1. ' This application is filed by the plaintiff for grant of injunction restraining the defendant from dispossessing or interfering with the peaceful possession of the plaintiff from building built upon 793 sq. Yards approximately on Plot No,RC-3/1 situated at the corner of Jamila Street, Nishtar Road, Karachi and from demanding or realising rent from the tenants of the building, or selling, transferring, creating any mortgage or interest in respect thereof or dealing with the affairs of the building in any manner till the final disposal of the case. The case of the plaintiff is that the defendant is the trustee of Bani Israil Trust of Karachi and in such capacity she has sold Magain Shalome Synagogue bearing plot number as stated hereinabove under agreement dated 13-7- 1988 for total consideration of rs45,00,000. According to the plaintiff she received rs500,000 as earnest money and for balance consideration four postdated cheques were issued. On the next day of execution of the agreement the plaintiff pulled down the building and started construction of a new building. Known as Madia Square. On remaining area of the plot a four-storeyed building was raised by one Anwar Ahmad Khan in accordance with the decree dated 3-11-1986 passed by this Court in suit No,1002/80. The said Anwar Ahmad Khan filed Suit No,571/88 and Suit No,322/88 apart from several other cases. Due to above litigation according to the plaintiff, he at the behest of the defendant signed a construction agreement dated 11-6-1988 which due to legal infirmity was superseded by another construction agreement dated 13-7-1988. According to the plaintiff he had to re-construct the Synagogue under the terms of the last agreement at the cost of rs20,00,000 and that he incurred a sum of rs400,000 on litigation and paid a sum of rs20,00,000 in cash to the defendant and it was agreed that the aforesaid amount of rs44,00,000 would be adjusted towards the sate consideration and for such reason, the four postdated cheques were not presented by the defendant for encashment.
2. According to the plaint when the cases initiated by Anwar Ahmad Khan were disposed of, the plaintiff at the behest of the defendant executed another agreement dated 16-12-1980 to enable the defendant to get the sale-deed registered in favour of the plaintiff. According to him in spite of the fact that he had handed over the possession of the Synagogue and two flats to the defendant she was not prepared to execute the sale-deed and that she started illegally demanding more money. The plaint states that the sale agreement was, executed, payment was made and other acts were done by the plaintiff through Mr. A.G. Shaikh Advocate and who had purchased the stamp paper and drafted sale agreement and both the parties signed t in his office. 'Whereafter the' said Advocate delivered photostat copy of the signed agreement to both the parties and kept the original with him. He demanded the original sale agreement from the said Advocate but it was not done. He has therefore, sought declaration, that he has become the owner of the property and plaintiff should specifically perform he contract. In the alternative he has prayed for a decree in the sum of rs79,00,000 with profit at 15% per annum. He has also prayed for decree in the sum of rs400,000 and perpetual injunction.
3. The defendant in her counter-affidavit has denied the averments with regard to the sale and receipt of sale consideration. According to her the trust property consists of two properties known as building No,1 and Building No,2. Building No,1 was given to Anwar Ahmad Khan and building No,2 to the plaintiff for raising construction. The plaintiff has to construct the shops on the ground floor, two halls and Synagogue on the first floor, at his own cost to be realised from pugree and after induction of the tenants, the plaintiff was to hand over the possession of the premises to the defendant. She has stated that she had full faith in Mr. A.G. Shaikh Advocate and she had signed agreement of sale dated 11-6-19 because of such faith in the said Advocate. She having come to know about the nature of the agreement protested against the same and consequently, immediately another agreement was executed on the same day. She has filed the copy of the other agreement dated 11-6-1988. In this agreement it is provided that the plaintiff will construct five-storeyed building. It was also agreed that as soon as the tenants are inducted in the building, they will become the tenants of Bani Israil Trut and the Trust will be entitled to recover rent.
4. Agreement dated 13-7-1988 was executed providing that the plaintiff would construct a Synagogue and two halls. The construction was to be completed within two years According to the defendant at the request of the plaintiff a third agreement dated 16-10-1988 was executed in which it was stated that the construction was delayed due to litigation and that the tenants were inducted in 75 shops and accordingly she would be entitled to recover rent from them. The possession of the first floor where Synagogue was constructed was also handed over to her. The plaintiff was allowed further six months time to complete the construction. The defendant has further stated that the plaintiff committed breach of the aforesaid agreement inasmuch as he did not disclose to her the names of the tenants inducted in the shops and flats in spite of her repeated requests. A notice was then served by her on the plaintiff. It is further stated that the plaintiff after handing over the possession of the first floor trespassed into the halls and started raising construction of flats therein. The defendant therefore, lodged a report with the police. The power of attorney given to the plaintiff was cancelled and that he is not entitled to raise any further construction. The defendant has denied having received any sale consideration or execution of any receipt with regard to payment of sale consideration.
5. She has stated that she does not intend to sell, transfer, dispose of, or create any charge on the said property and that the plaintiff has already handed over to her 125 shops on the ground floor, the first floor being a big hall. Lastly she has stated that the present suit has been filed in collusion with Mr. A.G. Shaikh Advocate. The defendant has filed C.M.A. No,3734/91 under Order 39, rule 4, C.P.C. For recalling the ad interim order passed on the application of the plaintiff. The plaintiff in his counter-affidavit filed in response to the said application, has also given the reply of the counter- affidavit filed by the defendant in reply to his application. Alongwith this counter affidavit- cumrejoinder the plaintiff filed eleven receipts of various dates showing payment of sale consideration out of which two receipts are in the sum of rs500,000, two in the sum of rs100,000, five receipts in the sum of rs200,000 and one in the sum of rs150,000 and one in the sum of rs3,00,000.
6. The total of the above amount comes to rs26,50,000. The defendant filed her affidavit-in-rejoinder in which she has termed the said receipts as forged ones.
7. ' I have heard Mr. Raja Shamsuzzaman for the plaintiff and Mr. Nazirullah Khan for the defendant.
8. ' The learned counsel for the plaintiff has contended that the subsequent agreement dated 11-6- 1988 which is for construction was executed because of the fact that contractor of the other building Anwar Ahmad Khan had started litigation. It is not understandable as to how the said Anwar Ahmad could have commenced litigation in between the time of execution of the said agreements, which were executed on the same day i.e. 11-6-1988. The reason advanced, on the face of it, is unbelievable. It is not the case of the plaintiff that after execution of the agreement of sale, he had commenced the construction work, whereupon the litigation was commenced and to face the said litigation, ante-dated agreement was executed. Even if, it is so assumed, there is no explanation as to in what manner the existence of the agreement had given cause of action to the said Anwar Ahmad, who was raising building No,1, under the contract agreement, and in case, the said agreement had given cause of action to the said Anwar Ahmad, what were the factors that reflected on the said cause of action by execution of contract agreement. Under the circumstances, the vague explanation offered by the plaintiff for execution of second agreement whereby the agreement of sale of the property was substituted does not appear to be convincing and satisfactory. On the contrary, the plea taken by the defendant that after signing the agreement, she came to know about the contents of the first agreement pertaining to the sale property, against which she protested as she did not intend to sell the property. Consequently, on the san, day another agreement was executed which is contract for construction of the building on the terms that the plaintiff would raise the construction for which he will realise pugree from the tenants and the defendant will be entitled to receive rent after induction of tenants by the plaintiff.
9. Both these agreements are typed on the same day. This agreement made between the parties under the subsequent agreement; is reaffirmed by subsequent agreements dated 13-7-1988 and 16-10-1990.
10. The defendant has denied the execution of the receipts filed by the plaintiff alongwith the plaint and she has termed the said receipts to be forged documents. All the said receipts are typed on a printed pro forma of receipts made for issuance to the tenants. The words "rent for' after the words "on account" have been concealed beneath the revenue stamp and the words 'sale consideration' have been typed in place thereof, particularly on the revenue stamps.
11. ' The plaintiff has stated in para 5 of the plaint that he constructed the synagogue at the cost of rs20,00,000, spent a sum of rs400,000 on litigation and paid rs20,00,000 in cash to the defendant.
12. The above amount of rs44,00,000 was agreed upon between the parties to be adjusted towards sale consideration. In the plaint, the plaintiff does not state that he obtained receipt or receipts for the cash amount paid 5y him to the defendant. However, he has produced eleven receipts alongwith his counter-affidavit-cum-rejoinder, which show total payment of rs26,50,000. This total does not tally with the figure alleged by him in the plaint to have been paid by him in cash to the plaintiff, although the payments made under these receipts have been shown to have been paid on account of sale consideration of the plot in question. These receipts are dated 11-6-1988, 22-6- 1988, 13-7-1988, 6-9-1988, 5-11-1988, 18-14989 and 23-7.1989, 22-10-1989, 4-2-1990 and 13-3-1990.
13. Thus the allegations made in the plaint are not in consonance with what is reflected by these receipts.
14. ' The agreement dated 11-6-1988 as already pointed out was reaffirmed by subsequent two agreements and further it is not disputed that such agreement was acted upon inasmuch as the possession of the shops was delivered by the plaintiff to the defendant after construction and induction of tenants as is reflected by the agreement dated 16-10-1990. It further states that some of the shops mentioned therein were not rented and on being rented out the defendant would execute the rent receipt to the tenants.
15. ' The plaintiff alongwith the plaint had annexed only one agreement and avoided to file the subsequent agreements and also the correspondence between the parties. The most important documents which he avoided to file were the alleged receipts that were filed by him subsequently alongwith the counter-affidavit-cum-affidavit-in-rejoinder, which reflects upon the bona fides of the plaintiff.
16. The plaintiff has failed to establish prima facie case in his favour with regard to sale of the property.
17. The defendant on the other hand by production of the documents, execution whereof"has not been denied by the plaintiff has prima facie established that the agreement was for the construction of the building against the right of the plaintiff to induct the tenants and charge pugree from them.
18. This agreement was acted upon and the plaintiff had handed over the possession of the constructed shops to the defendant after induction of tenets. At this stage to grant an injunction to the plaintiff restraining the defendant from demanding or realising the rent from the tenants would amount to change the existing circumstances. Since the rent is being realised by the defendant, if she is restrained, it would cause great hardship to her. On the other hand if the defendant continues to realise the rent, the plaintiff, if ultimately establishes his case, he can recover the said pecuniary loss and thus it cannot be said that the plaintiff will suffer irreparable loss. Balance of convenience therefore, also lies in favour of the defendant. The plaintiff is therefore, not entitled to grant of injunction. As the defendant has undertaken not to sell, transfer, or alienate the property, the injunction is granted only to the extent that the defendant will not sell or alienate the property in question.
19. ' The observations made hereinabove are tentative in nature and shall not prejudice the case of either party. It was for the above reasons that by short, order dated 9-10-1991, I had granted the application of the plaintiff to the extent that the defendant will not sell, transfer or alienate the property in any manner whatsoever.