' This is a first appeal from order dated 8-3-1978 passed by Mr. Moazzam Hayat, Civil Judge, 1st Class, Rawalpindi dismissing an application of the appellant for grant of temporary injunction against the respondents.
2. The facts are that Plots Nos. 138 to 148, 159 to 168, 187 to 190 and 206 to 209 bearing an area of 85,222.22 Sq. Yards was allotted by the Capital Development Authority to the appellant and their possession was delivered to the appellant on the 30th of March 1970. An agreement of lease for a period of 99 years was executed by the Capital Development Authority in favour of the appellant on the 30th of September 1970 for a consideration of Rs, 8,52,222.20 as premium which had been paid along with annual rent of Rs, 8,022.20.
3. According to the agreement to lease, the appellant was liable to raise construction according to the sanctioned plan within two years. Such constructions were raised and a completion certificate was granted by the C. D. A. To the appellant on the 19th of September 1973. According to this completion certificate, the building had been completed by the 20th of December 1972. On the 1st of December 1975, a lease deed was executed in favour of the appellant, but the same was not registered.
4. Notwithstanding this the Capital Development Authority allotted Plot bearings Nos. 138 and 139 after remarking them as Plot No, 36-C, on the 19th of April 1977 to respondent No, 1 and purported to hand over its possession to the above new allottee. The C. D. A. Also executed an agreement to lease dated 15th June 1977 in favour of respondent No, 1.
5. After all this was done, a letter was addressed on the 6th of August 1977 by the Deputy Director (I.
P.), Planning Directorate, Capital Development Authority, to the appellant stating that Plots Nos. 138 to 148, 159 to 168, 187 to 190 and 206 to 209 measuring 85,222.22 Square Yards Industrial Area Sector I-9 were allotted to them for setting up an industrial undertaking. On visiting the site it was revealed that the appellant had utilized only Plots Nos. 143 to 148 and 163 to 168 and all other plots were lying vacant. Such vacant plots were not required by the appellant. The appellant was, therefore, requested to submit his scheme/programme for the completion/utilization of the plots for the consideration of the Authority within a period of a fortnight, failing which it would be presumed that the appellant was no more interested in, the scheme and the vacant plots would be resumed.
6. Later on it came to the notice of the Acting Chairman on the representation of the appellant that there was overlapping of allotment of Plot No, 138 and a portion of Plot No,
139. The Chairman admitted that these allotments were incorrectly made since according to him a wrong impression was created in the mind of the Surveyors by the fact that the boundary was not complete nor any boundary pillars were set up to indicate physical possession of the appellant. Having conceded this he, however, took a curious view of the matter and gave the opinion that respondent No, 1 having already incurred expenditure on some structures, if he was asked to shift to some other place, it would not only mean financial loss to his project but would also adversely affect the recovery of public funds as he had taken a loan from the Small Industries Corporation. He, therefore, suggested that the appellant might accept an equal area in the west of Plot No, 159.
7. Respondent No 1 filed a suit for perpetual injunction on the 10th of January 1978 and obtained an order for maintenance of status quo from the civil Court. The appellant also filed a suit on the 11th of January 1978 and obtained stay order against his dispossession in regard to the disputed land measuring 3000 Square Yards. The stay order in favour of the appellant was, however, vacated on the 19th of February 1970 on the report of the Local Commissioner that respondent No, 1 was already in possession. His plaint was also rejected on the ground of non-maintainability of suit with the observation that a suit for possession and for specific performance of the contract was the only remedy open to the appellant.
8. The appellant filed the present suit for a decree of possession of the disputed area ; for a declaration that lease agreement dated 15-6-1977 in favour of respondent No, 1 was void and of no legal effect, and for a decree of specific performance of the contract of lease dated 1-12-1975 in respect of the leased property including the property in dispute.
9. The appellant also filed an application for temporary injunction to restrain respondent No, 1 from making any construction on the land in question or from making any further improvements thereon pending the disposal of this suit.
10. The application was dismissed as stated above by the learned trial Court on the 8th of March 1978. The learned Judge held that according to the agreement of 1970 the appellant was bound to complete the construction within a period of 2 years from the date of delivery of possession of the plot, but he had made default in this respect. He referred in this connection to the letter dated 6th of August 1977 and held that the Capital Development Authority could resume and forfeit the land leased out to the appellant. He also came to the conclusion that the Capital Development Authority had in fact resumed the land in dispute from the appellant. He further held that respondent No, 1 had a registered lease deed in his favour while the appellant had only an unregistered lease. He relied upon amended section 49 of the Registration Act for finding that unregistered document could not create or extinguish rights. The lease deed in favour of respondent No, 1 could not, in the view of the learned Judge, be held to be in genuine at this stage.
Despite this he gave at this stage the advantage of section 27-A of the Specific Relief Act to respondent No, 1 as being a person holding the site in dispute without notice of the rights or interest of the appellant. He held that respondent No, 1 would suffer much more injury by the injunction.
11. The assumptions of the learned Court below that the appellant had made any default in complying with the conditions of the agreement of lease of 1970 or that the area in dispute had been resumed from him, or that there was a registered lease deed in favour of respondent No, 1 are all incorrect. There is not an iota of evidence of resumption of the area in dispute. The letter dated 6-8-1977 was prima facie sent to the appellant in order to cover up the illegal acts already committed and was only in the nature of a show-cause notice but it lost its force after the Acting Chairman conceded that there was overlapping of allotment. The illegality of allotment in favour of respondent No, 1 was admitted by the Acting Chairman in the above letter dated 12th of January 1978.
12. The learned trial Court did not take into consideration that obviously a number of plots had been allotted to the appellant virtually as one plot. Completion Certificate issued on 19th of September 1973 proves prima facie that by September 1972 the appellant had carried out his part of the contract. It is implied in the lease deed dated 1-12-1975 that the C. D. A. Had signed and executed the deed on that date on satisfaction that the appellant had abided by the conditions of the agreement to lease dated 30th of September 1972. It is not understandable on what data the trial Court has concluded that there was a case made out for resumption of the area in dispute or that actual resumption was established.
13. The document executed by the C. D. A. In favour of respondent No, 1 is admittedly an agreement to lease and not a lease deed. This was conceded before me by the learned counsel for the said respondent, when I enquired from him how a deed of lease could be executed in favour of respondent No, 1 when he had not so far constructed the area in dispute. The assumption that a registered lease deed had been executed in favour of respondent No, 1 is not correct.
14. It will be premature to hold on merits at this stage that respondent No, 1 is entitled to the protection of section 27-A of the Specific Relief Act as transferee for consideration without notice of the agreement between the appellant and the, C. D. A. And part performance thereof.
15. The question is whether in these circumstances the appellant has been able to establish a prima facie case, whether the balance of convenience is in favour of issuance of injunction and whether the appellant would suffer irreparable loss and injury if such injunction is not granted.
16. From the facts stated above, it is prima facie clear that the area in dispute along with some other area was allotted to the appellant by the C. D. A. For industrial purposes ; that possession of the property was given to him ; that an agreement to lease dated 30th of September 1972 was executed by the C. D. A. In his favour ; that the condition of construction of the said area within 2 years was fulfilled by the appellant; that a completion certificate dated 19-9-1973 was issued for this reason in his favour ; that for the reason that the appellant had performed his own part of the contract of payment of premium of annual rent and of construction within a stipulated period, a lease deed dated 1-12-1975 was executed though it was not registered ; that no notice of resumption was at all issued to the appellant nor any resumption order was passed ; that despite this C. D. A. Allotted the area in dispute to respondent No, 1 and executed an agreement to lease in his favour, and that this illegality was acknowledged and admitted by the Acting Chairman of the C. D. A. On the 12th of January 1978. From all these facts it is established that the appellant has a very strong prima facie case in his favour.
17. The learned counsel for the respondent, however, argued against the maintainability of a suit for specific performance of the contract. He submitted that the contract of 1st December 1975 was not an executor contract, but was an executed contract. He argued that such a contract cannot be specifically enforced. He further urged that the above lease deed not being a registered document, cannot be deemed to have created any interest in favour of the appellant.
18. When the attention of the learned counsel was drawn to section 53-A of the Transfer of Property Act, he argued that this section is applicable only to agreement to sell and that an agreement to lease is governed by the provisions of section 27-A of the Specific Relief Act. In either case, he urged, respondent No, 1 is protected being a transferee for value without notice of the rights or interest, if any, of the appellant.
19. I may refer to one other argument of the learned counsel. He submitted that since the master plan showed that each plot allotted to the appellant was a separate plot, all the area allotted to the appellant could not be considered to be one plot for the purpose of construction. When a query was put to him whether it was necessary for the appellant to construct buildings separately on each separate plot, he had to concede that it was not necessary for each plot to be constructed, but submitted that at least each plot should have been enclosed. This concession is sufficient answer to the argument of the learned counsel.
20. The points raised by the learned counsel are not helpful for reversing the finding about the appellant having established a good prim lack case. In order to establish such a case it is not necessary for the plaintiff to show that he must succeed in his suit. He has only to show that he has a good arguable case. The points raised by the learned counsel for the respondents are not, therefore, of any relevance in this connection.
21. These points have no merit also. It does not appear to be the case of the appellant also that the unregistered lease deed dated 1-12-1975 makes him a lessee of the property. It is for this reason that the appellant has filed a suit for specific performance of the contract to lease the property.
Such a suit is competent under section 27-A of the Specific Relief Act which provides that where a contract to lease immovable property is made in writing, signed by the parties thereto or on their behalf, either party may notwithstanding that the contract, though required to be registered, has no been registered, sue the other for specific performance of the contract. The reference in this section to a document which is unregistered and which was required to be registered apparently is inter alia to a case where a leas deed has been executed, but has not been got registered. This is sufficient answer to the argument against maintainability of the suit for specific performance of the contract.
22. The argument that section 53-A of the Transfer of Property Act is relatable only to agreements to sell, is not correct. It applies to all contract to transfer immovable property for consideration. It cannot be doubted that a lease is a transfer of interest in immovable property. The case of the appellant is, therefore, also covered by section 53-A of the above section. There was not only a written agreement between the parties, but possession had also been delivered to him. Moreover this is a case in which the appellant had performed his part of the contract and only the C. D. A.
Was required to execute a registered lease deed in his favour to perform its part.
23. Section 53-A also furnishes an answer to the argument about the non-registration of the contract of lease since it provides in the same manner as section 27-A of the Specific Relief Act that the transferee will have a right to the protection of his possession notwithstanding that the contract though liable to be registered, has not been registered, or, where there is an instrument for transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force. It is within the discretion of the party to file a suit for specific performance of such contract or to remain in possession of the area promised to be leased out to him under section 53-A.
24. In view of section 53-A of Transfer of Property Act it was not necessary for the appellant to file a suit for specific performance of the contract. He could have filed only a suit for recovery of possession since he has the right to protect his possession under the above section. This was conceded by the learned counsel for respondent No, 1 at least to the extent that in case a matter is governed by section 53-A and the promise for transfer has been dispossessed illegally by the promisor thereof, the promise cad file a suit for possession simpliciter. He, however, argued that this will not apply to a person to whom the promisor has transferred the property after dispossessing the promise. Prima facie this argument appears to be without merit since if the suit can be filed against the promisor for possession, it as well be filed against those who have stepped into his shoes. In the circumstances prima facie the suit for mere possession would be maintainable.
25. The question whether respondent No, 1 is a transferee without notice, cannot be decided at this stage. Moreover section 27-A, Specific Relief Act and section 53-A, Transfer of Property Act protect the interest of transferees and not of persons who have notice of contract before the transfer in their favour is complete and who have yet time to retrace their steps. It cannot be doubted that so far respondent No, 1 is not a transferee ; there is only an agreement to lease in his favour. Prima facie, therefore, the protection granted by section 27-A of the Specific Relief Act or section 53-A of the Transfer of Property Act to transferee for consideration without notice, will not apply to his case.
This also supports the finding that the appellant has a strong prima fade case.
26. Lastly the learned counsel argued that section 49-E of the Capital Development Authority Ordinance bars the civil Courts jurisdiction. I'd not agree with this argument in view of the prima fade illegalities referred to above. This section protects from the civil Court's jurisdiction only order passed in accordance with the Act and not illegal orders.
27. The learned counsel for the C. D. A. Tried to argue that the area in dispute was not the area allotted to the appellant, but he conceded that this point had never been pleaded by the C. D. A. On the other hand the letters dated 6-8-1977 and 12-1-1978 are opposed to this contention.
28. The next question is whether the appellant would suffer irreparable loss and injury, if the injunction is not issued and the balance of convenience is in favour of issuance of the injunction.
The learned counsel for the respondents argued that since respondent No, 1 can be -ejected after demolition of the constructions raised by him, the appellant cannot suffer any loss and injury. On the other hand, it is the said respondent who will suffer irreparable loss and injury if injunction is issued.
29. The learned counsel for the respondent on the other hand relied upon Sunder Singh and others v. Ram Srindas (1) and Kabar Ali Shah v. Waryam and others (2). In the Lahore case it was held that where the plaintiff made out a prima facie case for possession, if there is sufficient apprehension of irreparable harm to machinery, an order of temporary injunction restraining the defendant from using the property should be made. The Supreme Court case is almost on all fours. That case arose out of an application for interlocutory injunction against raising of a wall pending decision of the case. The injunction was refused by the learned Civil Judge, but was issued by the learned District Judge and that order was maintained by the High Court. This order was maintained by their Lordships of the Supreme Court with the following finding :- "We have heard Mr. Manzoor Hussain Sial in support of the petition and consider that the interlocutory injunction was rightly issued in this case. In matters like this, the true criterion is to consider on which side the balance of inconvenience and not of convenience as the learned (1) AIR 1923 Lah. 227 (2) 1976 SCMR 393 judge in the High Court and District Judge seem to have thought would lie in case interlocutory injunction is refused but the plaintiff's suit ultimately succeeded. It is important to point out that when the applicant for interlocutory injunction is able to show prima facie the existence of right and its infringement, injunction will issue only if the circumstances are such, that the object really is to avoid the comparative inconvenience or mischief which is likely to result from refusing it. In other words the inconvenience will be greater than that which is likely to arise from refusing it. Keeping this principle in view in the instant case, the balance of inconvenience lay definitely in refusing injunction for if the respondents' prayer for interlocutory injunction was refused and they ultimately succeeded in the suit, the latter would have to amend the plaint or even file a separate suit to ask for the relief for mandatory injunction for demolition of the wall. This would have also entailed a wastage of expense by the petitioner in constructing the wall which ultimately will have to be demolished. Conversely, no such result would ensue, if the petitioner is restrained from raising the wall during the pendency of the suit. Even if the respondents' suit ultimately fails, it only means delay in the construction of wall for which the petitioner can claim compensation under section 95, C. P. C."
30. Although the respondents were given an opportunity to cite any case-law in their favour on this question which might be on all fours, they have not cited such authority. The authorities cited by them lay down in one form or other the principles enunciated in the above authority and need not be dealt with.
31. The reasoning given in this case is applicable fully to the facts of the present case also. I, therefore, allow this appeal with costs, set aside theK order of the learned trial Court and issue an injunction restraining respondent No, 1 from making any construction over the area in dispute during the pendency of the suit.