1. ' This application has been made on behalf of the plaintiff under Order XXXIX, Rules 1 and 2 read with section 151, C.P.C. For grant of injunction restraining the defendants from transferring, selling, surrendering or alienating plot of land with construction on the part of land bearing Survey No,3 (old Survey No,F-11/12) Sheet No,CL-8,/Civil Lines, Karachi, measuring 5,652 sq.Yds. Hereinafter referred to as the suit plot. Briefly the facts are that the plaintiff has filed the suit for specific performance, possession, declaration and permanent injunction or in the alternate claim for damages amounting to Rs,2 crores. The plaintiffs case is that the suit plot was owned by the defendant No,1 who are ' Trustees and that on 24-4-1989 the parties had entered into agreement of sale whereby the defendant No,1 agreed to sell the suit plot to the plaintiff for a total sum of Rs,2,13,69,000 and at the time of execution of the agreement a sum of Rs,21,36,900 was paid by the plaintiff to the defendants as earnest money while it was agreed that the balance of sale consideration will be paid by the plaintiff to the defendants before the execution and presentation of sale-deed for registration. It is further case of the plaintiff that the said plot was on a lease for 99 years from the K.M.C. With the defendants, the said lease had expired on 21-8-1981 and, therefore, the plaintiff had undertaken to pay the costs and expenses in respect of renewal of the lease and the defendant agreed to sign any such papers as may be necessary for the mutation of their names and for renewal of the lease in their favour. The plaintiff then claims to have approached the Karachi Municipal Corporation for renewal of the lease but they were informed that because of the present policy the Corporation had not yet decided to renew the old lease which was at that time under consideration. The plaintiff, however, claim that he had sent a duly typed affidavit and indemnity bond to the defendant No,2 for his signature as the same were required for the purposes of renewal of the lease but the defendants did not comply. Not only this it is further alleged that the defendants did not in any manner cooperate with the plaintiff for the purpose of renewal of the said lease from the Karachi Municipal Authority rather they cancelled the agreement and refunded the amount of advance received by them. This refunded amount of Rs,21,36,900 was invested by the plaintiff in Khas Deposit Certificates which according to the learned counsel for the plaintiff have been deposited in the Court.
2. ' As against this the defendants have filed their written statement and counter-affidavit. The defendants have pointed out that as per the sale agreement the period fixed for completion of the transaction and registration of sale-deed was 2 months from the date of the agreement and that was specifically mentioned in the agreement that the said period could be extended for not more than one month. The defendants have denied that the plaintiff have ever taken any effort for renewal of the lease or that he had sent the said typed affidavit and indemnity bond to the defendants for their signatures. The defendants have also urged that they waited for the plaintiff up to 31-12-1989 and then they cancelled the agreement and also refunded the earnest money received by them which the plaintiff not only received but invested the same in Khas Deposit Certificates in their own names. The case of the defendants further is that in view of this fact not only this application but the very suit of the plaintiff is to be dismissed.
3. ' I have perused the pleadings of the parties and the documents placed on record by them. It is necessary in order to ascertain if the plaintiff have any prima facie case in their favour. It may be observed that in case of Messrs Bawany Violin Textile Mills Ltd. v. Messrs Karachi Gas Co. Ltd.(PLD 1968 Kar 846) it has been held that while considering interlocutory application for injunction Court is permitted to evaluate the merits of case as disclosed in the plaint, affidavits of parties and documents or_ record with a view to ascertaining if "prima fade" case is made out for grant of injunction. A similar view was also taken in case of Hotel Metropole Ltd. v. Federation of Pakistan (PLD 1954 Sindh 61). It was further observed in the above-cited case of Sindh Chief Court that an injunction is never granted as of course or on consideration that it will do the defendant no harm or on ground merely that withholding the injunction would render the suit infructuous and without going into merits. It was also observed in this case that it is all the more necessary under the C.P.C.
4. To examine into the merits with some care because once a temporary injunction is granted it may take the case a very long time to come for hearing and to be decided. Keeping the above principle in mind I proceed to discuss the prima facie case of the parties as disclosed in their pleadings, affidavit and accompanying documents. The agreement of sale which was executed on 24-4-1988 is not denied. The terms and conditions of the agreement of sale are also not denied. However, the plaintiff has urged that the defendants did not comply with the conditions that they would assess and render or help to the plaintiff for getting the lease renewed from the Karachi Municipal Authority. Clause 4 of the agreement reads as under : "The purchaser being aware that the lease in respect of the property has expired on 21st August, 1981 undertakes at his own cost and expense to have the lease renewed in favour of the present trustees who agree to sign all such papers as may be necessary for mutation of their names and for renewal of the lease in their favour.
5. ' In support of case the plaintiff have also relied on the copies of the indemnity bond and affidavit placed on record as Annexures "C and C/1" to the plaint. These two documents show that the stamp papers were purchased on 29-6-1988. These are said to be duly typed documents sent to the defendants for their signatures as according to the plaintiff they were required by the Karachi Municipal Authority for the purposes of renewal of the lease. Mr. Ibrahim Peshori, learned counsel for the defendants has pointed out that these two documents were not sent to the defendants as he has pointed out that there is no covering letter sent alongwith these documents nor the plaintiff has brought any other documents on record to show that these documents were received by the defendants. According to the learned counsel for the defendants either these documents are prepared subsequently for the purpose of filing of the suit or if they were prepared on the date when the stamp paper is shown to have been purchased then the same were kept away by the plaintiff with themselves. Mr. Noorullah A. Manjee, learned counsel for the plaintiff has not been able to meet the contention of the defence counsel. Mr. Ibrahim Pishori has further referred to the letters of defendants written to the plaintiff through their Advocate on 9-8-1988 and 1-11-1988. The first letter shows that the defendants had approached the plaintiff showing that the three months' time allowed for completion of sale transaction had expired and they had not heard anything from the plaintiff about the completion of the said transaction. The other letter is in the form of a notice to the effect that in case the plaintiff failed to complete the sale after obtaining the renewal of the lease in their favour on or before 31-12-1988, the defendants will treat the agreement dated 24-4- 1988 as cancelled. To this reply was sent by the plaintiff vide their letter dated 17-12-1988 which is also placed on record. In this letter or in any other letter by the plaintiff they have not mentioned that they have sent the above-said indemnity bond and affidavit to the defendants for their signatures. Had the plaintiff done so as it is claimed by them and that is the case of the plaintiff to show that the renewal of the lease was being delayed as the defendants did not sign and return the said indemnity bond and affidavit then certainly the plaintiff would have said so in their letters addressed to the defendants. No such notice is shown to have ever been given by the plaintiff to the defendants. The defendants have further asserted in their written statement that they had on their own also been approaching the Karachi Municipal Authority for renewal of the lease but were never informed by the Karachi Municipal Authority that any such effort was made by the plaintiff also or that the documents as claimed by the plaintiff were required by the Karachi Municipal Authority in this behalf. The plaintiff have also not brought any documents on record or any correspondence with K.M.C. To support their claim that they have been making efforts for renewal of the lease.
6. Lastly it may be observed that the earnest money of Rs,21,36,900 was returned to the plaintiff by the defendants through a cheque No,20576155 dated 16-4-1989 drawn on Habib Bank Ltd. This cheque admittedly has been cashed by the plaintiff and the said amount invested in Khas Deposit Certificates on 31-5-1989. This prima facie amounts to acceptance of the refund of the earnest money. The amount invested in Khas Deposit Certificates is also in the name of the plaintiff although the plaintiff claim that the said Khas Deposit Certificates have been deposited in the Court. This would, however, show that the refund of earnest money stands accepted and utilized by the plaintiff. Under these circumstances the plaintiff do not appear to have any prima facie case in their favour.
7. It is a settled law the plaintiff to be entitled to grant of injunction has to show the three ingredients existing in their favour. The ingredients are that the plaintiff should have a prima facie case which means a arguable case and that the balance of convenience should also be shown to be in his favour and lastly that the plaintiff to be likely to suffer an irreparable loss. The above-said three ingredients should co-exist in order to entitle the plaintiff for grant of injunction . As it is observed above the plaintiff has no prima facie case, there appears no justification to grant injunction as prayed in the present suit. The injunction application is accordingly dismissed with no order as to costs.