' This is an application under Order 39, Rules 1 & 2, C.P.C. Filed by the plaintiff with the prayer that the defendant be restrained from selling, transferring or in any way creating third party interest in the suit property and dispossessing the plaintiff from the same pending disposal of the present suit.
Briefly the facts are that the plaintiff has filed this suit for specific performance of the contract with regard to residential premises on plot of land bearing No,C-14, situated in K.D.A.-I, Karachi, hereinafter referred to as the suit property of which the plaintiff is admittedly a tenant. According to the plaintiff an unregistered lease deed was executed on 5-7-1979 for a period of 2 years commencing from 1-8-1979 being renewable with mutual consent of the parties. The monthly rent was fixed at rate of Rs,2,500. It is further case of the plaintiff that such lease deed was being renewed every year and fresh lease agreement was being written showing the same rate of rent till the period expiring 31-7-1983. A fresh lease agreement i,e. 5th agreement was executed on 1-8- 1983 wherein the late of rent was enhanced to Rs,3,000 per month while the other terms and conditions were the same. Subsequently a 6th agreement was also executed at the same rate of Rs,3,000 per month which was effective from 1-8-1984. It is the case of the plaintiff that during this period and before executing the 6th lease agreement commencing from 1-8-1984, the defendant expressed his desire to sell the suit property to the plaintiff which offer was accepted by the plaintiff and the terms and conditions of sale were also settled relating to the price, mode of payment and period during which the sale was to be completed. Thereafter the 7th sale agreement was also executed on 1-7-1986 wherein the monthly rent was shown as Rs,3,000. However, amongst the terms and conditions of the agreement a covenant was included which reads as under:- "2. THE LESSEE AGREES AS UNDER:
(a) It is agreed verbally that the said property is to be purchased by the LESSEE and till that time the arrangement for the full payment is made, the LESSEE will keep on paying on a monthly basis @ Rs,3,000 only as mutually agreed."
' After this lease agreement 8th lease agreement was executed on 1-6-1987, also for the period of one year showing the rate of rent as Rs,3,000 per month. The above covenant which was included in the terms and conditions of 7th lease agreement was omitted from this 8th agreement.
According to the plaintiff he had also the sale agreement drawn up on the stamp paper in March 1986 and at the suggestion of defendant the price of Rs,9,00,000 instead of Rs,14,00,000 was shown in the agreement while the remaining amount of Rs,5,00,000 was to be paid in cash outside the sale agreement. This agreement was not approved by the defendant who changed his mind with regard to quantum of payment under hand and after making some alterations in the agreement sent the same back to the plaintiff to be drafted again. The plaintiff was then served with the legal notice by the defendant on 19-7-1988 asking for vacant possession of the property in suit which was duly replied by him and the plaintiff finally filed this suit. It is also the case of the plaintiff that in addition to monthly rent he had paid an excess amount of Rs,65,000 to the defendant which was to be treated as advance towards the sale price of the property in suit.
' The defendant has filed his written statement wherein he has denied the case of the plaintiff as made out in the plaint. It is, however, admitted by the defendant that the plaintiff had been a tenant in the property in suit and that at one stage an oral offer was made to the plaintiff for purchase of the suit property but as he was unable to comply with the defendant's conditions no agreement of sale was entered into. The defendant also denied the receipt of Rs,65,000 as alleged.
I have heard learned counsel for the parties. Mr. Ghulam Hussain Abbasi, learned counsel for the plaintiff has submitted that copy of the letter produced by the plaintiff alongwith the plaint as Annexure "G" shows that there was an offer by the defendant which was duly accepted by the plaintiff and, therefore, it amounts to a contract between the parties and the plaintiff can seek specific performance thereof. It would be advantageous to reproduce the contents of the letter "Annexure "G" which reads as under:- "September 29, 1984.
Mr. Zakaria Dada, C/o Dada Express, No,4, Court View, Opp. Assembly Bldg., Karachi.
RE: BUNGALOW NO,C-14 KDA SCHEME 1.
Dear Mr. Dada: ' This is to refer to the undersigned's discussion of June 26, 1984 and subsequently on July 29, 1984 wherein the following points were discussed for the sale of the above bungalow:- ' SALE PRICE Rs,14,00,000 PAYMENT FACILITY:
1. At the time of the sale agreement Rs,5,00,000.
2. Within three months i,e. By December 31, 1984 the entire balance will be paid i,e. Rs,9,00,000 WARRANTY:
1. In case the amount is not paid in the specified time, then @ Rs,4,000 per month will be paid as compensation for a maximum period of three months.
2. If the amount is still not paid within the three months' grace period, then the deposit of Rs,5,00,000 will be completely forfeited and the agreement will stand cancelled and terminated.
' If the above terms and conditions are agreeable, then please sign the duplicate of this letter in agreement. Thanking you. Yours faithfully, Sd/- (MANECK B. JAVAT)"
' As against this the learned counsel for the defendant has submitted that this letter is written by the defendant to the plaintiff which shows that this is mere offer and does not amount to the settlement of terms and conditions of the sale. A plain reading of this letter would of course show that the defendant had offered to sell the suit property for a total consideration of Rs,14,00,000 of which Rs,5,00,000 were to be paid at the time of execution of the sale agreement while the remaining amount was to be paid within 3 months i,e. By 31-12-1984. It was also stipulated in this offer that till such time the plaintiff will continue paying Rs,4,000 per month by way of compensation and it was also stipulated that after allowing the above grace period of 3 months, the advance amount of Rs,5,00,000 will be completely forfeited and the agreement shall stand cancelled and terminated. As against this the above-mentioned covenant which was included in the 7th agreement of lease shows that rent in that case was fixed at Rs,3,000 per month and it was verbally agreed that the plaintiff "would purchase" the property in suit. However, 8th agreement of lease shows that this covenant was omitted. It is also an admitted fact that there is no agreement of sale reduced in writing by the parties showing the definite terms and conditions of the sale.
These facts, on the contrary, show that on two occasions the defendant had offered the plaintiff the opportunity to purchase the property in suit but on both occasions the plaintiff had failed to agree to the terms and conditions offered by the defendant and, therefore, this cannot be treated as a contract between the parties. Mr. G.H. Abbasi, learned counsel for the plaintiff by referring to letter Annexure "G" and the covenant in the 7th agreement of lease has submitted that this amounts to a contract/agreement as defined under section 2(e) of the Contract Act which reads as under:- "2(e) Every promise and every set of promises, forming the consideration for each other, is an agreement."
' In the present case as is apparent from the above document i,e. The letter Annexure "C" and the 7th agreement of lease, it appears that there was an offer but there is nothing on record to show if said offer had been accepted and acted upon by the plaintiff as neither agreement of sale was executed nor any material has been produced by the plaintiff to show that he had paid the stipulated advance amount. The copy of the draft agreement of sale shows that the same was not accepted by the defendant as per the contents mentioned therein but he wanted some changes, particularly with regard to amount of consideration and mode of payment. From these facts and the fact that same covenant was not included in the 8th agreement of lease, it appears that the said offer was annulled by the defendant and was no more in the field. Rather it would appear from the 8th agreement of lease that even the plaintiff had agreed to continue as a tenant of the defendant. Learned counsel for the plaintiff has placed reliance on the case of Syed Mansoor Ahmad v. Mst. Maqbool Begum and others (1990 SCM R 1259). In my view the facts of the case referred by the learned counsel are different from the facts of the present case. As against this Mr. Khalid M. Ishaque, learned counsel for the defendant has pointed out that there is nothing on record to show that the plaintiff was put in possession of the property in suit under any agreement of sale. He has also pointed out that no steps were taken by the plaintiff for completion of the alleged transaction and thus he cannot claim any protection under section 53-A of the Transfer of Property Act. He has placed reliance on the case of Shamim Akhtar v. Muhammad Rasheed (PLD 1989 SC 575). Learned counsel for the defendant has also relied upon the case of Mst. Azeemun Nisa Begum v. All Muhammad (PLD 1990 SC 382). I have considered the submission of the learned counsel for the defendant also who has further pointed out that the present defendant had already filed the rent case before the Rent Controller for the property in dispute. It is the case of the plaintiff that he has paid a sum of Rs,65,000 by way of advance but there is nothing on record to substantiate the above contention of the plaintiff. The last agreement of lease (8th) which holds the field at present shows that the plaintiff was occupying the property in suit as a tenant and not as a purchaser under sale agreement. Under these circumstances I am of the view that the plaintiff has failed to make out a prima facie case. Of course a prima facie case would mean an arguable case but in order to show that the plaintiff has an arguable case the plaintiff has to demonstrate that prima facie he can raise a point which requires determination for which he has also to bring some material on record on the basis of which the same can be argued. Mere oral word of plaintiff, denied by the defendant would not give rise to such presumption unless supported by some material or till such time as evidence is brought on record.
Mr. G.H. Abbasi, learned counsel for the plaintiff has then raised a plea- that balance of convenience is also in favourable of the plaintiff. He has placed reliance on the case of Qamar Ali Shah v. Waryam and 3 others (1976 SCM R 393) and Karachi Development Authority through its Secretary v. Evacuee Trust Board through its Administrative Evacuee Trust Property at Karachi and 5 others (PLD 1984 Kar. 34). In the first case the Hon'ble Supreme Court was pleased to hold that the true criterion is to consider on which side the balance of inconvenience and not of convenience would lie in case interlocutory injunction is refused and the plaintiff's suit ultimately succeeds. It may further be observed that in the same case the Hon'ble Supreme Court had taken into consideration that the plaintiff was able to show, prima facie, the existence of right and its infringement. In the other case the learned Hon'ble Single Judge of this Court had observed that in case where there was a serious dispute relating to title it would be proper that the parties be ordered to maintain status quo. Mr. G.H. Abbasi, learned counsel for the plaintiff, has further pleaded that the plaintiff will also suffer a very heavy irreparable loss if injunction as prayed is not granted and he is ejected from the premises in dispute. No doubt it is also the inconvenience of the parties which is to be taken into consideration in case the party who may ultimately succeed in the case if the injunction as prayed for by the plaintiff is declined. It is to be seen whether he would suffer a greater inconvenience than the other side if ultimate result is that the suit is decided in favour of that other side. The principles governing the grant of injunction pending disposal of the suit are that the plaintiff ought to show the three ingredients to be present in his favour. These are:-
(i) He should have prima facie case in his favour;
(ii) The balance of convenience should also be in his favour; and
(iii) There be a likelihood of his suffering irreparable loss. All these three ingredients should co-exist in favour of the plaintiff in order to make him entitled to grant of interim injunction.
In the present case it is also pointed out that the defendant has already filed a rent case for ejectment of the plaintiff before the competent Court. The said Court of Rent Controller has the jurisdiction to proceed with the case and by virtue of provisions of section 56(a) of the Specific Relief Act no injunction can be granted restraining judicial proceedings pending in a competent Court of law. In the present case the prayer for injunction to the extent that the defendant be restrained from dispossessing the plaintiff cannot possibly be granted in view of the pendency of the rent case. Under these circumstances, I am of the view that the plaintiff has failed to make out the case for grant of injunction as prayed. The application is accordingly dismissed with no order as j to costs.