1. ' This is an Application under Order 7, Rule 11, C.P.C. Whereby it is prayed on behalf of the defendants Nos.1 and 4 that the plaint be rejected on the basis that it does not disclose any cause of action against the said defendants and that it is barred under sections 42 and 56 of the Specific Relief Act and section 54 of the Transfer of Property Act.
2. ' The brief facts of the matter as alleged in the plaint are that the plaintiff had entered into a sale agreement with the defendant No,2 on 30-7-1990 for the purchase of a House bearing No,E-122/4 Block 7 Gulshan-e-Iqbal, Karachi, measuring 120 Sq. Yds for a total consideration of Rs,756,000 out of which an advance of Rs,356,000 was paid at the time of execution of the Sale Agreement and receipt duly obtained which was witnessed by defendant No,l. Thereafter, the possession of the property was handed over to the plaintiff by both defendants Nos.1 and 2 and since then the plaintiff is living in the house. Sometimes in September, 1990 the defendant No,2 requested the plaintiff for a further advance of Rs,225,000 out of the balance sale consideration of Rs,4,00,000 which was accordingly paid by the plaintiff to the said defendant on 9-9-1990. Copies of the sale agreement and receipts are filed as Annexures "A", "B" and "C" to the plaint.
3. ' It has been further averred in the plaint that a false report was lodged with the police which was registered as Crime No,218 of 1995 under section 448/34, P.P.C. On 4-4-1995 by defendant No,4 the alleged attorney of defendant No,1 on the basis of criminal trespass by the plaintiff in the said property. The case proceeded before the S.D.M., Jamshed Quarters, Karachi who found that the plaintiff was in possession of the property. However, as to the title of the same it was left to the parties to have it determined before a Civil Court of competent jurisdiction. As against this order of the learned S.D.M. a revision application was filed before the Learned Sessions Judge East who allowed the same and also ordered that the suit property be attached. This order was again challenged by way of an application under section 561-A, Cr.P.C.
4. ' It has been further alleged in the plaint that Babar Latif, the defendant No,3 who was the son of the original allottee of the suit property had nominated one Muhammad Farooq as his general attorney vide registered general power of attorney, dated 22-8-1989 in respect of the suit property as well as other properties, a copy of which has been filed as Annexure "D" to the plaint. Thereafter, Muhammad Farooq nominated one Tanzeem Rana as his sub-attorney on 26-7-1990 vide registered sub-power of attorney a copy of which has been filed as Annexure "E' to the plaint. That subsequently Muhammad Farooq in his capacity as the attorney of Babar Latif sold the suit property to the defendant No,1 Muhammad Mansoor Khan vide registered conveyance deed, dated 9-3-1991 which has been impugned in the suit and it is prayed that the same be cancelled being fraudulent and unlawful.
5. ' On the basis of the above facts Mr. Shaikh Riaz Ahmed appearing for defendants Nos.1 and 4 has argued that the defendant No,2 had no power to sell the suit property not being the owner of the same and hence as per averments of the plaint itself no cause of action has been displayed whereby any relief could be granted to the plaintiff and the alleged agreement to sell between plaintiff and defendant No,2 be specifically performed, as nowhere is it pleaded as to how defendant No,2 became the owner of the suit property and consequently could pass title to the plaintiff. Accordingly, as per learned counsel the suit is barred under section 12 of the Specific Relief Act. Similarly, Learned Counsel has also submitted that suit is barred under section 42, as no right in any property or any legal character has been displayed by the plaintiff in the Plaint. Learned counsel also referred to section 56 of the Specific Relief Act for the proposition that the suit was barred thereunder as well on the basis that, an injunction cannot be granted to prevent a breach of a contract the performance of which could not be specifically enforced as the property had already been sold to the Defendant No,1 by Muhammad Farooq the Attorney of defendant No,3 who was the actual and real owner of the property. Learned counsel has placed reliance upon Burmah Eastren Limited v. Burmah Eastern Employees Union PLD 1967 Dacca 190, Pakistan v. Devanchand Muljimul PLD 1968 Kar. 107, Muhammad Akram v. Muhammad Rafi 1989 CLC 15, Abdul Wahab v.
6. Province of Punjab 1986 M LD 2049, Abdul Rashid Vertu v. Habib-urRehman 1995 M LD 397, Liaquatabad Super Market v. Mayor of Karachi PLD 1981 Kar. 613, P.S O. v. K.E.S.C. PLD 1991 Kar. 365, Civil Aviation Authority v. Data International PLD 1993 Kar. 700 and Parveen Begum v. Shah Jehan PLD 1996 Kar.
7. 210.
8. ' On the other hand Mr. Maqsood Hassan Khan for the plaintiff has submitted that as per the averments contained in the plaint a cause of action has been displayed by the plaintiff who claims to have purchased the suit property from the defendant. No,2 vide agreement to sell, dated 30th July, 1990 for a total sale consideration of Rs,'756,000 out of which Rs,356,000 plus Rs,225,000 have already been paid to the said defendant. Consequently, as per the learned counsel the conveyance deed between Babar Latif defendant No,3 through his attorney Muhammad Farooq and Muhammad Mansoor Khan, dated 9th March, 1991 being later in time is prima facie, fraudulent and unlawful. Accordingly, the veracity of the same could only be determined through evidence i,e,, whether the earlier sale agreement would prevail over the latter. In the circumstances learned counsel says that as the matter concerns the veracity of disputed documents it cannot be said at this stage whether which document is authentic and hence in the circumstances prays that the application be dismissed. He has relied upon Ghulam Ali v. Asmatullah 1990 SCM R 1630, Muhammad Akhtar v. Abdul Hadi 1981 SCM R 878, Ghafooran v. K.M.C. 1996 M LD 1541, Zafar Ahmed Ansari v. Auqaf Department 1996 CLC 892 and Noor Begum v. Muhammad Boota PLD 1995 Lah.
9. 344.
10. ' I have heard both the learned counsel and have gone through the Plaint. My conclusions are as follows:-- ' It would be seen that as per the prayer clause of the plaint the plaintiff has asked for specific performance of her agreement with the defendant No,2, dated 30-7-1990, whereby the suit property was to be conveyed to the plaintiff by said defendant through a registered sale-deed. The ancillary reliefs prayed for by the plaintiff is the cancellation of the sale-deed entered between the defendants Nos.3 and 1, dated 9-3-1991 regarding the suit property on the basis that it was void as initio, invalid and a nullity in the eyes of law as well as a declaration that the defendant No,2 is under contractual and legal obligation to convey the suit property in favour of the plaintiff. Finally a permanent injunction has been prayed for restraining the defendants, their servants etc., from disturbing the plaintiff's peaceful possession of the suit property.
11. ' Mr. Shaikh Riaz Ahmed, learned counsel for the defendants Nos.1 and 4 has insisted that since no nexus has been shown in the Plaint between the owner of the suit property viz the defendant No,3 and the defendant No,2, therefore, the defendant No,2 could not pass on any valid title to the suit property to the plaintiff and consequently the suit would be barred under section 12 of the Specific Relief Act as it did not display any cause of action since the agreement to sell between the defendant No,2 and the plaintiff could not be specifically performed. So also no injunction could be issued in terms of section 56-F of the Specific Relief Act. Similarly, it is the learned counsel's contention that on the same reasoning no declaration could be also issued regarding the suit property as the plaintiff has neither displayed any right as to any legal character or to any property. This is the main thrust of learned counsel's arguments, but I am afraid I cannot agree with him, for the simple reason that in a suit for specific performance of a contract the plaintiff has to assert that such a contract exists between it and the main defendant who in the present case is defendant No,2. The plaintiff of course has to join others who are interested in denying such arrangement between herself/himself and the main defendant. The plaintiff does not have to either plead the law or establish his case beyond any reasonable doubt in the plaint. All he has to do as stated above is to plead the facts regarding the contract which he desires to be specifically performed and also regarding the status and factual aspects concerning others who are interested in denying his title. I find that the above ingredients are present in the plaint although it may not be a work of art. It is for the plaintiff to prove her case through evidence and the issue as to whether defendant No, 2 had any valid title to the suit property which he could pass on to the plaintiff would be a proper issue at the trial stage and would be decided as such. In my view this issue requires evidence and consequently, it would be unfair as well as inequitable to dismiss the suit on this g; fund alone viz that the plaintiff has ostensibly not stated in anywhere in the plaint as to how the defendant No,2 could pass on valid title to the plaintiff. This conclusion becomes even more compelling in view of the fact that the defendant No,1 has filed a counter-suit against the plaintiff and others bearing No,1176 of 1998 seeking possession of the suit property as well as a declaration that the plaintiff is the exclusive owner of the suit property. Consequently if the plaintiff were non-suited at this stage and eventually Suit No,1176 of 1996 dismissed, she would be left without a remedy.
12. Support for the above conclusion can be found in Ghulam Ali v. Asmatullah (supra), where the Honourable Supreme Court was pleased to observe that lack of proof or weakness of proof in the circumstances of the case did not furnish any justification for coming to the conclusion that there is no cause of action shown in the plaint and thereby rejecting the same under the provisions of Order 7, Rule 11 of the C.P.C. Similarly in Hyderabad Municipal Corporation v. Messrs Fateh leans Limited 1991 M LD 284, it was held that although the plaintiff did not have a title under the agreement of sale but possession of property in question having been given to him in pursuance of such agreement such possession would confer on him certain rights to be protected by law, one of them, being the right of injunction as provided under section 54 of the Specific Relief Act, whereby the possession of the plaintiff in immovable property could be protected if he got the possession in a lawful manner. In the present case it is yet to be seen whether or not the plaintiff's possession was lawful which as stated above is a matter of evidence, specifically in view of the fact that a counter-suit has been filed by the defendant No,1 seeking repossession of the suit property by the defendant No,1 . Similar conclusions were reached in Sarfraz Khan v. Abdul Karim 1991 M LD 1230 and Sehar Begum v. Salahuddin 1991 M LD 1594.
13. As to the cases relied upon by the learned counsel for the defendants Nos.1 and 4, I have no cavil with the propositions of law laid down therein viz to the effect that the provisions of Order 7, Rule 11 should be set in to motion at the first available opportunity in order to ensure that a suit if not well- founded in law should be laid to rest, so that further time is not wasted in fruitless litigation (Burmah Eastern Limited v. Burmah Eastern Employees Union, Pakistan v. Devachand Muljimul, P.S.O. v. K.E.S.C.) (supra). As regards the other cases cited by the learned counsel, in my view the same are distinguishable from the facts of the present matter. In Muhammad Yaqoob v. Ghulam Muhammad (supra) a Single Judge of the Lahore High Court came to the conclusion that as the petitioner did not have any locus standi to file the suit as a declaration was sought that the shop belonged to the Provincial Government and its transfer in favour of the respondents by the Settlement Authorities was illegal and ultra vires. It was further held that mare possession did not confer any title on a litigant asserting such possession and consequently the suit was barred under section 42 of the Specific Relief Act as no right to the suit property was displayed. Similarly a learned Single Judge of this Court in Parveen Begum v. Shahjehan (Supra) also came to the conclusion that a suit for declaration as to the plaintiff's title to an immovable property based on an agreement to sell was not maintainable as such an agreement did not confer any right, title or interest in the property in favour of the plaintiffs. The proper remedy of the plaintiff would have been either for specific performance of the contract in question or for damages for its breach.
14. Again in Muhammad Abdul Rasheed Velmi v. Habibur-Rehman (supra) a single Judge of this Court also came to the conclusion that in the circumstances of the case the plaintiff had not displayed any right, title or interest to the suit property having himself accepted the deceased as owner of the suit property and consequently he had waived his right as Benami owner thereof. Accordingly, the plaintiff's suit on the basis of benami ownership was held to be not maintainable and hit by section 42 of the Specific Relief Act. In Liaquatabad Super Cooperative Market Limited v. Mayor of Karachi (supra) again a Learned single Judge of this Court came to the conclusion that no relief under section 42 of the Specific Relief Act could be granted by the Court where the same was liable to be frustrated by the authorities concerned by passing fresh orders or where it would be injust to clothe a suitor with an undeserved advantage or may inflict unjustified losses on the Defendant.
15. Finally in Civil Aviation Authority v. Data International (supra) it was held inter alia that by vinue of a specific prohibition in a licences agreement with regard to transfer of the same by the licencee, the licence could be cancelled and consequently, the licencees suit against the licensor in the circumstances was barred by section 42 of the Specific Relief Act as after the cancellation of the licence, the licencees had no legal right, title or interest in the suit property. However, such are not the facts in the present case. More to the point in my view is a decision of a learned Division Bench of this Court in Aijaz Mehmood v. Muhammad Jamil 1996 CLC 1027, where it was held that when it had been established that the plaintiff had purchased the suit property from someone who himself was neither its owner nor legally authorized to sell the same his suit could not be decreed and hence the judgment of the trial Court was upheld which had declined to grant the specific performance of the agreement in question. However, this conclusion was reached by the learned Division Bench on the basis of the material present before it viz pleadings of the parties and the evidence led thereon which is not the case in the present matter.
16. ' After the trial of this suit, this Court may reach the conclusion that the defendant No,2 had no title to pass on to the plaintiff, in which event the suit may be dismissed.
17. For all the foregoing facts and reasons I do not find any force in this application and consequently the same is dismissed without any order as to costs.