1. The plaintiffs have filed this suit for declaration that the plaintiffs are equitable owners of the property bearing sheet No. BR-5 Survey No. 57, Karachi and the sale deed registered on 23-2-1981 in favour of defendant No. I is illegal and does not confirm any right. Permanent injunction has also been sought restraining the defendant from raising any construction on the said plot at the time of filing the snit. The plaintiff filed an application No. 2440 of 1981, seeking temporary injunction against the defendant No. 1 and order of status quo was passed on 19-7-1981. Thereafter the defendant No. I moved an application No. 2473 of 1981 under Order XXXIX, r. 4 C. P. C., supported by an affidavit of the defendant No. 1. The plaintiff has filed an application for consolidation and trial of this suit with Suit No. 276 of 1974 and modification of the order of status quo by permitting the plaintiff to raise boundary wall. With the consent of the parties I have heard all the aforementioned applications and propose to dispose them by a single order. The defendants have no objection to the consolidation and trial of the present suit with Suit No. 276 of 1974.
2. Briefly the facts are that the plaintiffs' predecessor in title Karam Elahi entered into an agre6nent dated 4-12-1970 with defendants No3. 2 and 3 whereby he agreed to purchase the suit property for a total consideration of Rs. 45,000 out of which Rs. 11,250 were paid and the balance was to be paid at the time of execution of the sale-deed on or before 4-12-1971. It is also alleged in the plaint that in pursuance of and part performance of the sale agreement and on payment of the aforestated part consideration the defendants Nos. 2 and 3 put Karam Ellabi in actual physical possession wit power to manage the property and collect the rent. Although Karam Ellal was ready and willing to perform his part of the contract and in spite of notice, the defendants Nos. 2 and 3 did not perform the agreement. Karam Ellahi therefore filed a suit hearing No. 276 of 1974 for specific performance of the contract. During the pendency of the suit Karam Ellahi died on 8-9-1976 and the legal heirs were brought on record who are the plaintiffs in the present suit. In Suit No. 276 of 1974, by a consent order both the parties were to maintain status quo. The plaintiff was authorised to recover rent, submit accounts in the Court but could not change the tenancy without the permission of the Court. After filing Suit No. 276 of 1974 the plaintiff got registered with the registrar a notice of pendency of suit. However it came to light that during the pendency of the suit by a registered sale deed dated 23-2-1981, the defendants No. 2 and 3 through their attorney Abdul Ghaffar have sold the said property to defendant No. 1 who is the son of the said attorney. The plaintiffs have termed the sale as fraudulent, collusive and without any consideration. The defendant No. 1 in his affidavit has stated that he had purchased the plot of land for valuable consideration and the old building has been demolished by K. D. A. As it had become dangerous for human accommodation. He has admitted that he is planning to construct building in accordance with . The approved plan and has even purchased materials which are lying on the disputed property.
3. The main contention of Mr. Usman Ghani Rashid the learned counsel for the defendant No. 1 is that as the sale deed is a registered one the property has been purchased for valuable consideration, the plaintiffs have no right in the property and cannot claim any title in it. The defendant has further contended that he has no intention to sell the property and is even agreeable to raise construction at his own cost, risk and subject to the order of the Court in these proceedings.
4. Before any interim injunction is granted it has to be seen whether the plaintiff has a prima facie case and whether the balance of convenience is in his favour and if injunction is not granted will he suffer an irreparable loss There seems to be hardly much dispute on material facts which may be relevant for consideration of this application. The defendant No. 1 has not denied that there exists a prior agreement for sale of the same property between the predecessor interests of the plaintiffs and defendants Nos. 2 and 3 the owners of this property. The fact that Suit No. 276 of 1974 for specific performance of that contract was filed in this Court also proves that the plaintiffs have been agitating their right to that property. In these circumstances to justify the validity of a subsequent sale prima facie it should established that the subsequent sale is bona fide for valuable consideration an without any notice of the previous sale. On the basis of the affidavits filed b the defendant No. 1 it seems that he has only alleged that the property has been purchased for valuable consideration. There is nothing in the affidavit that the defendant No. 1 has purchased it without any notice of the previous ;,ale. Besides this the plaintiff had got the notice of pendency of suit registered with the Registrar at Karachi. This action was taken with a view to notify that a suit relating to the right in the immovable property is pending.
5. Section 52 provides that during the pendency of any suit or proceedings in any Court which is not collusive and in which any right to immovable property is directly and specifically in question the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to affect the rights of any other party thereto under any decree or order which may be made therein except under the authority of the Court. The object of section 52 is that pending litigation nothing should be introduced and that pendenti lite neither party to the suit in which right to immovable property has been invoked can alienate or otherwise deal with the property so as to affect, his opponent. This provision is intended to protect the rights of the opponent parties to the litigation because if a party is allowed to alienate and deprive the other party of his right in this manner then there will be no end to litigation and the ends of justice would be defeated. It therefore prima facie establishes that the plaintiffs had taken precautions to protect their interest, and cannot be said to be negligent or careless in protecting their rights. On the other hand, the contention of the defendant No. 1 is not that Suit No. 276 of 1974 is collusive. Secondly it has not been stated by the defendant No. 1 that the subsequent sale was without notice of the previous sale.
6. The plaintiffs have further alleged that subsequent sale is collusive, fraudulent and without consideration. Be that as it may, it has not been denied by the defendant No. 1 that he is not the son of the attorney of the defendants Nos. 2 and 3. In the circumstances prima facie it can be presumed that the defendant No. 1 and the attorney who had executed the sale deed were aware of the previous sale agreement as well as the proceedings of Suit No. 276 of 1974 which is pending in this Court in which an order of status quo was also granted, such an order was binding upon defendants Nos. 2 and 3 and their attorney. The defendant No. 1 can possibly contend that he had made deligent effort to find out about the previous sale but did not succeed. Unless the subsequent purchaser establishes that he is a transferee for value and has paid money in good faith and without notice of the original contract, he can hardly defeat the claim for specific performance by the prior purchase. It is a well-known practice t that before a property is purchased search is made to find out encumbrance that may be attached to the property. Had such a step been taken perhaps the Registrar would have informed about the pendency of the suit.
7. Lack of due diligence defeats the claim of bona fide and good faith.
8. Prima facie section 52 of the Transfer of the Property Act protect the right of the parties which may not be affected by a subsequent sale. However it will be open for the defendant No. 1 at the time of final hearing to lead evidence and establish that he had entered into an agreement for value able consideration without notice of the previous sale. For the moment of the basis of the facts disclosed in the affidavit the plaintiffs have succeeded in making out a prima facie case in their favour.
9. The next question for consideration is whether the balance of convenience is in favour of the defendant No. 1. The defendant No. 1 has stated that it has purchased material and is prepared to construct the building and will not part with it and shall abide by the order of the Court. During the arguments Mr. Usman Ghani Rashid suggested that the defendant No. 1 is prepared to construct the building on condition that if the plaintiffs succeed then either the defendant No. 1 will band over the building to the plaintiffs or remove the construction at his own cost. The proposition on its face value seemed to be attractive but the plaintiffs have refused to accept it.
10. The request of the defendant No. 2 is brought with serious consequences whereby interest of third parties are likely to be involved and if the defendants are allowed to construct a building it will cause serious complications resulting in multiplicity of proceedings and the plaintiffs will be unnecessarily harassed. The object of granting interim injunction is to maintain the status quo and not to disturb it. The defendants therefore cannot be allowed, at this stage, to construct a building and under the cloak of the order of the Court change the entire situation to the disadvantage of the other party. This will amount to granting a mandatory injunction in favour of the defendant No. 1 which in the circumstances of the case is not permissible.
11. From the facts and circumstances of the case it is obvious that if the status quo of the property is changed it is likely to affect either of the parties and irreparable loss will be caused to them. In the circumstances I allow the plaintiffs, application No. 2440 of 1981 and grant injunction restraining the defendants, their agents and servants from raising any construction on the disputed plot. I further order that a watch man shall be appointed by the Nazir cost of which shall be equally borne by the plaintiffs and defendant No. 1 for maintaining the status quo. The defendant No. 1 will, however, be free to remove the construction material which he alleges to have stored in the said property. The defendants application No. 2473 of 1981 is dismissed. This suit is consolidated with suit No. 276 of 1974 and the file of Suit No. 276 of 1974 if not received so far should immediately be called from the District Court. The defendant No. 1 is directed to file his written statement within three weeks. The summons may be served on defendants No. 2 and 3 in the ordinary manner as well as by publication in two local newspapers at the cost of the plaintiffs. After service of summons the defendants 2 and 3 be directed to file written statement within four weeks. This suit along with Suit No. 276 of 1974 shall be fixed for the regular hearing in the second week of January, 1982.