' MUHAMMAD ALI MAZHAR, J.--- This appeal is directed against the order dated 31-5-2010, passed by the learned Single Judge of this court on. C.M.A. No,7539 of 2009 in Suit No,1131 of 2009, whereby the injunction application was allowed and the appellant/defendants were restrained from creating any third party interest in the disputed shares till the disposal of this suit.
1. The facts, which form the background of the case are that the respondents filed a suit for declaration, injunction, accounts, specific performance and damages against the appellants with the following prayers:---
(1) To declare that the plaintiffs are the true and rightful owners of 600,000 shares of Al-Imdad Travels (Pvt.) Ltd. Namely, defendant No,2.
(2) Mandatory injunction directing the defendant No,1 to transfer the 600,000 shares in the name of plaintiffs Nos.1 and 3 and issue Shares Certificates immediately in pursuance of the Agreements between the parties whereby the defendant No,1 also availed 150,000 Riyals from the plaintiffs through vide cheques all dated 12-12-2008 bearing Nos.000010, 000045, 000203 and failed to transfer the shares;
(3) Permanent injunction restraining the defendants, its servants, agents, and or employees from selling and or creating any third party interest in respect of the 600,00 shares of the defendant No,2;
(4) Declare that 600,000 shares of Al-Imdad Travels Private Limited of the plaintiff cannot be sold, transferred, disposed, alienated or encumbered by the defendant No,1 directly or indirectly;
(5) Direct the defendants to render true and complete accounts in respect of all sales made by the Al-Imdad Travels (Pvt.) Limited together with a comprehensive statement of profits and further direct the defendants to pay/surrender all such profits to the plaintiff;
(6) Grant Damages to the tune of Rs,10 million from defendants Nos.1 and 3 for mental torture agony suffered by ,tbe plaintiffs;
(7) Pass interim and ad-interim orders in the aforesaid terms;
(8) Award costs of the suit;
(9) Any other, better and or further relief that this honourable Court may deem fit to grant in the facts and circumstances of the case.
2. It is inter alia contended by the respondent in the aforesaid suit that the respondent No,1 is a director and shareholder of the appellant No,2 and the respondent No,2 is the father of respondent No, 1 . It was further stated that the appellant No,1 was shareholder and Director in the appellant No,2 company and was also Chief Executive Officer. The appellant No,2 is engaged in the business of Hajj and Umra Travel and Tour Operator. The appellant No,1 was working as an employee but subsequently he was terminated from the service. Thereafter, the appellant No,1 approached the respondent No,2 and stated that he was unemployed and further requested to establish a Hajj Service Agency. The respondent No,2 and appellant No,1 entered into an agreement on, 7-5-2007, wherein it was agreed that the respondent No,2 will provide the total consideration to establish the said business and appellant No,1 will run the company using his expertise in the best interest of the company. After sometime, it revealed that the appellant No,1 in violation of the provision of Companies Ordinance, 1984 completely failed to provide the annual accounts, audit reports and dividends of the company to the respondents and even failed to invite the respondent to a single annual general meeting of the appellant No,2. The Accountant of the appellant No,2 fixed the value of total shares of the appellant No,2 at Rs,6.2 million, thereafter, appellant No,1 offered to sell his shares in respect of appellant No,2 to the respondent No,2, who accepted offer in total agreed sale consideration of Rs,31,00,000. Instead of transferring the shares to the respondent in accordance with the Companies Ordinance, 1984 and issuing shares certificate, the appellant No,1 played fraud with the respondents and executed general power of attorney in favour of the respondent No,2's son namely Shahzad Noor to receive profit from the company. In the injunction application the respondent prayed that the appellant/defendants may be restrained from selling or creating third party interest in the shares of the appellant No . 2 .
3. In response to the injunction application, the appellant No,1 filed his counter affidavit in which it was inter alia contended that the injunction application filed by an incompetent person, by concealing material facts. It was further stated that the respondent had no locus standi to file the suit and the suit was also hit by joinder and misjoinder of necessary party. It was further denied that the respondent No,1 was director or shareholder of the appellant No,2. In the counter affidavit it was also denied that the appellant No,1 informed the respondent No,2 that the initial investment for establishing the company would be only Rupees three lacs. The appellant No,1 further stated that it was mutually agreed between the parties that the respondent No,1 would receive 50% shares holding if and when the agreed amount of Rs, Five Million would be invested by respondent No,2 for the development of the business. Since the respondent No,1 was no longer a director of the company, hence providing any accounts, audit reports and dividend of the company did not arise.
The respondent No,1 was only director for three months so there was no need according to the Companies Ordinance to invite him in AGM. The appellant No,1 also denied to have received a single cheque from the respondent and it was further alleged that the copies of cheques attached with the plaint are forged and fictitious and it was further stated in the counter affidavit that the appellant No,1 was in Makka and on 12-12-2008 the respondent along with some gangster kidnapped him and forcibly obtained his signature on the blank letter head of Abdurehman G.A. A 1-Ghamdi Co. And the said confession was a forged and fabricated documents and appellant No,1 signed the same on gunpoint under the threat to his life.
4. On 31-5-2010, the matter was fixed for hearing of injunction application and settlement of issues and after hearing the learned counsel for the parties, the learned Single Judge restrained the defendants from creating any third party interest in the disputed shares till disposal of the suit.
Learned Single Judge in his order clearly observed that the respondent purchased shares of the appellant No,2 and this arrangement has not been denied. However, it was stated that certain documents were obtained by the respondent on gunpoint which aspect can only be determined after recording evidence.
5. We have heard learned counsel and perused the record. Learned counsel for the appellant argued that learned Single Judge, while passing the impugned order did not consider material on record. He further argued that although the respondent stated in the plaint that they had to invest/pay the entire amount to establish the business and will get 50% share but the respondent had failed to pay the entire amount. The entire suit of the respondent is based on forged and fabricated documents which were obtained by the respondents at gunpoint. The respondent No,1 had resigned from the directorship of the Company on 20-2-2008 and from that date he was in Saudi Arabia. It is clearly manifesting from the contents of the plaint that the respondent have failed to make out any prima facie case for the grant of injunctive relief. Learned counsel further argued that the suit was filed by an unauthorized person and the power of attorney has not been attested from Embassy of Pakistan. Finally, he argued that the respondent had no locus standi or legal character to file the suit and the impugned order is liable to be set aside as the respondent failed to make out any prima facie case.
6. In rebuttal, the learned counsel for the respondent fully supported the impugned order and he argued that many complicated questions have been raised in suit and unless evidence is recorded the controversy between the parties cannot be resolved. He invited our attention to the prayer clause of the suit in which the mandatory injunction has been sought directing the appellant No,1 to transfer 600,000 shares in the name of respondents Nos.1 and 3 in pursuance of agreement between the parties, whereby the appellant No,1 received 150,000 Riyals from the respondent through three cheques and in the same suit, the respondents have also prayed that appellants may be restrained from creating any third party interest in respect of 600,000 shares of the appellant No,2.
7. After hearing the learned counsel for the parties, we have reached to the conclusion that the plaintiffs (respondents in this HCA) along with the plaint attached an undertaking allegedly issued by the appellant No,1 on 13-12-2008, in which he had relinquished all his rights in the respondent No,2 and besides aforesaid undertakings, the respondents have also attached copies of three cheques along with Bank Statements to show that payments have been made to the appellant No,
1. Though in the written statement and counter affidavit filed in response to the injunction application, the appellant No,1 denied to have received any payment and also stated that the cheques attached with the plaint are forged and fictitious but nothing has been said regarding the Bank Statements attached in support of the aforesaid cheques. In response to the confesiion letter, it has been stated by the appellant No,1 that the respondent obtained his signature on blank letter head by force after kidnapping him and fabricated the said confession letter.
8. An age old golden rule of granting injunction is (i) the prima facie existence of right in the plaintiff and its infringement by the defendant or the existence of a prima facie case in favour of the plaintiff; (ii) an irreparable loss, damages or injuries which may occur to the plaintiff, if the injunction is not granted; (iii) 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 convenience should be in favour of the plaintiff. Court has to make only a tentative assessm ent of the case for enabling itself to see whether three requisites for grant of injunction exist in favour of plaintiff or not. Relief of injunction is discretionary and is to be granted by Court according to sound legal principles. Existence of prima facie case is to be judged or made out on the basis of material on record at the time of hearing of injunction application and such evidence of material should be of the nature that by considering the same, Court should or 'ought to be of the view that plaintiff applying for injunction was in all probability likely to succeed in the suit by having a decision in his favour. The term "prima facie case" is not specifically defined in the Code of Civil Procedure. The Judge-made-law or the consensus is that in order to satisfy about the existence of prima facie case, the pleadings must contain facts constituting the existence of right of the plaintiff and its infringement at the hands of the opposite party. Balance of convenience means that if an injunction is not granted and the suit is ultimately decided in favour of the plaintiff, the inconvenience caused to the plaintiff would be greater than that would be caused to the defendant, if the injunction is granted.
9. The question whether the respondent had made payment or not or whether the confession letter, cheques and Bank Statement are genuine or fictitious or whether the confession letter was obtained under duress or coercion, all these aspects of the matter cannot be resolved without evidence and in our view all these issues are triable issues, which can only be resolved after recording evidence in this matter and the same findings have been given by the learned Single Judge while disposing of the injunction application. As a result of above discussion, we do not find any justification or any cogent reason to interfere with the order passed by the learned single Judge.
10. The appeal was dismissed by our short order passed in court after hearing the learned counsel on 18-1-2011 and above are the reasons in support of our short order.