1. ' NAIMUDDIN, J.--This mantra Court Appeal under the Law Reforms Ordinance, 1972, read with section 15 of Ordinance X of 1980, and Order XLIII, rule 15, C.P.C., is from the order of a learned Single Judge of this court on original side, dated 15-1-1983, whereby inter alia he vacated the ad interim order of injunction and dismissed the appellant's application under Order XXXIX, rules 1 and 2, C.P.C. and allowed respondent's application under Order XXXIX, r. 4, C.P.C. in the following circumstances.
2. ' The appellant has filed a suit in this Court on original side, being suit No,53 of 1982, praying for specific performance of oral agreement of sale of house bearing No,B-89, Allama lqbal ..,Town, North Nazimabad, Karachi and cancellation of the sale-deed registered on 31-3-1980, of the house executed by respondent No,1 in favour of respondent No,2 transferring the house to her.
3. ' The case of the appellant in brief is that the appellant was serving in Navy and the house was requisitioned for him but on retirement in 1979, under the direct agreement with respondent No,1, the appellant became the tenant of the house at a rental of Rs,800 per month.
4. ' The appellant claims that in 1977 he entered into the oral agreement of sale of the house with respondent No,1. The sale consideration was fixed at Rs,2,60,000 and pursuant to the agreement, he paid a sum of Rs,20,800 by cheque dated 11-12-1977, towards the sale consideration and later on by another cheque dated 19-2-1979, paid another sum of Rs,10,000. He further claims that he has carried out repairs, additions and improvement in the house at a cost of Rs,21,000.
5. ' However, it appears that the house was transferred by respondent No,1, to respondent No,2. After transfer, respondent No,2 served a notice dated 26-5-1980, under section 18 of the Sind Rented Premises Ordinance, 1979, informing the appellant about the transfer and requiring him to vacate the house as she required the same for her personal occupation.
6. ' The appellant replied to this notice. In paragraphs 1 to 8 whereof he has stated as follows:-- "(1) I had paid Mr. Bashir Ahmed Jhumra a sum of Rs,20,800 by A/C.payee cheque on 11-12-1977 and again on his insistence, Rs,10,000 by A/C payee cheque on 19-2-1979 by way of advance for the purchase of the said house in addition to the rent which was being paid regularly to him till May, 1979.
7. (2)As no repairs, alterations and additions were being done by the landlord, and in view of the fact that the deal to sell the house to me was settled, the landlord told me to carry out repairs, additions etc., according to my requirement and convenience as he was and had never been prepared to spend any money on the repairs accordingly, 1 carried out the following:--
(a) Iron grill was fitted to the big verandah as the thefts in the area were very frequent.
(b) Complete fly proofing of the house was done.
(c) All the iron grills and the shutters of the windows were scrubbed of rust, oiled and painted which was never done in almost 10 years of my occupation at that time.
(d) Geyser and separate Pipe Line for hot water was fitted.
(e) Mosaic Kitchen sink was replaced by metal sink, extensive plumbing job done, electric motor replaced sometimes in 1974, and day to day repairs carried out during the course of my stay are apart from the list repairs (recent) already intimated to the previous landlord.
8. ' Tube lights were fitted in the verandah.
(3) In April, 1979, I approached the landlord to finalize the deal of the house as I was ready to pay him the agreed amount of Rs, two lees sixty thousand less Rs,30,000 already paid as advance, but to my utter surprise, the landlord, who used to talk about the 'words' and 'word of honor' refused to go ahead with the deal, in spite of the fact that in the meantime and as late as February, 1979, he had demanded and received additional advance of Rs,10,000 by cheque dated 19th Feb., 1979.
(4) Consequently after having paid the rent up to 14th May, 1979, I asked him to deduct future rent from the advance already lying with him and thus the rent was being adjusted against the said advance of Rs,30,000. (Emphasis supplied):
(5) As your clients has purchased the house with effect from 31-3-1980, only Rs,8,000 out of the amount of Rs,30,000 could have been adjusted and the balance of Rs,22,000 is still outstanding against the landlord in addition to the latest repairs etc. to the tune of like amount of about Rs,21,500, excluding electric motor and other repairs,
(6) Since now your clients is the landlady according to para. 3 of the notice under reference, I am enclosing the cheque No,S326726, dated 9th June, 1980 for Rs,2,400 being the rental for April, May and June, 1980 and the same time would like you to confirm if you have received the amounts due to me from the previous landlord or not.
(7) Please note that I am making this payment under protest and without prejudice to my right to recover the same if the advance is not refunded by the previous landlord. In addition am also entitled to the sum Rs,21,500 that I spent on account of additions and alterations. (Emphasis supplied).
(8) Reference para 4 of the notice under reference, I have to say that:-'
(a) I am a retired government servant and am residing in the house legally and with the consent of the previous landlord since bang.
(b) I have no house or shelter to go to.
(c) The previous landlord still owes Rs,22,000 out of the advance paid to him and Rs,21,500 on account of additions[alterations. (Emphasis supplied).
(d) Your client never contacted me prior to entering into the purchase deal of the said house to ascertain as to what my status vis-a-vis landlord was and as to whether I was willing to vacate the house or not."
9. ' The petitioner however, enclosed with the reply, a cheque dated 9-6-1980, of Rs,2,400 being rent for the months of April to June, 1980.
10. ' Thereafter, it appears that Respondent No,2 filed a rent case in which eviction order was passed against the appellant which is the subject-matter of 1st Rent Appeal No,110 of 1982, pending in this Court and in which the order staying the operation of eviction order has been passed.
11. ' In dismissing the application under Order XXXIX, Rules 1 and 2, C.P.C., the learned Single Judge has observed that in order to succeed the appellant has first to dislodge respondent from the position she is entrenched in as a registered title hider to the property. He has further observed while considering the application he1 nothing to uproot respondent No,2 from the position which she occupies as a bona fide purchaser of the house in good faith without notice of previous sale and that so far as the question of possession is concerned, he found it difficult to persuade himself on the assertions made in the plaint read with the reply to the notice, paragraphs 1 to 8 whereof have been quoted above, appellant's possession could be protected at the expense of respondent No,2 who had made full payment and has a registered document of purchase in her favour, more so when that the personal requirement has found favour with the Controller.
12. ' On the question of balance of convenience, he observed though the findings of the Controller are not binding on him but he could not help feeling that to the extent of personal requirement and a genuine need of accommodation, respondent No,2 had succeeded in establishing the case before the competent authority and he could take judicial notice of these findings while determining the question of balance of convenience and relative injury to the two parties before him.
13. ' We have heard Mr.N.A.Faruqui, Advocate for appellant.
14. ' He submitted that the appellant could not prevent respondent .No,1 from transferring the property as the house was transferred to respondent "No,2 without any public notice.
15. ' However, the question for consideration is whether on the facts and circumstances of this case, learned Single Judge has exercised the discretion in vacating the ad interim injunction and dismissing the application for interim injunction properly or not.
16. Now, as regards the prima facie case it appears that the appellant has based his claim on an oral agreement of which he has not even mentioned date. He has merely stated in the plaint that "on or about in the month of December, 1977, the plaintiff entered into an oral agreement with the defendant No,l." He has however in support A of his claim relied on two cheques dated 11-12-1977 and dated 19-2-1979, for Rs,20,800 and Rs,10,000, respectively, which were encased by respondent No,1. but further he has not stated as to when or within what period sale was to be completed and what were the other terms as conditions of the alleged agreement of sale.
17. ' With regard to these two cheques the case of respondent No,1 in his written statement is that Rs,20,800 was paid as deposit and Rs,10,000 was paid towards the rent amount which was to be adjusted in rent and the same except some balance 'fad already been adjusted, which claim prima facie finds some support from the contents of paragraphs 4, 7 and 8 (c) of the letter quoted hereinbefore, and under-lined by us for emphasis.
18. ' The question whether these amounts were paid as alleged by the appellant or as alleged by respondent No,1 will have to be determined on evidence but we did ask the counsel for the appellant that if these two amounts were paid towards the sale consideration, did the appellant produce any rent receipt or cheques on account of payment of monthly rent from December, 1977 to the date of sale of the house to respondent No,2 but he could not point out any such receipt or cheque on the record of the appeal or the suit. Indeed respondent No,1 in his written statement envied that he entered into any other agreement and respondent No,2 in her written statement has claimed that the appellant waived/abundant his right in the alleged agreement for sale which plea prima facie finds support. We are therefore, of the view that the appellant has not been able to make out any prima facie case.
19. We agree with the learned Single Judge that on the facts and circumstances of this case, the balance of convenience is also not in the favour of the appellant.
20. We accordingly find no merits in this appeal and dismiss it in limine.
21. ' We may however, make it clear that any observations made herein are of tentative nature and the suit shall be decided after recording evidence on its own merits influenced by the observations made herein.