1. ' IMAM ALI G. KAZI, J.---The present appeal is directed against the order passed on 4-9-1989 on C.MA. No,2414 of 1989 filed in Suit No,491 of 1976 under Order 39, Rules 1 and 2 of Civil Procedure Code by the learned Judge in Chambers. The application has been rejected by the said order.
2. ' The facts leading to the filing of the present appeal are briefly stated as follows:--- ' The two appellants herein filed a suit before this Court on its original side civil jurisdiction against the respondents in respect of a premises bearing Plot No,27-GK/7 situated at Machhi Miani Road, Karachi. The appellants/plaintiffs claimed that they had acquired the possession of the said premises on 26-8-1950 from Pakistan Handicrafts Institute together with furniture and fittings in consideration of payment of Rs,5,000. The premises in question belonged to the Karachi Municipal Corporation at the relevant time and were leased out to the said institute. Initially the Karachi Municipal corporation disputed the assignment of leased rights in favour of the appellants but after a protracted dispute the respondent corporation permitted them to continue to hold the lease of the premises in question, according to the terms and conditions contained in their letter, dated 26-4-1952. The Deputy Custodian Evacuee. Property (Thatta) in the year, 1952 claimed that the property in question was an evacuee property and required the appellant No,1 to attorney to his Department. This resulted in correspondence between the appellant No,1 and the respondents about the claim of the Custodian department. The respondents instead of resolving the dispute cancelled the resolutions Nos.22 and 63, dated 10-12-1962 and 29-4-1963 and decided to take over the possession of the premises in question. The respondents ultimately by their letter dated 21-9- 1963 agreed to transfer the said premises to the appellants on payment of Rs,200 per sq. yd. in addition to the cost of the building to be determined by them. The appellant No,1 by their letter dated 3-10-1963 made a counter-offer to purchase the premises at the rate of Rs,75 per sq. yd. including the cost of construction of the building. Finally a meeting was held with the Chairman of the respondents on 8-2-1964 and terms and conditions in respect of the transfer of the premises in favour of appellant No,1 were settled. The terms as agreed between the parties in respect of transfer of the property are given in paragraph 12 of the plaint. While the transaction was pending finalization, it appears that the Divisional Trust Committee of the Evacuee Property Trust Board issued a notification claiming the property in question to be vesting in them. The appellant therefore, required the respondents to move the Evacuee Trust Board and have the clog on the title of the property in question removed. On 8-2-1964 the appellant No,1 had confirmed the acceptance of the terms and conditions relating to the transfer of the property in his favour and had sent them a cheque for Rs,52,500. The appellants plaintiffs as a matter of part performance of the agreement were taken to have been put in physical possession with effect from that date.
3. Although the Evacuee Trust Property Committee had abandoned their claim, to the said property on 7-2-1976 the respondents did not complete the sale and for the first time by their letter dated 9- 4-1976 demanded inflated amount calculated at the rate of Rs,750 per sq. yd. By sub-letter the appellants realized that the respondents in fact for the first time refused to perform their part of the agreement. They, therefore, filed a suit for specific performance. During the pendency of the suit Assistant Director Land of the respondents by his notice dated 27-3-1989 addressed to the appellant No,1 under section 3 of the Sindh Public Property (Removal of Encroachments) Act, 1975 required them to remove unauthorized encroachment on the said property within seven days of the receipt of that notice. Receipt of such notice necessitated the appellants to file an application under Order 39, Rules 1 and 2, C.P.C. which has been rejected by the order impugned in this appeal.
4. ' Mr. Mushtaque Memon, Advocate appearing for the appellants contended that on the basis of the correspondence referred to by him and filed in the suit the respondents had impliedly concluded a valid contract and the learned Judge in Chambers passed the order impugned in this appeal and rejected the application filed on behalf of the appellants in violation of the accepted principles of grant of interim injunction under Order 39, Rules 1 and 2, C.P.C. He referred to the case reported in PLD 1983 Kar.
387. The principles laid down in this case for the purpose of grant of injunction was approved by the judgment of the Supreme Court of Pakistan in the case reported as PLD 1983 SC 693.
5. ' Mr. S.M. Muslim Naqvi, Advocate appearing for the respondent contended that according to the provision made in section 26(3) of the Municipal Administration Ordinance, 1960 which was applicable at the relevant time a valid contract on behalf of the respondent could only be made in conformity with the provisions contained therein. According to the provisions contained in subsection (3) of that section no contract which is executed otherwise than in conformity with the provisions of that section can have binding force against the Municipal Corporation. In the present case according to him the procedure laid down in that section was never followed by the Chairman of the respondents while making an offer of transfer of the property in question to the appellants. He further contended that the contract if any executed between the parties expressly or impliedly is in violation of the rules governing such contracts. According to him the claim of the appellants on the basis of the documents filed with the plaint and averments made in the plaint do not constitutes an executable contract. He further contended that action in this case was taken competently under Sindh Public Property (Removal of Encroachments) Act, 1975 and by provision made in its section 11 the jurisdiction of Civil Court is completely barred as no injunction or any order can be passed by a Civil Court in respect of such property. Accordingly the learned Judge in Chambers was correct in holding that the appellants did not have prima facie case to entitle them to grant of an injunction. In support of his such contention he referred to cases reported in PLD 1968 Lah. 1419; 1985 CLC 1730; PLD 1990 SC 382 and PLD 1975 Kar. 495 and 1046.
6. ' There can be no two opinions about the proposition of law in respect of the grant or refusal of an interim injunction as stated in the case referred to by the Advocate for the appellants. In every suit where a Court considers grant or refusal of an injunction at its interlocutory stage the Court has to be satisfied that the plaintiff essentially has a prima facie case to start with and then examine whether the balance of convenience between the parties is in favour of the party seeking injunction or that the plaintiff would suffer irreparable harm by refusal of an injunction. It has, therefore, first to be seen if the plaintiff in a suit has prima facie a right or a claim that can be enforced through suit and that infringement of such right or a claim will lead to the consequence as aforesaid.
7. ' In the present case appellant No,1 was admittedly a tenant who did not pay rent to the Corporation on his own showing. No contract was concluded between the parties in accordance with the law applicable at the relevant time. It, therefore, clearly follows that the plaintiffs failed to establish at that stage prima facie existence of a right to be enforced through a Court of law.
8. Besides the view taken in the cases relied on by the Advocate for the respondent, we are fortified by the judgment reported in PLD 1970 SC 139 Shahzad Muhammad Umar Beg v. Sultan Mahmood Khan and another.
9. ' For the foregoing reasons we find no force in this appeal which is dismissed with costs.