' C.M.A. 2721 of 2009 (under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C.)
' SALMAN HAMID, J.---A suit for declaration, cancellation, rendition of accounts, mandatory injunction to prohibit and recovery of damages was filed by the plaintiff against Atif Builders (Pvt.)
Ltd. And four others (the defendants) on 24-3-2009. With the suit, present injunction application (C.M.A.) was also moved. It would be evident from the record that since the date of filing of this suit with this C.M.A., no restraining order was passed against the defendants as of the date of its hearing. It is prayed in the C.M.A. That the defendants (except defendant No.5) be restrained from selling, alienating, encumbering or disposing of the property[ies] owned by defendant No.1, [Atif Builders (Pvt.) Ltd]. These, as mentioned in paragraph 9 of the plaint were:
(i) Commercial. Plot No.59, Survey Sheet No.35 P/I, Survey No.15, measuring 1110 square yards, Karachi Cooperative Housing Society, Karachi with multi-storyed building constructed thereupon, (hereinafter referred to as, "the Commercial Plot")
(ii) Survey No.348 (2-23 acres) Survey No.349 (2-2 acres) Survey No.368/8 (new Survey No.491)
(measuring 4200 square yards), Survey No.492, Deh Landhi, Tappo Landhi, Karachi commonly known as Asif Town, with all construction in the name of the defendant No.1, (hereinafter referred to as, "the Immovable Properties")
' Restraining order against the defendants in respect of the shares, belonging to the plaintiff, Mst.Riffat Mazhar and S.M. Saeed (both deceased) was also prayed for.
' The case of the plaintiff to assert above relief in a nut shell was that he was one of the sponsor directors of the defendant No.1 and he and his wife (Riffat Mazhar) and his father (S.M. Sayeed) had share-holdings in the defendant No.1, which share-holdings according to the plaintiff had been fraudulently got transferred by the defendants Nos. 2,3 and 4 in their names in or about April/May, 2004 after convening extraordinary general meeting, without the knowledge, consent or concurrence of the plaintiff and the two deceased by forging their signatures by showing that they tendered resignations. This fraudulent act of transfer of shareholdings came to the knowledge of the plaintiff upon filing of written statement by the defendants in Suit No.1127 of 2007 preferred by the plaintiff in or about August, 2007 against defendant No.2 herein and other legal heirs/directors of defendant No.1 and against defendant No.1, when dispute cropped up between the plaintiff and other family members of late S.M. Sayeed.
' The defendants Nos.2, 3 and 4's case was that extraordinary general meeting, was duly convened as per the law with due notice to the plaintiff, his late wife and father. Resignations were accepted and approval for transfer of shares was also accorded and recorded upon such being tendered by the plaintiff and the two deceased. As to the ownership of the Commercial Plot, (mentioned above at i(i)) it was stated that it was sold out much prior in time during the life time of S.M. Sayeed and even before the change in the management of defendant No.l. As far as Immovable Properties (mentioned above at (ii)) it .Was argued that such are in the name of defendant No.
1. Despite this, it was argued by the learned counsel for defendants Nos.2, 3 and 5 that the plaintiff and his wife illegally executed General Power of Attorney dated 9-8-2003 in respect thereof (save Survey No.492) in favour of one Mr. Babar Anis-ur-Rehman. This fraudulent act of the plaintiff and his deceased wife having come to the knowledge of the defendants 1, 2, 3 and 4, they immediately filed Suit No.1451 of 2008 for cancellation and other relief wherein restraining orders in respect of the Immovable Properties, was passed by this court on 24-10-2003 and was confirmed on 24-5-2010.
' It was thus argued that present suit has been filed as a counterblast to Suit No.1451 of 2005 which otherwise [present Suit] has no basis, when gauged from plaintiff's Suit No.1127 of 2007, filed for declaration, administration, rendition of accounts, partition distribution, possession, mesne profit and permanent injunction in paragraph 2 whereof Immovable Properties [mentioned above at (ii)] are clearly disclosed. In this Suit also injunction application [C.M.A. No.7683 of 2007] was moved on which till date no interim order has been passed. Therefore it was argued that at no stage of time, even according to plaintiff's own showings the Immovable Properties were in his name. As a matter of fact it is admitted by the plaintiff himself in the application and in the plaint that the Immovable Properties are in the name of defendant No.
1. Therefore, the plaintiff, it was asserted is not entitled to any injunctive order as prayed for.
' I have heard arguments of the learned counsel for the plaintiff and defendants. Perused the record of this Suit, the record of Suit 1127 of 2007, filed by the plaintiff herein against the company (defendant No.1) and its new management/ directors (defendants 2, 3 and 4) and Suit No.1451 of 2008 filed by defendant No.1, herein, against the present plaintiff and one Mr. Babar Anis-ur- Rehman, to whom the Immovable Properties had been sold in terms of General Power of Attorney dated 9-8-2010 and against Mukhtiarkar Revenue Bin Qasim Town Karachi Sub-Registrar Bin Qasim Town, Karachi and Province of Sindh.
' It is clear from the plaintiff's own showing that at the time of filing of this Suit and Suit No.127 of 2007 the Immovable Properties were in the name of defendant No.
1. Despite such position, as would be evident from Suit No.1451 of 2008, filed by the defendant 1, the plaintiff and his wife (now deceased) in terms of General Power of Attorney dated 9-8-2008 transferred the Immovable Properties in favour of Mr. Babar Anis-ur-Rehman (defendant No.1 in Suit 1451 of 2008) on the ground, as reflected in their written statement in Suit No. 1451 of 2008 that the provisions of Companies law, "where the executant .Of the General Power of Attorney is a Company (,) at least two Directors of the Company shall execute and got it [GPA] registered under the joint signature." by itself shows that Immovable Properties were in the name of the Company/ defendant No.
1. This being the position and the fact that earlier in time this plaintiff has also filed a suit for declaration, administration, for accounts, distribution, possession, mesne profit and permanent A injunction, no case for injunctive relief has been made. Looking at the case and its history and the two suits (Suit No.1127 of 2007 and Suit No.1451 of 2008) neither the plaintiff has a prima facie case, nor the balance of convenience is in his favour nor will he suffer irreparable loss (as the plaintiff has already preferred Suit No.1127 of 2007 among others, also for mesne profits). Precisely and prima- facie the Immovable Properties are in the name of defendant No.1 and not in the name of the plaintiff.
' The C.M.A, for reasons mentioned above is merit-less and therefore dismissed. However, it-may be observed that during the course of arguments, learned counsel for defendants Nos.2, 3 and 4, made a statement on their behalf, after instructions, that till the disposal of the Suit, the shareholdings in the defendant No.1, save after notice to the plaintiff and/or with the permission of this court would not be disturbed. This statement of the learned counsel for defendants Nos.2, 3 and 4 is taken on record.
(2) C.M.A. 2722 of 2009 (under Order XL Rule 1, C.P.C.). This is an application for appointment of a receiver. Since I have come to the conclusion that the plaintiff has not made out a case for injunction and prima facie the Immovable Properties stand in the name of the defendant No.1, no case for appointment of a receiver is made out. Application is therefore, dismissed.