' SALMAN HAMID, J.---This is an application under Order XXXVIII, Rule 5 read with section 151, C.P.C., (C.M.A.) by the plaintiffs for an order to the defendants Nos.' 1 to 3 to furnish security/surety in the amount(s) claimed by the plaintiffs in their suit to the satisfaction of this Court or in case of their failure, three immovable properties, mentioned in the C.M.A. Be attached before judgment. The reason given in the supporting affidavit for maintaining the C.M.A. Was that the plaintiffs apprehend and have come to know that such defendants are surreptitiously removing their goods lying in the basement premises of warehouse and are also secretly negotiating to dispose of their immovable properties and creating third party interests in order to defeat the consequences of the decree, to be passed in the above suit.
2. In addition to what was stated in the supporting affidavit to the C.M.A., it was contended by the learned counsel for the plaintiffs during the progress of his arguments that the defendants Nos.1 to 3 have not come up with a definite stand that the immovable properties, mentioned in the C.M.A.
Are not owned by them or that they are the tenants thereof. The learned counsel argued that according to the various documents, available in the record of the file, these three immovable properties are in the names of above three defendants and they are trying to create third party interest therein, secretly, therefore these be attached before judgment. In support of his contentions, the learned counsel for the plaintiff relied upon the, case of Encyclopaedia Britannica Inc. v. Pak American Council (Pvt.) Limited (1997 CLC 2003 Karachi), Muhammad Hanif v. Eckhard and Co. Marine GMBH and 2 others (PLD 1983 Karachi 609) and Mohiubddin Molla v. The Province of East Pakistan and others (PLD 1962 SC 119).
3. Counter affidavit to the affidavit, filed in support of the C.M.A. Of one Mr. Muhammad Sarwar, (defendant No,3) was filed. Allegations of the plaintiffs, as contained in the C.M.A. Were specifically and vehemently denied. It was denied that any amount was due and payable. Likeliness of decree (in future) in favour of the plaintiffs was refuted as according to these defendants nothing was due and payable by them to the plaintiffs. It was downrightly denied that the defendants are planning to run away or dispose of any goods, as alleged. It was specifically mentioned that none of the three immovable properties, mentioned in the C.M.A. Belong to them. Therefore the question of secretly or for that matter even openly selling/disposing of does not arise. Allegation of the plaintiffs was outrightly rejected. It was also added that in fact Suit No,81 of 2008 for damages was filed by the defendants Nos.1, 2 and 3 against the plaintiffs for their acts of omission and commission which is pending and coming along with the present Suit. Therefore, there arises no question of these defendants running away and/or leaving the local limits or the jurisdiction of this Court. Defendant No,1 is an old partnership firm of defendants Nos.1 and 2, which would not be closed down or dissolved, only just because the Suit against them is pending adjudication.
Dismissal of C.M.A. Was prayed for.
4. Arguments heard.
5. Perusal of the file revealed that after filing of the Suit, this C.M.A. Came up for hearing for the first time on 25-7-2006 on which date an ex parte order was passed, whereby this Court was pleased to restrain the defendants No,1 to 3 from disposing of the three properties mentioned in the C.M.A.
From that day up till now this restraining order as to creating third party interest therein (three immovable properties) is in field as this Order was continued up to 16-10-2006 when again it was ordered that, "interim order passed earlier, whereby defendants Nos.1 to 3 were restrained from disposing of the properties as specified in Order dated 25-7-2006 shall continue till further orders".
It seems that from such date, thereafter no further orders affecting the injunction was passed.
6. Despite above situation in the file, Order dated 27-11-2006 would show that the defendants Nos.2 and 3 (two natural persons) were directed to appear in self to show cause as to why they should not be directed to furnish security in terms of Order XXXVIII, C.P.C. This Order was followed by Order dated 21-1-2011 when once again these defendants were directed to submit title documents of the immovable properties which are the subject matter of the C.M.A. In response, a Statement dated 21-2-2011 was filed by the defendants Nos.1 to 3, wherein it was again mentioned that since they are not the owners of the immovable properties, disclosed in the C.M.A., they are not in position to produce title documents thereof. It was further mentioned in the statement that their (defendants') stance may be ascertained from the concerned departments.
7. The provisions of Order XXXVIII, C.P.C. Are penal in nature, therefore while exercising powers there- under, the courts are always required to see that the order so passed therein does not affect the party against whom such severe order is sought. The Courts still have to be more vigil and alive of the situation when attachment order is prayed for merely because of some distant apprehension without any substance in shape of an evidence brought forth. An order under Rule 5 of Order XXXVIII is C preventive in nature; not punitive. It would be seen that the plaintiff has come up with a mere apprehension and/or allegation that the defendants Nos.1 to 3 are secretly negotiating to dispose of the immovable properties, without disclosing the source of information or an iota of evidence as to whom the immovable properties the defendants No,1, 2 and 3 are secretly selling.
Since the date of filing of the Suit and the C.M.A., almost five years have gone-by. These defendants are still doing their business. Not only this, a suit for damages was filed by these defendants which is being followed by them vigorously. Under the circumstances, selling of the immovable properties, in respect whereof these defendants Nos. 1, 2 and 3 not once but on couple of occasions have stated that they have no concern and against which restraining orders are in field, passed by this court, is not even remote. The C.M.A. Is fry cry.
8. In the case of Encyclopaedia Britannica Inc., a single Judge of this Court held that while courts have inherent powers to pass order of attachment of property before judgment, such order, however, could not be passed, unless circumstances were shown to exist, warranting order of attachment inasmuch as it was more akin to taking over property into custodia leges and that exercise of such power ought to be exercised sparingly and with circumspection as the object of Order XXXVIII, Rule 5, C.P.C. Is to secure performance of decree, likely to be passed and not to be used as a coercive measure. In the cited case the single Judge of this Court ultimately came to the conclusion that despite the report published in newspaper of disposing of stock and trade and properties, attachment order was declined inasmuch as that the newspaper that was relied upon had been contradicted by the defendants therein. If the dictum laid down in the above case is applied to the present case, the only thing that would come to fore is that the courts have to be cautious in passing order for attachment before judgment and have to look into various factors before passing such an order. In the case in hand it is only apprehended and a bald allegation has been made that the defendants Nos. 1, 2 and 3 are secretly trying to sell the immovable properties, mentioned in the C.M.A., the immovable properties with regard to which the three defendants have stated that they are not the. Owners. By no stretch the citation relied upon by the learned counsel for the plaintiffs advance their case.
9. In the case of Eckhard and Co. Marine GMBH attachment order was passed by this Court by appreciating the fact that the defendants therein were disposing of the vessel 'under point in deviation to their normal course of business and that the defendants were foreigners who had lib business or property in Pakistan, except the property which they were trying to dispose of in haste and at a price lower than the market value which was not disputed by the defendants. Only it was mentioned by such defendants that they are engaged in the business of selling vessels without substantiating such a fact from the record. This case by no stretch is applicable to the facts and circumstances of the present case inasmuch as the defendant No,1 is a firm, carrying on its business for last many years of which the defendants Nos.2 and 3 are partners. Prima facie there seems to be no occasion for them to wind up their long standing business and run away just because a suit for recovery of some petty amount, compared to their business has been preferred by the plaintiffs.
10. In the case of Mohiuddin Molla, the apex Court passed order of attachment only when the decree was passed against the judgment debtor and he was conclusively found to be taking step to dispose of his property to defeat the decree and was also leaving the jurisdiction of the court by migrating to India. If the property was not attached, nothing would have been left for the decree holder to satisfy the decree. It was under these circumstances that the property was attached at the execution stage to protect the interest of the decree holder. It was held that the judgment debtor should not be given time to enable him to dispose of his property.) In the case in hand the trial is yet to commence and decree, if any, yet to follow. Again the cited case is not of any help to the plaintiffs inasmuch as in the cited case, decree was passed; it was to be enforced and the judgment debtor, a Hindu, was making attempts to sell it and move to India. In the case in hand G the defendants are running their business. There is no allegation of its winding-up/dissolution.
11. For what has been observed above, C.M. A. Is merit-less, therefore dismissed, however with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.