1. ' This is an application filed by the plaintiff under Order XXXIX, Rules 1 and 2, C.P.C. Read with section 151 thereof seeking injunction against the defendant not to dispossess him by use of unlawful force as well as through the rent proceedings vide Execution Nos.5 and 6 of 1998 pending before the Court of Bird Rent Controller, Karachi South till disposal of this suit.
2. ' This is a suit for declaration, injunction and specific performance in respect of two amalgamated Plots bearing Nos.MR-5/3 and MR-5/8 situated at Ali Akbar Street, Jodia Bazar, Mithadar, Karachi.
3. Plaintiff has claimed that vide agreement, dated 30-10-1993, he has agreed to purchase these two plots from the defendants against a total sale consideration of Rs,14 lacs against which he has already paid a sum of Rs,9,50,000. Thus, it is admitted that a balance of Rs,4,50,000 is still outstanding. It is also claimed by the plaintiff that by virtue of the said sale agreement he was inducted into .Possession and is still in possession of the suit properties. It is also claimed by the plaintiff in his plaint that earlier on 30-9-1991 parties entered into agreement for construction of a building on the suit property and when it was constructed, the defendant backed out, and therefore, he has filed this suit for declaration and specific performance of the agreement, dated 3-10-1993.
4. ' The case of the defendant is that he entered into agreement for construction of a building on the suit property vide agreement, dated 30-9-1991 but has denied execution of the agreement, dated 340-1993. According to the defendant, the second agreement is a fo 'ed and manufactured document. He has also denied receipt of Rs,9,50,000 as alleged in the plaint. I have heard Mr. Abdul Wahab Baloch, Advocate for plaintiff and Mr. S. Mukhtar Naqvi, Advocate for defendant. It was argued by Mr. Abdul Wahab Baloch that the plaintiff is in actual and physical possession of the suit property in his independent right and cannot be evicted without due process of law. At the same time, it was further contended that the plaintiff has fully established the three ingredients for grant of the instant application. Reliance is placed on the case Ismail Brothers v. Kaval Ram PLD 1981 SC
545. On the other hand, Mr. S. Mukhtar Naqvi has contended that through such methods, the plaintiff wants to circumvent the provisions of Sindh Rented Premises Ordinance, 1979 and that the earlier attempts of the plaintiff in the rent proceedings resulted in frustration till the forum of the Honourable Supreme Court. He has placed reliance on the case'Iqbal and 6 others v. Mst. Rabia Bibi and others PLD 1991 SC 242.
5. ' The defendant who is admittedly owner of the suit property has filed eviction proceedings under section 15 of the Sindh Rented Premises Ordinance, 1979 against his two tenants. The case of the plaintiff is that he is now enjoying possession of the same premises alongwith this tenant. It is to be noted that present plaintiff is the son of the tenant Muhammad Younas against whom eviction has been ordered and now execution application is pending before the Court of Rent Controller. An application under section 12(2), C.P.C. Was filed before the Rent Controller by the present plaintiff alleging that the order of eviction has been obtained by fraud and misrepresentation. This application was dismissed against which First Rent Appeals Nos.457 and 458 of 1998 (Muhammad Yaqub v. Mohsin Ali and another) were filed which were dismissed by this Court vide judgment, dated 22-9-1998 with the following observation:-- "In the instant case as was rightly submitted by the learned counsel for the respondent, the appellant had full knowledge of the ejectment proceedings and the question of title between the appellant and respondent No,1 on the basis of the alleged agreement to sell between them is yet to be settled by the Court but the appellant cannot be allowed to protract the proceedings by seeking aid of provisions contained in section 12(2), C.P.C. On baseless allegations of fraud or misrepresentation. There is nothing on record to show that the elements of misrepresentation or fraud are attracted to the facts and circumstances of this case. No wilful act appears to have been committed by the respondent No,1 to deprive the appellant by any unjustifiable means of what he is entitled. The applications under section 12(2), C.P.C. Were filed to abuse the process of Court.
6. Therefore, the learned Rent Controller has rightly dismissed them and the impugned order requires no interference..."
7. ' Against the above said order, the plaintiff filed petition seeking leave to appeal before the Honourable Supreme Court which numbered as Civil Petitions Nos.706-K and 707-K of 1998. The Honourable Supreme Court declined to grant leave to appeal vide judgment, dated 21-01-1999 and observed, inter alia, that in any case, mere filing of a suit for specific performance could not render the order passed by the Rent Controller directing ejectment of the tenant invalid. It is settled law that a purchaser of a property through an agreement of sale has no right, title or interest in the property proposed to be sold except to maintain a suit for specific performance. If any reference is needed, see Khayaban-e-Iqbal (Pvt.) Ltd. And 2 others v. Mustafa Haji Muhammad 1996 CLC 1758 at 1766 and Manzoor Ahmed and others v, Mst Iqbal Begum and others 1989 SCM R 949.
8. ' The rule laid down by the Honourable Supreme Court in the case of Ismail Brothers (supra) does not lend any support to the plaintiff as in that case, it was observed, inter alia, that the order of eviction obtained was, prima facie, by misrepresentation dealing with the question of partition according to Hindu Law. On the point of balance of convenience, it was held that the plaintiff was enjoying possession of the premises since 1954 and his eviction will amount to physical ouster and economic disruption. In the instant case, the possession of the plaintiff is disputed while in the case of Ismail Brothers (supra) that was established even at the interlocutory stage. Therefore, in my considered view that rule is not attracted in the present circumstances. However, the case of Iqbal (supra) is more relevant. In that case reference was made to the provisions of section 53-A of the Transfer of Property Act, 1882. In that case, a suit for specific performance was filed by the tenant who resisted the handing over of the possession on such basis. His appeal was dismissed by the Honourable Supreme Court with the following observation:- "Be that as it may, in some recent judgments this Court has taken the view that in cases like the present one, where the sale agreement or any other transaction relied upon by a tenant is seriously and bona fide disputed by the landlord, the appellant/tenant cannot be allowed to retain the possession during the litigation; where he continues to deny the ownership of the landlord who had inducted him as a tenant, without any condition and/or reservation. It has been ruled that in such cases although the tenant has a right to adduce evidence and take a short time for that purpose to remain in occupation despite having set up a hostile title which is denied by the landlord; but on the well-known bar of estoppel in this behalf, he (the tenant) cannot be permitted to remain in occupation and fight the litigation for long time -- even for decades. In this case, it is more than a decade that the appellants have been able to keep the possession on a claim which the landlord asserts is false. Accordingly, as held in those cases in fairness to both sides, while the tenant is at liberty to prosecute the litigation wherein he should try to establish his claim but it should not be at the costs of landlord/owner. It should be at the cost of himself and he must vacate---though of course he would be entitled to an easy and free entry as soon as he finally succeeds in establishing his title against his own landlord. See Makhan Bano v. Haji Abdul Ghani PLD 1984 SC 17, Allah Yar and others v. Additional District Judge and others 1984 SCM R 741 and Province of Punjab v. Mufti Abdul Ghani PLD 1985 SC 1."
9. With this view, I am of the considered opinion that the plaintiff is not entitled to resist his eviction which has been ordered by a competent l9 Court of Rent Controller.
10. ' There is another method to redress the plaintiff's present grievance. He had earlier filed an application for injunction under Order XXXIX, Rules 1 and 2, C.P.C. Which was not pressed. It is settled law that in a suit for specific performance, the plaintiff who is seeking an injunction by interlocutory application, the burden upon him is not that onerous as it would be for succeeding in obtaining a decree for specific performance. Reliance is placed on the decision of a learned Division Bench of this Court in the case Muhammad Matin v. Mrs. Dino Manekhi Chinoy and others PLD 1983 Kar. 387 at 399 where the term "prima facie" was also interpreted in a manner that "where the plaintiff has established an arguable case as distinctID from that of the plaintiff having no right at all, this will be sufficient tol establish a prima facie case." Petition for leave to appeal against the order of a Division Bench of this Court in the case of Muhammad Matin (ibid) was dismissed by the Honourable Supreme Court. See Mrs. Dino Manekji Chinoy and others v. Muhammad Matin PLD 1983 SC 693. It was observed by the Honourable Supreme Court that where a property is in dispute, justice requires that the title of property remains intact during the pendencey of the suit. In the instant case it is also apprehended by the plaintiff that in case of his dispossession, the defendant may create third party interest in the suit property in order to create hindrance in execution of the decree which may be passed. Therefore, in order to keep this property available in case the suit for specific performance is decreed, I am of the view that while rejecting the plea of plaintiff to restrain the eviction proceedings, I grant the relief that the E defendant shall not create any third party interest in the suit property nor will part with the possession of the siut property subject to the condition that the plaintiff will deposit the balance sale consideration of Rs,4,50,000 with the Nazir of this Court within one month. At the same time, office is directed to fix this case for regular hearing within a year.
11. ' With the above observation, this application stands disposed of.