1. This order will dispose of C.M.A. No.3844/94, whereby the plaintiff has prayed for injunction for restraining the defendant from evicting the plaintiff (wrongly typed as defendant), his relatives, workers, labours, customers, etc. From the suit property through any media or agency and also from pursuing the execution proceedings against the plaintiff or his father Muhammad Shafi till final disposal of the suit.
2. The plaintiff has filed the suit for specific performance of agreement dated 3-6-1994, allegedly executed by the defendant for sale of property, bearing Plot No.C-144, Central Commercial Area, off Tariq Road, PECH Society, Karachi, for total consideration of Rs.18,00,000, out of which a sum of Rs.4,00,000 has been allegedly paid by the plaintiff to the defendant under the said agreement.
2. The defendant in his counter-affidavit has denied the execution of the aforesaid agreement, which, according to him, is a forged document.
3. The suit property was owned by the father of the defendant and on his death it was inherited by the defendant, his brother Zahid Hafeez and four sisters. The four sisters of the defendants had executed a general power of attorney in favour of the defendant and his brother, authorising both the brothers Jointly and severally to look after and administer the property and also to negotiate and sell the property. Muhammad Shafi, father of the plaintiff, is an old tenant since the days of the father of the defendant in respect of the ground floor of the suit property where he is running a restaurant, known as `Quadri Restaurant'. The plaintiff filed Rent Case No.3699 of 1982 against the said tenant. The eviction application was allowed by the learned Rent Controller by order dated 14- 7-1987. The tenant filed First Rent Appeal No.788 of 1987 which was dismissed on 24-2-1993. He then filed petition for leave to appeal before the Hon'ble Supreme Court which was dismissed on 6-5- 1993. At the request of the tenant, the Hon'ble Supreme Court allowed him one year's time to vacate the premises and it was further ordered that on the expiry of the said period, writ of eviction would be issued by. The Rent Controller without notice to the tenant.
4. I have heard the learned counsel Mr. Iftekharuddin Siddiqui for the plaintiff and Mr. A.R. Akhtar for the defendant.
5. The learned Advocate for the plaintiff contended that the execution of the Sale Agreement has been denied with ulterior motives. He urged that the signatures on the agreement and the receipt acknowledging payment of Rs.4.00.000, may be compared with the signatures of the defendant on the rent receipts filed by him alongwith affidavit-in-rejoinder. The fact that the agreement was executed between the parties can be inferred from the fact that though the time granted by the Supreme Court expired in May, 1994, but the defendant did not file any execution application to enforce the eviction order until notice of the application under consideration was served on him.
6. Had there been no agreement, the defendant would have hurried to file the execution application on expiry of the time granted by the Hon'ble Supreme Court. Relying on the agreement of sale it was urged that the defendant having undertaken under the agreement that he shall not pursue the execution proceedings against plaintiffs father Muhammad Shafi; he cannot be permitted to avoid the performance of the aforesaid stipulations in the agreement. It was further asserted that the plaintiff is in possession of the suit property and is carrying on business under the name of Quadri Restaurant and in case he is evicted, he will suffer irreparable losses.
7. On the other hand, the learned Advocate for the defendant contended that the alleged signature on the agreement and the receipt do not tally with the signatures of the defendant either on the pleadings in the suit or the other documents brought on record including power of attorney and the receipt produced in the plaintiff. It was next urged by him that the reason for no filing the execution was that the plaintiff's father had been requesting for time for vacating the premises and looking at the long association between the parties, he was being accommodated and, therefore, no inference can be derived as urged by the learned Advocate for the plaintiff. It was also contended that the plaintiff not being in possession is not entitled to the interlocutory relief sought.
8. It was urged that neither the plaint discloses prima facie case, nor that the plaintiff will suffer irreparable losses. The balance of convenience is also in favour of the plaintiff.
9. It was further contended that an agreement of sale does not create any interest in or charge on the property agreed to be sold and unless specifically stipulated in the agreement, the purchaser cannot take possession of the property from a sitting tenant and if he does so, such possession will be unauthorised and he will be liable to be evicted in execution of the order passed against the tenant.
4. The defendant has denied execution of agreement and has alleged that it has been forged. The learned Advocate for the plaintiff in consonance with the averments made in the affidavit-in- rejoinder urged that the signatures of the defendant on the agreement may be compared with those on the rent receipts filed by him with the said affidavit. On comparison of the signatures of the defendant on the agreement and the receipt acknowledging payment of earnest money, with those on the rent receipts filed with the rejoinder and on the pleadings in Court, it is not possible to tentatively agree with the view of the learned counsel of the plaintiff that the signatures on the former two documents tally with the admitted signatures. The signatures of the defendant on the power of attorney executed in 1984, the written statement, counter-- affidavit and Vakalatnama tally with one another. The comparison of the above signatures with those found on the rent receipts issued in the years 1969 to 1973 and 1978, selected by the plaintiff for production in Court for the specific purpose of comparison, are different and tentatively, the disputed signatures appears to be imperfect imitation of signatures on some old receipts.
10. It may be observed that signatures of some individuals vary in detail with the passage of time. The defendant's signatures disclose such tendency.
11. However, at this stage, it would not be safe to form any opinion on the basis of comparison of the signatures.
5. The question that needs to be considered is that of the probability of entering into agreement for purchase of the property by the plaintiff with the defendant and making payment of the earnest money, under the circumstances and the background of the case and the nature of the alleged agreement.
12. The agreement pronounces that the vendor is one of the co-owners and the other co-owners have authorised the vendor to sell the property and that vendor shall execute the sale-deed in favour of the vendee.
13. The material brought on record shows that the defendant and the plaintiff's father had been entangled in litigation from September, 1982, when the rent case was filed for ejectment of plaintiffs father from the ground floor of the suit property, which concluded in 1993. It is the case of the plaintiff that the defendant was not prepared to sell the property to his father, because of the fact that the latter had protracted the litigation and, therefore, he, the defendant, had to step forward to purchase the property.
14. The defendant and his brother were appointed as attorneys by the sisters. The defendant had no authority to sell the share of his brother: The power of attorney was produced in the rent case.
15. The above circumstances show that the plaintiff's father believed that the defendant was not the owner of the property and he was not entitled to receive rent. Each co-owner was demanding rent from him, which led him to stop payment thereof and the said non-payment brought the disaster of eviction order. Consequently the plaintiffs father to save himself from the eviction decided to purchase the property; the defendant being reluctant to sell the property to him, the plaintiff was constrained to step forward to acquire the property, obviously to avoid the eviction of his father.
16. Under the above circumstances, it is not possible that the plaintiff would enter into agreement with the defendant alone, wherein no reference is made to the power of attorney and such omission has been made, as it appears, deliberately, knowing that the defendant had no authority from his brother to sell the property. The draftsman of the agreement has, therefore, avoided to refer to the power of attorney in the agreement and thought it sufficient to state that the other co-owners have authorised the vendor to sell the property. If in fact the owners had agreed to sell the property, they all would have been insisted upon to be joined in the agreement, peculiarly so, as in the past, all the other co-owners disowning the authority of the defendant had started demanding rent, that is to say, they had disowned the authority of the defendant to realise rent. It was because of the above conduct of the co-owners that plaintiff's father refused to pay rent to the defendant.
17. Had the other co---owners not disputed the authority of the defendant to receive the rent, the plaintiffs father would have continued to pay rent and there would have been no eviction proceedings. It is, therefore, improbable that the plaintiff would agree to purchase the property and part with the substantial amount as earnest money, that too in cash, without joining the other co- owners in the sale agreement and particularly the brother of the defendant, who has not conferred any authority on the defendant in respect of his share, at any time.
6. The plaintiff has not claimed in the plaint to be in possession of the suit property, either actual or constructive. In the affidavit filed in support of the application, reliance has been placed on the contents of the plaint, with additional averments that he has a very strong prima facie case and balance of convenience is in his favour and that unless the injunction is granted, he will suffer loss which he is not in position to afford. Thus, in this affidavit also he does not project himself to be in possession of the property. The defendant in his counter-affidavit has specifically pleaded that the plaintiff not being in possession of the premises is not entitled to the injunction sought. However, in the affidavit-in-rejoinder he has alleged to be in possession from 9-6-1994 and that he is running business therein in the name of Quadri Restaurant.
18. The above plea of the plaintiff prima facie appears to be an after--thought. The agreement, the sheet anchor of the plaintiffs case states: "That the vendor hereby further assures and undertakes that he shall not pursue the execution proceedings against Mr. Muhammad Shafi son of Chand Mian, who is still in possession of the premises...: The averment that the plaintiff is in possession of suit property ever since 9-6-1994, when the agreement was allegedly executed is not correct.
19. Consequently his further plea that he is carrying on business in the name of Quadri Restaurant in the suit property is also to be overlooked, being inconsistent with the plaint and the agreement. The plaintiff at the outset of the plaint states that he is a businessman and is running hotel business at PECH Society, Central Commercial Area, off Tariq Road, Karachi, for the last so many years. Had he been carrying on business in the suit property in the name of Quadri Restaurant, he would have so stated without wasting and lavishing the words. It is also of importance that though in the rejoinder he alleges to be in possession but has not disclosed the source of his possession. It is clear beyond any doubt that at the time of the alleged execution of the agreement, his father, the tenant, was in possession. If he has taken over possession from his father, it is unauthorised possession and he is liable to be evicted in execution of the order passed by the learned Rent Controller. Under the circumstances the grant of injunction would amount to bringing the order passed in rent case proceedings, to naught.
7. The learned counsel for the plaintiff pointed out that though the time allowed by the Hon'ble Supreme Court expired on 9-4-1994, the defendant did not take any step to file execution application until after issuance of notice in this suit. In the above context the reason for not taking any action, it was contended, was the existence of the Sale Agreement. The case disclosed in the plaint is that the sale-deed was to be executed within sixty days from the date of execution of the Sale Agreement and it was on expiry of the said period that he contacted the defendant, who first avoided the execution of sale-deed on one or the other pretext and ultimately categorically refused to execute the sale-deed. He thereafter consulted his well-wisher and sought legal advice; and it was decided to approach the defendant once again. He accordingly approached the defendant but he refused again.
20. On the other hand, the case of the defendant is that it was because of the repeated requests of the tenant for more time that he needed for finding out alternate place that execution proceedings were not commenced.
21. The inference craved to be drawn from the delay in filing the execution proceedings, prima facie does not appear to be warranted from the circumstances reflected in the plaint. The period of sixty days prescribed in the agreement expired on 8-8-1994. If the defendant had after the above date refused categorically to execute the sale-deed and had no intention to do so, if in fact there was any agreement of sale between the parties and he had no intention to own it, it would have been more in keeping with the human conduct for the defendant to immediately proceed to initiate proceedings against the tenant rather than to await institution of the suit. Under such circumstances the reason advanced by the defendant for postponing the execution at the request of the plaintiff's father, prima facie appears to be in consonance with the facts obtaining in the case. The plaintiff's father is an old tenant and normally a decree-holder would prefer to take over possession peacefully instead of going through the rigours of execution of writ of possession.
8. Irrespective of the fact, whether one or all the co-owners might have filed the rent case, all the owners of the property are entitled to the benefit of the rent order. The fact that the brother of the defendant has given no such authority to the defendant -to sell the property or to bind him down in terms of the agreement or otherwise, prima facie bereaves the said agreement of all its validity to expropriate the right that has come to be vested in him to take benefit of the eviction order.
22. Additionally neither the defendant's brother, nor his sisters are party to the suit and as such if any order of injunction is issued, it will not be. Binding on them and consequently it would be a futile order. It is settled law that Courts do not grant orders that remain futile.
23. The plaintiff has failed to establish prima facie the assertion that the agreement of sale was executed between the parties. It is also evident that the plaintiff has not claimed in the plaint to be in actual or constructive possession and the agreement of sale also does not vest any right to present possession of the property in the plaintiff. Under these circumstances the plaintiff will not suffer any irreparable loss if injunction is refused. The balance of convenience is also not in favour of the plaintiff and it is rather in favour of the defendant who will be deprived of reaping the fruits of eviction order obtained after long ordeal. The observations made hereinabove are tentative in nature and shall not prejudice the case of the parties at the trial.
24. The above are the reasons for the short order passed on 12-10-1994, whereby C.M.A. No.3844/94 was dismissed.