1. The plaintiff had filed this suit on 8th November, 1993 with the following facts as per paragraph 4 of the plaint:---
4. That on 16-9-1993 plaintiff with M/s. Ghulam Nabi Shaikh and Shahid Tahanvi had gone to the office of Defendants known as Losshe Enterprise Show Room No.10, Mehran Hotel, Sharah-e-Faisal, Karachi, where Defendants were present. In the presence of the aforesaid brokers agreement in respect of Sale of Suit Land arrived at the following terms and conditions:---
(a) That defendants Nos. l and 2 who are the owners of the suit land agreed to sell suit land whereas plaintiff agreed to purchase the same at the rate of Rs.1,500 (rupees one thousand five hundred only) per Sq.Yd. Suit land including commercialization and other charges and to obtain necessary no objection certificate (N.O.C.)/sale permission trom the concerned department/authroity to sole risk, cost and consequences of the defendants Nos. l and 2.
(b) That plaintiff will pay Rs.2,00,000 (rupees two lacs only) on the same day i.e. 16-9-1993, as part payment towards the total said consideration at the rate of Rs.1,500 per sq. Yd. Of suit land including commercialisation charges.
(c) That on receipt of advance/part payment as mentioned above, the defendants Nos. l and 2 were to get the suit land commercialised and to obtain necessary no objection certificate (N.O.C.)/sale permission of suit land from the concerned department/authority.
(d) That after commercialisation and other formalities as mentioned above, plaintiff was to invite necessary objections/claims if any from the general public through publication by way of Public Notice in tile daily newspapers.
(e) That in case of receipt of no claim/objection or any litigation of whatsoever nature in respect of suit land, plaintiff were to pay further Rs.16,00,000 (rupees sixteen lacs only) towards balance sale consideration of suit land, whereupon defendants Nos. l and 2 will sign formal sale agreement of .The suit land as well as to hand over vacant and peaceful physical possession of suit land to the plaintiff duly commercialised, demarcated with full power and permission in favour of plaintiff to launh its own private housing scheme of commercial--incum-residential housing complex on the suit land in order to sell the same to prospective buyers and to accept advances/payments and to issue necessary official receipts, allotment letters etc., and to complete their project.
(f) That balance amount of total sale consideration was to be paid in three equal quarterly instalments effective from date of handing/taking over vacant and peaceful physical possession of the suit land free from all litigations, dispute etc. However, last instalment was to be paid by the plaintiff to defendants Nos. l and 2 on receipt of original title documents, clearance of all upto date dues, charges, fees, taxes, bills etc., and on execution of sale deed before the concerned sub- Registrar."
2. On hearing of this C.M.A. The Court vide its order dated 14th November, 1993 passed the following order:-- "2. Notice for 21-11-1993. In the meantime statusquo shall be maintained."
3. Mr. Gul Zaman Khan, learned counsel for the plaintiff has contended (i) that defendants Nos. l and 2 after concluding oral contract on 16-9-1993 received part payment in advance in respect of the suit land; (ii) that the sale was concluded finally on 16-9-1993 and thereafter plaintiff's company debit voucher for Rs.2,00,00C was issued, which was duly signed by defendant No. l and the said amount was received by defendant No. l by opening his account in M.C.B. Maisam Plaza Branch, Gulshan-e-Iqbal, Karachi East; (iii) that deal was concluded in respect of suit land at the rate of .Rs.1500 per sq. Yards and defendants Nos. l and 2 have seen some more charm which attracted them first to evade perform their part and later on fabircated a story to have received Rs.2,00,00C from the plaintiff in respect of sale credit and later on such sale credit was shown in respect of sale of carpet to the plaintiff;
(iv) that debit voucher was issued by -the plaintiff on behalf of his company, which is a receipt dated 16-9-1993 upon which it is specifically mentioned that amount of Rs.2,00,000 was received towards part/advance payment in respect of the suit property by defendant No. l; (v) that defendants Nos. l and 2 had given the plaintiff all Photostat copies of title documents of the suit land which clearly demonstrate that the plaintiff is bona fide purchaser of the said land; (vi) that defendants Nos. l and 2 later on became dishonest in fulfilling part of their obligations as agreed, therefore the plaintiff gave public notice and legal notice but defendants Nos.1 and 2 committed breach of sale agreement; (vii) that defendants Nos.1 and 2 intend to transfer suit land or to encumber it and therefore, the plaintiffs have moved this application.
4. Mr. Gul Zaman has further contended that prima facie balance of convenience lies in favour of the plaintiff and that they will suffer irreparable loss if this application is not allowed and the order dated 14-11-1993 is not confirmed. He has referred following authorities:--- (1)1994 SCM R 2189---Case of Mrs. Mussarrat Shaukat A.I v. Mrs. Safia Khatoon:--- S. 2(e)--Oral agreement of sale of property--Details of other terms and conditions of agreement-- Proof--Such oral agreement was not prohibited in law--Buyer tendered receipt in evidence to prove payment of part of sale consideration in pursuance of the oral sale agreement---Absence of the details of the other terms and conditions of sale were of no significance and the buyer was entitled to prove the terms of sale by leading oral evidence in circumstances. "
(2) PLD 1981 Karachi, 170 Case of A.I Muhammad Khan v Riazuddin Khera:--- "S. 10--Agreement-writing not necessary to constitute a valid agreement--Oral agreement, held, can also be valid and legal and binding on parties. "
5. "S. 10 and Evidence Act (I of 1872) 5.102--Oral agreement-proof-oral agreement, held, requires for its proof clearest and most satisfactory evidence. "
6. (3)1989 MLD 4252-Case of Mst. Hajra Bai v. Mst. Amtul Batool Begum:-- "S.53-A--Agreement to sell between parties---Necessary ingredients of---Receipt of payment of part of sale price, signed by the original defendant, attested by two witnesses wherein sale consideration was also mentioned two lines at the bottom whereof mentioning that "a separate agreement of sale would be executed later on within a week"---No separate agreement was, however, executed by the parties--Receipt for payment of part of sale price duly signed by the original defendant thug amounted to a concluded agreement to sell in spite of absence of separate agreement of sale, because it contained the essential terms of a binding agreement to sell the immovable property."
7. (4)1994 M LD 1536--case of Province of Punjab v. Ghulam Hussain:--- "Suit in civil cases is to be decided on basis of preponderance of evidence available on record."
(5) PLD 1994 Kar. 194--Case of the Karachi Catholic Cooperative Housing Society Ltd. v. Mirza Jawad Baig:--
(e) Order XXXIX, Rules 1 and 2. Temporary injunction is granted when plaintiff fulfils requisite conditions by affidavit or otherwise.
8. Temporary injunction is a restraining order and is of equitable nature, Held: plaintiff had fulfilled conditions and temporary injunction granted by Single Judge was not open to interference by Division Bench in High Court Appeal."
9. (6)1982 CLC 1647--Case of Khushi Muhammad v. Ata Muhammad:--- "O.XXIX, Rr. 1 & 2 and S. 115-Temporary injunction--Grant of temporary injunction in suits for payment injunction, held, a rule and refusal an exception, particularly by when refusal calculated to defeat very object of suit."
10. (7)1992 CLC 2540--Case of Mrs. Naz Shaukat Khan v. Mrs. Yasmin R. Minhas etc:--- "Order XXXIX, rules 1,2. Prima facie case as a requisite for grant of temporary injunction, does not imply an indefeasible case. It signifies only an arguable matter, involving serious or substantial questions of fact and law, which on proceeding to trial is capable of and has a possibility of success."
11. Mr. Nizam Ahmed, learned counsel for defendants Nos.1 to 3, has contended (i) that the property owned by defendants No.1 and 2 and defendant No.3 is father of defendant Nos.1 and 2; (ii) that no relief is claimed against defendant No.3, who is a businessman of good reputation; (iii) that Annexure V is written on letter head of Losshe Enterprise, who are carpet dealers; (iv) that there is contradiction in between place of agreement; (v) that name of Ameen Borker is not mentioned in para. 4 of the plaint; (vi) that Muhammad Afzal is proprietor of Losshe Enterprise so cheque Annexure B was issued for purchase of carpet; (vii) that signatures of the defendants are denied, original is not produced; (viii) that signature of other co-sharer Haji Muhammad Siddiq is not on it;
(ix) that affidavits of the alleged brokers are not filed and there is no reason to deny the agreement for sale; (x) that the plaintiff purchased carpet from the defendants for Rs.2,46,440 and issued cheque of Rs.2,00,000 being sale amount and balance amount of Rs.46,440 is outstanding; (XIo) that the defendant wrote a letter to the plaintiff, Annexure V-1, mentioning therein as under:-- "Therefore, we request you to please arrange remaining balance amount of Rs.46,440 as due date was 16-10-1993 as per sale consideration of goods. "
12. He has further contended (xii) that value of the property is shown Rs 71,89,170 and willingness of the plaintiff to purchase the property is not clear; (xiii) that defendant No.2 has not signed the debit voucher, how can he bound down. He has referred following authorities:---
(1) PLD 1970 SC 139---Case of Shahzada Muhammad Umar Beg v. Sultan Mahmood Khan:--- "Suit by Government Servant challenging new seniority list and seeking declaration that he could not be reverted to his former post-prayer for temporary injunction to stay hands of Government from reverting him during pendency of suit-Factors to be borne in mind in granting or refusing such injunction-Court to seriously consider whether it would be right to issue injunction to public department and disturbing thereby its working."
13. The facts of this authority are quite different and distinguishable from the fact of the case in hand and in the Hon'ble Supreme Court's authority seniority of a Government servant was involved and it was a service matter whereas the case in hand in for specific performance of contract, for which part payment of Rs.2,00,000 is made. Therefore, this authority of the Hon'ble Supreme Court, in. Any case, is not applicable to the present suit.
14. (2)1988 CLC 1175---Case of Tien Ying Lee and others v. Ferozuddin and others: -- "O.XXXIX, Rr. 1 & 2---Ad interim injunction grant of Single Judge of High Court granted ad interim injunction in favour of plaintiff in his suit for specific performance of sale agreement subject to condition that he would deposit balance of sale consideration amount in Court within specified period and failure of plaintiff to comply with said condition would entail recalling of ad interim order---Single Judge in doing so, held, had exercised his discretion properly."
15. This authority referred by Mr. Nizam Ahmad learned counsel for the defendants Nos. l to 3, in my humble view is not applicable, because the sale of the property is disputed by the defendants, on the contrary their plea is that transaction whatsoever taken place is with regard to purchase of the carpet by the plaintiff. The debit voucher which is paid to Haji Muhammad Afzal also bears his signature, the endorsement reads as under:--- "Paid to Haji Muhammad Afzal son of Haji Muhammad Ashraf a sum of rupees two lac only showing willingness for sale of plot No.A-38 at the rate of Rs.1500 per sq. Yards."
16. Mr. Nizam Ahmed has further astressed (1) that the oral agreement arrived at between the parties at two different places i.e. One at Losshe Enterprise, Show Room No.2, Mehran Hotel and another at J-60, Phase V, Gizri Road, Defence Housing Authority; (2) that name of Ameen Broker is not mentioned in para 4 of the plaint; (3) that affidavit of any of the broker is not filed.
17. Mr. Muhammad Jamil for Defendant No.4 has nothing to say in favour of the plaintiff or the defendant.
18. These contentions of Mr. Nizam Ahmed are very much vital and important for the final adjudication of the matter when evidence of the witnesses is recorded alongwith cross-examination so that the Court can appreciate the evidence in its entity. So for the disposal of this application is concerned the basic requirements for allowing or disallowing this application are arguable case, prima facie balance of convenience in favour of the party and irreparable loss if any, is to be suffered by the party concerned.
19. Considering all the relevant features of this case, in the light of the well settled principles for the grant or refusal of temporary injunction in accordance with law, which are, firstly, whether the plaintiff has a prima facie good case, secondly, whether the balance of convenience lies in favour of the grant of the injunction, and thirdly, whether the plaintiff would suffer an irreparable loss if the injunction is refused. On the point whether the plaintiff has a prima facie good case the oral agreement between the parties for sale of the suit land coupled with payment of Rs.2,00,000 in the shape of debit voucher, prima facie, supports the case of the plaintiff. Secondly, balance of convenience, in view of the above facts also lies in favour of the plaintiff and he would suffer irreparable loss if injunction is not granted.
20. For the foregoing reasons I allow this application by confirming the order dated 14-11-1993, with no order as to costs.