1. The plaintiff has filed these two applications, one under Order XXXIX, Rules 1 and 2, C.P.C. (C.M.A.
2. No,5771 of 1995) and other application under Order XXXVIII, Rule 5, C.P.C. (C.M.A. No,6420 of 1995).
3. Since facts are common, I propose to dispose of both these applications by this common order.
4. The dispute apparent from the contents of the plaint is between first wife (plaintiff) and her husband (defendant No,1) after the latter entered into the second marriage.
5. The case of the plaintiff is that she Was married to the defendant No,! in 1966, out of which five children were born, that after their marriage in Chakwal they shifted to Karachi; that defendant No,1 being Officer in Merchant Navy used to remain away from the city of Karachi as such the plaintiff spent all her time on upbringing of the children. It is further case of the plaintiff that she sold her share of agricultural land in Chakwal for a sum of Rs,5,50,000 and purchased a plot in Gulshan Iqbal in Works Cooperative Housing Society in the year 1979 and thereafter, constructed a house consisted of two stories which was completed in the year 1982. In support, the plaintiff has filed a copy of PT-I showing her as owner of this house. Subsequently, as alleged in the plaint, the parties shifted to a flat in Sea Cliff Apartment, Block-2, Clifton, Karachi and the house at Gulshan Iqbal was rented out. According to the plaintiff she was informed by the defendant No,1 that the said flat in Sea Cliff Apartments was purchased by him out of the sale proceeds of Gulshan-e-Iqbal bungalow that due to irrational behaviour and hostile attitude of the defendant No,1, it is claimed by the plaintiff, that she went to the U.S.A. alongwith her other children where her elder son was studying.
6. The controversy in the present suit started on return of the plaintiff from the U.S.A. when she found that in her flat at Sea Cliff Apartments another woman was residing who is claiming to be the second wife of the defendant No,1 and that she was forced to abandon this house and to live at some other place whereafter the defendant discontinued payment of maintenance to her and his children. In such desperate situation, as alleged in the plaint, she went to collect rent of her house at Gulshan Iqbal when she was informed by the defendant No,2 that he has purchased the same against the consideration of Rs,3.5 million through a registered deed. In view of this background of facts as narrated in the plaint, the plaintiff has prayed for interim injunction against the defendant No,1 praying that he may be restrained from acting as attorney of plaintiff and further prayed for interim injunction restraining him from alienating, selling or transferring the Flat No,1-C/13, Sea Cliff Apartments, Block-2, Clifton, Karachi and from selling the house at Gulshan Iqbal. Interim relief is also sought against defendant No,2 from transferring the house of Gulshan Iqbal and against the defendant No,3 from further mutating its record. Through other application the plaintiff has also prayed for attachment of the immovable property consisting of flat at Sea Cliff Apartments, Clifton and of the house at Gulshan Iqbal, Karachi.
7. I have heard Mr. Sohail Muzaffar, Advocate for plaintiff and M/s. Munir-ur-Rehman, S.I.H. Zaidi and Ashraf Ayub, Advocates for the defendants. Mr. Sohail Muzaffar contends that by misrepresentation and fraudulently the defendant No, 1 obtained a general power of attorney from plaintiff and thereafter sold the house at Gulshan-e-Iqbal to the defendant No,2. None of the parties have filed copy of the said general power of attorney. However, during arguments, Mr. Munirur Rehman submitted a photocopy of the said general power of attorney which was registered before the Sub- Registrar 'T' Division, Karachi on 3-9-1990. This authority was executed by the plaintiff in favour of defendant No,1 in respect of the bungalow at Gulshan Iqbal which admittedly stands disposed of by way of sale to the defendant No,2. In my view, since this power of attorney has been acted upon, there would be no use of granting interim injunction against the defendants Nos.1 and 2 up to this extent. The case of the plaintiff is that the defendant No,1 has obtained this power of attorney on the basis of fraud, misrepresentation and coercion. Nowhere the plaintiff has said in her plaint that at any subsequent stage this power of attorney was revoked or cancelled by her. After acting upon this power of attorney, interim relief as prayed vide para. (a) in the injunction application has become infructuous.
8. It is further argued by Mr. Sohail Muzaffar that the flat bearing No,1-C/13, Sea Cliff Apartments Block- 2, Clifton, Karachi was purchased from the sale proceeds of the house bearing No, B-88, Block 15, Gulshan Iqbal, Karachi and, therefore, the defendants Nos.1 and 2 be restrained from alienating, selling or transferring this property till disposal of the suit. Mr.. Munir-ur-Rehman, learned counsel for the defendant No,1 has vehemently disputed this position and has argued that the bungalow at Gu'shan Iqbal was purchased from the income of the defendant No,1 and that such purchase was made in the name of plaintiff who at the relevant time was his wife. The case of the defendant No,1 is that he has divorced the plaintiff which fact was not disclosed in the plaint. But from the title and contents of plaint, it appears that the plaintiff is still claiming to be the lawful wife; that the plaintiff was a Benami Owner and that he is the real owner. In these circumstances, even at this initial stage I am of the view that the burden is not upon the plaintiff as she was registered owner of the bungalow at Gulshan-e-iqbal but is upon the defendant No,1 to prima facie show that he is the real owner and that the plaintiff was merely a benamidar$ There is no presumption in law that the property standing in the name of a Muslim wife belongs to her husband and that the same is not her property. (For any reference see Sardar jahan v. Afzal Begum, AIR 1941 Oudh 288 and Mst.
9. Zaitoon Begum and another v. The Central Exchange Bank Ltd. and another PLD 1961 (W.P.) Lahore 888). I would like to further observe that Islam as well as our Constitution, 1973, confer rights on woman to own and possess movable and immovable properties and treat them as separate legal entity distinguished from their husbands.
10. Reverting to Civil Miscellaneous Application 6420 of 1995 filed by the plaintiff under Order XXXVIII, rule 5, C.P.C. it is faintly argued by Mr. Sohail Muzaffar that since the defendant No,1 has entered into second marriage, there is every likelihood that he may dispose of the flat of Sea Cliff Apartments, Clifton. Karachi as well as may also dispose of the sale proceeds of the bungalow of Gulshan Iqbal and, therefore, both the immovable properties may be attached. In this connection he has referred to the following cases: (i)Muhammad Yousaf v. Agha Amir Muhammad (PLD 1976 Karachi 926); (ii)Travel Agents Association of Pakistan v. M/s. Skyline (Pvt.) Travels Ltd. (1992 CLC 1644); (iii)Muhammad Bashir Khan v. Messrs Steelfabs Ltd., Karachi (1985 CLC 38) ; and (iv)M/s. Sports World and others v. Latees Fabrics and others (1995 MLD 1707).
11. In the first reported case (PLD 1976 Karachi 926) a learned Single Judge of this Court Mr. Zafar Hussain Mirza; J. (as he then was ) held that the jurisdiction to attach a property before judgment is of an extraordinary nature and should be exercised sparingly and strictly in accordance with the procedure prescribed by the Civil Procedure Code. It was further held that before passing such order the Court should be satisfied that the defendant is about to dispose of the whole or part of his property in order to obstruct or delay the execution of any decree Oat may be passed against him. This view was followed by this Court again in the case of Travel Agents Association (supra). In the case of Muhammad Bashir Khan (1985 CLC 38), this Court dismissed application for temporary injunction as well as attachment before judgment on the grounds that no reference was shown as to the previous conduct of the defendant to dispose of his property with the intention to defeat the decree. In the case of M/s Sports World and others (1995 MLD 1707), a Single Judge of Lahore High Court upheld the order of the trial Court for attachment before judgment on the grounds, inter alia, that the defendants were liable to pay substantial amount to the plaintiffs, they were citizens of the U.K., that they were planning to dispose of their properties in Pakistan which fact was substantiated by the plaintiff. In the present case, for seeking relief of attachment before judgment, the plaintiff is required, prima facie, to show that the defendant No,1 is intending to dispose of his properties with the intention to obstruct or delay the execution of any decree that may be passed, against him, which she was not able to satisfactorily establish. In my view mere apprehension of a plaintiff will not attract such discretion of a Court. This application, therefore, merits dismissal. The defendant No,2 Ismail Usman was able to establish, prima facie, that he is bona fide purchaser of the bungalow at Gulshan Iqbal. According to him this property was already transferred in his name and that he has paid a sum of Rs,3.5 million as sale consideration to the defendant No,1. Nowhere the plaintiff has alleged any such allegations towards this defendant that he, in connivance with the defendant No,1 and with the object to deprive the plaintiff of her rights has purchased the said property; In my considered view, the plaintiff was not able to establish case of interim injunction or attachment before judgment against this defendant who tentatively appears to be a bona fide purchaser. Therefore, both the listed applications, as far as defendants Nos.2 and 3 are concerned, are liable to be dismissed. However, there are certain facts which are either not specifically denied by the parties or appears to be admitted. It is admitted that the house at Gulshan-e-lqbal was in the name of plaintiff which was sold at the price of Rs,35 lacs. The defendant No,1 has admitted that the amount of Rs,3.5 million was received by him as sale consideration after disposal of the bungalow at Gulshan-e-lqbal of which the plaintiff was recorded owner. Nowhere the defendant No,1 has stated that he has either accounted for or handed over the sale consideration of the said bungalow to the plaintiff. Since the plaintiff was the recorded owner of the immovable property at Gulshan-e-lqbal, I am of the tentative view that the plaintiff has established a prima facie case to the extent that she was entitled for return/refund of this amount. This leads me to observe that to this extent; the other two ingredients for grant of temporary injunction are also in favour of the plaintiff as the other immovable property which was apparently purchased from the sale proceeds of the bungalow of Gulshan-e-Iqbal is likely to be alienated. As a result of the above discussion, while Civil Miscellaneous Application 6420 of 1995 is dismissed, I grant Civil Miscellaneous Application 5771 of 1995 in the following manner:--
(a) That the defendant No,1 namely Malik Qudratullah is restrained from disposing of in any manner or creating any third party interest, incumberence or lien on the Flat No, 1-C, 13th Floor Sea Cliff Apartments, Block,2, Clifton, Karachi till disposal of the suit.
(b) The defendant No,1 is directed to submit accounts for Rs, 3.5 million which he has received as sale consideration of Gulshan-e-lqbal Bungalow within one month.
12. With the above observations, both the applications are disposed of.