1. ' This revision petition is directed against the judgment dated 29-8-1989 of the Vth Additional District Judge, Karachi East, allowing the appeal filed by the respondents Nos. 1 to 5 against the order dated 3-5-1989 of the lVth Senior Civil Judge, Karachi East.
2. ' The facts giving rise to the present petition are that the petitioner society filed a suit for declaration and permanent/mandatory injunction against the respondents. The case of the petitioner, as set out in the plaint, was that the petitioner society was registered on 4-3-1921 with the avowed objective of providing accommodation to the Catholic/Christian community at Karachi. For this purpose, the government had allocated land to the petitioner on a lease of 99 years and subsequent thereto the petitioner had given registered sub-lease to its sub-lessee members for a period of 99 years. The Society was formed decades ago predominantly for the purpose of accommodating members of the Catholic/Christian community, it became widely known as the Catholic Colony. To all intents and purposes, the public has come to know this Colony as one meant exclusively for the purpose of accommodating members of the Christian community. The Society was established for the members of Catholic Christian community and bye-laws of the Society provided that the membership could only be made eligible to this community which became a condition precedent to the grant of any sub-lease. It was only on account of the petitioner that the respondents Nos. 1 to 3 were able to get the land without paying price for the same and today they are obviously making huge profits at the expense of the petitioner Society. Hence the sale through this oblique, subterfuge/surreptitious manner is not binding on the petitioner.
3. ' It is the further case of the petitioner that the members of community have lived in the Society since long being bound by its environment, customs, practices, traditions that essentially envelope the same. The Society became symptomatic of and epitomized the cohesive tendencies of the Catholic community who have lived in peace and harmony within their traditional environment. It is the further case of the petitioner that this illegal act has become a great concern to the minority Christian community and the occupants therein. It is the further case of the petitioner that it has been one of the conditions whereupon the lessors viz. Karachi Metropolitan Corporation, had given lease to the petitioner Society that no part of the premises or any building constructed thereon shall be let to any person who is not a member of the Society. In fact, all actions taken by any member have to be within the aegis of the Society and all members arc bound by the bye-laws of the Society and the principal body that governed the members and their properties was the petitioner Society and all the members had attorned to abide by the directives, rules and bye-laws of the Society. In the same manner, the petitioner had given sub-lease to the members of its Society and one of the essential conditions that the sublease has been that the sub-lessee shall not transfer his or her plot in the Society to any person who is not a member and without the permissions of the Society. It is the further case of the petitioner that it was lately found that certain members of the Society in order to make money at the expense of the Society have deemed it convenient to flout the covenants of the lease as well as the conditions of the bye-laws whereby they have decided to sell their property to person who cannot be members of the Society. This has been done with a mala fide objective of making money at the expense of petitioner Society.
4. ' It is the further case of the petitioner that respondents Nos. 1 and 3 who are not residents of Karachi and in fact migrated to U.S.A., and respondent No, 2 who is residing in home for the handicapped, have recently through their attorney executed an irrevocable general power of attorney obviously followed by an agreement of sale, as is generally done under the practice of transferring of properties. Respondents Nos. 4 and 5 knowing fully well that they cannot purchase the property have surreptitiously entered into this type of a transaction to blatantly flout the bye- laws of the Society as the terms and conditions of the lease/sub-lease.
5. ' It is the case of the petitioner that the respondent Nos. 1 and 3, who are not at all present in Karachi, and who have apparently recover their shares of the sale price abroad with the connivance of respondents Nos. 4 and 5, have sold their property by giving an irrevocable general power of attorney. The Secretary of the petitioner's Society has issued a letter to respondent No, 4 with a copy to the Controller of Buildings, Karachi Development Authority, advising that the building plan for new construction on the plot should have been submitted to them for approval piror to any construction being made. It is the further case of the petitioner that the President and the Secretary of the petitioner had also visited the Controller of Buildings, K.D.A. Advising them that irregularities/illegalities were being committed and that the terms and conditions of the sub-lease were being wantonly violated. The Authority had advised the petitioner that the matter would be properly looked into. Apparently nothing has been done. It is the usual practice that no plan is approved by the Controller of Buildings unless it is channelled through the Society. There is a distinct departure from this established norm and practice and the petitioner is seriously aggrieved by this unusual action of the office of the Controller of the Buildings. The petitioner addressed a letter dated 22-11-1988 to Haji Suleman informing that the building plan should have been submitted to them for approval and also it was mentioned that Mrs. Daphne Mendonca has migrated to U.S.A. And that this power of attorney is a subterfuge. This action is a violation of the sub-lease and mala fides stand manifested. The aforesaid letter replied to vide letter dated 4-12- 1988 wherein an irrevocable general power of attorney made out by Mrs. Daphne Mendonca in favour of respondents Nos. 4 and 5 was enclosed, together with the copies of the buildings plans for the new construction. It is the further case of the petitioner that the petitioner is seriously aggrieved by the actions of the respondent No, 6 who has approved the construction plans despite the approach made by the petitioner and hence are being impleaded as respondents. It is the case of the petitioner that it is, therefore clear that in the guise of an irrevocable general power of attorney with an agreement of sale to support the same the sale transaction has been effected.
6. Apparently Mrs. Mendonca has come from U.S.A. To execute this document and has left again for U.S.A. And probably the purchase price stands transmitted to the sellers in the U.SA. The power of attorney should have been stamped ad valorem and its legal validity is questioned. That even otherwise respondents Nos. 1 and 3 have acquired American nationality having migrated to U.S.A. A foreigner cannot hold property without the approval of the Government of Sindh. The case of the petitioner was that the respondent Nos. 4 and 5 have gone with a demolition plan which would be followed by new construction on the property. The occupants of this new construction would be non-members of the society as the membership is restricted to the Catholic/Christian community.
7. Thus, the sub-lease as well as bye-laws of the Society would be violated. The respondents Nos. 4 and 5 would be achieving their ends in an indirect manner which they knew could not be done directly. All efforts made by the petitioner Society to prevail on respondents Nos. 4 and 5 that construction be made to accommodate Catholic/Christian community failed. The petitioner Society has been a haven exclusively for Catholic/Christian for decades and the respondents Nos. 1 and 3 have deliberately and with ulterior motives created conditions that would change the entity of the Society. Under these circumstances, the petitioner Society filed the above suit for declaration that the irrevocable general power of attorney is illegal and consequently for the cancellation of the same.
8. ' The petitioner also sought permanent injunction restraining the respondents Nos. 4 and 5 from, raising any construction on the plot in question. In the alternative a declaration and mandatory injunction sought that if any construction is raised, then such onstruction be used only for accommodation on leave or ownership basis of members of the Catholic/Christian who are eligible for membership of the Society at the reasonable prices acceptable to the petitioner Society.
9. ' Alongwith the plaint the petitioner moved an application under Order XXXIX Rules 1 and 2 C.P.C. For restraining the respondents Nos. 1 to 5 from raising any construction on the plot in question and also from selling out of the same to any non-member of the Society.
10. ' The respondents 1 to 5 contested the injunction applicant.
11. ' The learned trial Court after taking into consideration the arguments advanced by the learned counsel for the parties, allowed the application vide its impugned order dated 3-5-1989. The respondents Nos. 1 to 5 were restrained from raising any construction as well as from selling the same to any non-member of the Society till the disposal of the suit.
12. ' The respondents Nos. 1 to 5 went in appeal before the District Judge, Karachi East which was ultimately heard by the Vth Additional District Judge, Karachi East.
13. ' The learned Additional District Judge, taking into consideration of the arguments advanced by the learned counsel for the parties, allowed the appeal partly. He came to the conclusion that the learned trial Court was not justified in restraining the appellants/respondents Nos. 1 to 5 from raising construction over the plot and the impugned order was improper to that extent. In view of that, the appeal was partly allowed. It is advantageous to reproduce the conclusion portion of the judgment which reads as follows:-- "The appellants shall he at liberty to raise construction of the building according to the plan at their own risk and costs, however, as undertook by them they shall not sell or transfer the newly constructed building or any portion thereof to any non-member of the society or to a nonchristian."
14. ' The petitioner Society being aggrieved has filed the above revision petition.
15. ' I have heard Mr. R.F. Virjee, advocate in support of the revision petition and Mr. H.A. Rehmani learned counsel for respondents Nos. 1 to 5. Mr. Muslim Naqvi for respondent No,
7. I have gone through the impugned order and judgment of the Courts below. I have also perused the pleadings, applications, affidavits, counter-affidavits and re-joinder affidavits filed by the parties before that trial Court. I have also considered the following decisions cited by the learned counsel for the parties in support of their respective contentions:-- ' AIR 1980 Calcutta 140, PLD 1970 SC 181, 1989 CLC 1801, AIR 1933 Rangoon 18, AIR 1956 Bombay 476, AIR 1980 SC 892, AIR 1983 Gauhati 8, 1989 CLC 2178, 1988 CLC 362, AIR 1958 SC 789, AIR 1973 Bombay 148, AIR 1957 Bombay 94, 1985 SCMR 1928, PLD 1983 Karachi 11, PLD 1971 SC 481, 1982 CLC 416, PLD 1970 SC 139, PLD 1983 SC 53, 1980 SCMR 366, 1980 CLC 1873, PLD 1962 Karachi 59, (1968) 3 AER 545, PLD 1990 Karachi 1, 1982 CLC 1647, 1985 CLC 217, PLD 1959 Dacca 498, PLD 1973 AJ & K 62, 1988 CLC 362, AIR 1973 Delhi 143, 1989 SCMR 949, PLD 1971 SC 481, PLD 1983 Karachi 11, 1984 CLC 340, PLD 1970 SC 173, 1982 SCMR 542, 1986 CLC 770, PLD 1985 Lah. 498, AIR 1932 P C 158, AIR 1960 Assam 178, PLD 1960 Karachi 139, 1984 CLC 340 and PLD 1987 SC 447.
16. The principles guiding the grant of interlocutory injunctions are fairly well settled. The relief is both temporary and discretionary. Before a temporary injunction is granted, a Court must be satisfied that (1) the applicant has a prima A facie case (2) protection is necessary from the species of injuries known as irreparable, before legal right can be established, and (3) the mischief or inconvenience likely to arise from the withholding of injunction is greater than by granting it.
17. ' I proceed to examine the impugned order dated 3-5-1989, the relevant portion of which is contained at pages 4 and 5 thereof, which reads thus:- "The para mentioned above clearly shows that delendants Nos. 1 to 3 have given power to sale the property to any person who may be christian or not. And this is the violation of by-laws of society.
18. ' Above position shows that action of defendants Nos. 1 to 3 is against the means and object of the society. Therefore, in my humble opinion plaintiff has a prima facie case entitling them to grant of temporary injunction. The balance of convenience is also on the side of plaintiff and they will suffer irreparable loss if injunction is not granted."
19. ' This is all I find in the impugned order. He failed to consider the above three conditions for the grant of injunction. The question is whether the Court is bound to consider not only that the applicant has a prima facie case but also the other two ingredients/principles, which were set forth above.
20. ' In Syed Akhlaque Hussain v. Habib Ismail Bajwa, Advocate 1974 SCMR 504, it is stated that in order to obtain an interlocutory injunction, it is not enough for the plaintiff to show that he has a prima facie case. He must further show the following ingredients:--
(i) In the event of withholding the relief of temporary injunction he will suffer an irreparable injury.
(ii) In the event of his success in the suit in establishing his alleged legal right, the encroachment whereof is complained against, he will not have the proper remedy in being awarded adequate damages.
(iii) In taking into consideration the comparative mischief or inconveniences to the parties, thc balance of convenience is in his favour, in other words, that his inconvenience, in the event of withholding the relief of temporary injunction, in all events, exceed to that of the defendant in case he is restrained. This condition can, under circumstances be so adjusted as not to deprive either party of the benefits he is entitled to in the event it turns out that the party in whose favour the order is made shall be in the wrong, by imposing of terms on one party or the other as condition of either granting or withholding the injunction.
(iv) Lastly, the plaintiff must show a clear necessity for affording immediate protection of his alleged right or interest which would otherwise be seriously injured or impaired.
21. It is no doubt true that under Order XXXIX Rule 1 C.P.C., it is the discretion of the Court to issue or refuse an injunction and the appellate Court would not normally interfere in the exercise of the discretion. The discretion should however, like other cases of discretion vested in the Courts, have to he considered to be exercised in accordance with the reason and on sound judicial principles.
22. The grant of injunction is a serious matter and Courts should always take good care to grant an injunction in cases only where such an injunction is essential. In my opiniori, therefore, the learned Civil Judge has failed to exercise jurisdiction on, the question of well-established principle of. Law.
23. Thus, the appellate Court had the jurisdiction to interfere with the said order under its appellate jurisdiction.
24. ' Now I proceed to examine the impugned judgment dated 29-8-1989, the relevant portion of which is contained on page 4 which reads thus:-- "In absence of any restriction in the sub-lease or the bye-laws of the society, regarding re- construction of the building, it was not proper for the learned trial Court to impose such restriction particularly when no irreparable loss would be caused to the respondent's society by allowing the construction of the building. In case the society Succeeds in its suit, the appellant shall be directed by way of mandatory injunction to accommodate only the Christians in the light of the alternate prayer made in the suit. The balance of inconvenience will also be on the side of the appellants as they shall be put to great inconvenience in the event of the grant of the injunction."
25. ' Again at page 5 of the impugned judgment, it is mentioned as under:-- "Learned counsel for the appellants argued that the appellants had no intention to sell or transfer the newly constructed building or any portion thereof to any non-member of the society and in order to obviate any apprehension of the respondent No,1 he filed his undertaking in writing to the effect that pending disposal of the suit the appellants shall not sell or transfer the: new building or flats whereof to non-members of the society or to non-christian.
26. ' Learned counsel for the respondent No, 1 argued that the undertaking given by the learned advocate for the appellants was not acceptable to the society inasmuch as it would be difficult for the poor christians to purchase the flats in the newly constructed building, and therefore, according to him it would be in the interest of christian society at large that the plot was sold out to the respondent No,1 at the reasonable price. I am afraid, the contention of the learned counsel is devoid of any force inasmuch as the Court cannot be a party to compel the appellants to sell their property to the respondent No,1 at a cheap rate."
27. ' In that view of the matter the appellate Court allowed the appeal and passed the following order:- - "The appellants shall be at liberty to raise construction of the building according to the approved plan at their own risk and cost. However, as undertook by them, they shall not sell or transfer the newly constructed building or any portion thereof to any non-member of the society or to a non- christian."
28. ' Now I turn to consider whether on the facts and circumstances of the case, the learned Additional District Judge was justified in allowing the respondents Nos.1 to 5 to raise construction of the building according to the approved plan at their own risk and cost. I have already observed and quoted the relevant portion of the impugned judgment.
29. ' In the present case I proceed on the assumption that the petitioner society has made out, what according to its counsel, "a very strong prima facie case". The question that arises is as to the balance of convenience between the parties and the imminent and incompensatable disadvantage or some irreversible detriment that may result to the petitioner society by the denial of the relief. In this context it is not necessary for the Court to find a case for the petitioner society which would entitle it to relief at all events; but is quite sufficient if the Court finds that the case shows that there are substantial questions to be investigated and that the matter has to be preserved in status quo until the question can finally be disposed of. The consequences resulting from restraining the respondents Nos.1 to 5 from raising construction of the building according to the approved building plan at their own risks, proceed on the assumption that the power of attorney executed by respondents Nos.1 to 3 is illegal, the building plan was not routed through the petitioner Society, raising construction or constructions be used only for accommodating on lease or ownership basis only for members of the Catholic/Christian community who are eligible for membership of the petitioner society at reasonable prices acceptable to the petitioner society. To hold so, at this stage, and proceed on that assumption would, in my opinion, amount to pre- judging the matter. The House of Lords in ' American Cynamid Co. v. Ethicon Ltd. (1975) 2 WLR 316 = (1975) 1 AER 504 observed:-- "It is no part of the Court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law or call for detailed argument and mature considerations. These are matters to be dealt with at the trial. One of the reasons for the introduction of the practice of requiring an undertaking as to damages upon the grant of an interlocutory injunction was that "it aided the Court in doing that which was its great object, viz. Abstaining from expressing any opinion upon the merits of the case until the hearing."
30. ' In the above cited case, the House of Lords also emphatically negatived the existence of the supposed rule that the Court is not entitled to take any account of the balance of convenience unless it has been satisfied that if the case went to trial upon no other evidence than is before the Court at the hearing of the application, the plaintiff/petitioner would be entitled to judgment for a permanent injunction in the same terms as the interlocutory injunction sought. Again the words of Lords Diplock in American Cynamid Company case are as follows:-- "The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking damages if the uncertainty were resolved in the defendant's favour at the trial. The Court must weigh one need against another and determine where the balance of convenience" lies."
31. ' The learned Additional District Judge has rightly come to the conclusion that in absence of any restriction in the sub-lease or the bye-laws of the petitioner society regarding reconstruction of the building in accordance with the plan duly approved by the competent authority. The respondent No, 7 has no objection for the construction of the building in accordance with the approved plan permitted to construct the building at their own risks and costs. In that view of the matter they were allowed to construct at their own risks and costs. They undertook that they would not sell or transfer the new constructed building or any portion thereof to any non-member of the petitioner society or to a nonchristian/catholic. Therefore, the argument of Mr. Virjee that the learned Additional District Judge has taken into consideration some fats which were not borne out of the record, does not appeal to me in the least. Thus the Additional District Judge was justified in allowing the respondents Nos. 1 to 5 to raise construction at their own risks and costs. Therefore, the petition fails.
32. The question whether an order of temporary injunction should be or should not be granted always depends upon consideration of answers to the traditional questions relating to the existence of prima facie case and to the balance of convenience. Mere filing of an undertaking would not absolve the Court from considering the two vital answers to the traditional questions relating to the balance of convenience and the existence of a prima facie case. The Court has, therefore, to consider what the plaintiff/petitioner's prima facie case is and where the balance of convenience lies.
33. ' The respondents 1 to 3 are sub-lessees in respect of the plot in suit. This property cannot be made use of by the petitioner. In those circumstances, if the respondents 1 to 5 are permitted to construct on the basis of their unconditional undertaking to construct the building at their own risk and cost without insisting upon any equity in their favour in case the petitioner society succeeds in the suit, the petitioner society suffers no injury.
34. ' In the above circumstances of the case, the lower appellate Court would have been totally unjustified if it had granted an injunction against the respondents 1 to 5 and prevented them from constructing upon the land. It would have amounted to an unjustifiable invasion of the respondents 1 to 3's rights to use their property without an adverse finding as to their rights to property. In the nature of things, postponement of the grant of relief of injunction till the rights are fully established may work out in some cases grant and irreparable injury to a suitor. But on the other hand, indiscriminate and easy grant of temporary injunctions, without the ascertainment of facts, may injure the rights of respondents 1 to 3 by altering their existing rights without trial. The order of lower appellate Court suffers from no infirmity.
35. ' Thus, there is no merit in this revision petition and it is accordingly dismissed but in the circumstances of the case, there will be no orders as to costs.
36. Before I part with this case, I would like to make it clear that whatever observations made by the appellate Court and by me while 'disposing of this petition, should not affect in any way the disposal of the suit itself on merits. Whatever observations, I have made, are only for the purpose of examining whether it was a fit case for restraining the respondents Nos. 1 to 5 from raising any construction on the plot or not.