' MUHAMMAD YUNUS SURAKHVI, J.---This appeal, by way of leave of the Court, is directed against an order passed by the High Court on 16-10-1998, whereby the appeal filed by the appellant, herein, was dismissed and that of respondent was accepted.
2. The facts, forming the background of the present appeal briefly stated, are that respondent Raja Dil Nawaz Khan filed a declaratory suit along with prayer for specific performance in respect of suit land in the Court of District Judge Mirpur. It was averred in the plaint that the appellant, herein entered into a bargain of alienating the land in dispute to the plaintiff-respondent for a consideration of Rs,80,000. It was further disclosed that a sale-deed was prepared for registration.
The payment of Rs,80,000 through cheques was also made to the defendant. However, the defendant-appellant without any lawful justification refused to execute the sale-deed as such a suit was filed seeking a direction for execution of the sale-deed. Along with the suit an application for issuance of stay order was also filed. The District Judge issued the stay order in terms that the defendant shall not transfer the suit land and as such, the stay order to the extent of 3 Marlas of land was passed. On objections filed by the defendant the trial Court maintained the order to the extent of restraining the defendant from transferring the suit land but passed no order in respect of rest of the interim relief. The appellant and the respondent both filed appeals before the High Court but the High Court vide its order impugned dismissed the appeal field by the appellant and accepted that of respondent. The High Court passed the requisite stay order in terms that the order passed by the trial Court to the extent of restraining the defendant is maintained and the defendant may not interfere in the possession of the plaintiff to the extent of 3 Marla's over the suit land, therefore, the statutes quo shall be maintained. It is the aforesaid order of the High Court, dated 16-10-1998, which is the subject of present appeal.
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3. In support of appeal it was vehemently contended by Ch. Abdul Aziz, the learned counsel for the appellant, that the suit filed by the respondent in the Court of District Judge was not competent as the same was filed without a valid power of attorney. It was further submitted by the learned counsel that the affidavit filed with the application for issuance of stay order was not filed by the plaintiff and having been filed by the counsel for the plaintiff was not a supportive document to the application for interim relief and in absence of proper affidavit the stay order should not have been issued. The learned counsel also pressed into service the submission that no sale-deed was, written or prepared by the petition-writer on behalf of the vendor, so there being no prima facie case existing in favour of plaintiff-respondent, the stay order should not have been issued. The learned counsel also contended that the discretion was not exercised by the trial Court as well as by the High Court in a judicial way.
4. In rebuttal Mr. M.Y. Arvin, the learned counsel for the respondent, contended that the appellant entered into a bargain with respondent for alienating the suit land for a consideration of Rs,80,000 and in pursuance thereof a sale-deed was written by the petition-writer. The learned counsel also maintained that the appellant also received the consideration amount through two cheques but after receiving the consideration refused to execute the sale-deed. Therefore, the suit for declaration as well as for specific performance was perfectly competent in the eye of law and the trial Court committed no fault in issuing the interim relief and entertaining the suit.
5. After hearing the respective contentions of the learned counsel for the parties and perusing the relevant record, it may be stated that the respondent-plaintiff has filed a declaratory suit along with prayer of specific performance. The plaint is accompanied by a photo copy of unregistered sale-deed and two photo copies of cheques. The trial Court after examining the plaint and after due consideration of the relevant law and facts exercised its discretion in granting the interim relief in favour of plaintiff-respondent. At the stage of granting or refusing the interim injunction, the Court has to see as to whether a prima facie case has been made out or not and it is not expected to closely examine the merits of the case. The plaintiff must satisfy the Court that there is a fair and substantial question to be tried and there is a probability of his obtaining a decree if the evidence remains as it is. It follows prima facie that the existence of a right and its infringement are the first conditions for the grant of a temporary injunction. All that the Court has to see is that on the face of it the person applying for an injunction has a case which needs consideration and the comparative balance of convenience and inconvenience has also to be looked into. In exercising this jurisdiction, the Court does not profess to determine the legal rights of the parties in respect of the property, but acts on the assumption that the party seeking its interference has the legal right and needs the aid of the Court for the protection of the right until the legal right is finally ascertained.
6. In the instant case the plaint is accompanied by a photo copy of the sale-deed written on behalf of defendant-appellant along with photo copies of two cheques drawn in favour of defendant. The claim of the plaintiff-respondent prima facie appears to have been substantiated. It is also noticed that the plaintiff-respondent is admittedly in possession of the suit land to the extent of 3 Marlas of land as a counter-suit for possession has also been filed by the defendant-appellant. Thus, in our view, a prima facie case has been made out for the issuance of stay order. Therefore, the trial Court committed no legal error in issuing a stay order in terms that the defendant be restrained from interfering into the possession of plaintiff. Similarly the High Court by maintaining the status quo of the suit land committed no legal error.
7. So far as the contention of the learned counsel for the appellant that the suit was not instituted on the basis of valid power of attorney or that the amount of consideration paid through cheques was not drawn by the appellant is concerned, are the questions to be resolved by the trial Court when the issues are framed and both the parties are given opportunity to lead their evidence.
Similarly-the question as to whether the unregistered sale-deed is a genuine or fake one is also a question to be decided at the time of trial of the suit. At this stage we are not supposed to go into the aforesaid questions. In this view of the matter we find no illegality or infirmity in the impugned judgment passed by the High Court.
8. In the light of what has been stated above, finding no force in this appeal, it is hereby dismissed with costs.