1. ' Through this application the plaintiff seeks interim injunction in the terms to restrain the defendant from alienating Property bearing No,9-A, Khayaban-e-Hilal, Phase-VI, Defence Housing Authority, Karachi, hereinafter referred to as the suit property', during the pendency of the suit. The plaintiff's claim, as reflected from the plaintiff, is that defendant No,1 had entered into an agreement for sale of suit property for consideration of Rs,6 million on 29-9-1998. The plaintiff had paid to the defendant No,1 a sum of Rs,1,625,000 towards the sale consideration. According to the plaint, the defendant No,1 had asked the plaintiff to make further payment of Rs,3,75,000 before delivery of original documents of title. The plaintiff claims to have paid the amount demanded, as above, through cheque but was not provided even copies of the title documents. The plaintiff then came across a notice pasted on the suit property to the effect that some proceedings were going on, pertaining thereto, in the Banking Court No,II, Sindh Karachi. Upon enquiries, the plaintiff found that M/s. Union Bank Limited had obtained decree against defendant No,1 and in the execution proceeding, the suit property was sold to defendant No,2 for a consideration of Rs,4,655,000 in collusion with defendant No,
1. The plaintiff's case is that the defendant No,1, at that stage, had offered to get the suit property transferred in favour of the plaintiff provided further payment was made. On account of plaintiff's refusal to make further payment, the defendant No,1 is stated to have declined to transfer the suit property in favour of the plaintiff leading to institution of present proceedings with the following prayer:-- "(a)
(b) Directing the defendants jointly and/or severally to execute a registered sale-deed in favo,ur of the plaintiff respecting the suit premises being Property No,9-II, Main Khayaban-e-Hilal, Phase-VII, Defence Housing Authority Karachi.
2. AND/OR ' In case of failure of the defendants to execute the sale-deed, as aforesaid, this Hon'ble Court may be pleased to direct Nazir of this Hon'ble Court to execute sale-deed respecting the suit premises being Property No,9-II, Main Khayaban-e-Hilal, Phase-VI, D.H.A., Karachi in favour of the plaintiff and also to effect mutation in the records of the/ Defence Housing Authority in favour of the plaintiff.
(c) To pass such other orders as may be deemed appropriate in the circumstances of the case.
(d) Award costs.
3. ' The defendant No,2 has filed a counter-affidavit, in reply to this allocation, contending that no cause of action had accrued for filing the proceedings against defendant No,2 which, in any event, could not be maintained for specific performance in view of sale of the suit property in favour of defendant No,2 by the Banking Court No,II, in Execution No,81 of 1998. It is contended that the defendant No,2 had purchased the suit property and the sale in his favour was confirmed on 14th December, 1998 followed by issuance of sale certificate dated 14-12-1998. According to the learned counsel, the entire proceedings relating to sale of the suit property were within the knowledge of the plaintiff who had filed an application under section 151, C.P.C. Read with section 18(5) of the Banking Companies (Recovery of Loans, Advances, Credit and Finances) Act, 1997, in Execution No,81 of 1998 on 22-12-1998. The abovereferred application filed by the applicant is stated to have been dismissed by the said Banking Court on 24-12-1998. It is contended by Mr. Naqvi that the plaintiff cannot maintain proceedings for specific performance against defendant No,2. Since the latter is not privy to an agreement with the plaintiff nor has succeeded to any rights pertaining to the suit property through the defendant No,1. It is further urged that the plaintiff has not approached this Court with clean hands and has suppressed the factum about submission of the abovereferred application dated 22-12-1998 by him and dismissal thereof by the Banking Court.
4. According to the learned counsel, the relief of specific performance being discretionary is to be refused to a person who had, evidently, suppressed material facts. It is further urged by Mr. Naqvi that the plaintiff, on his own showing, had demanded repayment of the amount paid by him to the defendant No,1 in F.I.R. No,349 of 1998 and, therefore, is not, in any case, entitled to grant of injunction.
5. ' Mr. Akhtar Ali Mehmood, appearing for the plaintiff, has urged that plaint can be rejected only if cause of action is not shown to have accrued from reading of the plaint, itself, and the averments contained in the counter-affidavit filed by the defendant No,2 cannot be relied upon for rejection of plaint. The learned counsel has referred to the averments contained in paragraphs 6 and 7 of the plaint to submit that the material fact with regard to proceedings before the Banking Court had duly been disclosed. It is further contended that by virtue of section 52 of the Transfer of Property Act, the defendants cannot create any interest in relation to the suit property during pendency of the proceedings.
6. ' The last contention, raised by Mr. Akhtar Ali Mehmood, can, conveniently, be disposed of with the observation that the interest claimed by the defendant No,2, in relation to the suit property, had arisen before the present proceedings were filed. It may be noted that the present suit was instituted on 7-1-1999 and the defendant No,2 claims right on the basis of sale confirmed in his favour on 14th December, 1998 and the issuance of the sale certificate thereafter. Moreover, the doctrine of lis pendent contained in section 52 of Transfer of Property Act does not apply in the absence of registration of notice of pendency of suit contemplated under section 52-A of the Transfer of Property Act read with section 18 of the Registration Act. As regards the submission that plaint cannot be rejected except on the basis of averments contained in the plaint, there cannot be any cavil to such proposition. However, it is equally mandatory to check abuse of the process of Court at the initial ,stage so that no further time is wasted nor is the other side exposed to rigors of litigation unnecessarily. The plaintiff, quite significantly, has failed to dispute the veracity of the documents filed by defendant No,2 alongwith his counter-affidavit and has rather admitted the submission of application under section 151, C.P.C. In Execution No,81 of 1998 and its dismissal on 24- 12-1998. The Court-sale pleaded by defendant No,2 has not been disputed and does not require any evidence or proof. Such material being admitted can validly be taken into consideration at this stage as held in Jewan and 7 others v. Federation of Pakistan and others (1994 SCM R 826) which provides: ' "The Court while taking action for rejection of plaint under Order VII, Rule 11, C.P.C. Cannot take into consideration pleas raised by the defendant in the suit in his defence, as at that stage the pleas raised by the defendants are only contentions in the proceedings unsupported by any evidence on record. However, if there is some other material before the Court apart from the plaint at that stage which is admitted by the plaintiff, the same can also be looked into and taken into consideration by the Court while rejecting the plaint under Order VII, rule 11, C.P.C. Beyond that the Court would not be entitled to take into consideration any other material produced on record unless the same is brought on record in accordance with the rules of evidence." {{PAGE CUT}} ' In the present case, I have found that the documents filed alongwith the counter-affidavit have substantially been admitted and do clearly show that the suit roperty was mortgaged with M/s. Union Bank Limited and M/s ABN Amro Bank. Both the banks had filed proceedings for recovery of money against iefendant No,1 and others wherein mortgage decree for sale of the suit property was passed. The copies of documents of title pertaining to the suit property, muchless originals thereof, for the above reason, were not provided to the plaintiff even if execution of sale agreement in favour of the plaintiff is accepted. The defendant No,2 has further produced copy of common order, sated 14th December, 1998 passed in Execution Applications Nos.80 of 1998 and 81 of 1998 whereby sale of the suit property in favour of defendant No,2 vas confirmed and upon execution of sale certificate the suit property, its Possession was also directed to be handed over to him. The sale certificate and possession memo. Filed with the counter-affidavit further show that needful was lone and the sale in favour of defendant No,2 was acted upon on 17-12-1998. The original documents pertaining to the suit property were submitted by M/s Union Bank Limited in Court and are now stated to be in possession of the Defendant No,2. Following the said development, the plaintiff had, undeniably, fled application under section 151, C.P.C. Read with section 18(5) of Act XV of 997 which has, since been, dismissed with the observation that the suit roperty, having already been sold to the defendant No,2, the plaintiff could )flow his remedy against defendant No,1. Such remedy can, conveniently, be roceedings for recovery of the amount, allegedly paid to the defendant No,1, rid the damages, if any sustained by the plaintiff. Even the averment, contained I para.7 of the plaint, pertaining to the offer made by defendant No,1, is remcilable with the provisions contained in section 18(5) of Act XV of 1997 since a Judgment Debtor is entitled to match the highest offer within 30 days of sale. Even so, the rights of the defendant No,2 pertaining to the suit property cannot be denied. The relief of specific performance sought by the plaintiff can not be granted and would militate against the sanctity of sales conducted by Court. The relief for specific performance cannot be maintained for the property which stands lawfully alienated to defendant No,2 and continuation of present suit evidently amounts to abuse of the process of Court. Such proceedings are required to be nubbed in the bud for the benefit of plaintiff who can initiate appropriate proceedings as might be available in law. The power to reject plaint can even be exercised suo motu without feeling circumscribed by the grounds contained in Order VII, Rule 11, C.P.C. I am fortified in this view by judgments in Burmah Eastern Ltd v. Burmah Eastern Employees'
7. Union and others (PLD 1967 Dacca 190), Trustees of the Port of Karachi v. Gujranwala Steel Industries and another (1990 CLC 197) and M/s. National Fibres Limited v. Karachi Development Authority and another (1996 M LD 76), It is pertinent to note that the plaintiff has not even sought cancellation of transfer in favour of defendant No,2 which was completed upon issuance of sale certificate.
8. ' In the circumstances, I am of the view that the plaintiff cannot maintain proceedings for specific performance pertaining to the suit property and the plaint, therefore, is rejected with compensatory costs to defendant No,2 in the sum of Rs,5,000.
2. In view of rejection of plaint, at serial No,1, this application has become infructuous which is disposed of accordingly.
9. Plaint rejected.