1. ' NAZIM HUSSAIN SIDDIQUI, J.---Appellant Catholic Cooperative Housing Society Limited has impugned the order dated 22-3-1990, passed by a learned Single Judge of this Court, in Suit No,1049/89, whereby he allowed application under Order 39, Rules 1 and 2, C.P.C., restraining appellant from interfering (with) the development and re-construction work being carried out on the property situate on Plot No,241/JM-2, Karachi, hereinafter called the `suit property' till final decision of the suit. The facts relevant for decision of this appeal are as follows:--- ' Respondent Mirza Jawad Baig filed above suit against the appellant for declaration and permanent injunction. The case of respondent, as set up in the plaint, is that on 5-9-1966 he purchased property bearing City Survey No,551, Sheet No,JM-3, situate at Dadabhoy Nauroji Road, Karachi, hereinafter referred as the 'first property' from one Khawaja Dawood Victor Ansari, as per sale-deed, registered on 7-9-1966 on market price and later on his name was mutated in record- of-rights. The first property originally belonged to one A. Hotchand, who migrated to India and consequently it was declared as an evacuee property. Later on it was transferred to above-named person from whom the respondent had purchased it. The first property falls within the estate of appellant. The respondent got it converted into commercial premises and installed a petrol pump over it. The appellant during the last 23 years had raised no objection. It is alleged that appellant- Society is not altogether a separate entity. It is in two portions, which are divided and surrounded by Muslim population. Further, it is said that appellant-Society was established during pre-partition days of British Rule, when discrimination between Christians and other religions was commonly practised and patronized by the then Government.
2. ' In the year 1987, M/s. Mark Anthony Andrew, Victor Felix Andrew, Raymond Vincent Andrew, Mrs. Mildred Andrew, Josephine Carmeline Andrew, Emmanual Stephen Andrew, and Louis Philips Andrew, who were the owners of 'suit property' which is situated within the area of appellant- Society like the 'first property', approached the respondent through Mr. Tajuddin Bhyani for a short term loan of Rs,12 lac against the surety of 'suit property'. The loan was given for a short period of five months against possession of 'suit property' without any interest, and with an option for extension for period of another 12 months on the condition of payment of compensation @ 12%. On 12-12-1987, an agreement to create mortgage was executed between above-named Christian owners and the respondent. Possession of 'suit property' was delivered to respondent. Since the loan was not returned back the respondent became an absolute owner of 'suit property' from 29- 5-1989. Thereafter, record-of-rights was mutated in the name of respondent. It is alleged that the `suit property' remained in peaceful possession of three Non-Catholics one after the other, since 1978. Firstly, Mr. Haider All attorney of Christian owners was in possession of it and thereafter Mr. Tajuddin Bhyani remained in its possession for about nine years and since 22-12-1987 it was in possession of respondent. It is averred in the plaint that there was no restriction on the members of the Society for obtaining loan from a third party. It is alleged that the respondent has already demolished the old structure of 'suit property', with permission of Karachi Development Authority, vide order dated 24-7-1989. According to the respondent, on 5-8-1989 Mr. E. R. Flario, claiming as President of the appellant-Society, went at the site and unauthorisedly attempted to stop the work.
3. On 6-8-1989 the appellant delivered a letter at the site raising objection about the construction work. On 20-8-1989 the appellant sent another letter disputing title of respondent. Hence the suit was filed in which, inter alia, the respondent prayed for a declaration that he was lawful owner of the 'suit property'.
4. ' The case of appellant, as disclosed in the written statement, is that on 19-7-1973 Mr. Mark Anthony, Victor Felix Andrew, Raymond Vincent Andrew, Mrs. Mildred Andrew and Josephine Carmeline Andrew, all residents of Toranto Ontario, Canada, had given a power of attorney in favour of Louis Philip Andrew and Emmanuel Stephen Andrew. Thereafter, an irrevocable power of attorney was executed by Emmanuel Stephen Andrew and Louis Philip Andrew for self and as attorney of above- named co-owners in favour of Mr. Haider Ali son of Muhammad Ghulam Hussain. Thereafter, another irrevocable general power of attorney was executed by Mr. Haider AI in favour of Tajuddin Bhyani. This irrevocable general power of attorney was registered on 6-4-1986. The appellant has challenged that only short term loan was advanced. It is alleged that Louis Philips Andrew expired in Karachi on 23-8-1983, while Emmanuel Stephen Andrew also died in Karachi on 7-10-1985. It is contended that, after the death of above-named persons, the power of attorney ceased to exist and all subsequent actions had become illegal. The appellant has claimed that both the documents viz. Agreement to create mortgage dated 27-12-1987 and deed of mortgage dated 25- 5-1989, are illegal, and do not confer any right. Maintainability of the suit has also been challenged under the provisions of the Cooperative Societies Act, 1925.
5. ' Along with the suit, the respondent had filed an application under Order 39, Rules 1 and 2, C.P.C.
6. And the same was allowed by learned Single Judge vide order dated 22-3-1990, which has been impugned in this appeal. The principles for grant of temporary injunction are basically well settled.
7. It is granted when in a suit it is proved by affidavit or otherwise by plaintiff or defendant that conditions enumerated in Order 39, rules 1 and 2, C.P.0 are fulfilled. According to. Jurist Spelling the "important restraining function is given effect by the great extraordinary of injunctions, which may appropriately be termed as strong arms of Equity". Generally, it is defined as restraining order and is of equitable nature. The party applying for injunction shall simultaneously establish a good prima facie case, the balance of convenience, and that an irreparable damage or injury will follow if the injunction is not granted in respect of invaded right. On these points, reference can be made to the cases reported in (1) PLD 1970 SC 180, Mian Muhammad Latif v. Province of West Pakistan through The Deputy Commissioner, Khairpur and another, (2) 1973 SCMR 44, Amir Ali Ebrahimji Shaikha and others v. Sadruddin and another, (3) 1979 SCMR 77, Bantva Memon Cooperative Housing Society Ltd., and others v. Anis Ali Khan and others, (4) 1985 SCMR 1928 Fazal Begum and others v. Sh. Ijaz Ahmed and others, (5) PLD 1982 Lahore 558, Malik Muhammad Akbar and 6 others v. Mian Qamaruddin and 10 others.
8. ' Mr. R.F. Virjee learned counsel for the appellant contended that the respondent has failed to establish a prima facie case in his favour. He submitted that Loius Andrew and Ammanuel Andrew had expired at Karachi on 23rd August, 1983 and 7th October 1983, respectively; as such, Haider Ali and Tajuddin Bhayani, had no locus standi to execute power of attorney and after their death all subsequent transactions were illegal and contrary to law. The argument of learned counsel is based upon Section 201 of the Contract Act, which speaks about termination of agency. According to this section, an agency is terminated by the principal revoking his authority or by the agent renouncing the business of the agency, or by the business of the agency being completed, or by either the principal or agent dying or becoming of unsound mind, or by the principal being adjudicated an insolvent under the provisions of any Act. Learned counsel in this connection specifically referred to the commentary, at page No,740, under above section in the Pollock Mullah on Indian Contract and Specific Relief Act; which is as follows:--- "A power of attorney to any agent to present a document for registration is revoked by the death of the principal. It was accordingly held by the Privy Council that where the Principal died before the presentation and the Registrar knowing of the Principal's death, accepted and registered the documents, the registration was invalid."
9. The circumstances of the case show that Section 201 of the Contract Act is not attracted, but it is Section 202, which will apply. According to this section when the agent has himself an interest in the property, which forms the subject-matter of the agency, the agency cannot in the absence of an express contract, be terminated to the prejudice of such interest. Thus, when the agent's authority is coupled with an interest, it becomes irrevocable. Of course, when the authority is not coupled with interest and is given independently then with the death of Principal the agency is terminated. In the case in hand, there is documentary evidence to show that the Christian owners had sold the suit property to one Mst. Jaina Bai wife of Muhammad for valuable consideration of Rs,3,25,000 and handed over its vacant and peaceful possession to her, as per agreement to sell dated 21-8-1978. Aforesaid agreement of sale was accompanied by registered general irrevocable power of attorney. Thereafter, the Christian owners 'had no interest in the suit property and for all practical purposes it belonged to said Mst. Jaina Bai. Then there is evidence on record to show that said Mst. Jaina Bai, through her son Haider Ali, by an agreement of sale and irrevocable general power of attorney, sold the 'suit property' to said Tajuddin Bayani, who, in his turn transferred it to the respondent. From 21-8-1978, the Christian owners ceased to be the owners of the suit property.
10. Since interest was created through agreement of sale and by irrevocable power of attorney the agency could not be terminated.
11. ' On this point reference can be made to the case reported in PLD 1979 Kar. 22, Syed Shafique Hussain v. Syed Abdul Qasim, wherein an observation in this regard was made. We also hold the same view. Said observation is as follows:--- "It is no doubt true that the power of attorney does not specifically mention the interest of the applicant in the land. Bur, as pointed out in ILR 20 Mad. 97, cited above, it is not necessary that express mention of the interest be made in document itself, as language of Section 202 of the Contract Act is wider and what is necessary under the said section is that the agent should 'have an interest' in the property forming the subject-matter of the agency which may be inferred either from the document or from the course of dealings between the parties and, I would add, from the other, surrounding circumstances. In other words, it is the existence of the interest, not the mode in which it is given, that is of importance."
12. Mr. Virjee next argued that agreement of sale, even accompanied by General Power of Attorney, does not by itself transfer title to the purchaser. In support of this contention, he cited (1) 1985 CLC 7, Sh. Nazir Ahmad v. Haji Ghulam Hussain, (2) AIR 1987 Delhi 36, Imtiaz Ali v. Nasim Ahmed, (3) 1989 SCMR 949, Sh. Manzoor Ahmed and others v. Mst. Iqbal Begum and others, (4) AIR 1981 Cal. 404, Amulya Gapol v. United Industrial Bank Ltd. In Sh. Nazir Ahmed's case it was observed that agreement to sell did not confer any title on prospective purchaser to sell or agree to sell such property until sale in his favour was complete. In Imtiaz Ali's case also the same view was taken that 'nobody can call himself as owner by purchase on the basis of agreement to sell and the power of attorney executed by the alleged vendor in favour of the prospective purchaser-cum- attorney in the absence of Registered Sale Deed, In Sh. Manzoor Ahmed's case Hon'ble Supreme Court of Pakistan held that "contract of sale of immovable property is a contract that sale of such property should take place on terms settled between parties, but it would not by itself create any interest in or charge on such property". In Amulya Gopal's case also the same view was taken that contract for sale of immovable property does not by itself create any interest in the property.
13. ' We are of the view that, under the circumstances of the case, Section 53-A of the Transfer of Property Act is attracted, which is as follows:--- "53-A. Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty; ' and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract; ' and the transferee had performed or is willing to perform his part of the contract; ' then notwithstanding that the contract, though required to be registered, has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: ' Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof."
14. Change of possession of suit property is, in fact, an act of part performance, which admittedly was done in this case, and this created a legal right in favour of the persons to whom the property was transferred. Since record-of-rights has been mutated in favour of respondent there is nothing to doubt its authenticity.
15. ' Mr. Virjee learned counsel for appellant, relying upon the provisions of Sections 54, 70, 70-A of the Cooperative Societies Act, 1925, challenged the maintainability of the suit. There is nothing on record to attract the provisions of Section 54 and 70-A to this case. Learned counsel laid emphasis on section 70, which speaks about notice. He argued that suit was filed without issuing notice to the appellant, as such, it was not maintainable. For this purpose, reliance is placed on the case reported in Farida v. Prince Apartments Cooperative Housing Society, 1984 CLC 2914 wherein it was held that notice under Section 70 was mandatory: As against this, Mr. Raja Haq Nawaz learned counsel for the respondent submitted that Registrar, Cooperative Societies, Sindh and the appellant-Society were sent notices on 23-9-1989 (Annexure 'P') and because of the immediate threats of appellant the suit was filed. Also, it has been argued that filing of the plaint by itself was a notice. For this proposition reliance has been placed on the case reported in Syed Azhar Imam Rizvi v. Mst. Salma Khatoon 1985 SCMR 24, wherein it was held in a rent matter that "the receipt of the copy of ejectment application and knowledge gained thereby would constitute due notice and it will have to be treated as substantial compliance of Section 13-A of the Ordinance". In the case in hand, the respondent has taken specific plea that, as per Annexure 'P' to the plaint, relevant notices were sent. This is a point of fact and at this stage it cannot be presumed that such notices were not sent. So this plea is also of no use.
16. Mr. Virjee also argued that bye-laws of the Society have clearly provided that property of said Society can only be owned by a person, who is of Catholic Community and that no member could dispose of the property without prior consent of the Society. In support of this contention lie cited Muhammad Raza and others v. Mst. Abbas Bandi Bibi AIR 1932 Privy Council 158 and Mahmud Ali Mujumdar v. Brikodar Nath and others AIR 1960 Assam 178. In Muhammad Raza's case it was held that, a condition by way of family arrangement, the property should not be alienated to stranger was not against the provisions of section 10 of the Transfer of Property Act. In Mahmud All Mujumdar's case also the view was taken that agreement requiring parties to sell their land amongst themselves was not against the spirit of Section 10 of the Transfer of Property Act. On the strength of these cases, Mr. Virjee strenuously argued that by virtue of bye-laws of the Society, the property could not be transferred to any non-Catholic. Under aforesaid section, where the property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him parting with or disposing of his interest in the property, the condition or limitation is void. It is for the reason that a right of transfer of property is incidental to and inseparable from the beneficial ownership of property. There are many Societies in Karachi where initially the properties were transferred to a particular class of persons and later on they (were) transferred to others. For example Defence Housing Society and P.E.C.H.S. Be that as it may, the respondent, as pointed out earlier, is already an owner of the property referred to as 'first property'.
17. Therefore, it would not in any way affect the Society, if he got another property in said Society. The family arrangement or the agreement requiring the parties to sell their lands amongst themselves cannot (be) compared with the affairs of a big housing society and nor the same could be counter-poised. The cases cited by learned counsel for the appellant have no bearing on the merits of this case and are distinguishable.
18. ' Mr. R.F. Virjee also contended that land belongs to the Society and construction to its owners.
19. According to him, in the case in hand the construction has already been demolished and presently except surrounding walls, there is no construction. He submitted that Hon'ble Supreme Court, under such circumstances, has, in Civil Appeal No,806-K of 1990 The Karachi Catholic Co-operative Housing Society Ltd. v. Mrs. Daphne Mandonca and others ruled that raising of construction by non- Muslim in said Society was in violation of clause 2(a) of sub-lease. In this connection, he placed reliance upon the following observations of the Supreme Court, which are in para. 9 of said Appeal:--- "We would not like to express our views on the merits of the case as it may prejudice the parties.
20. However, in our view, in the present case it cannot be denied that the appellant-Society has, prima facie case for an interim injunction as was found by the learned Civil Judge and even by the Additional District Judge and the High Court, and, therefore, we are not inclined to agree with Mr. Rehmani that appellant society has no prima facie case, as admittedly under above quoted- clause 2(a) of the sub-lease, respondents Nos.1 to 3 could not have parted with the possession of the plot".
21. ' It is evident from said appeal that respondents Nos.4 and 5 of said appeal, despite objection of the Society, succeeded in getting plan of the construction of building sanctioned from the relevant authority. Therefore, the suit was filed, inter alia, for declaration that irrevocable general power of attorney was a subterfuge and was surreptitiously executed in favour of said respondents Nos.4 and 5. The facts of the case in hand are distinguishable. In this case, the respondent is the owner of the suit property and his name has already been mutated in the record. The Society has filed a counter-suit for declaration and injunction. Till declaration in that suit is granted, the respondent, for all practical purposes, is the owner of the suit property and as such, has a legal right to use it for his benefit according to law.
22. It has also been urged by Mr. R.F. Virjee that bye-laws of the Society are contractual rights and those bye-laws cannot be questioned and the Society, is competent to impose reasonable restrictions, while granting membership to its members. It is true that bye-laws are generally in the nature of contractual rights but in the instant case, as appears from the record, the Society discriminated towards its members. When Mr. Tajuddin Bhayani negotiated sale of the 'suit property' with one Mr. Edward Wellzo, all documents of sale in favour of Mst. Jaina Bai and Tajuddin Bhayani and two registered powers of attorney in favour of Haider Ali and Tajuddin Bhayani, were submitted to the Society and said Society by its letter dated 8-5-1988 addressed to Mr. R.F. Virjee, Advocate for Wellzo (Annexure 'Q' in the file of the suit) granted no objection certificate to Mr. Edward Wellzo to purchase the property from its Muslim owner Tajuddin Bhayani. Mr. R.F. Virjee also on 8-5-1988 advertised this transaction in 'Dawn' Karachi (as per Annexure '12' in suit) on behalf of Mr. Wellzo and Tajuddin Bhayani. Thus, it is evident that, at an earlier stage, the Society had approved a transaction of sale between a Muslim and a Christian. Now bye-laws cannot be invoked against the respondent to show that he could not be owner of the suit property and the membership of the Society was confined to Catholic Community only.
23. Mr. Raja Haq Nawaz, learned counsel for the respondent submitted that, under the circumstances, the principle of estoppel is attracted. In support of his contention, he cited Muhammad Hanif v.
24. Hyderabad Municipality and others PLD 1966 Kar. 219 Krothapalli Satyanarayan v. Koganti Ramaiah and others AIR 1983 SC 452. In Muhammad Hanif's case it was held that principle of estoppel by conduct applies to corporation as well as to individual. In Krothapalli Satyanarayan's case the prayer of plaintiff for removal of encroachment after 9 years was declined.
25. ' Lord Chancellor on the Principle of Estoppel by Conduct observed as follows:--- "I am of opinion that generally speaking, if a party having an interest to prevent an act being done has full notice of it being done, and acquiesces in it so as to induce a reasonable belief that he consents to its, and the position of others is. Altered by their giving credit to his sincerity, he has no more right to challenge the act to their prejudice than he would have had if it had been done by his previous licensee."
26. In the case in hand, in view of the circumstances mentioned earlier, we FG hold that, prima facie, the principle of estoppel by conduct would apply.
27. ' Mr. Raja Haq Nawaz, learned counsel for the respondent also submitted that society in question is no more exclusive society for Christians and several Muslims are also living there. Presently, there is no evidence in support of this contention, except the fact that respondent is the owner of property, which earlier has been referred to as 'first property'. Mr. Raja Haq Nawaz has pointed out that Section 17-B of the Sindh Co-operative Society Act has been amended, as per notification dated 24th May, 1989 of the Sindh Government Gazette, whereby, every purchaser subject to rules is to be admitted as a member of the society. For this reason also, the respondent cannot be prevented from being member of the Society.
28. The conclusion, therefore, would be that respondent has established a prima facie case and the balance of convenience is also in his favour. He will suffer irreparable loss if he is restrained from using his property. Accordingly, we hold that learned Single Judge, under the circumstances of the case, has rightly granted interim injunction in favour of the respondent.
29. ' In consequence, the appeal is dismissed with no order as to costs.