' SHAUKAT ALI MEMON, J.---By this appeal order of the Learned Single Judge in Suit No. 404/2014 dated 23-4-2014 has been impugned, whereby C.M.A. No. 3265/2014 under Order XXXIX Rules 1 and 2, C.P.C. And C.M.A. No.3266/2014 under Order XXXVIII, Rule 5, C.P.C. Moved by the respondent/plaintiff have been disposed of. C.M.A. No. 3265/2014 was allowed by directing the appellant/defendant to deposit all the three post-dated cheques with the Nazir while C.M.A. No. 3266/2014 was allowed by ordering attachment of suit property till disposal of the suit.
2. The case of the respondent before trial court is that it has obtained the suit property bearing No. F-6, Main Boat Basin, Block-5, Clifton, Karachi measuring approximately 18563 Sq. Feet on rent through lease agreement dated 4-11-2013 from the date of execution for a period of five years while one month rent free period was given to the respondent/plaintiff for renovation work. The rate of Rs.86 per sq. Feet was agreed for commercial use for which respondent/plaintiff paid an amount of Rs.4,789,254.00 towards first three months advance rent plus other amount and also handed over three postdated cheques detailed in paragraph 4 of the plaint. The plaintiff was also put in possession on 6-11-2013 to start renovation work befitting to business use. It is further case of the respondent/plaintiff that while renovation work was in progress, some persons claiming themselves to be the officials of relevant authority visited the property on 1-3-2014 and served upon the respondent/plaintiff a backdated sealing notice with direction to stop the renovation work disclosing that the property was not having commercial status and No Objection (permission) for such status was withdrawn by the relevant authority. The respondent/ plaintiff is stated to have immediately approached the appellant/defendant, who expressed her ignorance yet respondent/ plaintiff through its own sources came to know about withdrawal of such permission by the competent authority on 2-3.-2011.
3. The grievance of the respondent/ plaintiff is that the appellant/defendant at the time of execution of lease agreement on 4-11-2013 was fully aware about the fact of withdrawal of permission for commercial use of the property but this fact was willfully concealed by her, therefore, suit was filed for recovery of the amount so paid to the appellant/defendant and spent on renovation as well as for recovery of special and general damages. Along with the suit both C.M.As. Were also filed as stated above.
4. It is argued by the learned counsel for the appellant that the suit has been wrongly filed by the respondent for no cause of action as in accordance with the terms of the agreement not only possession was delivered but respondent has substantially caused damage to the property rendering it unfit for any use nor it can be further leased out to any prospective tenant. It is further argued that the appellant/ defendant was totally unaware about withdrawal of N.O.C. Or the permission for the commercial use. It is further argued that learned Single Judge failed to appreciate that neither prima facie good case was made out by the respondent/plaintiff nor it was plaintiff/respondent who was likely to suffer an irreparable loss rather the appellant/defendant is put in disadvantageous position by the impugned order. It is next .Argued that attachment before judgment without payment of rent during subsistence of lease agreement is extremely unfair against the appellant/ defendant who is deprived of her source of income and by ordering deposit of postdated cheques he has also stopped appellant/defendant for taking legal remedy of registration of crime for the offence punishable under Section 489-F, P.P.C. Learned counsel finally prayed for setting-aside the impugned order.
5. Conversely, learned counsel for the respondent argued that no one should be permitted to take advantage of his own fraud which per learned counsel has been played upon by the appellant by concealing the fact of withdrawal of N.O.C. For commercial use by the relevant authority. According to him, had there been no concealment, there would have been no lease agreement nor spending of huge amount upon process of renovation and the consequential loss of business and goodwill occurred due to non-commencement of the proposed business activity. Per learned counsel the respondent had made out the prima facie good case while balance of convenience is in its favour, it will be respondent who would suffer an irreparable loss in the event injunction is declined. It is also argued that by attachment of property before judgment learned Single Judge has safeguarded the interest of respondent and had put on caution the appellant for not taking wrongful action who has got track record of similar case of fraud and is habitual litigant.
6. We have minutely gone through the impugned order. Whether the lease agreement was not for commercial use, and that the appellant was unaware about the withdrawal of the N.O.C. By the competent authority, is an issue of fact which cannot be dilated upon without recording evidence as is rightly observed by the learned Single Judge. This is an admitted position that post-dated cheques were issued by the respondent in favour of the appellant and if presented for encashment and eventually dishonoured, a criminal case under section 489-F, P.P.C. Got registered by the appellant would cause the respondent an irreparable loss. The balance of convenience also lies in favour of the Respondent, and in given situation prima facie good case was made out therefore no exception can be taken to the decision of learned Single Judge for ordering the deposit of cheques with the Nazir of this Court. Hence, order to C.M.A. No. 3265/14 is maintained.
7. For C.M.A No. 3266/14 in para-19 of supporting affidavit, the appellant had claimed that if the application is not granted the defendant will dispose of her moveable and immovable properties to defeat the decree likely to be passed in the suit and that order of attachment before judgment will preserve the status quo and will protect the interests of the parties in our opinion are not the sufficient reasons to justify the attachment.
8. It may be advantageous to reproduce here in below the provisions of Order XXXVIII, Rule 5, C.P.C.
Which reads as follows:-"5.---(1) Where, at any stage of a suit, the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,-
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the court may direct the defendant, within a time to be fixed by it, either to furnish security in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
(2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.
(3) The court may also in the order direct the conditional attachment of the whole or any portion of the property so specified."
9. It is the consistent view of the High Courts in the cases of Messrs STFA C. & Co. v. Naeem Khan (2005 CLC 1270), Associated Drillers Ltd. Karachi v. Messrs Dirk Verstoop B.V. Karachi (PLD 1979 734) and Messrs H. Nizamuddin and Sons Ltd. v. M.V. Oroomee and 4 others (PLD 1977 Karachi 722) that attachment before judgment is a very exceptional remedy under exceptional circumstances which must be established through some cogent evidence. In the instant case, the only apprehension of the respondent is that it will not be able to execute the decree which apparently would be in terms of money, therefore, merely establishing the prima facie good case is no ground for invoking the provisions of Order XXXVIII, Rule 5, C.P.C. Without first complying with Sub-Rule 1 of Rule 5. In our opinion, the attachment of property will create hardship for the appellant, therefore, order on C.M.A.
No. 3266/14 is set aside, however, the trial court will be at liberty to pass appropriate order if at any stage of trial any substantial evidence is brought on record justifying attachment before judgment.
10. With the above observation the appeal is partly allowed with no order as to costs.