' The facts of the case are that one Fakir Muhammad owned seven acres of land in Trans-Lyari Quarters, Karachi (now a part of B/1 Area of Liaquatabad) which was later on divided into 236 residential plots. All these plots were in 1966 purchased by Khawaja Muhammad Yousuf through various registered sale-deeds. However, mutation of only some of the plots was entered into the name of Khawaja Muhammad Yousuf and the rest of the plots continued to be in the name of Fakir Muhammad. Sometime after 1966, Government and K.M.C. challenged the title of Fakir Muhammad whereupon Khawaja Muhammad Yousuf, as successor-in-interest of Fakir Muhammad, instituted Civil Suit No,331 of 1978 (new number 229 of 1988) against the Government of Sindh and the K.M.C.
During the pendency of the suit, late Khawaja Muhammad Yousuf appointed plaintiff No,1 his attorney on 4-4-1985 and they entered into an agreement whereby plaintiff was to receive some share of profits in the future sale of the plots. However, later on in the same year, the late Khawaja sold all the plots to the two plaintiffs for a sum of Rs,45 lakh out of which Rs, two lakh were paid outright and an agreement of sale was executed between them on 2-10-1986 stipulating the payment of the balance of the sale-price in various instalments and the dates of payment of the instalments were given in the agreement. The plaintiffs, however, defaulted in the payment of instalments whereupon late Khawaja served him with notice on 15-4-1987 for cancellation of agreement but did not act upon it for nearly two years and eventually withdrew it on 28-3-1989. In the intervening period the Khawaja received some unspecified amounts from the plaintiffs and a week after the abovenoted last date, another sum of Rs,20 thousand was paid by the plaintiffs.
Eventually, the suit of Khawaja Muhammad Yousuf was decreed on 11-4-1990. Immediately thereafter (on 13-4-1990) Khawaja Muhammad Yousuf cancelled the Power of Attorney and the sale-agreement. Only the K.M.C. (defendant No, 9) filed appeal against the judgment and decree dated 11-4-1990. On 1st January 1991 Khawaja Muhammad Yousuf expired and was succeeded by defendants Nos.1 to 8 and 10 as his legal heirs. On 9-10-1991, these defendants and the K.M.C. reached a settlement out of the Court whereunder the K.M.C. recognised the title of Khawaja Muhammad Yousuf and his legal heirs and defendants Nos.1 to 8 and 10 exchanged this land with some other land admeasuring 8 acres 32 Ghuntas on Manghopir Road and thereafter the K.M.C.
(defendant No,9) withdrew appeal on 15-10-1991. The plaintiffs claim that they were in possession of the land till 3041-1991 when the K.M.C. dispossessed them.
2. In this suit the plaintiffs seek a declaration as to their title on the basis of the agreement of sale dated 2-10-1986 and they seek another declaration that the transaction of exchange between defendants Nos.1 to 8 and 10 on one hand and defendant No,9 on the other is void. They also seek a mandatory injunction against defendant No,9 for restoration of possession of the Liaquatabad land. In the alternative, the plaintiffs seek a mandatory injunction directing them (including the K.M.C.) to give to the plaintiffs alternate land of equivalent value and, as a third alternate, they seek payment of damages and compensation equivalent to the value of land "at that time". The interpretation of the phrase in the inverted commas in the preceding sentence is left for further interpretation.
3. Through C.MA. No,6595 of 1991, which is under Order 39, rules 1 and 2 C.P.C., the plaintiffs seek a temporary injunction restraining defendant No,9 K.M.C. from raising any construction over the Liaquatabad land till the disposal of the suit. Through C.MA. No,164 of 1992 the plaintiffs seek a temporary injunction till the decision of the suit restraining defendants Nos.1 to 8 and 10 from disposing of the land obtained by them in exchange on Manghopir Road.
4. Defendants Nos.1 to 8 and 10 have already filed their written statement in which they admit the execution of the sale agreement of 2-10-1986 but maintain that the agreement stood frustrated due to the default on the part of the plaintiffs in paying the instalments of the balance of the sale price. The same stand is taken by them in their counter-affidavit to C.MA. No,164 of 1992.
5. Defendant No,9 (K.M.C.) has not so far filed written statement but in its counter-affidavit to C.MA.
No'.6595 of 1991, it states that it has nothing to do with the dispute between the plaintiffs and defendants Nos.1 to 8 and 10. According to it, it required the Liaquatabad land for constructing a stadium and the fencing of the land had already been done and the construction of the stadium itself was shortly to be taken up but the land was alreay being used by the youngsters as a playground. On the basis of these facts the K.M.C. contested C.MA. No,6595 of 1991.
6. Learned counsel of the parties have been heard. I shall separately take up the two applications.
C.M.A. No,6595 of 1991
7. Liaquatabad is a very thickly populated area and there is sufficient evidence on record to show that since mid-seventees the K.M.C. was trying to acquire the suit land. That is why late Khawaja Muhammad Yousuf had instituted Suit No,331 of 1978 against K.M.C. and the Provincial Government.
On 8-12-1991 District Judge, Karachi Central had visited the site and had found that part of the compound wall had been erected and the rest of it was under construction. Subsequently, on the filing of this suit the Nazir was commissioned to visit the site and make up to date report which the Deputy Nazir did on 25th January 1992. According to his report, three-fourth of the boundary wall was complete and the remaining one-fourth was partially built to the height of one feet. No construction was being done at the time of site inspection. Part of the ground was uneven and not levelled and on the remaining portion youngsters were playing cricket on a cemented pitch.
8. It is an admitted position that the K.M.C. obtained this land from its rightful owners after giving them a larger piece of land in exchange. Notwithstanding the sale-agreement between the plaintiffs and deceased Khawaja Muhammad Yousuf, the latter continued to be the recorded owner of the land. He alone filed the suit and pursued it, albeit through plaintiff No,1 as his attorney, and even during the pendency of the appeal, he, and after his death his legal heirs, alone pursued the appeal. The plaintiffs never got themselves impleaded in the suit after the execution of the sale-agreement, dobviously because the agreement did not confer any title on them. As such, the K.M.C. appears to have bona fide settled its dispute with the heirs of late Khawaja Muhammad Yousuf. As such, the plaintiffs do not appear to have any prima facie case to contest the title of K.M.C. Besides, the K.M.C. intends to utilise the land for the construction of a mini-stadium and it cannot be denied that this work is in the interest of the society as a whole. As such, the plaintiffs have neither any prima facie case against the K.M.C. nor the balance of convenience is in their favour. I am therefore not inclined to restrain the K.M.C. from going ahead with the construction of the mini-stadium on the Liaquatabad land. I would therefore reject C.M.A. No,6595 of 1991.
C.M.A. No,164 of 1992
9. Through this application the plaintiffs desire that defendants Nos.1 to 8 and 10 be restrained from in any way alienating the land obtained by them on Manghopir Road in exchange of the suit land.
In their counter-affidavit defendants Nos. 1 to 8 and 10 state that they have already entered into an agreement of sale of their land with Syed Sultan Ahmed and Wazir Ahmed on 10th October, 1991. It is difficult to believe this for two reasons. First, the Agreement of Exchange of land between defendants Nos. 1 to 8 and 10 with K.M.C. (Annexure to the plaint) was executed on 9th October, so, how could they have further sold it the very next day? Second, the sale-agreements have not even been filed in Court nor defendants Nos.1 to 8 and 10 have taken steps to implead these two persons in the suit.
10. As for prima facie nature of the claim of the plaintiffs, clauses 2(b) to 2(e) of the agreement of sale (Annexure 'D' to the plaint) provided the following mode of payment: "2(b) That during the month of November 1986 the vendees shall pay Rs,2,00,000 (Rupees two hundred thousand only) to the vendor.
2(c) That during the month of June, 1987 the vendees shall pay Rs,5,00,000 (Rupees five hundred thousand only) to the vendor.
2(d) That during the month of September, 1987, the vendees shall pay Rs,10,00,000 (Rupees ten hundred thousand only) to the vendor.
2(e) That during the month of March 1988 or before the vendees shall pay Rs,25,00,000 (Rupees twenty-live hundred thousand only) to the vendor as final payment before the Registrar of Karachi, after the registration of sale-deeds of all plots, which covers the area of 22000 sq. yds."
' Admittedly none of these instalments has been paid and this attracts clause 2(f) of the agreement which is reproduced below "2(f) That if the payments of the consideration amount are not paid as per specified period, the agreement shall be invalid."
It would thus appear that the agreement became invalid or came to an end and stood revoked for non-payment of instalments. Reliance placed by learned counsel of the plaintiffs on PLD 1970 SC 180 is rather misplaced under the circumstances. On the other hand, learned counsel of defendants Nos.1 to 8 and 10 has relied on the judgments reported as Sarfraz Hyder v. Mst. Khatija Bai 1990 CLC 1649 wherein it has been held that if a vendee is not ready and willing to perform the contract as it is, he has no equity in his favour and the specific performance would be refused and drew my attention to the averments of the plaintiffs that they were not willing to pay the balance of the sale-price even now but only after selling the disputed plots and from the proceeds of the said sale. He also referred to the case of Marghoob Siddiqui v. Hamid Ahmed Khan 1974 SCM R 519 on the point that where the plaintiff does not seek perpetual injunction, ad interim injunction cannot be granted. The plaintiffs may be entitled to the refund of Rs,2 lakh and 20 thousand paid by them and to any compensation but their claim of specific performance of an apparently dead agreement of sale looks rather of doubtful merit. However, it can also not be overlooked that if eventually the plaintiffs are held entitled to the refund of the amounts paid by them to late Khawaja Muhammad Yousuf by way of part-payment and to some compensation and costs, they shall be put to great difficulty at the stage of execution. I would therefore while partially rejecting C.M.A. No,164 of 1992, direct defendants Nos.1 to 8 and 10 to deposit in Court a sum of Rs,5 lakh which shall be invested in some profit-bearing Government securities. They shall deposit this amount before selling the land (or any part thereof) obtained by them from K.M.C. on Manghopir Road in exchange of the suit land. They are, however, restrained from alienating any part of this land until the above condition is fulfilled.