1. ' The brief facts giving rise to these two applications (Civil Miscellaneous Nos.5672 and 6698 of 1996) are that plaintiffs Nos.1 to 3 are sons, plaintiffs Nos.4 and 5 are daughters and plaintiff No,6 is widow of late Muhammad Shafiq who was tenant of shop No,1 situated on ground floor of Nusrat Manzil, Plot No,RB-11/24, Ratan Talau, Mohan Road, Karachi (hereinafter referred to as the said property since 1974. The defendant No,1 is widow, defendants Nos.2 and 3 are daughters of late Syed Siddique Hasan who was owner of the said property and defendant No,4 is widow of Syed Tahir Hussain son of Syed Siddique Hasan. The defendants Nos.5 to 9 are subsequent purchasers of the said property. It is the case of the plaintiffs that late Syed Siddique Hasan died leaving behind defendants Nos.1 to 3, Syed Tahir Hussain since deceased and another daughter Aqueela Hussain as his next of kin and the said legal heirs have been receiving rent from late Muhammad Shafique against receipts after the death of Syed Siddique Hasan. It is averred that after December, 1975, the co-owners/legal heirs of late Syed Siddique Hasan, in the first instance, avoided and then refused to accept the monthly rent of shop in question and as such late Muhammad Shafique started depositing rent regularly with the Rent Controller. Late Syed Tahir Hussain one of the legal heir of late Syed Siddique Hasan, during his lifetime, filed a Rent Case No,1623 of 1986 for ejectment of late Muhammad Shafique from the said property, which was allowed ex parte and then said Syed Tahir Hussain filed Execution Application Nos.17 of 1988. During the pendency of said execution proceedings, defendants Nos.1 to 3, it is alleged, settled the matter with late Muhammad Shafique and entered into a sale agreement in respect of the said property on 25-2-1989 and an amount equivalent to 75% of the sale consideration was paid by late Muhammad Shafique to the defendants Nos.1 to 3, whereas balance was agreed to be paid at the time of execution of sale- deed before the Sub-Registrar. Besides this a general power of attorney was also executed by defendants Nos.1 to 3 on 27-2-1989 in favour of plaintiff No,1 regarding the said property. It is further averred that after such settlement and agreement of sale, defendants Nos.1 to 3 filed three separate applications for withdrawal of ejectment/ execution proceedings before the Court of VIth Rent Controller, Karachi South. As per the averment made in the plaint, the said ejectment- execution proceedings were ultimately dismissed for non-prosecution on 28-1-1993. As there were disputes between the defendants Nos.1 to 3 and late Syed Tahir Hussain regarding their respective shares in the Nusrat Manzil, the sale-deed was not executed by defendants Nos.1 to 3 in favour of the plaintiffs. According to the plaintiffs late Muhammad Shafique and after his death the plaintiffs herein, have been requesting defendants Nos.1 to 3 to receive balance sale consideration and execute the sale-deed but the said defendants while admitting the sale transaction kept on requesting for further time to execute the sale-deed on the ground that there were serious disputes between the legal heirs of Syed Siddique Hasan who were co-owners of the entire building. It is further the case of the plaintiffs that in spite of there being an agreement of sale in respect of the said property, the predecessor-in-interest of plaintiffs, namely, Muhammad Shafique, and after his death, the plaintiffs, as abundant caution, continued depositing monthly rent with the Rent Controller to avoid any future complication. On 21-7-1996, the plaintiffs through two notices issued by defendants Nos.5 to 9 came to know that the Nusrat Manzil where the said property is situated, has been sold/conveyed by defendants Nos.1 to 4 to defendants Nos.5 to 9. On receipt of such notices it was learnt that late Syed Tahir Hussain and defendant No,2 with the collusion and assistance of other co-owners of the property have executed conveyance deeds on various dates and sold out the entire building in parts of defendant No,7 on various dates. It is stated that one of such deeds was executed on 17-6-1996 by defendant No,2 in respect of her share of 21-25% and other sale-deed was executed by widow of late Syed Tahir Hussain, the defendant No,4 in respect of her 45% share in Nusrat Manzil.
2. ' It is in the background of aforesaid facts that the present suit has been filed seeking following reliefs: "(i) Decree for specific performance of sale of suit property i,e, Shop No,1 situates on ground floor of Nusrat Manzil, Plot No,RB-11/24, Ratan Talau, Mohan Road, Karachi, as agreed vide sale agreement dated 25-21989 by directing the defendants Nos.1 to 3 and on their failure to do so the Nazir of this Hon'ble Court to execute the sale-deed in respect of the above suit property in favour of plaintiffs.
(ii) For cancellation of conveyance deed, dated 16th June, 1996 registered on 17th June, 1996 regarding 21.25% share in the building namely Nusrat Manzil and for cancellation of conveyance deed 9th February, 1994 in respect of 45% share of the said building and for cancellation of other conveyance deeds, gift deed, declaration of oral gift, agreements, executed by and/or in favour of any defendants in respect of said building particularly the suit property namely Shop No,1 situated on ground floor of Nusrat Manzil, Plot No,RB-11/24, Ratan Talau, Mohan Road, Karachi.
(iii) Declaring that the acts of the defendants Nos.1 to 3, transferring their share including the suit property in favour of other defendant and attempts, threats of the defendants for evicting the plaintiff from the suit property, are illegal, mala fide and without lawful authority.
(iv) Grant permanent injunction restraining the defendants, their servants, agents, representatives, heirs, attorney and person(s) acting for and on their behalf from selling, transferring, mutating, alienating, creating third party interest in favour of any person except the plaintiffs, disposing of in any manner the suit property, causing any loss or damage to the suit property, changing the present condition of the suit property in any manner. They may further be restrained from dispossessing, evicting, extending threats in any manner to the plaintiffs interfering in the enjoyment of the rights of the plaintiffs in the suit property in any manner, taking any action for eviction of the plaintiffs from the suit property.
(v) A decree for a sum of Rs,30,00,000 as damages/compensation against the defendants jointly and severally.
(vi) Cost of the suit.
(vii) Any other relief(s) which this Hon'ble Court may deem fit and proper in the circumstances of the case may also be granted to the plaintiff."
3. ' Alongwith the suit Civil Miscellaneous Application No,5672 of 1996 has also been filed under Order 39, Rules 1 and 2 read with section 151, C.P.C. For restraining the defendants from selling, transferring, mortgaging, alienating, disposing the plaintiffs from the said property and/or creating any third party interest. Another application being Civil Miscellaneous Application No,6698 of 1997 has been subsequently filed for staying further proceedings in Rent Case No,1704 of 1997 filed by defendant No,5 and others against the plaintiff in Court of VIII, Rent Controller, Karachi, South for ejectment of the plaintiffs from the said property.
4. ' The defendants Nos.2 and 3 were served and have inter alia stated in their written statement and counter-affidavit to the aforesaid applications that the alleged sale agreement dated 25-2-1989 and receipts thereto were obtained by the predecessor-in-interest of the plaintiffs fraudulently and without the consent of the said defendants. It has further been contended by the said defendants that the predecessor-in-interest of the plaintiffs was tenant of the said property and the alleged sale agreement is void. It has further been contended that Nusrat Manzil had already been sold by the defendants to defendant No,7 under sale agreement dated 9-3-1988 and as such there was no occasion for the said defendants to execute a sale agreement on 25-2-1989 in favour of the predecessor-in-interest of the plaintiff. In so far as defendant No,4 is concerned, it has been contended by her in the written statement that there being no sale agreement between the husband of defendant No,4 and the predecessor-in-interest of the plaintiffs, the defendant No,4 is not legally bound to execute a sale-deed in favour of the predecessor-in-interest of the plaintiffs or in favour of the plaintiffs after the death of their predecessor-in-interest.
5. ' I have heard the learned counsel appearing for the parties and perused the record.
6. ' The learned counsel for the plaintiffs has strenuously urged that there being a valid sale agreement in respect of the said property between the predecessor-in-interest of the plaintiffs and defendants Nos.1 to 3 the subsequent sale of the building in question in favour of defendant No,7 is void and as such liable to be set aside. According to the learned counsel, the plaintiffs, in this view of the matter, have a strong prima facie case and the balance of convenience is in their favour as they are in possession of the said property. It is further contended by the learned counsel that the plaintiffs shall suffer irreparable loss and injury in case the defendants are not restrained from selling, disposing of and/or creating any third party interest in respect of the said property and further that the possession of the plaintiffs is required to be protected under orders of the Court.
7. ' It is an admitted position that the building in question where the said property is situated was originally owned by late Syed Siddique Hasan and predecessor-in-interest of the plaintiffs, namely, Muhammad Shafique, was his tenant. After the death of Syed Siddique Hasan, the property in question devolved on his legal heirs i,e, defendants Nos.1 to 3 Syed Tahir Hasan and another daughter of the deceased Mst. Aqueela Khatoon who died unmarried before the filing of this suit.
8. The share of the legal heirs of late Syed Siddique Hasan in Nusrat Manzil was undivided and as such the defendants Nos.1 to 3, even if it is proved that the said defendants had agreed to sell the said property to predecessor-in-interest of the plaintiffs is a void agreement of sale as the said defendants Nos.1 to 3 could not have competently/legally agreed to sell the said property to predecessor-in-interest of the plaintiffs. Even otherwise, there is total denial of sale agreement by defendants Nos.1 to 3 in favour of predecessor-in-interest of the plaintiffs. Much stress has been laid by the learned counsel for the plaintiffs on the application said to have been filed by defendants Nos.1 to 3 before the Rent Controller in execution No,17 of 1988 (outcome of Rent Case No,1632 of 1986). In this regard, it may be stated that the said rent case was filed by late Syed Tahir Hasan, predecessor-in-interest of defendants No,4 and under the law no compromise could have been recorded in the said execution application on the basis of an application filed by defendants Nos.1 to 3 as the said defendants were not a party to the aforesaid execution proceedings. In any event, no orders on such application for compromise were passed by the learned Rent Controller and the execution application was dismissed for non-prosecution on 219 of 1993 though the said applications for compromise and withdrawal of execution proceedings were filed on 26-2-1989.
9. One fails to understand as to why no orders from the Rent Controller were obtained by the predecessor-in-interest of the plaintiffs on the said compromise applications in case there was a genuine compromise between the parties. Another aspect of the matter is that alongwith the alleged sale agreement between the predecessor-in-interest of the plaintiffs and defendants Nos.1 to 3 a general power of attorney is also alleged to have been executed by defendants Nos.1 to 3 in favour of plaintiff No,1 on 27-2-1989, yet till 1996 i,e, up to the filing of this suit, no attempt was made by the plaintiffs or their predecessor-in-interest to execute a sale-deed in respect of the said property in their favour.
10. The upshot of the above discussion is that the plaintiffs have failed to make out a prima facie case for grant of injunction, the balance of convenience does not lie in their favour and they shall not suffer any irreparable loss or injury in case this application is not granted. Civil Miscellaneous Application No,5672 of 1996 is, therefore, dismissed. However, since admittedly the plaintiffs are tenants in respect of the said property they will not be dispossessed/ejected from the same otherwise than in due course of law.
11. ' In view of my above findings, Civil Miscellaneous Application 6698 of 1997 is also dismissed. Even otherwise, the relief claimed under the said application is barred by section 56(a) of the Specific Relief Act as no injunction to stay the judicial proceedings can be granted by the Court.