' MUNIB AKHTAR, J.---The present appeal is preferred against an order dated 23-4-2010 made in Suit 252 of 2007 filed by the appellant on the original side of this Court, by which the learned single Judge refused to grant interim injunctive relief to the appellant.
2. The dispute between the main contesting parties, being the appellant-plaintiff on the one hand and the respondent-defendants Nos. 1 and 2 on the other, relates to the property described more fully in para 1 of the plaint, being a plot measuring 1287 sq yards in Maniya Cooperative Housing Society, Karachi ("the suit property"). (For convenience, the parties are hereinafter referred to as they are arrayed in the suit.) Briefly stated, the case made out by the plaintiff is as follows. The defendant No,1 was the owner of the suit property. On or about 29-8-1997, the defendant No,1 executed a general power of attorney in favour of one Mr. Moin Undre in respect of the suit property. On or about 9-12-1997, the said Mr. Undre executed an irrevocable registered general sub-power of attorney in favour of four men, being the plaintiff and the defendants -Nos. 5 to 7, authorizing them to do the acts therein specified in respect of the suit property. According to the plaintiff, before the execution of the sub-power of attorney, the four sub-attorneys had entered into a deed of partnership, the purpose of which was to construct and develop a multi-storey building on the suit property. Pursuant to this objective, the existing structure (a bungalow) thereon was demolished, but the objective of the partnership could not reach fruition because of a ban on commercialization imposed by the provincial government. It appears that some disputes having arisen, the matter was taken to arbitration before Mr. Justice (R) Haider Pirzada, and as a result the partnership was dissolved. Some sort of agreement dated 1-3-2001 was also executed but in the event does not appear have been acted upon.
3. It appears that there matters rested for some years. According to the plaintiff, in or around 2006, the defendant No, 1 (who was, and throughout remained, the sole owner of the suit property) approached him and the other concerned defendants offering that the suit property be sold at what was alleged to be the then current market price of Rs,1,22,000 per sq yard, with the sale proceeds to be distributed among them according to an agreed ratio, in terms of which the plaintiff would get 36%. The purpose was to settle all outstanding matters between the parties. The plaintiff alleges that he was also put under certain pressure to agree to the terms offered by the defendant No,
1. In the meantime, a notice appeared in the daily Dawn on 18-1-2006 regarding the proposed sale of the suit property. The plaintiff sent a legal notice regarding the notice and the proposed sale. According to the plaintiff, in the prevailing "compelling circumstances" and believing the "representation" regarding the market value of the suit property, he was prevailed upon to enter into a Deed of Settlement dated 27-2-2006. This deed was between the defendant No:1 on the one hand, and the plaintiff and the defendants Nos. 5 and 6 on the other (defendant No,7 had earlier settled all outstanding matters). We will have occasion to examine the contents of this deed in some detail below. For present purposes, it suffices to note that the deed provided, inter alia, for the payment of Rs, 42,329,088 by the defendant No, 1 to the plaintiff, which however, was contingent upon the sale of the suit property. It is common ground between the parties that the aforesaid amount payable to the plaintiff was based on the property being valued at Rs, 1,22,000 per sq yard. The deed also provided that upon receipt by the plaintiff (and other concerned parties) of the sums mentioned in the deed, they would execute a deed of revocation of the aforementioned irrevocable sub-power of attorney executed in their favour.
4. It appears that on or about 15-7-2006, the sale deed in favour of the defendant No, 2 was executed by the defendant No, 1 and duly registered, and' payment was made by the former to the latter for the suit property. On the same day, the plaintiff, and the other sub-attorneys, executed the deed of revocation of the sub-power of attorney. Although in the plaint, the plaintiff contended that he had received only a sum of Rs, 40,502,088 out of the Rs,42,329,088 payable to him under the deed Of settlement, leaving a balance of Rs,1,827,000, this is strongly disputed by the defendants, who contend that he did, in fact, receive the entire amount, which was expressly acknowledged by him by means of a receipt dated 24-1-2007. It may be noted that the substantial portion of this payment was made by pay orders issued directly by the defendant No, 2 to the plaintiff.
5. The grievance of the plaintiff is his allegation that lie subsequently discovered that the actual price at which the suit property had been sold was Rs,1,44,000 per sq yards, and that therefore, he had been deprived of a portion of the amount due and payable to him as a result of the fraud and collusion of the defendant Nos.1 to 6. Thus, according to the plaintiff's claim, as set forth in para.8 of the plaint, he being "one of the major shareholder holding 36% share in the investment on the said plot" had been cheated by the defendants Nos. 1 to 6, who had collusively and fraudulently got him to execute the deed of settlement and the deed of revocation of the sub-power of attorney.
Accordingly, the plaintiff filed the aforementioned suit, seeking, inter alia, the cancellation of the deed of settlement, the revocation deed and the sale-deed of .The suit property in favour of the defendant No,
2. Along with the suit, the plaintiff also filed an application for interim injunctive relief regarding the suit property. The defendants were duly served, and filed their pleadings, strongly contesting the suit, and denying the various allegations made by the plaintiff: Their case was that the plaintiff had duly received all that was due to him and the property had been sold at the price intimated to the plaintiff, but that he was now, without any lawful cause or justification, abusing the process of law in order to extract further moneys from them. They vigorously contested the grant of any relief, including interim relief, to the plaintiff.
6. The learned single Judge, after hearing learned counsel for the parties and carefully considering the rival submissions, concluded that the allegations made by the plaintiff couldnot be resolved without the recording of evidence. He held as follows:-- "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,
1. 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 cannot 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.
Consequently the present application merits no consideration, which is accordingly dismissed."
' Being aggrieved by the aforesaid order, the plaintiff has preferred the instant appeal.
7. Learned counsel appearing for the appellant-plaintiff strongly assailed the impugned order. He submitted that the learned single Judge had failed to properly appreciate the case made out by the plaintiff. He contended that it was well established that fraud unravels everything, and in the present case, a clear fraud had been played on him by the defendants. They had colluded to deprive him of his rightful entitlement, since the suit property had been sold at a much higher price than that represented to him. He submitted that the fraud was established by the fact that the agreement to sell regarding the suit property produced by the defendants did not show the defendant No, 2 as the buyer, but some other person altogether. Since the deed of settlement and the revocation of the sub-power of attorney were based on fraud, which was manifestly injurious to the plaintiff, the said documents were liable to be cancelled, as was the sale deed regarding the sale of the suit property to the defendant No,2. Learned- counsel submitted that all three of the ingredients for interim relief had been clearly made out and the learned single Judge had erred materially in reaching a contrary conclusion. Learned counsel also relied on certain case law, which we will consider below.
8. Learned counsel appearing for the respondent-defendant No,2 defended the impugned order.
His case was that the said defendant had purchased the property from the defendant No,1 who was admittedly the owner thereof. The agreement to sell in respect of the property allowed the sale-deed to he executed in the name of the buyer therein (the respondent-defendant No,4) or his nominee, and the defendant No,2 was the nominee of the named buyer. Thus, there could be no issue with its execution in favour of the defendant No,2. He submitted that there had been a full settlement of all outstanding claims of the plaintiff, which was confirmed by him by the receipt aforementioned, an affidavit and also in a letter written by him to the president of the Maniya Cooperative Housing Society where the suit property was located. He denied that the suit property had been sold at a price higher than or different from that disclosed in the agreement to sell, which valued the property at Rs,122,000 per sq yard. This was the price which had been communicated to the plaintiff, to which he had agreed, and in terms of which he had received the amount agreed upon in the deed of settlement. Learned counsel for the respondent-defendant No, 1 also .Made submissions along the same lines. His case was that the suit was a gross abuse of the legal process, and amounted to an attempt to arm .Twist the defendants into paying yet more money to the plaintiff. He reiterated that the plaintiff had received his full due and was not entitled to anything more. Both learned counsel vehemently denied that the plaintiff was entitled to any interim relief.
9. We have heard learned counsel for the parties, examined the record with their assistance, and considered the case-law cited before us. In our view, the crux of the matter, and the heart of the plaintiff's grievance, is simply this that the suit property was sold at a price higher than that represented to him, thereby depriving him from a portion of his "share". But, and this is the critical point, his grievance is not that the suit property ought not to have been sold at all. It is not even that it ought not to have been sold to the defendant No,2. The plaintiff was not, and never had been, the owner of the suit property. He did not hold any interest or share therein. Whatever claims that he had,-or may have had, against the defendant No,1 were settled in terms of, the deed of settlement. Clause (1) of this deed expressly recognized the defendant No,1 as the owner of the suit property, "entitled to sell the same without any hitch or hindrance". Clauses (3) and (4) provided as follows:- "(3) That the parties have decided that payments sought to be made in pursuance to this agreement would be full and final settlement and this agreement shall supersede all. Past agreements whether settled or not howsoever arising between the parties whether directly or indirectly and renders documents, if any, relating thereto as null and void.
(4) That it is therefore settled that all past, present and future claims howsoever arising of whatsoever nature between parties, including but not limited to third party claims, are settled by virtue of this agreement. The Second Party agrees that they shall have no further claims against the First Party in respect of the said property, except the claim as agreed and set out in this agreement."
' (It may be noted that "First Party" refers to the defendant No, 1, and "Second Party" refers to the plaintiff and the defendants Nos. 5 and 6.) As noted above, the plaintiff not merely gave a receipt to the defendant No, 1 acknowledging that lie had received the full amount due to him, but he also executed an affidavit in this regard on or about 17-7-2006. He also wrote to the President of the Maniya Cooperative Housing Society on 19-7-2006 through his lawyer, expressly withdrawing all objections with respect to the suit property. This letter was also copied to the sub-registrar of properties concerned. These are clear and categorical acts, statements and averments, repeated on different dates, all confirming the position as contended by the defendants; namely, that the plaintiff had settled all matters with the defendant No, 1, had no objection to the sale of the property, and had received the amount due and payable to him.
10. As opposed to the above, the claim of the fraud allegedly carried out on the plaintiff by the defendants is set forth in para 7 of the plaint in the following terms:- "That recently it transpired that the defendants 1 to 6 in collusion with each other fraudulently concealed from the plaintiff the actual rate of Rs, 1,44,000 per sq yard for the said plot, admeasuring 1287'sq yards, at which the sale transaction was finalised at We total sale consideration of Rs, 185,328,000 between the defendant No, 1 and the defendants 2, 3 and 4, vide sale agreement dated 5-1-2006 which was also signed as Witnesses by Mr. Javed, Mr. Iqbal. And Mr. Zafar Jangra (all estate agents/brokers), confirmed to the plaintiff the actual sale consideration of Rs, 1,44,000 per sq yard. It is further transpired that the defendant No, 6 had received additional substantial amount, in addition to his share of Rs,25,945,202, mentioned in para 6 of the aforesaid deed of settlement, from the defendants 1 to 4. It further transpired, which further establishe fraudulent conduct of and collusion between the defendants Nos.1 to 4, that in the relevant time an .Investor namely Mr. Sohail Chamma had offered to purchase the said plot at the rate of Rs,1,65,000 per sq yard, which was not accepted by the defendants 1 to 4 also at that time the prevailing market value of the suit plot was Rs,1,75,000 per sq yard."
' This para hardly makes out a proper case of fraud, let alone a case strong enough for the court to grant interim injunctive relief. No supporting affidavit of any of the persons mentioned in the para was 'Placed on record which would substantiate the statements being attributed to them. The agreement to sell dated 5-1-2006 placed on the record does not appear to show the named persons as witnesses to the said agreement, as claimed in the said para. It is notorious that when a property is being sold, many estate agents come forward, claiming to have better "deals" in hand.
Unsubstantiated' claims of this nature do not inspire confidence. We also note the avoidance of any specific dates in the above para, which would show when the plaintiff got to know of the alleged fraud or of the allegedly higher value of, and offers in relation to the suit property. The use of vague words like "recently" and "transpired" also tend to undermine the allegations' being made.
No relevant date in relation to the allegations of fraud is mentioned even in para 10 of the plaint, which details when the cause of action accrued to the plaintiff. - ' H. Order VI, Rule 4, C.P.C. Provides, inter alia, that when fraud is pleaded by a party, full particulars thereof (including dates if necessary) Must be given in the pleadings. Referring to this provision., the Supreme Court held in Ghulam Shabbir v. Nur Begum and others PLD 1977 SC 75 as follows:-- "In particular Rule 4 of Order VI Of the Civil Procedure Code lays down that in all cases in which the party pleading relies on . Any misrepresentation, fraud, breach of trust, wilful default or undue influence, and in all other cases- in which particulars may be necessary beyond such as are in the form exemplified aforesaid, particulars (with dates and items if necessary) shall be stared in the pleading. In pleadings general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice." (emphasis supplied)
12. In our view the claim of the plaintiff, if any, sounds only in damages to recover the amount, if any, payable to him if he is able to establish at the trial through legally admissible evidence that a price higher than that ostensibly shown was actually paid for the suit property. As noted by the learned single Judge, that is a matter that requires the ' recording of evidence. We also note that the stand taken by the plaintiff is self-contradictory. If fraud unravels everything, and this principle is applied literally to the facts of the case, then that would cause the situation to revert to the stage before the deed of settlement. In that situation, there would be no question of any sale of the suit property. But that is manifestly not what the plaintiff wants. In clause (b) of the prayer clause, he expressly prays that the suit property to be sold by a Court appointed receiver through public auction, and the sale proceeds be distributed among the parties, with a 36% share going to the plaintiff (plus an additional Rs,600,00 for expenses incurred). The plaintiff cannot have it both ways. Either the property is to be sold or it is not. The plaintiff manifestly wants the property to be sold. It has, in fact, been sold. If he has received an amount less than that to which he claims to be entitled that is only a claim for a sum certain in money (the different between the two specified rates of Rs,122,000 and Rs,144,000) No case for the grant of interim injunctive relief is made out in such a situation, and we are satisfied that the learned single Judge was right in refusing to grant such relief.
13. As noted above, learned counsel for the plaintiff relied on certain case-law to support his submissions. Like the learned single Judge, we are of the view that the cited cases do not apply to the facts and circumstances before us. We briefly consider the cases, in the same order as they were taken up by learned counsel. Mrs. Naz Shaukat Khan and others v. Mrs. Yasmin Minhas and another 1992 CLC 2540, a single Bench decision of this Court, was relied upon to show the meaning of "prima facie case". The meaning stated (at pg. 2545) is Unexceptionable, but hardly advances the plaintiff's case. All three ingredients must be held to exist for the grant of interim injunctive relief, and for the reasons stated above, we are not satisfied that a prima facie case has been made out for the grant of such relief. In Habib ud Din v. Hamida Bano and another 1996 SCMR 416, the Supreme Court made certain observatious (at pp 229-30) in relation to section 56 of the Specific Relief Act. Again, this is well settled-law, but does not, with respect, apply to the facts and circumstances of the present case. Riaz and others v. Razi Muhammad 1982 SCMR 741 was relied upon to show that consent obtained through fraud is not binding. In the present case, that of course, is a matter that is yet to be decided, and can only be decided when evidence is recorded.
The crucial point for present purposes has already been noted. The plaintiff has no objection to the sale of the suit property (for which his consent was allegedly obtained by fraud). In fact, he wants the property to be sold. He simply claims a greater amount than that which he has got. In Talib Hussain and others v. Member Board of Revenue and others 2003 SCMR 549, the Supreme Court reiterated the well-known principle, already noted above, that fraud vitiates everything. This point everything. This point has been dilated upon supra. Muhammad Umar Beg v. Sultan Mahmood Khan and another PLD 1970 SC 139 was cited to show that are the three ingredients for the grant of interim injunctive relief. This is so well established a principle that it can be regarded as part of the ABC's of the law. Which hardly requires citation of authority. For the reasons noted above, we are of the view that the plaintiff's case G failed to come up to the required standard: Finally., reliance was placed on Abdullah Shah and others v. Humayon and others PLD 1957 Lah. 1054 in relation to the doctrine of pendent. This decision is not relevant for the question before us, which is limited to whether the plaintiff was entitled to interim injunctive relief.
14. Accordingly, We are satisfied that. The plaintiff has failed to make out any case for the grant of interim injunctive relief, and therefore, the impugned order does not call for any interference. This appeal is therefore hereby dismissed, Needless to say, any observations made herein, or by the learned single Judge in the impugned order, are only for purposes of the application for interim injunctive relief, and shall not affect the case of any party at the trial. The learned single Judge who decides the suit shall do so strictly on the merits of the evidence led in the suit, completely uninfluenced by anything stated herein or in the order appealed against.
15. The appeal, and listed application (which has become infructuous), are disposed of in the above terms.