' ZAFAR AHMED RAJPUT, J.---By this common judgment, we intend to dispose of above mentioned two High Court Appeals arising out of the same Order of the learned Single Judge of this Court dated 26-3-2012, one was passed on C.M.A. No. 1412/2011, under Order LXII, Rule 1, read with Order IX, Rule 9 and section 151, C.P.C., filed by the respondent/plaintiff in Suit No. 1478 of 2004, against that Order the appellant/defendant has preferred H.C.A. No.46 of 2012 and other was passed on C.M.A.
No. 10343/ 2011, under Order XXXVIII, Rules 1 and 2 read with section 151 C.P.C, filed by the appellant/plaintiff in Suit No.1551 of 2010, against that order the appellant/plaintiff has preferred H.C.A. No. 47 of 2012.
2. Briefly stated, the facts of the case are that the respondent/plaintiff filed Suit No. 1478 of 2004 for specific performance, declaration and injunction against the appellant/defendant and 2 others in High Court of Sindh under its original jurisdiction, in respect of an immovable property i.e. Bungalow No.261/C, admeasuring 500 sq. Yds. Situated in Darus Salam Cooperative Housing Society, Sector 31, Korangi Township, Karachi. The appellant/defendant ,contested the said suit by filing written statement. On 30-5-2005 the learned trial Court directed the respondent/ plaintiff to deposit an amount of Rs.37,64,000 reflected as outstanding in Sale Agreement dated 17-7-2004. The respondent/plaintiff deposited the said amount with Nazir of the Court and thereafter the learned trial Court, vide order dated 24-4-2005, directed the Nazir of the Court to invest the said amount in some profitable government scheme.
3. Subsequently, the respondent/plaintiff filed an application under Order XXIII, Rule 1 C.P.C., (C.M.A.
No. 8318/2010) for unconditional withdrawal of the said suit and the amount deposited by him with profit thereon. The appellant/ defendant filed her counter affidavit to the said application, wherein she while opposing the said application, inter alia alleged that she has inflicted heavy damages on her person, and before the said application could be argued, the appellant/defendant filed Suit No.1551/2010 for damages against the respondent/defendant, along with an application under Order XXXVIII, Rules 1 and 2 C.P.C. (C.M.A. No.1551 / 2010) for attachment of amount of the respondent/defendant lying with the Nazir of the Court and also for furnishing security and to deposit his passport in the Court to restrain him to leave territorial jurisdiction till the disposal of the said suit. The learned Single Judge of this Court vide Order dated 11-01-2011 granted C.M.A. No. 8318/2010 conditionally, to the extent of allowing the respondent/plaintiff to withdraw his suit bearing No. 1478 of 2004. However, as to amount deposited with the Nazir it was ordered that as C.M.A. No. 1551/2010 in Suit No. 1551 of 2010 for attachment of the said amount had not been heard by that time, therefore, withdrawal of the said amount would be subject to disposal of the said application. Thereafter, the respondent/plaintiff filed C.M.A. No.1412/2011, under Order XLVII, Rule 1, read with Order IX, Rule 9 and section 151, C.P.C., in Suit No.1478 of 2004 for review of Order dated 11- 1-2011.
4. On 26-03-2012, the learned Single Judge of this Court, after hearing learned counsel for the parties, by a common Order allowed C.M.A. No. 1412 of 2011, filed by the respondent/plaintiff in Suit No.1478 of 2004, whereby the Nazir was directed to release the amount deposited by him along with profit, if any; accrued thereon, and dismissed C.M.A. No.10343 of 2011, filed by the appellant/plaintiff in Suit No. 1551 of 2010. This order has been impugned by the appellant in two intra court appeals. H.C.A. No.46 of 2012 has been preferred against the Order passed on C.M.A.
No.1412 of 2011, under Order XLVII, Rule 1, read with Order IX, Rule 9 and section 151, C.P.C., filed by the respondent/plaintiff in Suit No. 1478 of 2004 while, H.C.A. No.47 of 2012 has been preferred against the order passed on C.M.A. No.10343 of 2011, under Order XXXVIII Rules 1 and 2, read with section 151, C.P.C, filed by the appellant/plaintiff in Suit No. 1551 of 2010.
5. We have heard the learned counsel for the parties and have also perused the material available on record.
6. Abdul Hameed Siddiqui, the learned counsel for the appellant, has contended that the respondent has already moved to USA on immigration, and has liquidated all his assets in Pakistan and the only asset now left in Pakistan is the amount lying with the Nazir of the Court for that the respondent filed an application (C.M.A. No.8318/2010) for withdrawal of his deposited amount in Suit bearing No.1478 of 2004 for specific performance; therefore, the appellant moved an application (C.M.A. No.10343/2010) fur attachment of amount of respondent lying with the Nazir of the Court and also for furnishing security and to deposit his passport in the Court to restrain him to leave territorial jurisdiction till the final disposal of her suit, as the judgment and decree would be frustrated if passed in favour of appellant in her suit for damages worth Rs.23 crores. He has also contended that under the said circumstances the grant of C.M.A. No.10343/2011 in Suit No.1551 of 2010, was in the interest of justice while, C.M.A. No.1412/2011 filed by the respondent in Suit No. 1478 of 2004 was liable to be dismissed, but the learned Single Judge of this Court misinterpreted the scope of Order XXXVIII, Rule 5, C.P.C. By mixing up with preventive and punitive effects of the said provision of C.P.C; and thus passed the impugned Order erroneously, which is liable to be set aside.
7. Per contra, Mr. K. A Wahab, the learned counsel for the respondent, supporting the impugned Order, has argued that the appellant malafidely and maliciously filed Suit No.1551 of 2010 for damages after filing of the application for withdrawal of Suit No.1478 of 2005 by the respondent. He also argued that the appellant has already received Rs.10,86,000 as part payment against the sale consideration and so far the alleged claim of huge damage to her property is concerned, it is matter of record that in order to ascertain this allegation, the Assistant Registrar was appointed to inspect the suit property, who submitted his report on 27-10-2010, which was found to be in possession of the appellant; therefore, the allegation is totally baseless. He further argued that the appellant deliberately and purposely made false statement in para-1 of the plaint that Suit No.1478 of 2004 was filed against her, as the same was filed against Ms. Saba Rasheed for specific performance and the appellant was impleaded only for the reason as she acted as attorney of Ms. Saba Rasheed and no relief was claimed in the said suit against the appellant in her personal capacity; therefore, the suit of appellant for damages is itself not maintainable in law.
8. After hearing the learned counsel and perusing the material on record, what has emerged from the facts of the case is that in appropriate cases the court can pass any order in respect of the matters set out in the pleadings including an order for attachment of property before judgment or for calling upon defendant to furnish security for appearance, etc. To secure the rights of the party to the suit. Such an order is within the discretion of the Court and will not be passed unless person seeking such relief establishes a strong prime facie case. Therefore, the learned Single Judge of this Court allowed the C.M.A. No. 1412 of 2011, filed by the respondent in Suit No. 1478 of 2004 and dismissed C.M.A. No.10343 of 2011, filed by the appellant in Suit No. 1551 of 2010. The relevant portion of the impugned Order reads as under:-- "/O. It is an admitted position on record that the parties to the suit are in litigation since 2005. It is also an admitted fact that parties were entered into sale agreement in respect to the suit property and plaintiff Dr. Anis had paid sufficient amount against the sale consideration and the remaining balance payment was deposit with the Nazir of this Court in compliance of the order. It may be observed that it is the duty of the Court that before passing any order it must be satisfied with regard to the intention of the party seeking relief whether he approached the Court with clean hands or not and that the balance of convenience is in his/her favour. In the case in hand, the plaintiff Talaat Inayatullah instituted the Suit on 11-10-2010 along with application under Order XXXVIII rules I and 2 C.P.C. After filing of application of withdrawal in Suit No.1478 of 2005 on 10-8- 2010. Plaintiff Talaat Inayatullah has taken such plea of suffering loss, which has been taken for the first time in her suit for damages. No application for attachment of amount was made in Suit No.1478 of 2005. The plaintiff Talaat Inayatullah filed suit after filing application for withdrawal of suit by Dr. Anis, which clearly shows the intention of the plaintiff. Further, the object of Order XXXVIII was not to paralyze the normal bona fide transaction and unless it was established that defendant was about to withdraw the amount to intent to defeat or delay decree that night be passed, normally Court was not to pass the order of attachment before judgment. Plaintiff Dr. Anis is prior of time to that of Talaat Inayatullah and on principle of qui prior est tempore portior estjure (he has a better title who was first in time) Talaat Inayatullah had no prima facie case and balance of convenience was also not in her favour. Therefore, I am not inclined to attach the amount deposited by Dr. Anis with the Nazir of this Court in compliance of the order passed by this Court, particularly, when the defendant Talaat Inayatullah had already received amount of Rs.10,86,000 in respect of sale of property in question. Resultantly, C.M.A. No. 10343 of 2010 dismissed.
11. As regards application C.M.A. No.1412 of 2011 for recalling the Order dated 11-1-2011, passed on application under Order XXIII, Rule 1, C.P.C., whereby this Court partly allowed the application for withdrawal of suit unconditionally and declined the prayer for withdrawal of amount deposited by Dr.Anis with the Nazir of this Court, it is observed that it is a settled proposition of law that no one shall suffer on account of error of Court. Moreover, the Court is obligated to look after and protect interest of a party on its own. The error of being apparent is liable to be corrected. Since the money deposit by the Nazir was pursuant to the order of this Court for specific performance of the sale agreement and once the suit itself allowed to be withdrawn, there was no justification in declining the prayer of withdrawal of money. Therefore, I recall the order dated 11-1-2011 to the extent of declining the prayer for withdrawal of amount and allow the instant application. Nazir is directed to release the amount deposited by plaintiff Dr. Anis Ahmed Shaikh along with profit, if any, accrued thereon. "
'9. The main thrust of the arguments of learned counsel for the appellant was to the effect that for if C.M.A. No.1441 of 2010 (under Order XXXVIII, Rules 1 and 2, C.P.C.) is not allowed the judgment and decree would be frustrated if passed in favour of appellant in her suit for damages. Order XXXVIII, Rules 1 and 2, C.P.C. Deals with attachment before judgment, which reads as under: I. Where a defendant may be called upon to furnish security for appearance. -- Where at any stage of a suit other than a suit of the nature referred to in section 16, clauses (a) to (d), the Court is satisfied by affidavit or otherwise,
(a) that the defendant with intent to delay the plaintiff or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him,
(i) has absconded or left the local limits of the jurisdiction of the Court, or
(ii) is about to abscond or leave the local limits of the jurisdiction of the Court, or
(iii) has disposed of or removed from the local limits of the jurisdiction of the Court his property or any part thereof, or
(b) that the defendant is about to leave [Pakistan] under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security for his appearance: Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's claim; and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court.
2. Security.--(1) Where the defendant fails to show such cause the Court shall order him either to deposit in Court money or other property sufficient to answer the claim against him, or to furnish security for his appearance at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have been paid by the defendant under the proviso to the last preceding rule.
(2) Every surety for the appearance of a defendant shall bind himself in default of such appearance to pay any sum of money which the defendant may be ordered to pay in the suit.
10. We are of the view that before exercising the power conferred by Order XXXVIII ibid a Court should be satisfied on two points. First, that the plaintiff's cause of action is prima facie an unimpeachable one subject to his/her proving the allegations/claims made in the plaint. A Second, that the Court should have reason to believe on the basis of materials that unless the jurisdiction is exercised there is a real danger that. The defendant will remove himself from the ambit of the power of the Court. For the reasons which we are about to give, we do not think it is necessary for us to go into the second point in this case as we do not think that the appellant/plaintiff has succeeded in establishing her position on the first point. For the reason, besides given by the learned Single Judge in the impugned Order, that it is an admitted position that there was no privity of contract between the respondent and the appellant in her personal capacity but was between the respondent and one Saba Rasheed and the respondent filed Suit No.1478 of 2004 against Ms. Saba Rasheed for specific performance wherein the appellant was impleaded only for the reason as she acted as attorney/agent of Ms. Saba Rasheed and no relief was claimed in the said suit against the appellant in her personal capacity. The doctrine of privity of contract provides that a contract cannot confer rights or impose obligations arising under it on any person or agent except the parties to it. The premise is that only parties to contracts should be able to sue to enforce their rights or claim damages. As such, the suit of appellant for damages in her personal capacity itself appears to be not maintainable under the law. By observing so, we do not propose to say anything about merits of the case, but we think before we pass any order under Order XXXVIII, C.P.C., we must at least be satisfied that the plaint does not reveal on the face of it any matter which is obviously uncertain and arguable. In our view the plaint discloses highly contentious matter.
11. So far the order passed on C.M.A. No.1412 of 2011, is concerned, we are of the view that the plaintiff has a right to withdraw suit unconditionally whenever he desires under Order XXIII, Rule 1, C.P.C., and where a suit is withdrawn unconditionally all interim orders and consequential acts become ineffective. Reference in this regard can be made on the case of Johra Saeed and another v.
University of Health Sciences through Vice Chancellor and 2 others (2007 M LD 447). Therefore, after unconditional withdrawal of the suit, the respondent/ plaintiff is entitled to receive his amount with profit deposited by him with Nazir under Court's Order. Therefore, the learned Single Judge has rightly reviewed his Order dated 11-1-2011, while allowing said C.M.A. No.1412 of 2011.
' For the foregoing reasons, we have not found any irregularity or illegality in the impugned order, requiring any interference by this Court in appellate jurisdiction, therefore, the instant appeals are dismissed IC along with the listed application, with no order as to costs.