HUSSAIN ADIL KHATRI, J.- By this order it is proposed to dispose of CMAs No. 1774/93 and 9793/93.
The first application has been filed by defendant No. 2 praying for orders to restrain defendant No. 1, Karachi Development Authority, from issuing allotment orders, possession order, site plans to the auction purchasers of the plots, bearing Nos. SB-1 to SB-4, carved out of plot No. PP-21, Block 13-D/l, Scheme No. 24, Gulshan-e-Iqbal, Karachi. The second application has been filed by the plaintiff praying for injunction restraining the defendants from alienating, transferring, mortgaging, auctioning and leasing out or changing the status of plot No. PP-21 or sub-dividing the said plot.
2. The facts of the case, insofar as relevant, are that plaintiff No, 2 Imdad Ali Bhutto claims to have applied on 20,2,1975 to the Chief Minister, Government of Sindh in the year 1975 for allotment of plot for petrol pump tn Gulshan-e-Iqbal, Karachi. It is alleged that he made payment of 25% of the occupancy values under challan dated 1,1.1976 and the second payment of Rs, 25,000/- was made on 8.4.1976 and lay out plan of plot No. PP-21, measurin 2,0 square yards was issued on 17.5.1976.
Plaintiff No.2 then executed a general power of attorney in favour of plaintiff No.1. On 2.7.1987, plaintiff No.1 applied for electricity connection. On 4.8.1990, the plaintiff applied for issuance of challan for payment of balance 50 % amounLtowards the occupancy charges. On 8.8.1990, Director General, KDA ordered for examination and finalisation of the case. It is further alleged that challan of 50%, the balance payment, amounting to Rs. 9,05,180/- was issued by KDA on 8.8.1990. KDA also issued revised site plan of the aforesaid plot, measuring 1,835.53 square yards. As in the site plan issued, the size of the plot was reduced by 165 square yards, the plaintiff approached the Chief Minister of Sindh through letter dated 16.2.1992, requesting for the revision of the challan received by plaintiff No. 1.
3. The plaintiff then came to know that he aforesaid plot was auctioned by KDA on 83.1991. The plaintiff succeeded in averting the proposed auction but on 15.6.1992, a public notice was published by defendant No.2 to the effect that he proposed to transfer the said plot to some other person. The plaintiff then came to know that defendant No.1 had filed Suit No.690/91. The plaintiff submitted application dated 18.6.1992 to KDA alongwith the cutting of notice published in the newspaper for conveying the of disposal of the plot to defendant No. 2. The plaintiff claims that he is entitled to the lease of the plot measuring 2,000 square yards, claiming himself to be the only allottee in respect of the aforesaid plot. According him to KDA commenced the inquiry and suspended the Administrative Officer of KBCA Syed Karrar Ali Shah who had no authority to lease out commercial plots and was dealing in residential plots and had allotted the plot to defendant No. 2 in collusion.
In the suit he has challenged the reduction of the size of the plot and has sought the declaration that he is the allottee of the plot and has prayed for mandatory injunction directing defendant No. 1 KDA to register Lease Deed in respect of plot No. PP-21, Block 13-D/l, Gulshan-e-Iqbal, Karachi and has also sought other and miary reliefs. Mr. S. A. Shahenshah Hussain, Addl. Director, KDA has filed his counter affidavit on behalf of defendant No. 1. In the said affidavit it is disclosed that on revision of the plans the area of plot No. PP-21 was converted into four SB plots which have been numbered as SB-1 to SB-4, each measuring 500 square yards. The above plots were disposed of in public auction on 29.8.1993 and 30.9.1993. Alongwith the counter affidavit, he has attached the photostat copy of the notice published in the newspaper for auction of the plots in the aforesaid dates. It is further stated that as per record of KDA, Imdad Ali Bhutto, plaintiff No. 2, was allotted commercial plot No. PP-I measuring 1, 290 square yards in Scheme No. 24 vide allotment order dated 8.4.1976 for a petrol pump, who had paid a sum of Rs.25,000/- as first instalment of the occupancy value under challan dated 30.12.1975 and second instalment of Rs.25,000/- under challan dated 8.4.1976.
The possession order was issued on 8.4.1976 which also shows that a sum of Rs.14,500/- was payable by the said allottee in two equal yearly instalments. All the documents in this regard have been placed on record. The aforesaid allottee then transferred the above plot to one Muhammad Sami QUreshi on joint application submitted by them. According to KDA record challan No. 3994 was issued to plaintiff No. 2 for payment of 25 % of occupancy value in respect of plot No. PP-I, which stands utilised on issuance of allotment order to him and the plaintiffs are now using it to distort the truth. KDA has placed on record the photostat copy of challan No.3994 earlier deposited by plaintiff No. 2 for acquiring plot No.PP-1 in the year 1976. It may be pointed out that the above payment was in respect of the said plot measuring 1,289.56 square yards and not 2,000 square yards. The possession of the said plot was delivered to plaintiff No. 2 on 5.4.1976. It is also stated in the counter affidavit that the so called signatures of plaintiff No.,1 on the power of attorney filed with the plaint, do not tally with his signatures On the earlier documents submitted by Imdad Ali Bhutto, including his National Identity Card. It is further alleged that the address of the allottee, plaintiff No. 2, as shown in the title, is fake one as is disclosed by the endorsement on the envelopes of the letter sent by KDA to plaintiff No. 2. The other documents filed by the plaintiff have been termed as fabricated and forged documents.
4. I have heard the learned counsel Mr. Abdul Majeed Khan for the plaintiff and Mr. Muhammad Anwar Tariq for defendant N6.1. Defendant No. 2 was called absent and none has appeared on his behalf.
5. The challan filed alongwith the plaint docs not give any plot number. The plaintiff has filed site plan as Annexure G to the plaint, in respect of plot No. PP-21,claiming to be plot measuring 2,000 square yards, the size whereof, according to the plaintiffs, on resurvey was reduced by 165 square yards. The aforesaid plots per site plan measures 170'xl50\ The area of the aforesaid plot , works 'out to 2,833 square yards and not 2,000 square yards as alleged. The point, that requires consideration, is whether the plaintiffs are entitled to the injunction as prayed for. The counter affidavit shows, as detailed hereinabove; that the plots carved out of PP-21 were disposed of in open auction after due publication of the notice in newspapers. The present position is that plot No. PP-21 after conversion thereof has been sold out and is no more in existence. It is further established from the record maintained by defendant No.1, copies whereof have been produced in Court, that plaintiff No. 2 was allotted PP-21. The challan placed on the record, under which the payment was made, in the name of plaintiff No. 2, copies, whereof have been produced, are different from the challan produced by the plaintiff as Annexure B to the plaint.
6. From the above record, there appears to be great force in the submission of the learned counsel for defendant No.1 that The plaintiffs have produced fake documents which do not tally with the record available with KDA.
7. The injunction is an equitable discretionary relief; From the facts and circumstances of the case it cannot be said that the plaintiff has established prima facie case. For grant on injunction, the plaintiff has to prove prima facie case alongwith two ingredients that they will suffer irreparable loss and that balance Of convenience is also in their favour. The letter dated 30.4.1976, produced by the plaintiffs, has been denied as forged document. The site plan is not in consonance with the pleadings in respect of the area of the plot. The challan produced by the plaintiffs does not relate to plot No. PP-21 nor it was allotted in the name of Imdad Ali Bhutto. If plaintiff No. 2 is the same person to whom plot No. PP-I was allotted, he has ceased to have any right after the plot was transferred at his request in favour of Muhammad Sami Qureshi If plaintiff No. 2 is not the same person in whose name the documents relating to plot No. PP-I east, he is to be regarded as an imposter. It may also be pointed out that plaintiff No. 1 has projected himself as attorney of plaintiff No. 2, appointed by one Ghulam Hussain, who was allegedly appointed as attorney by plaintiff No. 2 under registered power of attorney allegedly executed by plaintiff No. 2. Defendant No. 2 has disputed the so called signature of plaintiff No. 2 on the power of attorney. The plaintiff has to establish the truth of his assertions made in the plaint. Prima facie it is established that plaintiff No. 2 was the allottee of plot No. PP-I and he took over possession thereof on 8.4.1976. Plot No. PP-21 Was, however, never allotted by defendant No.1 to plaintiff No. 2 nor the latter had ever applied for.
Its transfer. The plaintiffs' case is based on payment made under challan No. 3994, which payment was towards plot No. PP-I and stands adjusted towards its consideration. Insofar as plot No. PP-21 is concerned, it has been admittedly . Leased out by KDA prior to institution of the suit, in favour of defendant No. 2. Thus the balance of convenience is also in favour of the defendants.
8. Under the above circumstances, it cannot be said that the plaintiffs have made out any case.
The application is, therefore, dismissed.
2&4.CMAsNo. 11949/94& 11328/93: These applications have been filed by defendant No. 2 (CMA No.11949/94) for transfer of Suits Nos. 135/93, 690/93 and 567/93, from the subordinate Court to the High Court and CMA No. 11328/93 also has been filed by defendant No. 2 under Order XXXIX Rule 2(3) read with section 151, CPC. The defendant and his advocate are called absent, therefore, both the applications are dismissed in default.