1. ' Application Nos. 505/82 and 881/82 filed by the plaintiffs and the defendants, respectively should be disposed of by this order.
2. ' The first is an application under Order XXXIX, rule 1 praying for an injunction against the defendants for restraining them from selling, mortgaging or transferring the property and for restraining them from interfering with the physical possession of the plaintiff in respect of the property bearing No,B-89, Allama lqbal Town, Block-W, North Nazimabad, Karachi. The other application No,881/82 is an application under Order XXXIX, rule 4 filed by the defendant No,2 praying for vacation of ad interim order of injunction issued against the defendants on 14th February, 1982. In order to appreciate the contentions of the parties it is necessary to briefly state the facts.
3. ' The plaintiff is a retired officer of the Pakistan Navy and he came to occupy the house No,B-89, Allama lqbal Town, Block-W, North Nazimabad, Karachi, as a tenant of the defendant No,1 who was the owner and landlord of the house at that time. The agreed rent of the premises was Rs,400 per month. The plaintiff started paying the rent to the defendant No,1. Later on, i.e, sometimes in 1975 the rents were revised and raised to Rs,800 per month. It is stated in the plaint that in December, 1977 the plaintiff entered into an oral agreement of purchase with the defendant No,1 for purchasing the house. According to the plaint the total consideration orally agreed was Rs,2,60,000.
4. It is further stated that on 11-12-1977 a sum of Rs,20,800 was paid by the Plaintiff to the defendant No,1 as part of consideration. Another sum of Rs,10,000 was also paid by the plaintiff to the defendant on 19th February, 1979. This was also as a part of consideration according to the plaintiff.
5. It is also stated that on the assumption that the laintiff was soon to become owner of this house he carried out reps ' ' and renovation of the house at a cost of Rs,21,000. Nothing happene till 26th May, 1980 when, according to the plaintiff he received a notice from defendant No,2 notifying that the property had been purchased by the defendant No,1 and calling upon the plaintiff to pay rents to the defendant No,2. In response to this notice the plaintiff wrote a letter, dated 9th June, 1980 enclosing a cheque in the sum of Rs,2,400 being the rent for the months of February, March and April. In this reply after narrating the story of agreement of purchase and payment of the two sums mentioned above the plaintiff also stated that he was let down by the defendant No,1 in not honoring his commitment. The plaintiff however appears to have reconciled himself to the changed situation. As this part of the notice in reply is vigorously argued against the plaintiff it is better to reproduce this part of the notice in extension:-- ' In April 1979, I approached the landlord to finalize the deal of the house as I was ready to pay him the agreement amount of Rs, two lacs sixty thousand less Rs,,30,000 already paid as advance but to my utter surprise, the landlord, who used to talk about the 'word' and 'word of honour' 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 February, 1979."
(4) Consequently, after having paid the rent up to 14th May, 1979, I asked him to deduct further rent from the advance already lying with him and thus the rent was being adjusted against the said advance of Rs,30,000."
6. ' Further in para. 8(a) and (c) the plaintiff has stated:- "(a) I am a retired government servant and am residing in the house legally and with the consent of the previous landlord since long.
(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."
7. ' Before I proceed further I may mention that Mr. Burney who argued the case of defendant No,2 stressed that the oral agreement, if any, stood rescinded and there is now no agreement to be enforced by way of specific performance. This is how the learned counsel interprets paras. 4 and 8(c) of the notice quoted above. Mr.Diwan Bashir Ahmed who appears for defendant No,1 supports this contention.
8. ' The amount of Rs,2,400 which was enclosed along with this letter was returned by the defendant No,2 to the plaintiff. On 23rd December, 1981 the defendant No,2 filed an application for ejectment against the plaintiff on the grounds of default in payment of rents as well as on the ground of personal requirement. The learned Rent Controller by his order, dated 23rd December, 1981 allowed this application and directed the plaintiff to hand over vacant possession of the premises to the defendant No,2. Against this order first appeal, being First Rent Appeal No,110/82 has been filed by the plaintiff which I am told has been admitted to regular hearing. An application for stay of ejectment was also moved along with this appeal. This came up for hearing in Court on 14-2-1982 and as no one was present for respondent/landlord an ad interim injunction was granted staying the ejectment of the plaintiff from the premises.
9. ' This suit for specific performances has been filed by the plaintiff praying for specific performance of the oral agreement of sale said to have been concluded sometimes in December, 1977 and the reliefs prayed in the suit are:-
(a) cancellation of the sale-deed registered with the Sub-Registrar, Karachi, Registration No,205 at page 77282 Vol.807 of the book, dated 3rd March, 1980 in the name of the defendant No,2.
(b) Judgment and decree for specific performance of the contract directing the defendants jointly and/or severally to execute arid register sale-deed in respect of property bearing No,B-89 Allama lqbal Town, Block 'W' North Nazimabad, Karachi.(3)
10. ' The plaintiff has also filed this application No,505/82 praying for restraining the defendant from selling, mortgaging or transferring the property and interfering with physical possession of the property of the plaintiff. As stated above the defendant No,2 who is armed with an ejectment order in his favour from the Rent Controller asserts that the plea of his personal requirement has been held to be genuine and an order of ejectment has been passed against the plaintiff and that this suit is r. it only misconceived but a deliberate and willful device to prolong the matter and to deprive him of the fruits of the decree of ejectment in the rent proceedings.
11. ' The two learned counsel have argued their case at great length. Actually they have advanced such exhaustive arguments which call for a final determination of the dispute. But as the evidence is yet to come it is proper to make a deep analysis of the contentions raised by them as observations made in this order may prejudice the cause of the parties at the time of hearing. It is well-known that at this stage the Court has only to see whether the plaintiff has succeeded in making out a prima facie case. In addition it is also to be seen in whose favour the balance of convenience lies and which of the parties would suffer an irreparable injury if the injunction is granted. Mr.Burney learned counsel for the defendant No,2 has argued that the house was purchased by the defendant No,2 for her personal requirement and the plea of personal requirement has found favor with the learned Rent Controller. He asserts that the continuance of the injunction is causing not only damage and inconvenience but grave hardship to the defendant who has no other alternate accommodation to live and who has paid full value of the house and has acquired a legal title by way of a registered sale-deed in her favour. Still he is willing to offer an undertaking to the effect that in the event of success of the plaintiff in the suit he would restore the possession of the house. That during the pendency of the suit he would not sell dispose of, part with possession or encumber the property in any way. Mr Burney states that at the present time there is not a word and not an iota of evidence to support the plea of a concluded agreement of sale and it is highly improbable that two payments of Rs,20,000 and Rs,,10,000 made by the plaintiff to the defendant No,1 on 11th December, 1977 and 19th February, 1979 were part of consideration under the so-called sale agreement. According to him the version of the defendant No,1 that this sum was paid as arrears and future rent is more probable. Lastly he contends that assuming for the sake of arguments that there was any such agreement the plaintiff himself agreed to the rescission of this agreement by the defendant No,1 as is evident from his own letter, dated 9-6-80 and his own conduct of continuing to pay rents to the new landlord defendant No,2. Mr.Nasim Farooqi, the learned counsel appearing for the plaintiff has argued that the very object of the suit would be defeated if possession of the premises is passed on to the defendant No,2 and the plaintiff is thrown out of the premises.
12. ' I have given anxious thoughts to the contentions of both the learned counsel and in my view the plaintiff's case boils down to this:- ' Cancellation of the registered sale-deed in favour of defendant No,2 and a decree for specific performance of the oral agreement of sale, in favour of the plaintiff. In other words the plaintiff will have to first dislodge the defendant No,2 from the firm position he is entrenched in as a Registered title holder to the property. Then he will have to implant himself as a purchaser on the basis of the oral agreement with defendant No,l. He may be able to do so. But he has to go a long way to achieve this objective. For the present there is nothing before me to uproot the defendant No,2 from the position which he occupies as a bona fide purchaser of the property in good faith without notice of the previous sale. To further safeguard the interest of the plaintiff there is an undertaking offered by the counsel for the defendant No, 2 that his client would not take any action prejudicial to the interest of the plaintiff during the pendency of the suit. So far as the question of possession is concerned I find it difficult to pursuade myself that on the assertions made in the plaint and read with the reply to the notice (Ax. 'C' to the plaint) plaintiff's possession should be protected at the expense of the defendant who has made full payment and has a registered document of purchase in her favour. Further, her plea of personal requirement has found favour before the Rent Controller, Karachi, where the questions now raised were examined and adjudicated. Though the findings of the Rent Controller are not binding on me but I cannot help feeling that to the extent of personal requirement and a genuine need of accommodation the defendant No,2 has succeeded in establishing the case before that competent forum and I can surely take judicial notice of those findings while determining the question of balance of convenience and relative injury to the two parties before me, ' Before parting with the case I may observe that the possession of the plaintiff is protected by the order of stay granted by the High Court in High Court Appeal No,110/82. It would be proper if both the learned counsels make an effort for hearing of this suit before the appeal is disposed of.
13. The result is that this application No,506/82 is dismissed. The ex parte order dated 14th February, 1982 is vacated. The other application No, 881/82 under Order XXIX rule 4 also stands disposed of in the above terms.