ROZI KHAN BARRECH, J. The petitioner had filed a suit for declaration, specific performance of agreement/iqrarnama dated 05.02.2017 and permanent injunction along with an application under Order XXXIX, Rules 1 and 2, C.P.C. read with section 151, C.P.C. before learned Senior Civil Judge-IV, Quetta ("the trial Court") seeking the following relief: "It is, therefore, respectfully prayed that pending disposal of suit the respondent may kindly be restrained from cancelling the allotment, transferring, alienating and creating any kind of third party interest with respect to plots in question till final disposal of the suit, with any other relief in the interest of justice."
3.(sic) The respondents resisted the suit along with an application under Order XXXIX, Rules 1 and 2, C.P.C. read with section 151, C.P.C. While submitting his written statement, he controverted the assertions contained in the plaint.
4. After hearing arguments on the application under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. of the learned counsel for the parties, the trial court dismissed the application of the petitioner on 22.12.2021. ("impugned order") and the appeal so filed by the petitioner was also dismissed by learned Additional District Judge-IV, Quetta ("the appellate Court") vide order dated 25.04.2021. Both the orders of fora below are impugned through this petition.
Despite repeated calls, there is no appearance on behalf of the parties.
In such circumstances, I am left with no other option except to decide the matter on the basis of material available on record.
5. The trial court, as well as the appellate court, have dismissed the application of the appellant seeking a grant of temporary injunction. Temporary injunction, by its nature, is a preventive remedy with the object of maintaining the status quo and prevent irreparable damage or preserve the subject matter of the litigation until the trial is concluded. In order to succeed in obtaining a temporary injunction in a case, a plaintiff has to establish the co-existence of three conditions/ingredients, i.e., (i) prima facie case; (ii) possibility of suffering an irreparable loss if temporary injunction is declined; and (iii) the balance of convenience leans in his favour of the above referred three conditions, the existence of prima facie case is foundational, and the other two conditions are considered once the plaintiff establishes a prima facie case in his favour.
6. The words 'prima facie' means 'at first sight' or 'on first impression'. Therefore, the existence of the right of the plaintiff is to be adjudicated or the first sight on comparative consideration of the pleadings of the parties. The Court has to form its opinion as to who has a better case after tentatively analyzing the rival contention of the parties as contained in their pleadings. If the Court is satisfied that the case of the plaintiff is on a better footing, and on the conclusion of the trial, relief may be granted to him in all likelihoods, then the Court can infer that the plaintiff has a prima facie case. To ascertain whether a plaintiff has a prima facie case, the Court tentatively examines not only the pleadings of the parties but their affidavits, counter-affidavits, and the documents appended with the plaint and the written statement.
7. Having observed so, it is imperative to analyze the factual matrix of the instant case. The petitioner instituted the suit for specific performance on the basis of the agreement dated 5.02.2017 with the contention that the respondent launched a Housing Scheme with a name and style of Kasi Behria Town in the year 2016 situated at Mohal and Mouza Mehtarzai, Tappa Baleli, Tehsil Saddar, District Quetta; that the petitioner purchased Plots Nos. D257 and D259 measuring 2400 sq ft from the respondent at the total consideration amount of Rs.8,00,000/- on a monthly installment basis, out of which the petitioner had paid the advance amount of Rs.40,000/- and the monthly installments were fixed as Rs.10,000/- per month. The petitioner and respondent entered into an agreement dated 5.2.2017 under certain terms and conditions at the office of the respondent. It is further averred in the plaint that after the execution of the sale agreement, the petitioner remained vigilant in tendering monthly installments of the plots in question up to December 2019, but the respondent declined to receive the due installment in lieu of shops in question for the month of January 2020. The petitioner repeatedly approached the respondent for submission of monthly installments of the plots in question, but the respondent, on one pretext or another delayed the matter, and finally, the respondent called the petitioner with the intimation that since the respondent has procured the NOC from QDA and demanded enhanced rate of plots in question more than double of agreed rate with direction to reduce into writing new agreement and in case of failure that he will cancel the allotment of plots in question and will allot the same plots to some other person on the enhanced rate which act of the respondent is illegal and mount to departure from validly executed agreement dated 5.2.2017.
8. On the other hand, the respondent took the stance that since the petitioner, as per clause-2 of the agreement dated 5.02.2017, has badly and failed to perform the part of the agreement, which resulted that the petitioner after, execution of the agreement failed to deposit monthly installment despite publication in December 2019, which resulted in cancellation of allotment of the petitioner.
9. At this stage, for the purpose of establishing a prima facie case, it certainly belies all logic that a huge amount was paid by the plaintiff/petitioner in respect of the plots in question in favour of the respondent.
10. The petitioner has purchased Plots No. D257 and D259 measuring 2400 sq ft from the respondent at the total consideration amount of Rs. 8,00,000/- on a monthly installment basis, out of which the petitioner had paid the advance amount of Rs. 40,000/- and the monthly installments were fixed as Rs. 10,000/- per month. Until December 2019, the petitioner had paid Rs. 10,000/- per month, which becomes around Rs. 3,80,000/-, which becomes more than 50% of the total amount of the plot in question.
11. Both the courts below, while passing the impugned orders, have lost sight of the above factual background and the principles of a grant of injunction. The petitioner is having a good prima facie case.
12. The balance of convenience lies in favour of the petitioner, and if the respondent further allotted the plots in question to the third property, irreparable loss will be caused to the petitioner, and it would avoid multiplicity of suits or inclusion of strangers to the suit property.
13. I find that there was no justification before the fora below to reject the request of the petitioner for a grant of ad-interim injunction, as prima facie, the petitioner has made out a case in his favour. Resultantly, the impugned orders dated 22.12.2021 passed by the trial Court and 25.04.2022 passed by the appellate Court are hereby set aside, and the application so filed by the petitioner under Order XXXIX, Rules 1 and 2, C.P.C. is allowed. The respondent is directed not to create any third-party interest in the suit property till the disposal of the main suit.