' MUNIB AKHTAR, J.---By means of the present application, C.M.A. No,4711 of 2010, the plaintiff seeks to have the suit property attached before judgment pursuant to Order XXXVIII, Rules 5 and 6, C.P.C.
The suit property is Office No,114, 1st Floor, in a commercial plaza/building known as "Nice Trade Orbit" located at main Shahrah-eFaisal, Karachi.
2. Learned counsel for the plaintiff submitted that the suit property was booked by the plaintiff in 1998. The booking was done through the defendant No,2, Messrs Khursheed and Associates (Pvt.)
Ltd. According to the contract executed by the plaintiff, she was obliged to make periodic payments in respect of the suit property, and the building was supposed to be completed and possession of the office handed over sometime in the year 2000. The plaintiff's case is that she may did make payments of the instalments due from her but that the project was not completed on time, and in fact construction thereof was completely halted for a while. It appears that subsequently, in or around January 2005, the construction restarted and a commitment was made to the plaintiff that, subject to her paying the balance instalments, the work would-be completed and the office booked by her would be handed over in December of that year. Learned counsel submitted that the plaintiff had agreed upon a schedule of payments and was ready and willing to make payments in terms thereof, but that the defendants Nos.1 to 3 unilaterally and unlawfully enhanced the amount that they claimed was payable, and started issuing demand notices in terms thereof. Since, according to the plaintiff, she was not obligated to make payment of what she believed to be were inflated and incorrect amounts being demanded from her, and the aforesaid defendants were threatening to cancel her booking, she was concerned to file a suit in the civil courts, Karachi (East), being Suit No,621 of 2006. It appears that this suit was filed on 29-5-2006 and an ad interim injunction was granted on the next day, i.e,, 30-5-2006. This interim relief was confirmed when the application was heard and disposed of by the learned Civil Judge by means of the order dated 22-2-2007, the operative part of which stated as follows: "In view of above circumstances, I allow the application under Order XXXIX Rules 1 and 2, C.P.C. And direct the defendants not to create any third party interest whatsoever to the prejudice of the legal and vested rights of the plaintiff without the due course of law. However, the order of granting the present application shall be effected for a period of 6 months from the date of this order in terms of Order XXXIX, Rule 2(b), C.P.C."
3. The plaintiff contends that the building was finally completed sometime in 2007 and by that time she was even ready to pay the excess amount as was being claimed by the defendants Nos.1 to 3 so that the matter would stand resolved, and she would be able to obtain possession of the office that she had booked. According to the plaintiff, sometime towards the end of 2008 she came to know that the entire floor on which her office was located, and including the area comprising that office, had been rented to I.B.M. Pakistan, which is now defendant No,5 in this Suit. As a consequence of this, the plaintiff was constrained also to file an application under Order XXXVIII, C.P.C. In her pending suit.
4. It appears that the plaintiff's suit as aforesaid was decreed by the learned Civil Court by means of judgment dated 6-4-2009. Being aggrieved by this decision, the defendant No,1 filed an appeal in the Court of the IVth Additional District Judge Karachi (East). This appeal was disposed of by means of the judgment dated 20-7-2009, the operative part of which stated as follows:-- "By consent the judgment dated 6-4-2009, and decree dated 13-4-2009, passed by the learned trial Court are not in accordance with law and of no legal consequences. This first civil appeal is accepted and the judgment and decree are accordingly set aside and case is remanded back to learned IXth Sr. Civil Judge Karachi East to decide afresh after framing the proper issues according to the pleadings and recording the evidence of the parties. The appellant and respondent No,1 be directed to appear before the learned trial Court on 25-7-2009, and no Court motion notice shall be issued. Since the respondents Nos.2 to 4 are not contested the matter under appeal and naturally the notice be issued to them through bailiff, registered A/D and UMS on the cost of the respondent No,1/plaintiff. It is further ordered till the decision of the suit the appellant/defendant No,1 or his agent or any body else on his behalf be restrained not to sale-out, transfer or otherwise in respect of Unit No,114, 1st Floor plus parking place of the project known as 'Nice Trade Orbit' standing on Plot No, 44-A, Block-6, PECHS Karachi till the final disposal of the suit. It is further directed to dispose of the said suit within a period of two months positively."
After the remand of the suit as aforesaid, the issue of the pecuniary jurisdiction of the civil court was raised, and it was eventually ordered by the learned Civil Judge that since the matter lay beyond the pecuniary jurisdiction of the subordinate civil courts, the plaint be returned for presentation before this Court on the original side. The plaint was so presented and the Suit was numbered as above and is now proceeding as a civil suit in this Court. It is in these circumstances that the plaintiff has moved the application presently under consideration, which is essentially a renewal of the similar application that had been moved earlier when the suit was pending in the civil court.
5. The main submission made by learned counsel for the plaintiff was that the defendants Nos.1 to 3 had grossly violated the interim orders that had been made by the subordinate civil courts and this was a deliberate and wilful disobedience of the orders of the said courts, which entitled the plaintiff to suitable relief by which her interests in and right to the office would be protected, and the most suitable interim relief for this purpose was by way of attachment before judgment.
Learned counsel emphasized that there had been interim orders in the field since 30-5-2006 and thereafter the plaintiffs suit was decreed and even though the decree was set aside by consent in appeal, the appellate court had also made certain interim orders which were to continue till the final disposal of the suit. The basis on which learned counsel contended that the aforesaid interim orders had been disobeyed by the defendants was by reference to an application moved by the defendant No,1 before the learned civil court under Order VI, Rule 17 read with Order VIII, Rule 9 C.P.C., seeking to amend his written statement. By the said application, the defendant No,1 sought to add the following paragraph after para. No,16 of the written statement.
"It is respectfully pointed obi that the plaintiff having committed defaults had shown her disinterests in acquiring the booked office premises and as the funds were urgently needed for ongoing construction of the Project, the defendant had no option but to cancel the booking of the plaintiff. The defendant have, then, leased out the entire floor as well as other upper floors of the building to a third party and possession of all these floors has been delivered to the lessees in September, 2006."
' Learned counsel submitted that this paragraph amounted to a clear admission by the defendant No,1 that he had leased out the relevant floor of the building, including the area comprising of the plaintiff's office, to a third party in September 2006, when an ad interim order was already in the field. According to learned counsel, this gross violation of the interim order meant that the defendants were deliberately taking steps to frustrate, delay or defeat any decree that could be made in the suit in favour of the plaintiff and that therefore the attachment before judgment of the property was fully justified. Learned counsel further submitted that the plaintiff had all along paid the instalments and amounts that ' were due and payable by her but that the defendants Nos.1 to 3 had unlawfully increased and escalated the amounts in a deliberate and mala fide attempt to engineer a purported default by the plaintiff so as to justify cancellation of her booking. In this context, learned counsel also submitted that although there was a clear and binding contract in respect of the office booked by the plaintiff, the defendants Nos.1 to 3 were now attempting to resile from the same on the specious ground that the defendant No,2 was only a booking agent for the project, and that once the bookings were complete that defendant had nothing anymore to do with the project, and that the "real" owner, being the defendant No,1, was not bound thereby. Learned counsel contended that all of these factors were more than enough to entitle the plaintiff to interim relief as prayed by means of the present application.
6. Learned counsel for the defendant No,1, who is also counsel for the defendants Nos.6 to 8, strongly opposed the grant of any interim relief. He submitted that the plaintiff was a clear and persistent defaulter who had been unable or unwilling to meet her obligations with regard to the booking of the office despite repeated reminders and notices, and which had therefore eventually forced the cancellation thereof. Learned counsel submitted that the booking of the office was cancelled in or about September, 2007. He submitted that even the very contract being claimed by the plaintiff, i.e,, the booking of the office by the defendant No,2, permitted cancellation of the booking and in this regard placed reliance on clause 19 thereof which provided as follows:-- "Company shall have full authority to cancel the bookings of the units of the project, if opinion booked by the undesirable person/s and also in breach of any provision of the contract by the Allotee(s). The Company shall issue a notice in writing for cancellation of the allotment of the Offices/Showrooms where upon the Company or its representatives may enter upon and retain possession of the buildings, structure, material and things their on for its absolute use and benefit."
' Learned counsel also placed reliance on the demand notices and reminders sent to the plaintiff to contend that she had persistently defaulted in terms of her obligations and, instead of complying with the same, had initiated the present litigation to provide legal cover for her breaches in a gross abuse of the process of law. Learned counsel submitted further that the delay in the completion of the project was not on account of any fault on the part of the defendant No,1 but rather on account of certain illegal actions taken by the K.B.C.A which had forced the said defendant to seek legal redress and it was onlythereafter that the way was cleared for completion of the project.
7. Insofar as the main- contention of the learned counsel for the plaintiff, i.e,, that the defendants, including the defendant No,1, had acted in violation of interim orders was concerned, learned counsel strongly negated and refuted any such violation. He submitted that the interim order relied upon, i.e,, the order of the learned civil court dated 20-2-2007, was expressly and specifically only for a period of six months, which expired on 20-8-2007. Learned counsel submitted that the booking was only cancelled thereafter, and likewise it was only after the interim order had expired in its own terms that the area comprising of the plaintiff's office was transferred in the names of the defendants Nos.6 to 8. In particular, according to a certified copy issued by the sub-Registrar, Jamshed Town, Karachi and placed on record along with the written statement of defendants Nos.1 and 6 to 8, it appears that the office booked by the plaintiff was transferred to the defendants Nos.6 to 8 by means of registered sub-lease dated 17-12-2007. Thus, according to learned counsel for the said defendants, there had been no violation at all of any interim orders. Learned counsel further submitted that in any case the interim order relied upon had only prohibited the creation of any third party interest and that therefore even on that basis the lease of the floor (including the office booked by the plaintiff) to I.B.M. Pakistan was not violative of any judicial order since such lease did not amount to creating a third party interest in the property. In this context, learned counsel referred also to the counter-affidavit filed by the defendants whom he was representing, and to the express undertaking given by the said defendants in para 15 thereof, which stated as follows:-- "15. That without prejudice to the aforesaid legal and factual position, I have been instructed by defendants Nos.6, 7 and 8 to give an undertaking to this Hon'ble Court that, till further order of this Hon'ble Court, these defendants shall not alienate or create further third party interest in the premises of the demised floor. The defendant No,1 has concurred to this undertaking."
' Learned counsel stated on instructions that the said defendants stood by, and were fully committed to and reaffirmed, the aforesaid undertaking. Finally, as regards the status of the defendant No,2, learned counsel submitted that that defendant was only a booking agent with a limited role in respect of the project/building, i.e,, "Nice Trade Orbit" and once the bookings were complete, the defendant No,2 had nothing anymore to do with the project. He submitted that for this reason, the said defendant had become a dormant company and the plaintiff therefore could not be permitted to rely on her dealings with it.
8. Learned counsel for the plaintiff, exercising his right of reply, emphasized that in the amendment application noted above, moved by the defendant No,1 himself, it had been categorically stated that the floor in question, including the plaintiff's portion, had been leased and possession handed over to the lessees in September 2006, which was a clear violation of the order of the learned civil court.
9. I have heard learned counsel for the parties and have examined the record with their assistance.
Insofar as the question of whether the role of the defendant No,2 was limited only to the matter of making bookings for the project/building, and if so, whether thereafter its role stood exhausted, that is a matter that will have to be determined at the conclusion of the trial. For present purposes, it is sufficient to note that there was, at all material times, a contract between the parties in respect of the office booked by her, and whether the contracting party on the other side was only the defendant No,2, or the defendant No,1, or both, is not something that requires determination for purposes of the present application. Likewise, the question whether the defendants Nos.1 to 3 made excess and unlawful demands from the plaintiff, as claimed by her, or she was a wilful or persistent defaulter in the making of payment of the instalments due from her, as contended by the defendants, is also something that can only be determined at the conclusion of the trial and on the basis of the evidence led by the parties. This point also, in my view, is not directly material for the purposes of the present application, which is an application seeking attachment before judgment.
The conditions that have to be fulfilled in terms of Rules 5 and 6 of Order XXXVIII before attachment is ordered in terms thereof are well established. The crucial element must be that the concerned defendant intends to dispose of the subject property with intent to delay, defeat or otherwise frustrate any decree that may be made in the suit. Clearly, A such intent would hardly ever be expressly spelt out and in the normal course, must be gathered or inferred from the relevant facts and circumstances. The primary circumstance relied upon by learned counsel for the plaintiff in this regard was the alleged disobedience of the interim orders made in the litigation. However, after reviewing the material and considering the interim orders which have been placed on record, I am not satisfied that such an intent can be clearly spelt out. Learned counsel for the contesting defendants was correct in noting that the original interim order (which was confirmed on 20-2- 2007) was firstly, only to the extent of not creating third party interests in the property, and secondly, was in any case specifically limited to a period of six months. The question therefore, is whether the statement made in the defendant No, l's amendment application, namely, that the relevant property was leased out to a third party in September, 2006 and possession handed over to the lessees, firstly, constituted a breach of the aforesaid interim order, and secondly, and more importantly, whether such breach, if any, amounted to an intent to delay, defeat or frustrate any decree that may be made in the Suit within the meaning of Order XXXVIII, C.P.C. The statement made in the amendment application must, at least for purposes of the present application, be accepted at face value. Even when so accepted, I am not satisfied that it constituted a breach of the interim order confirmed on 20-2-2007. A perusal of the said order shows that it was a specific and deliberate order, which directed the defendants "not to create any third party interest whatsoever to the prejudice of the legal and vested rights of the plaintiff without'due course of law."
In my view, the leasing out of the first floor, including the office booked by the plaintiff, did not constitute a breach of the foregoing direction. Secondly and more importantly, even if the leasing out were to constitute a breach of the interim order, it would still not come within the purview of Rule 5 of Order XXXVIII, C.P.C., since it is not, in my view, tantamount to an act which showed an intent to delay, frustrate or defeat any decree that may be made in the suit. Thus, the main ground taken by learned counsel for the plaintiff does not come up to the required standard, which would entitle the plaintiff to attachment before judgment. Learned counsel for the plaintiff placed reliance on Travel Agent Association of Pakistan v. Skyline (Pvt.) Travels Ltd. 1992 CLC 1644 and Prinze (Pvt.)
Limited v. Shahid Saeed Khan and others 2002 CLD 391, both decisions of this Court, in support of his case under Order 38, C.P.C. However, in my view, those decisions are clearly distinguishable since they proceeded on rather different facts. It is also to be noted that the mere leasing out of the property to Messrs I.B.M. Pakistan cannot in and of itself defeat the rights and interest (if any) of the plaintiff if she is eventually able to make out a case for the grant of judgment and decree. In this context, reference must also be made to the express undertaking given by the defendant No,1 and defendants Nos.6 to 8, reproduced above, and reaffirmed on instructions by learned counsel appearing on their behalf at the time of the hearing. In my view, all of these factors militate against the grant of interim relief by way of attachment before judgment.
10. Accordingly, in view of the foregoing, I am of the view that the plaintiff is not entitled to the relief that she is seeking by means of the present application which accordingly hereby stands dismissed. However, the undertaking given by the defendant No,1 and defendants Nos. 6 to 8 as noted above is taken on record, forms part of this order, and the said defendants shall be, and hereby are, bound by and in terms thereof.