Through this revision petition, Muhammad Ajmal Khan (Plaintiff/petitioner) who claims to be beneficiary of agreement to sell dated 01.07.2014 executed by Mst. Iqbal Mai wife of Falak Sher (defendant/respondent), in his favour for consideration of Rs,50,00,000/- has called in question judgment dated 10.03.2017 passed by Additional District Judge, Mailsi, District Vehari and order dated 18.7.2016 passed by Civil Judge, Mailsi, District Vehari whereby the application filed by petitioner for the grant of temporary injunction in a suit for specific performance of the afore- referred agreement to sell has been concurrently dismissed.
2. Briefly stated tke facts of the case are that the petitioner claims that the respondent agreed to sell her property measuring 8- kanals situated in Mauza Basti Sultan, Tehsil Mailsi, District Vehari for consideration of Rs,50,00,000/- on 01.07.2014 and received the total sale consideration in the presence of the witnesses. Along with the suit, the petitioner also filed an application for the grant of interim relief seeking order of this Court to restraint the respondent from further alienating the suit property or dispossessing him there from in any manner whatsoever.
3. The respondent contested the suit by filing written statement wherein the afore-referred agreement as well as receipt of consideration was denied by the said respondent and further the application for the grant of interim relief was also contested on the afore-referred grounds.
4. The learned trial Court vide its order dated 18.07.2016 dismissed the application filed by the petitioner. The appeal preferred against the said order was also dismissed vide judgment dated 10.03.2017. Both the afore-referred order and judgment of both the Courts below are under challenge through the titled revision petition.
5. The learned counsel for petitioner has argued that the ingredients for grant of temporary injunction were made out form the record. The petitioner is in possession of the suit property after having paid the entire sale consideration of Rs,50,00,000/- and the respondent had gone back on her words and was trying to alienating the suit property to other party in contravention of afore- referred agreement, therefore, the petitioner is entitled for the grant of interim relief.
6. On the other hand, learned counsel for respondent has argued that the petitioner has failed to establish a prima facie case, even the alleged agreement to sell is not a complete document rather the same is in the form of affidavit and does not meet with the requirements of an agreement. The petitioner denies having executed the said document, which requires strict proof.
Besides, the petitioner has not established as to how an amount of Rs,50,00,000/- had been paid in cash to an illiterate lady without any documentary transaction, therefore, seeks dismissal of the revision petition on the afore-referred grounds.
7. Heard, record perused.
8. The petitioner, in his plaint, has relied upon agreement dated 01.07.2014 allegedly executed by the respondent in his favour for sale of land against consideration of Rs,50,00,000/- paid in cash in full in presence of husband of the respondent and the marginal witnesses. Further, it is alleged that the respondent executed a cheque for an amount of Rs,70,00,000/- as guarantee/surety for fulfilment of the transaction. The said assertion of the petitioner has been denied by the respondent who is present in Court and appears to be an illiterate old lady and principles relating to proof of transaction with Parda Nasheen lady would be applicable to her case.
9. The contention raised by the respondent is that such a transaction was not ever entered between the parties and the alleged agreement which in fact is in the form of affidavit has been prepared just to deprive the respondent of the property owned by her and in support of the claim of the petitioner, a bogus cheque has also been allegedly executed by the respondent in favour of the petitioner.
10. I have gone through the contents of the alleged agreement to sell, which is in the form of affidavit and is attached with the file. The said affidavit only bears a thumb impression which is alleged to be of the respondent and affidavit is attested by the Oath Commissioner. However, there is nothing on the record to show that the respondent appeared before the Oath Commissioner in person. Even the Oath Commissioner has not noted on the said document that she appeared before him in person. From the perusal of the backside of the stamp paper, it appears that the document was obtained with a view to draft an affidavit in favour of State. It yet to be established on the record that for what purpose and who purchased the afore-referred stamp paper. Besides, the afore-referred affidavit is not signed by any of the witnesses. Even it does not bear the signature of any identifier who had identified the executant of the afore-referred affidavit. Although certain terms and conditions have been mentioned in the affidavit relating to transaction of transfer of property but the said terms and conditions are yet to be established by recording of evidence. Apparently, the afore-referred document does not qualify as an agreement to sell entered into by the respondent in favour of the petitioner, However, as an oral agreement to sell can also be established in proof of transaction of transfer of property through sale, therefore, instead of expressing any further opinion over the afore referred document, it is observed that even if the said affidavit is treated as a memorandum relating to oral agreement, the said agreement needs to be proved through evidence.
11. Even for proof of agreement with an old illiterate Parda Nasheen lady, the onus lies upon the beneficiary of the said document/agreement which the beneficiary in this case is required to discharge through cogent evidence. Reliance in this behalf is made to Phul Peer Shah v. Hafeez Fatima (2016 SCM R 1225) and Muhammad Nazir through, legal heirs v. Muhammad Sarwar and others (1989 M LD 293). Besides, there are certain conditions provided in case law of Superior Courts for proof of transaction with the Parda Nasheen lady which include identification of the lady, availability of independent advice, exclusion of undue influence and proof of fact that the said lady was made to understand the contents and conditions of the transaction entered on behalf of the said lady which is also to be established proved by leading evidence.
12. Besides, it is yet to be established that how an amount of Rs,50,00,000/- was paid in cash to a Parda Nasheen lady/respondent without any document to corroborate the said transaction.
Besides, the claim of petitioner that he is in possession of the suit land has also been denied by the respondent. Even otherwise, if the petitioner holds the possession, it is yet to be established that he holds the afore-referred possession in consequence of agreement to sell which is yet to be proved and mere possession would not entitle the plaintiff/petitioner to grant of interim injunction.
Reliance may be placed on Muhammad Ali v. Mahnga Khan (2004 SCM R 1111).
13. Even otherwise, it has now been established that an oral agreement to sell in favour of a party if denied by the other party does not constitute prima facie case. Reliance in this regard may be placed on Muhammad Aslam v. Muhammad Khan and another (1999 SCM R 2267). Besides, the balance of convenience is in favour of the respondent who is the owner of the property as compared to the petitioner who is only relying upon an alleged agreement to sell. The petitioner would not suffer any loss if interim injunction is not granted, therefore, both the Courts below were justified in refusing the grant of temporary injunction in favour of the petitioner.
14. The petitioner apprehends that the respondent would transfer the property to some outsider during the pendency of the civil suit filed by the petitioner against the respondent but the rights of the petitioner would stand protected under the principle of lie pendens, The learned counsel for the petitioner has relied upon Sardar Walt Muhammad v. Sardar Muhammad Iqbal Khan Mahal and 7 others (PL) 1975 Lahore 492) to argue that principle of lie pendens is not a ground to refuse temporary injunction. There is no cavil to the said proposition of law, however, the facts of the said case were different from this case as the said case related to joint property and one party was denying the rights of the other party and the Court held that the party had a prima facie case and ingredients of grant of temporary injunction were made out. But in the present case, neither the prima facie case is made out nor the other ingredients for grant of temporary injunction are available. Hence, the afore-referred case is distinguishable, therefore, this Court is not inclined to interfere in the judgment and order passed by the Courts below whereby the application for the grant of temporary injunction has been denied.
15. For what has been discussed above, no ground to interfere in the impugned judgment and order passed by the Courts below is made out whereby the same could be held to have been passed without jurisdiction and nullity in the eye of law. Resultantly, this petition being devoid of merit is dismissed.
16. However, it is made clear that the afore-referred observations made by this Court are tentative in nature and the learned trial Court shall decide the afore-referred lis pending between the parties on its own merits without being influenced by any observation made by this Court.