1. ' This application under Order XXXIX, Rules 1_ and 2 read with section 151, C.P.C. Is filed by the plaintiffs for restraining the defendants from transferring, encumbering, mortgaging, leasing, completing the registration of the sale-deed, dated 6-4-1985 or disturbing Jibe possession of the plaintiffs or otherwise intermeddling with the property in suit viz. House/Bungalow No,17/87, Faran Housing Society measuring 1.116 square yards and building thereon. On 26-5-1985 the Court directed issuance of notice of the above application to the defendants. In the meanwhile status quo was to be maintained till 30-5-1985.
2. ' The plaintiffs have filed suit for specific performance of an oral agreement of sale. The case of the plaintiffs as set out in the plaint is that in early February, 1985 with efforts of defendant No,3 who is also attorney of defendant No,1, the price of the property was mutually settled between the plaintiff and the defendants Nos. 2 and 3, both attorneys of defendant No,1 at Rs,15,50,000 and they agreed to sell the said property to the plaintiff or his nominee. It was further agreed that further details for the execution of the sale-deed would be worked out in the beginning of March, 1985. In the beginning of March, 1985, a joint meeting wherein Mr. Parvez-ul-Haq Siddiqui, the plaintiff's soni and Mr. Haroon Dawood, Estate Agent and defendants Nos.2 and 3 was held in the Office of defendant No,3. Defendant No,2 produced original documents relating to the property. After the above-said meeting a public notice was published in the daily 'Dawn', dated 19-3-1985, with the consent of defendants Nos.2 and 3 inviting objections etc. Against the sale of the property. The defendant No,2 by his letter, dated 24-3-1985 advised that the defendant No,1 did not negotiate the sale of the house in question. On 13-4-1985 the plaintiffs through their Advocate replied the letter explaining therein the various steps taken by defendant No,1 for finalising the sale. On 30-4-1985 the plaintiffs received notice, dated 13-4-1985 from defendant No,4 through her attorneys, defendants 2 and 3, wherein it was asserted that the said property had been purchased by defendant No,4 and calling upon the plaintiff to vacate the said property in terms of section 14 of the Sind Rented Premises Ordinance, 1979. The plaintiff No,1, on inquiries, came to know that the deed of sale was presented for registration before the Sub-Registrar on 6-4-1985. Alongwith the suit the plaintiff filed an application under Order XXXIX, Rules 1 and 2, C.P.C. And affidavits of Mobinul Haq Siddiqui, Haroon Dawood and Pervazul Haq.Siddiqui. The defendants resisted the application.
3. ' The defendant No,3 filed counter-affidavit wherein he specifically denied contents of pares. 4, 5 and 6 of the plaint as false and incorrect and stated therein that there was no agreement to sell the property in question to the plaintiffs and denied that any terms and conditions were agreed or settled as to the consideration or otherwise through his efforts or that any meeting was held in his Office for that purpose. The defendant No,4 filed counter-affidavit on his behalf and as attorney of defendants 1 and 2, wherein he asserted that there had been no agreement for sale in respect of the property in suit with the plaintiffs in favour of either of them. The defendants Nos. 2 and/or 1 has at no point of time, agreed to sell the property to the plaintiffs. There is no part payment of the alleged imaginary consideration or any part performance of any nature of the so-called agreement of sale. The defendant No,4 stated therein that he is the lawful purchaser of the property for consideration paid in full and a valid deed of conveyance has been presented for registration. He also annexed the photo copies of the duly executed Conveyance Deed and the receipts of the presentation for registration are Annexed as Annexures D and D-2 the affidavit.
4. For the purposes of deciding this application, I have to ascertain that the plaintiffs have a good prima facie case. Whether the balance of convenience lies in favour of the grant of injunction ani whether the plaintiffs would suffer irreparable loss if injunction is refused.
5. ' Mr. A.A. Fazeel, the learned counsel for the plaintiffs has contended that the documentary evidence produced by the plaintiffs, specially the draft sale-deed clearly established a strong prima face case that the parties entered into a contract whereby the defendants 2 and 3 as attorneys of defendant No,1 agreed to sell the property in dispute to the plaintiffs for the stipulated consideration. It is accordingly contended by the learned counsel that in order to protect the interest of the plaintiffs, it is necessary to maintain the property in the suit in status quo. In order to establish balance of convenience in favour of the plaintiffs the learned counsel for the plaintiffs has urged that where in a case it is shown that a valid contract for sale of immovable property prima facie case exists between the parties, ancillary relief by way of injunction restraining transfer of the property is invariably granted. In support of his arguments he has placed reliance upon the case of Parveen Begum v. Muhammad Sarwar Khan PLD 1956 Kar. 521, 1981 CLC 453 and 1981 CLC 276.
6. ' Mr. Mansoor Ahmed Khan the learned counsel for the defendants has submitted that the draft sale-deed is a forged document and the signature of the defendant No,2 has been forged. His contention is that the defendant No,1 had at no time agreed to sell the property in suit to the plaintiffs, nor any terms and conditions were settled between the parties. He has further submitted that a duly executed deed of conveyance was presented for registration before the Sub-Registrar on 6-4-1985.
7. ' In Parveen Begum v. Muhammad Sarwar Khan, Mr. Inamullah, J. (as he then was) while considering the terms of receipt observed as follows:-- "Under the Contract Act, a 'contract' means 'an agreement enforceable by law'. Without going into the niceties of the differeance between the words 'agreement' and 'contract', the parties considering the tenor of the whole document may have used the word 'agreement' especially when it preceded the words' of sale' to mean to contract."
8. ' This brings me to the consideration of the rival version of the parties as regards the oral contract and the draft of sale-deed annexed by the plaintiffs. The learned counsel for the parties have addressed very elaborate arguments. At this stage the Court cannot give any finding as to whether the defendants 1, 2 and 3 agreed to sell the property in dispute. The defendants deny that there was any sale transaction. The defendants deny not only the execution of the draft sale-deed but deny the signature and submit that the document was forged one. The point is to be adjudicated upon at the trial of the suit and not at this stage. Since the defendants denied the oral contract as well as the execution of draft sale-deed, in this view prima facie the defendants never agreed to sell the property in dispute.
9. ' The other important question is of the balance of convenience. The subject of litigation is specific performance of the property in dispute. Mr. A.A. Fazeel the learned counsel for the plaintiffs has contended that the Sub-Registrar may be to restrained from registering the sale-deed. Learned counsel for the plaintiffs has fairly conceded that the document was already presented for registration. The obvious effect of the injunction order in the terms prayed for would be restrain the Sub-Registrar to stay the further proceeding. Clearly, therefore, through the injunction application the plaintiffs wanted the Court to create circumstance contrary to those that existed on the date of the suit namely the registration of the sale-deed to be stopped.
10. ' In the instant case prima fade the duly executed Deed of Conveyance was already presented for registration on 6-4-1985. The sale-deed executed between the defendants 1 and 4 on 6-4-1985, that is, before the date of institution of suit but will be registered subsequent to the institution of the suit, the question whether defendant No,4 is a real purchaser or the sale executed in his favour has to be investigated at the trial. The learned author of Whartons Law Laxicon, 14th Edition defines 'status quo' as 'the existing state of things at any given date". An interlocutory relief is granted normally to maintain status quo of the situation existing prior to the institution of the suit and not to B create a new situation which may be irretrievable or to establish a new state of things different from those which existed at the time the relief was sought. The same was not registered till the filing of this suit. Section 47 of the Registration Act provides that the transfer shall be effective from the date of instrument, that is, 6-4-1985. p Under section 54 of transfer of Property Act, 1882, the transaction in the case of sale is stated to be capable of being made only by a registration instrument.
11. Section 52(1)(a) of the Registration Act provides that the day, hour and place of presentation and the signature of every person presenting a document for registration shall be endorsed on every such document at the time of presentation. Clause (a) of subsection (1) of section 52 provides that a receipt of such document shall be given by the registration officer to the presenting the same and subject to the provisions contained in section 62, every document admitted to registration shall without unnecessary delay be copied in the book appropriated therefor according to the order of its admission. Section 62 of the Registration Act provies that when a document is presented for registration, under section 19, the translation shall be transcribed in the register of documents of the nature of the originial, and, together with the copy referred to in section 19, shall be filed in the registration Office. Subsection (2) provides that the endorsement and certificate mentioned in sections 59 and 60 shall be made on the original, and, for that the making of the copies and memorandum required by sections 57, 64 and 66, the translated shall be treated as if it were the original.
12. In Marghub Siddiqui v. Hamid Ahmed Khan and 2 others 1974 SCM R 519, the Hon'ble Supreme Court has emphasized the need in a case for grant of temporary injunction of consideration of question of balance of convenience or irreparable loss and observed that an injunction is not to be granted only on the basis that a prima facie case exists, but it is incumbent upon the Court to take into account the other questions. The dictum laid down in the above Supreme Court case and having regard to the facts and circumstances of the case as stated above, I am of the view that the balance of convenience in this case lies against the grant of temporary injunction as prayed for. In this view of the matter the defendant No,4 cannot be deprived of the same without final adjudication by this Court on the pleas raised by the plaintiffs in their plaint. Mr. Mansoor Ahmed Khan the learned counsel for the defendants has submitted that the defendants undertake not to alienate, transfer, encumber, mortgage the property in suit till the disposal of the suit. The undertaking which is made rule of this Court and breach thereof will be the breach of injunction.
13. In view of the above legal position it is not necessary to restrain the Registrar from completing the registration if there is no other impediment in completing the registration. However, in order to protect the interests of the plaintiffs it would be necessary, in my view, to put the defendant on terms.
14. ' In the result while refusing to grant the injunction as prayed, I would, however, restrain the defendant No,4 from transferring alienating, encumbering, mortgaging, leasing the property in dispute. The application is disposed of in the above terms. The status quo order issued earlier stands discharged and substituted as above.