in 2006 CLC 802 Javed Iqbal versus Abdul Ghafoor). In this case, the tenant took the plea that the premises in dispute was on tenancy initially but subsequently landlord by virtue of sale agreement had sold the same to him. The petitioner had submitted in this case that on the date of execution of sale agreement, he had ceased to be a tenant and had become the owner of the premises in question. The learned Single Judge of this Court held that sale agreement itself did not confer any title upon petitioner and jurisdiction of Rent Controller would continue unless Civil Court would give finding in favour of petitioner. Proceedings before Rent Controller and Appellate Authority were independent of plea raised by the petitioner finally, in this case the petition was dismissed. The case-law referred to by Mr. K.A. Wahab, Advocate are relevant to the facts and circumstances of the case.
14. The bottom line of this discussion is that Section 53-A of Transfer of Property Act does not apply in this case. A matter of concern between the parties is a receipt, which is doubtful, and executed much earlier than the execution of power of attorney by the defendants Nos.2 to 4 in favour of the defendant No, 1, the plaintiffs have no right to claim injunction and the entire matter can only be resolved after recording of evidence. The ejectment proceeding is totally separate and distinct to the suit filed by the plaintiffs and it is an admitted fact that the plaintiffs are enjoying the possession as tenants. If at any subsequent stage, the plaintiffs will prove their case for the decree.
15. Of specific performance, the law will take its own course and on mere pendency of a suit for Specific Performance, neither the tenancy proceedings can be stopped nor any restraining order can be passed. The judicial proceedings initiated under the special law only regulate the relationship of landlord and tenant and suit for Specific Performance cannot override the provisions of Sindh Rented Premises Ordinance unless agreement to sell provides in clear terms that on execution of agreement, the relationship of landlord and tenant will cease to exist and the parties will be bound by the terms and conditions of agreement to sell. The argument of the learned counsel that during pendency of the present suit, the rent cases must be stayed is without any rhyme or reason.
16. It is clear in my mind according to the Letter of Law that in the present controversy, section 53-A of the Transfer of Property Act has no germane. There is no agreement between the parties whereby the tenant may assert any right that after entering into an agreement, he is enjoying the possession as owner and not tenant. Even the plaintiffs did not come into the possession of the subject premises by virtue of agreement to sell but they were already in possession as tenants.
17. Unless specific condition is mentioned in the agreement to sell that after entering into this agreement the possession of the tenant will be protected and he will not be ousted by way of ejectment proceedings, no protection can be claimed. It depends upon the intention of parties to reduce in writing whereby they mutually agree that on execution of agreement to sell, the tenant will enjoy the possession as prospective buyer under the terms and conditions to sell but in this case neither any such agreement is entered into between the parties nor any other correspondences have been shown whereby the defendants Nos. 2 to 4 ever assured that the possession of the plaintiffs will be protected under section 53-A of the Transfer of Property Act.
18. Whether the plaintiffs are entitled to the specific performance or not, this cannot be resolved unless proper issues are settled and the parties are given ample opportunity to lead evidence. It may also be noted that when the receipt dated 6-4-2004 was executed, Muhammad Tariq was not the duly constituted attorney of Muhammad Khalil Sarwar, Jawaid Iqbal and Navaid Iqbal and the defendants Nos. 2 to 4 have also disputed the, authenticity of the receipt. While granting the injunction, Court has to consider an old age principle:--
(i) The prima facie existence of right in the plaintiff and its infringement by the defendants or the existence of a prima facie case in favour of the plaintiff; ' An irreparable loss, damages or injuries which may occur to the plaintiff if the injunction is not granted;
(iii) That the inconvenience which the plaintiff will undergo from withholding the injunction will be comparatively greater than that which is likely to arise from granting it or in other words the balance of inconvenience should be in favour of the plaintiff.
19. ' All three essential ingredients must be fulfilled. Absence of anyone of such ingredients would not warrant grant of injunction. Court at this stage has to make only a tentative assessment of parties case for enabling itself to see whether three requisites for grant of injunction exist in favour of a party or not.
20. After appreciating the whys and the where forces, in all Conscience, I am not inclined to grant discretionary relief of injunction, the application is dismissed accordingly.