1. ' This is an application moved on behalf of the plaintiff under Order XXXIX, rules 1 and 2, C.P.C. Read with section 151, C.P.C. With the prayer that the defendant be restrained from selling, transferring, conveying, encumbering, leasing or in any way alienating and/or parting with possession of property bearing Plot No,ST-1/15, Block No,15, Federal 'B' Area, Karachi and constructed building standing thereon, which is a hospital.
2. ' Briefly the facts are that the plaintiff had filed the present suit for declaration, injunction, possession and mesne profits against the defendant, who is his divorced wife and is a doctor by profession. The plaintiff's case is that he had married with the defendant in or about the year 1962 at Frankfurt, Germany, and that at the relevant time, the defendant was a Medical Graduate aged about 28 years. It is further the plaintiff's case that from his own resources and funds, he acquired the plot in suit with the intention to construct a hospital/clinic thereon in the memory of his late father Imam Ghulam Mohammad and wanted to create a Trust. The payment of cost of the land and the expenses over construction of the hospital named as "Imam Memorial Hospital" are alleged to have been incurred by the plaintiff although the plot was acquired in the name of the defendant. However, the relations between the parties are said to have become strained resulting in the ultimate separation and divorce in the year 1985 whereafter the defendant is said to have been continuing with the control and management of the said hospital but subsequently she made attempts to change the name of the hospital from "Imam Hospital" to "Razia Hospital" and, therefore, apprehending that the defendant may sell away or misappropriate the property the plaintiff has filed the present suit with the prayer that a declaration be granted that the plaintiff is the real, lawful and rightful owner of the plot in suit and the hospital constructed thereon while the defendant be declared to be only a Benami and ostensible owner. The plaintiff has also sought a decree for vacant physical possession of the above said property and a further direction to defendant for rendition of accounts of all incomes etc. With the suit, the above-said application was also moved on 22-6-1989.
3. ' The defendant filed her written statement and counter-affidavit on 13-21989 and 13-9-1989 respectively wherein she denied the plaintiff's claim. Her case is that she attained the Medical Graduation in the year 1956 and a Post-Graduate Diploma from Royal College of Obstetrics and Gynaecologist in the year 1961. Her case in nut-shell is given in Paragraphs 5 and 6 of her written statement, which reads as under:- "5. . That the contents of para 6 are denied and plaintiff put to strict proof. It is denied that the defendant was simply a Medical Graduate at the time of acquisition of plot or did not have any source of income as alleged. It is also denied that the defendant had no savings or assets and that the defendant's association with the hospital was merely to render `Services' in relation to the operation and functioning thereof as a Medical Graduate. The defendant as a post-graduate had specialised in gynaecology and obstetrics and allied subjects prior to her marriage with the plaintiff and had done paid job at various hospitals in the United Kingdom. Besides, she had quite lucrative private practice at Karachi apart from working part-time at the Holy Family Hospital. The defendant, after attending to the plaintiff and his children from previous marriage had more than enough time to earn through medical practice and set up the hospital due to denial of fulfilment of desire to have her own children. The Plaintiff who had concealed the fact of having undergone vasectomy at the time of marriage, has now suppressed and misstated the facts in an attempt to grab the defendant's property. In fact defendant had ample saving to buy land, construct hospital and install the machinery for the hospital from her own savings and earnings from her own private practice. The defendant at one stage secured bank loan to help plaintiff in his political aspirations and which loan was never repaid by plaintiff; and ultimately the defendant had to repay the said loan from her own resources.
6. That contents of para 7 are denied. In fact differences between the plaintiff and defendant arose when the plaintiff wanted to contract yet another marriage in the year 1976 which aggravated to a separation in 1982 when the plaintiff orally divorced the defendant who shifted to live at her hospital. After even an year's deliberations, the defendant reached the final decision to exercise her right of Talaq-e-Tafweez on or about 15-12-1983 and pronounced Talaq upon herself. With a view to cause further agony, the divorce proceedings were resisted by the plaintiff which were finally allowed in C.P. No, 90/84 on 20-9-1987. It is denied that the defendant was instigated to make a false claim. The plaintiff has been putting up self-contradictory claims. The name of the hospital was changed in 1986 and notice in this behalf was published in daily "Dawn" on 2-6-1986 to the full knowledge of plaintiff."
4. ' The plaintiff then filed his affidavit-in-rejoinder on 19-9-1990. The parties had filed documents alongwith the plaint and counter-affidavit.
5. ' I have heard Mr. Liaquat Merchant, the learned Advocate for the plaintiff and Mr. Khalid M. Ishaque, the learned counsel for the defendant. Mr. Liaquat Merchant, the learned counsel for the plaintiff has submitted that the contention of the plaintiff is that the plot in suit was purchased by plaintiff from his own funds and resources as contended by him in his plaint, whereas the defendant at that time was a mere medical graduate, who had only her limited salary she received from Holy Family Hospital, which could not be enough to pay for the said plot and a very huge sum of Rs,6,00,000 incurred on construction of the hospital. He has further submitted that the hospital was named as "Imam Hospital" in memory of the late father of the plaintiff; and that this hospital was to run on charitable basis and a trust was to be created. The learned counsel further submitted that the plaintiff has asserted in his plaint that for the purposes of the said hospital, the account was opened in National and Grindlays Bank in the name of "Ghulam Mohammad Imam Memorial Hospital" being Account No,9312. From the above facts, the learned counsel has submitted that it should be prima facie concluded that the transaction in suit was a Be Nami transaction; and that the plaintiff was the real owner of the plot in suit and the hospital. He has placed reliance on the case of Khan Imtiaz Ahmed Khan v. Islamic Republic of Pakistan (PLD 1983 FSC 28) wherein their Lordships were pleased to hold as under; "When the case comes before the Court and they are satisfied that in any particular case the transaction was Benami and the property was purchased by the person supplying the consideration thereof the Courts have always given the decree in favour of the plaintiff who has supplied the money and held the ostensible owner, to be only a trustee for the former. In view of this it is clear that the custom of Benami transactions is used not for enforcing it but only to draw a presumption whether the particular transaction is a genuine transaction or is not a genuine i,e.
6. Benami. They never allow it to prevail to the detriment of the person who is the real purchaser of the property. Customs of Benami transaction is thus not enforceable in Law."
7. ' He has also placed reliance on the case of Ismail Dada Adam Soomar v. Shorat Banoo (PLD 1960 Karachi 852). In this case A.S. Faruqui, J., (as he then was) held as under: "The doctrine of intended advancement in favour of the wife not being applicable in this country, there would be a resulting trust in favour of the husband who provided the purchase money in the absence of proof of contrary intention. The question whether a transfer in the name of the wife for which the consideration was paid by the husband is a benami transaction or amounts to a gift is always one of intention. And the intention to be determined is of the time when the transaction took place. The question which must be squarely answered is: Did the husband intend to make an absolute gift of the to the wife? In determining the true intention regard must naturally be had to the surrounding circumstances, and the subsequent conduct in so far as it is relevant to the understanding of the initial intention."
8. ' In the above case of Federal Shariat Court, the point involved was determination after the Court was satisfied that the transaction involved was a Benami transaction while in the latter case of this Court also, the basis taken into consideration were that the purchase money had been provided by the husband in absence of any proof contrary to the same. From the above discussion, it is necessary to examine the case from the angle as to whether the plaintiff prima facie, has brought any material on record to show if the purchase price was provided by him and for this purpose it would be necessary to examine the pleadings of the parties and material placed on record by the parties. Mr. Liaquat Merchant, the learned counsel for the plaintiff has submitted that it is not necessary at this stage to go into these details as the matter is still subject to evidence, which has to be brought on record by the parties and further that the findings on interlocutory applications are of tentative nature. No doubt the findings on such interlocutory applications are not conclusive findings but in order to decide an application for grant of injunction under Order XXXIX, rules 1 and 2, C.P.C. The Court has to see if the plaintiff has made out a prima facie case in his favour and in order to arrive at such finding, the Court can go into and examine the pleadings of the parties, affidavits of parties and documents placed on record. Reference can be made to the case of Messrs Bawany Violin Textile Mills Ltd v. Messrs Karachi Gas Co. Ltd. (PLD 1968 Karachi 846) wherein a learned Single Judge of this Court relying on an earlier decision on the case of Hotel Metropole v.
9. Federation of Pakistan (PLD 1954 Sind 61) has observed as under; "Before considering the merits of this application, in the light of the principles, it may be pointed out that there exists a common erroneous impression that while considering an interlocutory application for injunction the Court was not permitted to evaluate the merits of the plaintiff's case, as disclosed in the plaint, the affidavits of the parties and the documents filed on the record, with a view to ascertaining if a "prima facie" case had been made out for the grant of an injunction. It must be said that any such impression appears to be wholly misconceived."
10. ' The case of the learned counsel for the plaintiff is based on the documents showing that the hospital was named as "Imam Hospital" the parties had agreed in a statement filed in Const.
11. Petition No,90 of 1986 whereby it was agreed that the said hospital will be handed over to the trust to be established after the death of present defendant and lastly the two suits filed by different doctors against the present defendant.
12. ' Mr. Khalid M. Ishaque, the learned counsel for the defendant repelling the above submissions of the learned counsel for the plaintiff has argued that the defendant is a tax-payer who has her own independent earning; and that after having graduated in the year 1956, she had gone to U.K. Where she worked in different hospitals earning quite a substantial amount and ultimately having obtained the Post-Graduate Diploma she married with the present plaintiff and came back to Karachi, where she had her own lucrative independent practice in addition to her job with Holy Family Hospital. From this, the learned counsel for the defendant has submitted that the defendant had enough resources of her own to pay for the plot in suit and raise construction of the hospital.
13. He has further submitted that the documents produced by the defendant, specially the Possession Order and Lease Deed show that the plot was leased out and handed over to the defendant in her own name and also that the receipts of Excise and Taxation Department and Income-Tax Assessm ent orders show that the defendant had been paying all the taxes etc. He has also referred to the Wealth Statement of the defendant brought on record which show the hospital/clinic as her property, whereas an assessm ent order dated 4-5-1977 addressed to the present plaintiff very clearly shows that the plaintiff had shown a loan from the defendant amounting to Rs,1,03,504 only.
14. He has also referred to a Certificate by Muslim Commercial Bank showing the re-payment of loan amounting to Rs,2,42,042.53 during the period 1972 to 1984 by the present defendant. The learned counsel has further submitted that after having married with the plaintiff in 1962, the defendant had attained the name "Mrs. Razia Omer Imam" and it was for this reason and to get a boost to the political image of her husband that the hospital was named as "Imam Hospital".
15. ' I have carefully considered the above-said submissions of the learned counsel and the case-law as discussed above. The burden is on the plaintiff to show that he has a prima facie case existing in his favour to the effect that the transaction involved in the suit was a Benami transaction; and that the plaintiff was the real owner while the defendant was only ostensible owner. In order to substantiate the above, the plaintiff is required to show at least two facts; firstly, that the purchase price was paid by the plaintiff from out of his own resources; and that he had appropriated or had a control over the usufruct of the property in dispute. In the present case except the above said three grounds, the plaintiff has not been able to substantiate his contentions with any independent documentary evidence. He has not even filed statement of accounts from the Bank showing that the payment was made by him or that the account was opened in the name of the Trust as claimed by him. He has not filed such documents even with his affidavit-in-rejoinder filed at a later date. He has not filed his Income-Tax Returns or assessment orders to support his above contention. It is an admitted position that possession of the hospital is with the present defendant, who manages and exercises all the control over the same. As far as two suits filed by different doctors against the present defendant are concerned, the same are being ontested by the defendant and mere filing a suit against some body could not ipso facto disentitle the defendant from the rights claimed by other party. Even otherwise the provisions of Article 126 of Qanun-e- Shahadat, 1984 provided that in such cases, the burden is on the party alleging that the defendant is not the owner. The Article reads as under; "126. Burden of proof as to ownership. When the question is whether any person is owner of any thing of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner."
16. ' From the above discussion, it can safely be observed that the plaintiff has failed to show that he has a prima facie case in his favour. Now, in order to decide an application for grant of injunction, three ingredients have to be taken into consideration, i,e. Whether the plaintiff has a prima facie case in his favour' whether the balance of convenience is in his favour; and he is likely to suffer any irreparable loss. All these three ingredients have to be present. In the present case, such ingredients as discussed above, I am of the view that the plaintiff does not have any prima facie case in his favour as the entire material on record shows that the plot in suit and construction thereon stands in the name of the present defendant and she appears to have had enough resources from which the same could have been paid for including the Bank loans. In these circumstances, I am of the view that the plaintiff is not entitled for the grant of injunction as prayer for. Accordingly, this application is dismissed with no order as to costs.