' SHABBIR AHMED, J.--- The above appeals have been filed by the defendants Nos.1 and 2 (for short-Mutawallis) and Muhammad Hanif (for short the contractor) against order dated 10-10-2000 passed by learned Single Judge on C.M.A. No,179 of 2000 under Order 39, rules 1 and 2, C.P.C. Read with section 151, C.P.C. Filed in Suit No,596 of 1998 filed by respondents Nos.1 to 6 (for short beneficiaries) against Mutawallis and their servants for declaration, accounts and permanent injunction with the prayer that Mutawalli Hussain Haroon be restrained from carrying out any development or construction on Survey Nos.3, 5, 6, 7, 8 and 10 of SB-5 situated on Abdullah Haroon Road, Karachi, admeasuring about 6195 sq. Yds. (for short subject plot) through his agents, servants, contractors, partners or associates. The application was contested by the Mutawalli Hussain Haroon by filing verbose counter-affidavit.
' The learned Single Judge after hearing the learned counsel, representing the parties granted the application by suspending the building contract between Mutawallis and the builder.
2. In order to appreciate the respective contentions that have been raised on behalf of the parties, it would be proper to recapitulate the factual background.
' Lady Nusrat Khanum, (2) Rabianbai Senior, (3) Rabianbai Junior widows of Haji Sir Abdullah Haroon (for short-executants) dedicated through a Wakf deed dated 30th April, 1943, their properties detailed in schedule, by divesting themselves of their respective shares for the maintenance and benefit of (a) executants Nos.2 and 3, namely, Rabianbai Senior and Rabianbai Junior, (b) the sons and daughters of Haji Sir Abdullah Haroon, namely (1) Yusuf, (2) Mahmood, (3)
Saeed, (4) Zulekhanbai, (5) Daulat Khanum, (6) Shaukat. Khanum, (7) ZinatKhanum, (8) Afsar Khanum and (9) Laila Khanum, (c) for the sons, unmarried daughters and widows of the said sons of Haji Sir Abdullah Haroon, (d) for the sons and unmarried daughters of the said daughters, (e) for the sons unmarried daughters and widows of the lineal male descendants of the said sons of Haji Sir Abdullah Haroon and for the sons unmarried daughters and widows of the lineal male descendants of sons of the said daughters of Haji Sir Abdullah Haroon from generation to generation and in perpetuity, (0 ultimately for the benefit of religious and/or charitable purposes.
The said Waqf was styled as "Haji Sir Abdullah Haroon Waqf No,2". Under the deed, (1) Lady Nusrat Khanum Haroon, (2) Yousuf Haroon and (3) Mahmood Haroon were appointed Mutawallis, whereas, Saeed Haroon being minor, on his attaining majority, also become one of the Mutawallis.
It was one of the terms that on the death or voluntary retirement of Lady Nusrat Khanum Haroon, no person shall be appointed to act as Mutawalli in her place, and the surviving Mutawallis shall continue as Mutawallis, with further conditions that on the death of any of the sons, the eldest lineal male descendent of such son shall succeed him as Mutawalli and on the death of such successor, such successor's eldest lineal male descendent shall succeed him as Mutawalli and this shall continue from generation to generation and in perpetuity.
' In terms of deed, presently Yousuf Haroon, Mahmood Haroon and Hussain Haroon are Mutawallis of the Wakf, with powers of management of the Wakf properties including power to let the same on rent subject to the reservations that the Mutawallis shall have no power to let the Wakf properties or any part thereof on a lease for a period longer than three years without the leave of the Court.
They are also empowered to employ staff and other qualified persons for collections of rents, etc. Property No,3 of the Schedule, i,e, old residential house of Haji Sir Abdullah Haroon, ground floor and outhouses attached thereto that were in occupation of the executants Nos.2 and 3, whereas, 1st floor was occasionally occupied by other member of family of Haji Sir Abdullah Haroon. It was expressly declared and directed that Mutawallis shall not let on rent the said property and shall reserve the same in perpetuity for the use and residence of the executants Nos.2 and 3 and for the use and residence of sons of their lineal male descendants in perpetuity. All taxes, costs of repairs and income-tax payable in respect of the property were to be paid from the income of the rest of the Wakf properties and shall likewise set apart such. The net residue of the rents and profits of the Wakf properties were to be distributed amongst the persons (beneficiaries) detailed with their respective share in para. 18 of the deed for their maintenance.
' The. Wakf properties are as follows:--
(1) Plot of land with buildings thereon bearing Survey No,156 Sheet M.R.I measuring 734 sq.
Yards situated in Market Quarter, Karachi valued atRs,70,000
(2) Plot of land with buildings thereon bearing Bai Survey No,108, sheet S.B. 7 measuring 38 sq. Yds.
Situated in Saddar Bazar Quarter, Karachi valued at .Rs,8,000
(3) Plot of land with buildings thereon bearing Survey No,3, Sheet No,S.B.5 measuring 1790 sq.
Yds. Situate in Saddar Bazar Quarter, KarachiProperties item No,3 and
(4) Plot of land with buildings thereon bearing Survey Nos. 5, 6, 7, 8 and 10 Sheet No,S.B.5 Measuring 597, 550, 2011, 807 and 440 sq. Yds.
Respectively (with right of passage over PlotItem No,4 from one block and are jointly valued at: Rs,1,00,000 Rs,1,78,000 No,10 to the owners of Plot No,9 situated in the Saddar Bazar Quarter, Karachi valued at ' It was also provided that if after all the lines of said sons have become extinct, all the lines of daughters becomes extinct, then their shares shall be spent on and utilized for religious and charitable objects in the following manners:--
(a) For advancement and education of the Muslims in India, particularly the members of the Cutchi Memon Community of Sindh, in the matter of learning religious and culture.
(b) For the protection and promotion of Islam.
(c) For the relief and suffering of the poor and the needy.
(d) For payment to any mosques or other religious or educational institutions that may be in need.
(e) For affording medical relief.
3. The beneficiaries filed the above suit for declaration, accounts and permanent injunction against the appellant Hussain A. Haroon, Yousuf A. Haroon and Mahmood A. Haroon, Mutawallis and their staffs, alleging indifferent and neglected conduct of Yousuf Ali Haroon and Mahmood A. Haroon towards the Wakf affairs due to their periodical absence from Pakistan on political reasons which resulted in defendantNo,1 contrary activities in the affairs of Wakf, firstly as Manager and thereafter as Mutawalli. Due to the failure of defendants Nos.2 and 3 to fulfil their duties, they allowed the defendant No,1 to take sole charge of the Wakf affairs and its properties, who was appointed as caretaker Manager during Mutawalliship of his father Saeed. After his demise, he succeeded his late father as Mutawalli by virtue of clause 9 of Wakfnama. The plaintiff No,3 continued to take interest in the Wakf and wrote letter to defendant No,1 inquiring about the state of affairs of the said Wakf and its activities. She continued in her efforts to obtain the accounts from him without having recourse to a legal action but successful. It was also alleged that the defendant No,1 was utilizing the income/funds of the Wakf for his owt use, as ever since the defendant No,1 was given charge of the Wakf properties, nothing was done to further the objects of the Wakf and a pittance was being doled out to the beneficiaries including the plaintiffs as their share in the income generated by the Wakf properties. The defendant No,1, on demand for accounts only provided balance-sheet and financial statement pertaining to the Public Charitable Trust relating to the year ending 30-6-1994 and 30-6-1996; without details, showing in it hardly that any income was being earned from the Wakf properties. The balance-sheet showed minimum income through considerable income of Wakf properties had been generated through receipts of Pugree by a change of tenants that have been misappropriated. It was also pleaded that nothing had been done to further the objects of the Wakf ever since the defendant No,1 had taken charge of the Wakf properties not has he been fully utilizing the same for the benefit of the beneficiaries of the Wakf. Contrary to the express wishes of the Wakf, the property at Serial No,3 of the Wakf properties has been demolished.
Misappropriation and mismanagement in respect of the Wakf No,1 were also detailed in the plaint.
Despite persistent demands by the plaintiffs, the defendant No,1 failed to produce accounts which further compounded by the failure of the defendants Nos.2 and 3 to perform their duties with regard to the Wakf. Hence the suit for accounts, declaration and injunction.
4. C.M.A. No,4786 of 1998 under Order 39, rules 1 and 2, C.P.C. Read with section 151, C.P.C. Was filed, whereby restraint order was sought against the defendants from acting as Mutawallis. (ii)
Application under Order 40, rule 1 read with section 151 C.P.C. (iii) Application under Order 26, rule 11 read with section 151, C.P.C., were also filed alongwith plaint.
5. C.M.A. No,179 of 2000 was filed stating therein that it appears that defendant No,1 with intention develop Survey Nos. 3, 6, 7, 8 and 10 S.B. 5 situated on Abdullah Haroon Road, Karachi admeasuring a total of 6,195 has levelled the ground and have engaged a builder though onC.M.A. No,4786 of 1998, by consent, inter alia, defendant No,1 agreed to supply the accounts and record of the Wakf, which have not been supplied. The defendant No,1 is also in control of a property belonging to Haji Sir Abdullah Haroon Charitable Trust thus has commenced construction of a building on which there was a Yateem Khana and in spite of the protest of the members of the Haroon family Suit No,93 of 1998 under section 93, C.P.C. Is also pending, wherein, inter alia, suitability as a person to run the Trust has been challenged. The restraint order sought through C.M.A. In the terms that defendant No,1 be restrained from carrying out any development or constructions of the said plot through his agents, servants, contractors, partners or associates. The application was disposed of by the learned Single Judge by order dated 10-10-2000, which is impugned through above appeals.
6. The learned counsel were put on notice that the aforesaid appeals would be heard/disposed of finally on merits at Katcha Peshi stage and the learned counsel have argued the appeals for final disposal.
' We have heard the arguments of Messrs Rasheed A. Razvi, Mushtaq Ahmed Memon and Mr. Shaharyar, representing the appellant in H.C.A. No,315 of 2000 have adopted the arguments of Mr. Rasheed A. Razvi, Advocate whereas, Mr. Naimur Rehman and Mr. Yawar Farooqui, argued the matter on behalf of the respondents.
7. It has been contended by Mr. Rasheed A. Razvi, learned counsel for the Contractor (H.C.A. No,318 of 2000) that the contractor is a stranger to the proceedings and is aggrieved by the impugned order, therefore, he can tile the appeal as he is adversely affected by the impugned order and to support his contention, he referred the view taken by the Supreme Court in H.M. Saya & Co. v. Wazir Ali Industries Ltd., Karachi and another PLD 1969 SC 65, wherein the question for consideration was whether a stranger to a suit or proceeding can file an appeal if he is adversely affected by an order in that suit or proceeding. The view taken was that it is true that there is no express provision permitting such party to prefer an appeal against such an order. This omission, however, cannot be understood to amount to prohibition. The Court ought not to act on the principle that every procedure is to be taken as prohibited unless it is expressly provided for. To give such a meaning to the omission would result in grave injustice. It was further observed that the Court should proceed on the principle that every procedure which further administration of justice is permissible even if there is no express provision permitting the same. Section 96 of the "Civil Procedure Code deals with appeals from decrees and section 104 deals with appeals from orders. These provisions do not in terms say who is entitled to prefer an appeal. The code, however, lays down that if the decree or the order appealed from adversely affects a person he should be permitted to challenge the same in appeal even if he was not made a party to the original suit or proceeding.
' Mr. Rasheed A. Razvi also referred the case of Q.B.E. Insurance Limited v. The Trustees of the Port of Karachi 1992 CLC 804, whereinthe preliminary objection that the appellant not having been a party to the suit was not competent to file the appeal. It was contended that it was only the parties to the proceedings before the Court that had a right of appeal and those persons who were not parties to the suit were not competent to file any appeal even though the judgment and decree appealed might adversely affect their interests. Mr. Justice Syed Haider Ali Pirzada (as he then was) was of the view that a person who is not a party to the suit or proceedings has no right to appeal against the decision and this is the position where a person, who is not a party, is aggrieved by the decision and wants to appeal against it. He can only ask for leave to appeal from the Appellate Court before he can be allowed to file an appeal. There is no right of appeal vested in him by any of the provisions of the Civil Procedure Code or by any other provision of law. The only remedy open to him, if his interests are adversely affected or if he is aggrieved by decision of the Court, is to approach the Appellate Court and also for leave to appeal which the Appellate Court would grant in proper cases.
' Same view was reiterated in S. Musarrat Hussain Zaidi and another v. S. Salim Jawaid Zaidi and another PLD 1993 Kar. 548 in the following terms:-- "It is, in our opinion, clear that leave to a person to appeal from a decree or order in a suit or proceeding to which he was not a party should not be ordinarily granted unless he establishes that he has an interest which is affected by the order or decree from which he proposes to appeal. If he establishes that he has such interest, it seems to us, that it is not necessary for him to further establish that if he does not institute an appeal with the leave of the Appellate Court, the consequence will be that the order or decree against which he proposes to appeal, becomes conclusive without his being able to show whether appeal should or should not be granted, should depend upon the fact of each case and it is for the Appellate Court to decide whether the case before it is a fit case for the grant of such leave."
' Mr. Naimur Rehman, learned counsel for the respondents has not controverted the legal position and has not opposed the appeal on that ground.
' Following the dictum of H.M. Saya & Co. (supra) laid down by the Supreme Court, we are of the view that a stranger to a suit or a proceeding is not prohibited by the Code of Civil Procedure from filing an appeal against an order passed therein whereby he is aggrieved.
8. Mr. Rasheed A. Razvi, learned counsel for the appellant has also contended that the learned Single Judge has passed the order on the assumption that the building was demolished during the pendency of the suit though the demolition was over when the plaint was filed. His further contention was that the portion of property at Serial No,3 stand merged with property at Serial No,4 during the lifetime of Lady Nusrat Haroon.
' He also canvassed that the pre-condition for the grant of injunction in terms of Rule 1 of Order 39, C.P.C. Is that where in any suit it is proved by affidavit or otherwise --- (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree. (b) that the defendant threatents, or intends, to remove or dispose of his property with a view to defraud his creditors, the Court may grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders. He pointed out that there is no allegation of waste or damage as appears from perusal of the application and the supporting affidavit but the learned Single Judge without considering this aspect has passed the impugned order. Mr. Razvi though frankly conceded that such facts could be established otherwise than on affidavit. The term "otherwise" is wide enough to comprehend in its scope, such facts that may be established through pleadings and documents filed therewith.
' Mr. Razvi also argued with vehemence that the expression "any party" used in clause (a) of rule 1 refers to party to the suit and to support his contention, he referred the case of Sindh Industrial Trading Estates v. Mst. Qamar Hilal and 5 others 2001 SCMR 1680 that the words "any party" in legal parlance relate to the party in the proceedings and the person who has applied the Court to become party cannot be so-called "as party" unless orders are passed by the Court allowing the request for his addition as party to the proceedings and, therefore, a person not party to the suit or proceedings could not object to the claim and defence of the plaintiff alleging to be false and vexatious in terms of section 35-A, C.P.C.. The word "party" in Corpus Juris Secundum has been defined as follows:-- "With reference to judicial proceedings, the word 'party' is generally used as meaning one of two opposing litigants, he or they by or against whom a suit is brought, whether at law, or in equity, the plaintiff or defendant, whether natural or legal persons."
' Ballentine's Law Dictionary defines the word "party" in the following terms:-- "A person who had engaged in a transaction or made an agreement. One of the opposing litigants in a judicial proceeding, a person seeking to establish a right or one upon whom it is sought to impose a corresponding duty or liability, including any person by whom or against whom a suit, either at law or in equity, is brought. For the purposes of a right to appeal, persons named as parties in the original pleadings and persons who subsequently come or are brought into the action for the purpose of seeking relief or of being subjected to relief."
' Mr. Rasheed A. Razvi also referred the case of Philippine Airlines Inc. v. Paramount Aviation (Private) Limited and others PLD 1999 Kar. 227, to contend that the grant of injunction, in absence of the contractor, a party in proceedings, is in violation of principle of natural justice, thus the impugned order is liable to be set aside that has been passed in violation of principle of natural justice, the appellant was not a party and his right is affected by such order. His contention was that the principle "right of hearing" enshrined in Maxim "Audi alteram partem" applies to judicial as well as administrative order. He referred the cases of (1) Chief Commissioner, Karachi and another v. Mrs. Dina Sohrab Katrak PLD 1959 SC (Pak.) 45, wherein the apex Court expressed that the rule of justice embodied in the maxim: "audi alteram partem": "No man shall be condemned unheard" is not confined to proceedings before Courts but extends to all proceedings, by whomsoever held, which may affect the person or property or other right of the parties concerned in the dispute. The University of Dacca v. Zakir Ahmed PLD 1965 SC 90, wherein Supreme Court after referring cases (a)
Chief Commissioner, Karachi v. Mrs. Dina Sohrab Katrak PLD 1959 SC (Pak.) 45, (b) Davidsons Limited v. Government of Pakistan PLD 1961 SC 537 and (c) Abdur Rahman, Collector and Deputy Commissioner, Bahawalnagar and others PLD 1964 SC 461 reiterated the same principle that in all proceedings by whomsoever held, whether judicial or administrative, the principles of natural justice have to be observed if the proceedings might result in consequences affecting "the person or property or other right of the parties concerned". This rule applies even though there may be no positive words in the statute or legal document whereby the power is vested to take such proceedings, for, in such cases this requirement is to be implied into it as the minimum requirement of fairness.
' To demonstrate the right of the contractor in the matter, Mr. Rasheed A. Razvi, learned counsel for the appellant has taken us through the construction agreement between the appellants i,e, Mutawallis and the contractor for the construction of a project on subject plot, whereby the contractor was to raise the project with following specification, subject to the approval of building plan by the competent authority:--
(1) Basement Parking/shops.
(2) Ground floor Shops
(3) First Floor Shops
(4) Four other floors Shops/flats/offices ' Other conditions are Rs,100 million was to be paid to the party of first part (Mutawallis) by contractor as premium for award of project and construction of the building, out of which Rs,50,00,000 was paid for renewal of old lease, remaining amount was to be paid in terms of para. 6 of the agreement. He was to rent out shops/flats/offices and to receive premium from the prospective tenants and was to utilize said amount at their discretion i,e,, construction of the project and payment of premium to the first part as mentioned earlier, besides other expenses.
Monthly rents were to be collected by Mutawallis to be fixed by the contractor ,subject to the condition that the total monthly rent for the entire building was not be less than Rs,3,50,000 per month. Mutawallis have also executed a power of attorney in favour of the contractor with sole purpose of facilitating them the completion of project and to resolve and settle all the matters with regard to the project. On above premises, it has been contended by the learned counsel for the appellant that the impugned order suspending the operation of the agreement offends the right of the appellant/contractor, without hearing him, thus liable to be struck down.
9. Controverting the plea, Mr. Naimur Rehman, learned counsel for the respondent has with vehemence contended that the Mutawallis have granted the contract for the construction of a building project at the dismantled plot in terms of the contract with authority through power of attorney, the relation between Mutawallis and contractor is of principal and agent, the Mutawallis are party in the suit, the impugned order was passed with full opportunity to them, therefore, it cannot be canvassedthat the impugned order offends the principle of maxim "audi alteram partem" as the contractor is the agent of the Mutawallis. Mr. Naimur Rehman is right in his contentions that the Mutawallis Yousuf Haroon, Hussain Haroon and Mehmood Haroon were before the Court. The contract for the construction was given by Mutawallis during the pendency of the suit. Therefore, the contention that without hearing the contractor, the impugned order offends principles of natural justice cannot be canvassed when the principal viz. Mutawallis were before the Court.
' It has been further contended by Mr. Naimur Rehman that Mutawallis have no power to deal with property in the manner they have tried to deal with it by granting the contract to the contractor during the pendency of the suit. He was not entitled for the notice. To support his plea has referred the judicial pronouncements in Muhammad Saleem and 5 others v. Administrator, K.M.C. And 2 others 2000 SCMR 1748.
' His further submission was that contract itself is hit by doctrine of lis pendens and has taken support from the view expressed in Industrial Development Bank of Pakistan v. Saadi Asmatullah and others 1999 SCMR 2874 the doctrine of lis pendens was highlighted as follows:-- "Transfer when litigation in respect of the such property was pending before the Court, was to be governed by the provisions of section 52 of the Transfer of Property Act, 1882 which lays down that such transaction, made, during pendency of litigation, cannot affect the rights of any other party to the litigation, which may be acquired by it under the decree passed by the Court. Even a bona fide purchaser with consideration pendente lite would be bound by the result of the litigation as his rights in such property would be subject to the rights of the parties to the litigation as finally determined by the Court."
10. Learned counsel for the contractor has also attacked the impugned order by contending that all the ingredients for grant of injunction were not established and pointed out that the learned Single Judge on the basis of arguable case granted' the injunction in offinding in favour of the appellant that the defendant No,1 has with the avowed objective of improving the income of the Wakf has given the building situated on Abdullah Haroon Road to a builder who has to set up a multistorey building so that the income from the building by way of rent can be increased, thus has erred in passing the impugned order in 'absence of well-settled principle for the grant of injunction in terms of Order 39, rule 1, C.P.C., which are firstly, whether the plaintiff has prima facie good case,secondly, the balance of convenience lies in favour of the grant or injunction, thirdly the plaintiff would suffer irreparable loss if injunction is refused.
' It was pointed out that the learned Single Judge by granting the injunction solely on arguable case, has contradicted his own view expressed in General Biscuit v. Messrs Diamond Food Industries (Pvt.) Ltd. 1999 YLR 305 that a party praying for a stay has not merely shown that they have an arguable case which would entitle them to an interim order of stay but even where prima facie a case is made out, it is to be seen that for whom does the balance of convenience lie and whether irreparable loss and/or injury shall be caused and if so, to whom.
' It was further contended that though the previous decision on law point is binding on him on subsequent occasion and to support his cqntention, referred the case of Muhammad Muzaffar Khan v. Muhammad Yusuf Khan PLD 1959 SC (Pak.) 9 that own previous decision on point of law is binding on the learned Judge.
11. Mr. Rasheed A. Razvi, learned counsel for the appellant further contended that unless all the ingredient essentials for the grant of injunction are shown to be present by the party seeking the injunction, such party is not entitled for the relief and to support his submission has referred the case of (1) Marghub Siddiqi v. Hamid Khan and 2 others 1974 SCMR 519, (2) Muhammad Abid v.
Nisar Ahmed 2000 SCMR 780, (3) United Bank Ltd. y. Muhammad Hafeez Shakir 1998 CLC 1822, (4)
Zeenat Begum and another-v. Jan Mir Khan and 8 others 1986 CLC 223, (5) Mir Qamar-ul-Zaman v.
Agricultural Development Bank of Pakistan 1995 CLC 1982 and (6) Mrs. Shahzadi Baber v. Hina Housing Project (Pvt.) Ltd. And others 1994 CLC 1601.
12. Mr. Naimur Rehman, learned counsel for the respondents has supported the impugned order by contending that the respondents have filed suit against the Mutawallis alleging mismanagement and acting contrary to the Wakf Mutawallis have no power to deal with the property unless empowered by the deed, Mutawalli cannot sell nor lease the property longer than three years and in any case Mutawalli has no power to lease the property at Serial No,3. He pointed out that during pendency of C.M.A. No,4786 of 1998 for restraint order against the appellant from acting as Mutawalli, they granted the building contract, therefore, C.M.A. No,179 of 2000 was filed for restraint order against the defendant/appellant from carrying out any development or construction as the defendant granted over the subject plot including property at Serial No,3, which was kept for the residential purpose its identity and nature of use cannot be changed even if its purpose stands extinguished or frustrated due to efflux of time, the same cannot be utilized for any other purpose unless permitted by the Court. He further contended that the action of Mutawalli contrary to their power as Manager makes the case of the respondent's prima facie case and unless the Court permits, they cannot create any third party interest in the property in any manner. The balance of convenience also lies in favour of the respondent for the grant of injunction and if the corpus of the trust property is changed without recourse to the law, it will be an irreparable loss which cannot be compensated in terms of money.
13. While adverting to the plea that the learned Single Judge has passed the impugned order only on the basis of arguable case and ignored the well-established principles for the grant of injunction and has not adverted to other grounds, such as, balance of convenience and irreparable loss and contended that all was necessary was that the Court should be satisfied that the claim was not frivolous or vexatious, i,e, that there was a serious question to be tried and referred the case of American Cyanamid Co. v. Ethicon Ltd. (1975) 1 All England Law Reports 504.
' He also maintained that the Courts have granted injunction against the construction, if such construction is allowed to be raised, the same would create dangerous precedent which may ultimately result to legal complications and multiplicity of litigation and referred the case of Mst.
Hawa Bai v. Haji Ahmad and another 1987 CLC 558. He has also referred the case of Mrs. Naz Shaukat Khan and 3 others v. Mrs. Yasmin R. Minhas and another 1992 CLC 2540, wherein the connotation "prima facie case" was highlighted that "prima facie case" would not imply an indefeasible case; but would signify only an arguable case, involving serious or substantial questions of fact and law, which on proceeding to trial was capable of and had a possibility of success.
' Mr. Naimur Rehman also referred the case of Dorab Cawasji Warden v. Coomi Sorab Warden and others AIR 1990 SC 867 from Indian jurisdiction wherein injunction was granted by the trial Court in respect of sale of undivided property to a stranger executed hurriedly and secretly from the appellant. The High Court vacated the injunction. In appeal Supreme Court restored the injunction granted by the trial Court by setting aside the order of High Court by stating the guidelines for the grant of injunction in following terms:--
(1) The plaintiff has a strong case for trial. That is, it shall be of a higher standard than a prima facie case that is normally required for a prohibitory injunction.
(2) It is necessary to prevent irreparable or serious injury which normally cannot be compensated in terms of money.
(3) The balance of convenience is in favour of the one seeking such relief.
' Lastly, Mr. Naimur Rehman in support of the impugned order' maintained that the learned Single Judge has rightly granted the injunction restraining Mutawallis from constructing the project by suspending the contract by contending that the Court in order to prevent the ends of justice from being defeated can make order specified in clause (e) of section 94 of C.P.C. And referred the case of Balagarwab Oil Mills (Pvt.) Ltd. v. Shakarchi Trading A.G. And 2 others PLD 1990 Kar. 1, wherein the Division Bench of this Court ruled that in a fit case the Court may grant injunction even if the case does not fall within the four corners of the well-settled principles under Order 39, rules 1 and 2, C.P.C.
If the facts of the case so demand, in order to foster the cause of justice. It may be pointed out that the view taken by Nasir Aslam Zahid, in Mst. Salma Jawaid and 3 others v. S.M. Arshad and 7 others PLD 1983 Kar. 303 was referred with approval that Court can grant temporary injunction or appoint receiver by exercising inherent powers in the interest of justice after making reference to sections 94 and 151, C.P.C.
' The following principles are deducible from the case-law referred by learned counsel for the parties:--
(i) That party seeking injunction has to establish prima facie case, balance of convenience lies in favour of grant of injunction and irreparable loss in case of refusal that cannot be compensated in terms of money.
(ii) The Court has inherent power to grant injunction, in a fit case even if the case does not fall within four corners of well-settled principle for grant of injunction under Order 39, rules 1 and 2, C.P.C. If the fact of the case so demands in order to foster the cause of justice.
14. It has been argued by Mr. Rasheed A. Razvi that the injunction granted by the Court was beyond the scope of the suit, while elaborating his contention he referred the prayer clause to contend that the declaration has been sought that the defendant No,1 is unfit to act as Mutawalli and defendants Nos.1 to 3 be restrained from acting as Mutawallis, therefore, the prayer of C.M.A. No,179 of 2001 is beyond the scope of the suit and injunction should have been refused to support his contention has referred the case of (1) Ghazi Nasiruddin v. Seth Hashim Dawood Divan and others PLD 1962 (W.P.) Kar. 59, wherein the injunction granted by the District Judge was beyond the relief claimed in the suit. (2) Azhar Wali and others v. Bell Hellicopter Textran Inc. And others 1987 MLD 1336, wherein the Division Bench of this Court vacated the injunction granted by learned Single Judge by following the dictum laid down by Supreme Court in Marghub Siddiqi v. Hamid Ahmad Khan and 2 others 1974 SCMR 519 that in' a suit where no perpetual injunction is claimed, no question of grant of an ad interim injunction can possibly arise. (3) Messrs Iftikhar & Co. Ltd. v. Uzin'
Export Import Enterprises for Foreign Trade 1986 CLC 303 the Division Bench of this Court while hearing the appeal against the orders refusing the interim injunction on the ground that no perpetual injunction was sought, the appeal was dismissed and order was maintained.
' There can be no cavil with the proposition that the ad interim injunction during the pendency of the suit cannot be granted in absence of relief in the shape of perpetual injunction.
15. Mr. Naimur Rehman adverting to the plea raised that the injunction prayed was beyond the scope of the suit, has contended that the prayer clause is not to be read in isolation and divorced from case set up by the plaint and it is the substance of the plaint which is to be looked at and not the form in which it is drafted and the Courts are not restricted to the consideration of the prayer clause of the plaint and to support his H contention has referred the cases (1) Fazalur Rehan v.
Younus Ali Gilani and 9 others 1999 MLD 1565, (2) Mardan Ali v. Rabnawaz 1991 CLC 82, (3) Hitachi Limited and another v. Rupali Polyester and others 1'998 SCMR 1618 that while granting the relief, Court can dispense with the technicalities and may mould the relief according to the requirement, if the dictates of justice so demand. (4) Wali Dad v. Mst. Tasneem Kausar and another 1999 CLC 163.
' Mr. Naimur Rehman, learned counsel for the respondents have taken us to the prayer clause and maintained that the plaintiffs have filed the suit for declaration, accounts and permanent injunction, restraining the Mutawallis from acting as Mutawallis which includes the management of the Wakf property and while dealing the Wakf property, the Mutawallis have executed the building contract, as such, the plea raised that in absence of any perpetual injunction, the impugned order is not sustainable in law, is not tenable, if fact, the perpetual injunction sought covers all the deeds, acts and action of defendants as Mutawallis' inclusive of the contract in respect of the Wakf property.
' His further contention was that the plaintiffs have claimed injunction against the Mutawalli not to act as such this prayer includes the prayer not to enter into a contract, therefore, it cannot be argued that the injunction sought and granted was beyond the scope of the suit and in support of his plea had referred the case of (1) Muhammad Luqman v. Bashir Ahmad PLD 1994 Kar. 492, wherein it was held that prayer for specific performance includes a prayer for possession, when possession still remained with the vendor. (2) Saiyyid Abul A'la Maudoodi and others v. Government of Pakistan PLD 1964 SC 673 in above case, the Supreme Court found no difficulty in granting relief because of any defect in form of the prayer in petition and the prayer as framed in the petition was found sufficiently wide and further observation was made that Court is not powerless to grant the relief that the justice of the case requires to the some extent as if it had been asked for.
16. In the instant case, the beneficiaries have filed the suit alleging mismanagement on the part of the Mutawallis by acting contrary to the Wakf. The prayer in the plaint is inclusive of perpetual injunction against the Mutawallis from functioning in said capacity, as such, it includes all the acts, deeds by the Mutawalli in dealing with the Wakf property. Therefore, the plea that the relief granted by the learned Single Judge is beyond the scope of the suit is not tenable.
17. It has also been contended by Mr. Rasheed A. Razvi, learned counsel for the appellant that the property at Serial Nos.3 and 4 consisting of Survey Nos.3, 4, 6, 7, 8 and 10 stand merged somewhere in the year 1967 during the lifetime of first Mutawalli Lady Nusrat Haroon and also referred the extract of property register of amalgamated plots/order of amalgamation and also referred the approval of building plan to demonstrate the amalgamation and construction of a building on the subject plot. Mr. Rasheed A. Razvi also pointed out that respondent Moin A. Haroon has also exchanged correspondence for the construction of Joona Bungala OPoject and referred the letter of Mian A. Haroon addressed to Rafique Gaya, Architect and Engineer, an offer for developing the Wakf property by their letter dated 17-11-1986 to contend that the beneficiaries have themselves waived their right and now they are estopped from raising objection, once the beneficiaries have waived or acquiesced, thus they are estopped from questioning the contract and to support his contention has referred the Division Bench judgment of this Court in Messrs Dadabhoy Cement Industries Limited and others v. Messrs National Development Finance Corporation 2002 CLC 166 wherein the following observation was made on question of "waiver":-- "Article 114 of the Qanun-e-Shahadat Order deals with waiver or acquiescence and describes it as intentional relinquishment of a known right or such conduct as would warrant an inference of relinquishment of such right; implying consent to dispense with or forgo something to which a person is entitled; an agreement to release or not to assert a right; to constitute waiver there must be some conscience giving up of a right and a person cannot be held bound unless he is aware of what exactly he was waiving and what right he was giving up with knowledge of all the facts. It has been observed that where a person in spite of having full knowledge of violation of any of his rights of personal nature remained silent and did not take any measure for safeguarding it then he would be deemed to have impliedly waived it."
' Mr. Rasheed A. Razvi has drawn our attention to the term "waiver" explained in Muhammad Ahmad v. Mrs. Qamar Anwar Sheikh 1980 CLC 664 by Mr. Justice Zaffar Hussain Mirza (as he then was) that the term "waiver" implies intentional relinquishment of a known right after knowledge of facts, and forbearance to enforce right and assumes existence of an opportunity for choice between relinquishment and enforcement of right.
184 We may reproduce here with benefit, observations contained in para. 3 of 28 American Jurisprudence under the heading "Attitude and Policy of the Courts, Generally," on the question of estoppel and waiver: "Inasmuch as the doctrine of estoppel operates, as stated by Lord Coke, to but a man's mouth from speaking the truth, and is more or less in the nature of forfeiture, estoppels have often been characterized as harsh or odious and not favoured in the law. This characterization, however, has frequently referred to technical estoppels and is most found in the earlier case. In other cases, and especially in the more recent ones, estoppels, especially those known as 'equitable' or onpais' are not deemed odious, but are said to be conduci'e to honestly and fair dealing and promotive of justice, and sand on the broad grounds of public policy and good faith. The technicalities incident to estoppels have gradually given way to considerations of reason and practical utility and the Courts of the present day seems disposed to give force and effect to a doctrine which is based upon principles of justice and the purest morality. Estoppels are as readily and fully recognized in Courts of law as in Courts of equity. Nevertheless, the doctrine of estoppel must be applied with great care and the equity must be storing in its favour.
' It is still the rule that estoppels should be resorted to solely as a mean of preventing injustice and could not be permitted to defeat the administration of the law, or to accomplish a wrong or secure an undue advantage, or to extent beyond the requirements of the transaction in which they originate. It is, moreover, recognized that the doctrine of estoppel when misapplied may be a most effective weapon for the accomplishment of injustice. It is also recognized however, application; that when properly applied and kept within its proper function, it is founded upon reason and justice and is a principle of good morals as well as at law; that although it debars the truth in the particular case, it does so only where its utterance would convict the party of a previous falsehood and would be the denial of a previous affirmation upon The faith of which persons have dealt and pledged their credit or expended their money; and that it often enables right and justice to triumph where nothing else known to jurisprudence can do so.
' Hence, the Courts do not hesitate to uphold a claim of estoppel wherever such action is essential to prevent fraud."
' The apex Court by order dated 2-9-1981, in Syed Hamid Rehmani and others v. Hussainbhai and others (Civil Appeal No,K-28 of 1972) after referring the above text, has fixed the parameter for applying the principles of estoppel/waiver by stating that "the four principles recognized for giving effect to estoppel are; first that the fact recited should essential for the deed creating the rights and obligations; secondly the suit must be based on the deed or concerning a right and of it; thirdly that it should have promoted the other side to an action to its prejudice; and fourthly that the estoppel should not be utilized for making something legal, which, in fact, is illegal, offending against a statutory provision concerned with public policy.
19. It has been contended by the appellants' counsel that the object stands extinguished and the Lady Nusrat Haroon, first Mutawalli got the Property No,3 amalgamated with property at Serial .No,4 and the same has not been objected by the beneficiaries. In like manner, property at Serial No,2 bearing Survey No,108, Sheet SB-7 measuring 38 sq. Yds. Saddar Bazar Quarters, Karachi has been gifted to The Government by Lady Nusrat Haroon and is no longer the subject Wakf (para.9 of the plaint).
20. Mr. Naimur Rehman has stated that due to fire in Bohri Bazar, the entire area was reduced to ashes, the plot bearing No,108 measuring 38 sq. Yds. Was left to be utilized by the Government for reconstruction and rehabilitation of affecties with a condition that a plate would be placed on the wall with inscription of "birth place of Sir Haji Abdullah Haroon".
21. Be that as it may, once the property is dedicated, the right of the Waqif is extinguished and the ownership is transferred to the Almighty Allah, Mutawallis cannot deal with the property as owner but only as Manager and to act in accordance within the mandate given to them by deed, therefore, the act of late Mutawalli Lady Nusrat Haroon in gifting the property or abandoning it or the act of the Mutawalli in amalgamation Joona Bungla kept for residential purposes under the deed, are the acts of Mutawallis beyond their mandate/power.
22. We have- examine the case pleaded on the principles of waiver/estoppel by the appellant that one of the beneficiaries namely, Moin A. Haroon himself has exchanged correspondence with Rafiq Gaya, an Architect and Engineer, Who had offered for development of the Wakf property by their letter dated 17-11-1986, secondly property at Serial No,3 kept for residential pUrposes was amalgamated with rest of the Wakf property, during the lifetime of Mutawalli, -Lady Nusrat Haroon, none objected amongst beneficiaries. We may record that neither Mutawallis nor the beneficiaties can claim ownership of a Wakf property which has been dedicated w Almighty Allah. A person can waive his right even under the law provided he is possessed of that tight. The beneficiary's right in Wakf is the "usufruct" of the Wakf property, therefore, inaction on the part of beneficiary with regard to amalgamation or correspondence exchanged by one of beneficiaries with Rafiq Gaya for construction would not be an estoppel against them nor waiver of their right.
23. Mr. Mushtaq A. Memon, appearing for appellant Yousuf Haroon in Appeal No,30 of 2001, while adopting the arguments of Mr. Rasheed A. Razvi further contended that the Mutawallis by majority in terms of clause 13 of the deed has granted the contract which is a valid and binding, there should have been prayer for cancellation and its operation cannot be suspended which is a new cause of action though accrued during the pendency of the suit. Lie further contended that the learned Single Judge in spite of observation that such act is an improvement by the majority decision but granted the injunction solely on the basis of arguable case. He further contended that the allegation of breach of trust or acting in excess of trust is against Hussain Haroon and there is no allegation against the appellant Yousuf Haroon except that first Mutawalli has settled abroad.
He further contended that under section 23 of the Trusts Act where a trustee commits a breach of trust, he is liable to make good the loss which the trust property or the beneficiary thereby suffered.
He also maintained that in absence of one of the trustees, remaining Mutawallis can exercise the authority unless contrary is ordained by the instrument and he further maintained that Mutawallis/trustees can only be suspended by decree and not by an order in terms of section 45 of the Trusts Act. He has canvassed these points by taking us to the provisions of the sections 23, 44 and 45 of the Trusts Act by surpassing the provision of section 1 which makes the provision of the Act inapplicable to the Wakf under Muslim Law, we are fortified our view from Judicial pronouncement of Muhammad Ali Khan v. Ahmed Ali Khan and others AIR 1945 All. 261, by Full Bench of Allahabad High Court that the provisions of Trusts Act, 1882 are not applicable to Wakf- alal-aulad in view of section 1 of the said Act.
' Mr. Mushtaq Ahmad Memon further contended that the learned Jude has observed that the contract for the construction was by the majority decision of Mutawalli and beneficial. In absence of any cross-objection, the respondents cannot assail such observations.
24. In Khairati v. Aleemuddin PLD 1973 SC 29-5, while interpreting Order XLI, rule ,22, the apex Court held that "it is no doubt true that a. Respondent can support a decree even on points decided against him, but a respondent cannot attack a decree or ask for its variation without a cross- objection". It was further held that this principle did not apply because it amounted to attack a decree and for asking its variation. The above principle which is particularly laid down in Order XLI, rule 22, C.P.C. Goes against the learned counsel for the appellant.
' In applying the above test, the respondents are not seeking variation in the order, they can support the order by criticizing the view expressed, therefore, the contention has no legs.
25. Mr. Yawwar Farooqui, learned counsel for respondent No,7, namely, Mahmood Haroon by placing the copies of the plaint of suits pointed out existence of disputes between Mutawallis inter se, first dispute between Yousuf Haroon and Hussain Haroon with Mahmood Haroon (1) Suit No,74 of 1996 on Herald Publication Ltd. With regard to shareholding. Dispute went further with/regards to Trust property through (2) Suit No,890 of 1998 Yousuf Haroon v. Mahmood Haroon with regard to entrustment Trust. Notice served on Mahmood Haroon for his removal as trustee which resulted in filing of (3) Suit Nd.240 of 1998 Mahmood Haroon v. Hussain Haroon, then (4) Suit No,1202 of 1998 Yousuf Haroon v. Mahmood Haroon, (5) Suit No,596 of 1998 by beneficiaries against Mutawallis. By placing copies of plaint of suits," Mr. Yawwar Farooqui has maintained that there are serious differences between Yousuf Haroon. Hussain Haroon with Mahmood Haroon as a result of above differences Mahmood Haroon has been excluded from Mutawalliship by Yousuf Haroon and Hussain Haroon. Mr. Yawar Farooqui has also reiterated the same statement made by him before learned Single Judge that Mahmood Haroon did not wish to gain anything from the Wakf but emphasized that the Mutawallis have to act as Manager of the Wakf and not as owners of the property. Mr. Yawar Farooqui also highlighted the difference between Wakf under Muslim Law and a Trust under Trusts Act, 1882 in various respects, such as in a Trust no religious motive is necessary whereas a Wakf is generally made with a pious, charitable or religious purposes. A Trust may be for any lawful object, whereas the ultimate object for a Wakf must be benefit to mankind. A Trust property vests in the Trustees, whereas Waqf vests in "God. A Trustee has got a larger ower than a Mutually of a Waqf, who is only a Manager or Superintend NT. It is not necessary that a Trust must be perpetual, irrevocable or inalienable, whereas a Waqf is perpetual, irrevocable and inalienable.
A Trust has been regulated by the provisions of Trusts Act, 1882 and the provisions of Trusts Act are not applicable to Muslim Wakf.
26. The question for consideration in the present appeals is whether the learned Single Judge by suspending the contract by impugned order has exercised the discretion guided by law and the same is not arbitrarily, vague and fanciful but legal and regular. The Division Bench of this Court in Eckhardt & Company Marine GmbH, West Germany and another v. Muhammad Hanif PLD 1986 Kar.
138, has highlighted the Contour with regard to the power to be exercised by the Appellate Court in appeal against the interlocutory orders that the Appellate Court will not substitute its own discretion for that of trial Judge except where discretion was exercised arbitrarily, perversely, contrary to legal principles, and on basis of assumptions not borne out by record.
27. Muslim Wakf owes its origin to a rule laid down by the Prophet Muhammad (p.b.u.h.); and means "the tying up of property in the ownership of God the Almighty and the devotion of the profits for the benefit of human beings". When once it is declared that a particular property is Wakf, or any such expression is used as implies Wakf, or the tenor of the document shows that a dedication to pious or charitable purposes is meant, the right of the Wakif is extinguished and the ownership is transferred to the Almighty. The donor may name any meritorious object as the recipient of the benefit. The Manager of the Wakf is the Mutawalli the governor, superintendent, or curator. The Judicial Committee calls him "procurator". Jidya Varuthi Thirtha Swamigal v.
Baluswa mi Ayyar and others AIR 1922 PC 123.
' Such Wakf got statutory recognizance in 1913 through Mussalman Wakf Validating Act, 1913.
' The instant case pertains to Wakf-ul-aulad, ,which is based on the principle arising from the concept that supporting oneself and one's kith and kin, who may be needy, is also a noble and charitable act, because the Holy Prophet (peace be upon him) has said 'where a Muslim bestows on his family and kindred hoping for reward in the next world, it becomes alms, although he has not given to the poor, but to his family and children". From principle, Waqf-ul-aulad has developed as a means of dedicating property in favour of oneself and one's lineal descendants, as a pious act and sometimes with it directing a major or minor portion of the usufruct towards other religious or charitable objects, in the name of Allah. This Extension of the institution of Waqf-ul-aulad, having nothing to serve for public charity, till the whole line of the Waqf and his children and their descendants stands extinguished, or having little to serve for public charity, but the bulk of the usufruct being directed for the benefit of the Wakf and his descendants, and the office of Mutawalli being confined to the Waqf and/or his legal descendants alone. Whether there is a Waqf for a purely religious, pious or charitable object, or one for the support of a Waqf and his kith and kin, with some religious, pious or charitable objects added to it the corpus of the Waqf cannot be allowed to be usurped or eroded, but the usufruct can be used or applied to the objects of the Waqf. Khalid Javed and others v. Qazi Masood-urRehman, Additional District and Sessions Judge, Sialkot and 2 others PLD 1988 Lah.541.
' Perpetuity is the essential trial of a Wakf. If from change of circumstances and lapse of time or for some other proper reason, it has become impossible to apply the property in the manner directed by Waqif the Court may apply it for similar purpose by different means as near as possible to the original intention of the grantor by varying the scheme by applying "Cypres doctrine" which has received judicial recognization in Salibai v. Bai Safiabeen ILR Vol. 36 Bom.111.
"28. In Halsbury's Laws of India, (Butterworth, New Delhi), the "Doctrine of Cypres" has been explained as follows:- [290-280] Cypres means following as nearly as possible the intention of donor.--- When a particular mode of charity indicated by donor is not capable of being carried into effect but the donor has expressed a general intention of charity, the Court does not allow the trust to fail but execute it `Cypres' that is in some way as nearly as possible to that which the testator specified.
[290-281] Failure of object given by the testator essential.--- For the application of Cypres, the failure of the particular object specified by the testator is an essential pre-condition. Alternatively this doctrine can be applied when surplus is left after satisfying the purpose specified by donor.
[290-282] ' The prime rule to be observed in the application of the Cypres doctrine. Is that donor intention must be observed as far as possible."
' In the instant case, the beneficiaries/respondents have alleged mismanagement of the Trust properties, from the pleadings and documents placed on record, it is evident that the property at Serial No,3 in terms of clause 5 of the deed was to be used for residential purposes of the executants 2 and 3 and by lineal male descendants in perpetuity its identity and nature of use were to be kept intact ever after reconstruction. The act of Mutawalli (late) Lady Nusrat Haroon in amalgamation of the said property with Property No,4 is against the object/intention expressed in the deed for the use of Joona Bungalow. Even if it is accepted that mode of use by lapse of time or non-existence of linear male descendants is not capable of being carried out that will not give the Manager to use the said property in any other form except with the leave of the Court under the doctrine of Cypres. The Trust properties have been demolished for construction through Contractor whereby the nature of Property No,3 and mode of use is being changed by covering the said plot for a commercial project, such use would be against the .Wishes of the donors. Though after its reconstruction, its identity was to be maintained as "residential". By the said contract, a charge is being placed on the Trust properties. All these acts of Mutawallis are against the mandate given to them by the deed. The majority decision or beneficial nature of -tie project will not bring their actions' within mandate or law. In these circumstances, the learned Single Judge, in order to preserve the Wald property from further erosion has suspended the operation off the contract.
Thus discretion has been exercised by the learned Judge, who has not only inherent power to grant the injunction in a fit case even if the case does not fall within the four corners of the well-settled principle for the grant of injunction under Order 39, rules 1 and 2, C.P.C. To prevent the end of justice from being defeated by an order specified in clause (e) of section 94 of C.P.C., but has also such power 'in its disciplinary jurisdiction over Wake properties.
' We are, therefore, of the view that the impugned order seems to be in consonance of law and does not call for interference. The appeals have, therefore, no merit and dismissed in limine.
However, the parties T are left to bear their own costs.