MUNIR A. SHEIKH, J.-The respondent No. 1 who claims to have entered into an agreement of sale in respect of property in dispute with Mst. Tallat Iftikhar Malik deceased, filed a suit for declaration that he was owner in possession of the property and for a decree for mandatory injunction against about any balance loan due against the original owner and a decree for mandatory injunction was also claimed against the present petitioner/defendants 2 to 7 to receive balance amount of the consideration remaining due after payment of loan to House Building Finance Corporation and also refrain from interfering in his possession.
2. The learned trial Court through order dated 21.10.1989, accepted the application of the respondent No. 1/plaintiff for issuance of temporary injunction during the pendency of suit regarding his possession. This order was challenged by the petitioners in appeal which has been dismissed by the learned lower appellate Court through order dated 21.10.1989 which has been assailed in this revision petition.
3. It was admitted by learned counsel fo the parties that petitioner No. 1 Mst. Munawwar Sultana is the mother of said Tallat Iftikhar the original owner whereas petitioners 2 to 6 and respondent No. 1/plaintiff are her real brothers. The house in dispute was mortgaged by Mst. Tallat Iftikhar deceased with the House Building Corporation in lieu of loan obtained by her. According to the case of respondent No.1/plaintiff Mst. Tallat Iftikhar Malik agreed to sell the said house to him for an amount of Rs. 6,00000.00 out of which an amount of Rs. 5,00000.00 had been paid to Mst. Tallat Iftikhar deceased and out of the remaining amount of Rs. 1,00000.00 the liability of the said loan towards House Building Corporation was to be discharged by the plaintiff. It was the case of the plaintiff that House Building Corporation should be directed to accept the repayment of the loan amount from the plaintiff.
4. The House Building Corporation filed written statement in which it contested the suit by raising objection that the said Corporation was not party to the agreement. It was not specifically averred by the plaintiff that possession of the house was delivered to him in part performance of the said agreement whereas it was stated in para No. 5 of the plaint in general terms i.e. (that the plaintiff is now in possession of the property). The question was whether the plaintiff could maintain prima facie a suit for injunction without seeking relief of specific performance of agreement. The House Building Corporation being not a party to the agreement was also a material question in order to ascertain whether the plaintiff had prima facie case in his favour. The question of balance of convenience and irreparable loss of course are also very material but a plaintiff in order to succeed in obtaining temporary injunction has to prove existence of prima facie case also in his favour. In view of the above circumstances that House Building Corporation was not agreeing to the alleged settlement between Mst. Tallat Iftikhar the original owner and the plaintiff and that plaintiff did not claim relief of specific performance of agreement it could not be held that he had prima facie case in his favour. The plaintiff in order to succeed in the suit has to cross these hurdles and at present could not be said to have a case for issuance of temporary injunction.
5. The two Courts below while passing the impugned order have ignored the rules laid down by superior Courts regarding principles for issuance of temporary injunction as such they have committed material irregularity and illegality in exercise of discretionary jurisdiction vested in them under the law.
6. This revision petition is accepted. The impugned orders passed by both the Courts below are set aside and the application filed by respondent No. 1 /plaintiff for issuance of temporary injunction is dismissed. The parties are left to bear their own costs.
7. It may be observed that if the respondent No.1/plaintiff files a suit for specific performance of agreement, he may seek temporary injunction by making application which shall be disposed of on its own merits in accordance with law uninfluenced by the observations made in this judgment.