Tariq Saleem Sheikh, J. This revision petition under Section 115 CPC is directed against order dated 19.11.2019 passed by the learned Additional District Judge, Sahiwal.
2. Brief facts of the case are that the Petitioners filed a suit against the Respondent for specific performance of oral agreement dated 1.9.2016 regarding land measuring 60 kanals 09 marlas comprised in Khewat No.233/230, Khatooni Nos. 810 to 813, situated in Chak No. 44/5-L, Tehsil and District Sahiwal (the "Land"). They contended that the Respondent was their paternal uncle. On 1.9.2016 at about 02:00 p.m. he agreed to sell the Land to them in consideration of Rs.48,00,000/- in the presence of Muhammad Ashiq son of Khan Muhammad and Muhammad Adnan Rameez son of Ali Asghar and out of that sum he received Rs.20,00,0 00/- upfront. The balance was payable in three installments. According to the Petitioners, in part performance of the contract the Respondent delivered them possession of the Land. They further submitted that they paid him Rs.12,00,000/- on 1.9.2017 and another Rs.12,00,000/- on 1.9.2018 and after arranging the remaining sum of Rs.400,000/- asked him to consummate the sale by mutating the Land in their names but he refused. The Petitioners claimed that they were entitled to specific performance of agreement and alongwith the plaint filed an application under Order XXXIX Rule 1 & 2 CPC seeking a temporary injunction restraining the Respondent from alienating the Land and interfering in their possession. The learned Civil Court dismissed that application in limine vide Order dated 25.9.2019 on the ground that the Petitioners had failed to establish a prima facie case in their favour . The Petitioners preferred an appeal there against which was dismissed by the learned Additional District Judge vide Order dated 19.11.2019.
Hence, this revision petition.
3. During the proceedings in the main case the Petitioners deposited Rs.400,000/- in the trial court which, according to them, they were obligated to pay under the agreement in question. On the other hand, the Respondent has filed his written statement and is contesting the suit tooth and nail.
4. The learned counsel for the Petitioners contended that the learned courts below had exercised their jurisdiction arbitrarily while declining the Petitioners' request of grant of temporary injunction. They did not consider the fact they had not only paid a huge sum of money to the Respondent but the latter had also delivered the possession of the Land to them in part performance of the oral sale agreement which they were cultivating. He argued that the Petitioners had a good case against the Respondent. If the Land was transferred during the pendency of the lis, it would create party interest which would cause irreparable loss to them. He maintained that the balance of convenience also tilted in their favour and prayed for acceptance of this petition.
5. The learned counsel for the Respondent controverted the above contention s and supported the impugned orders. He contended that the Respondent neither entered into any agreement with the Petitioners in respect of the Land nor received any sale consideration from them. He was in possession of the Land and never delivered it to the Petitioners. The plaint was a cock and bull story . There was no evidence to support the Petitioners' claim. He prayed for dismissal of this petition.
6. Arguments heard. Record perused.
7. Injunction, by its nature, is a preventive remedy . The purpose of temporary injunction is to maintain the status quo and prevent irreparable damage or preserve the subject-matter of the litigation until the trial is over. It is by now well settled that a court may grant temporary injunction in a case only if three conditions simultaneously exist: (i) the Plaintif f has a good prima facie case; (ii) he would suffer irreparable loss if temporary injunction is declined; and
(iii) the balance of convenience leans in his favour . However , the first condition is foundational and the court considers the other two if that is fulfilled. For this the court tentatively examines the pleadings of the parties, their affidavits, counter-af fidavits and the documents produced by them. In Chairman, Municipal Committee, Taxila v.
Mohammad Jan and 4 others ( 1987 CLC 2416 ), this Court held: "It has been repeatedly held that the discretion to grant temporary injunctions has not to be exercised as a matter of mere course but has to be regulated by the existence of a prima facie case in favour of an applicant and the likelihood of his having to suffer irreparable loss as also the balance of convenience but, as has been held in Aijaz Hussain Bhatti and another v. Haji Bagh Ali and 9 others (1985 CLC 261), where a prima facie case is not made out there no occasion arises for attending to the other two considerations which as has been held in Jamil Ahmad v. Provincial Government of West Pakistan and 4 others (PLD 1982 Lahore 49) really belong to one and the case category ."
The above view has been reiterated in Ghulam Muhammad v . Ashiq Hussain and 13 thers ( 2018 MLD 1449 ).
8. In the instant case, admittedly there is no written agreement between the parties. The Petitioners have yet to prove the validity of the alleged oral sale agreement dated 1.9.2016. In Paragraph-3 of the plaint they averred that the price of the Land was settled at Rs.48,00,000/- out of which they paid Rs.20,00 ,000/- to the Respondent upfront and then paid Rs.12,00,000/- on 1.9.2017 and another Rs.12,00,000/- on 1.9.2018. However , they have not produced any proof of the payment of such huge sums. In Muhammad Aslam v. Muhammad Khan and another (1999 SCMR 2267 ), the Hon'ble Supreme Court of Pakistan held that "oral agreement claimed by the appellant having been denied by the other side, there did not exist any prima facie case."
9. The available record reveals that Khewat No.230, (Salam Khata) consists of 120 kanals 17 marlas in which the Respondent and his brother Muhammad Boota were joint owners in equal proportion. Muhammad Boota has passed away and on the opening of his succession the Petitioners alongwith others have inherited his share vide Mutation No.1926. According to Khasra Girdawari, Ibrahim son of Ramzan, who is a tenant under the Respondent, is in cultivating possession of Killa Nos.1/2, 3/2, 7/2, 8/3, 11/2, 12, 13, 14/1, 19/3, 20/1 and 20/5 in Square No.6 in Khewat No.230, ibid. This falsifies the Petitioners' claim regarding delivery of possession of the Land to them.
10. There is no cavil that agreement to sell can be oral or in writing. However , in a suit for specific performance based on oral agreement when a party prays for temporary injunction the courts always ask for some evidence to show that such an agreement does exist. In the instant case, as already discussed, such evidence is missing.
In Muhammad Aslam v. Muhammad Khan and another (1999 SCMR 2267 ), the Hon'ble Supreme Court of Pakistan held that where existence of oral agreement is denied by the defendant there does not exist any prima facie case for grant of temporary injunction. In Ghulam Muhammad v. Ashiq Hussain and 13 others (2018 MLD 1449 ), this Court upheld the order of the Civil Court refusing temporary injunction on the ground that convincing and reliable evidence was required to be produced by the plaintif f to establish the alleged oral sale agreement. It was also held that temporary injunction could not be granted as a matter of cours e in cases where evidence was yet to be produced to establish a prima facie case. Similarly , in Muhammad Yousaf and another v. Ch. Tajammal Hussain and another (2019 CLC Note 38), this Court upheld dismissal of an application for interim injunction on the ground that existence of oral agreement was yet to be proved.
11. The learned counsel for the Petitioners has failed to point out any illegality , procedural irregularity or jurisdictional defect in the impugned order which may call for interference by this Court. I find no merit in this petition and dismissed the same.