1. This is an application by the plaintiff for attachment before judgment of the properties mentioned in the application. The allegation in the affidavit in support of the application is that the defendant has started negotiations to sell his property and intends to sell the properties in order to delay and obstruct the execution of the decree that may be passed against him. Mr. Hafiz Abdul Baqi, the learned counsel for the plaintiff submits that the plaintiff's apprehension that the defendant was about to sell or dispose of his property borne out by the fact that on the 5th November, 1991 transferred the property bearing No.C-083, KDA, Scheme Karachi, by way of gift to his wife. Mr. Samiuddin Sami on the other hand, submits that property was gifted to the defendant's wife on the 30th December, as shown by Annexure X-1 to the written statement of the defendant. Mr. Baqi does not challenge the gift but says that the fact that the defendant gifted the property to his wife shows the intention on his part to dispose of the properties in order to delay or obstruct the execution of a decree. The argument is untenable because alienation of property by the defendant well before the present suit was filed does not by itself amount to evidence of any intention on his part to dispose of the property for the purpose of defeating any decree which may be passed against him.
Further, there is no evidence of any negotiations being allegedly carried on by the defendant for sale of the property nor is there any evidence of the alleged intention on the part of the defendant to dispose of his property The application, thus, has no merit and is dismissed.
2. This is an application by the defendant for rejection of the plaint, under Order 7, Rule 11, C. P.C., on the ground that it is for refund of money allegedly paid by the plaintiff to the defendant for "Pugree" which is unlawful and void and is hit by the provisions of the Contract Act and the Sindh Rented Premises Ordinance; and that the plaint, therefore, does not disclose lawful cause of action.
The case of the plaintiff, as set out in the plaint, is that the defendant was a tenant in Shops Nos.3 and 7 situated in Al-Shams Building on M.A. Jinnah Road, Karachi; that the parties agreed that the tenancy of the shops be transferred to the plaintiff in consideration for payment of Rs.25,00,000 by way of pugree; that the plaintiff paid the defendant a sum of Rs.25,00,000 and was given possession of the shops; that the defendant failed to have the rent receipt in respect of shops changed in the name of the plaintiffs; that, subsequently by agreement between the parties the plaintiff surrendered the possession of the ships and the defendant agreed to refund to the plaintiff the said sum of Rs.25,00,000 alongwith the amount of money spent by the plaintiff on repairs of the shop in question; and that the defendant has failed to make the payment. Mr. Samiuddin Sami, relying on the judgment reported in 1991 M LD 801, submits that the charging of "Pugri" is void and illegal and is hit by section 23 of the Contract Act and that, therefore, the consideration for the agreement on which this suit is based is not lawful consideration. He further submits that the parties being in pari delicto the plaintiff is not entitled to the relief claimed. In the case cited by Mr. Samiuddin Sami "Pugri" has been described as "a premium mainly for inducting a person in the premises as a tenant". Such payment is made usually by the tenant to the landlord but the payment involved in this case is not payment to the landlord but payment made by the person intending to acquire tenancy to another person, who himself is a tenant, in consideration for the latter agreeing to assign his rights of tenancy; and it is not, at this stage, possible to determine whether or not an agreement to Day a consideration for assignment of tenancy is hit by the provision of section 23 of the Contract Act. This question would have been decided at the trial and the plaint cannot be rejected at this stage. The application is, therefore, dismissed.