1. I intend to dispose by this order, the application (C.M.A.
2. ' No,10432 of 2Q00), filed by the plaintiff against defendant No,3 for restraint order against defendant No,3 from damaging the house, making any addition or alteration, encumbrance it and parting with possession and creating third party interest in the same directly or indirectly, themselves or through any other agency, in any process whatsoever and in any manner till the disposal of the suit. The application is supported by the affidavit of the plaintiff.
3. ' The facts necessary for the disposal of the present application are that Plot No, C-79, Block 4.
4. Federal B Area, admeasuring about 600 sq. Yds. (hereinafter referred to as the suit property) was allotted to Kazim Iman Jan by the K.D.A., who raised a bungalow on the said plot. It is the same of the plaintiff that said Kazim Imam Jan had mortgaged the suit property with Agricultural Development Bank of Pakistan with permission of K.D.A. And handed over all the original documents to the said Bank in the year 1972. On 23-2-1992 Kazim Imam Jan entered into an agreement of sale with her. The plaintiff was informed by defendant No,1 that the suit property was in possession of Raees Ahmed, defendant No,2, as tenant and defaulter in payment of rent since 1982. She was authorized through special power of attorney to file rent case against defendant No,2. It was agreed between the plaintiff and defendant No,1 that final payment and the payment to Bank shall be made by her only after getting the premises vacated from the tenant. She filed Rent Case No,192 of 1992 against Raees Ahmed as attorney of defendant No,1 in the month of March, 1992 in the Court of IIIrd Rent Controller, Karachi Central, obtained ejectment order on 12-9- 1992. It was her case that at the time of the execution of the agreement an amount. Of Rs,25,000 was paid as advance, balance amount of Rs,4,75,000 was to be paid within 75 days from the execution of the agreement, after deducting the amount payable to the Agricultural Bank. One Syed Mahmood Ali Shah was appointed as attorney. Fresh agreement was executed between the plaintiff and defendant No,1 on 20-9-1992, wherein the previous payments were acknowledged.
5. Payment of Rs,2,51,255 and Rs, 25,000 through another cheque was also acknowledged. She paid entire loan amount of the Agricultural Development Bank of Pakistan. The bank executed resumption deed on 9-12-1992. The property in suit was transferred to her by oral gift, declaration of which was registered on 26-1-1993. All the original documents were handed over to hereby defendant No, 1 . She also obtained search certificate. She had field an application for mutation of her name before defendant No,6 (K.D.A.) with all necessary documents. The possession was given to her through the bailiff on 18-1-1994 from defendant No,2. Raees Ahmed. Gui Muhammad, defendant No, 3 filed an application before the Rent Controller under section 12(2), C.P.C. For setting aside the order of ejectment, claiming ownership of the property on the basis of gift to him by defendant No,4 his maternal uncle, on the basis of power of attorney by defendant No,
1. The mutation was effected in the year 1981. The Agricultural Development Bank had taken serious objection to the alleged forged mutation through their various letters. The F.I.R. Was also lodged against Muhammad Javed, Gul Muhammad and Ghiasuddin.
6. ' It may also be mentioned here that defendant No,5, Ghulam Mohiuddin also filed a Rent case on behalf of Kazim Imam Jan being Rent Case No, 836 of 1991 against defendants Nos. 3 and 4 as attorney of Kazim Imam Jan, which is still pending. The possession of the suit property has been restored on 18-11-2000 to the defendant No,3, under the order passed by this Court in F.R.A. No,143 of 1998. Leave to appeal filed by plaintiff has been refused on 18-1-2000.
7. ' The plaintiff has filed the present application, according to her, in changed circumstances. It may be mentioned here that the C.M.A. No,1778 of 1993 filed by the plaintiff for similar relief was dismissed as not pressed by order, dated 27-8-1995.
8. ' The defendant No, 3 (i to iv) have vehemently opposed the application through counter-affidavit of Mehmood Gul, one of the legal heirs of defendant, Gul Muhammad, whereby it was maintained that the plaintiff, in collusion and connivance with the defendant No,6, is intending to usurp the property belonging to defendant No,3 by filing frivolous suit. According to them, the property in suit was originally leased out to defendant No,1, Kazim Imam Jan, who under an agreement, dated 24- 2-1971 sold out the property to defendant No,4, Muhammad Javed. Noor Muhammad was appointed attorney by defendant No,1, who executed registered sale deed in favour of defendant No,4 on 22-11-1972 and property was duly mutated in favour of Muhammad Javed by the K.D.A. On 16-10-1980. Defendant No,4 is real nephew of defendant No,3, both were residing in suit property since handing over of possession to the defendant No,4. Defendant No,4 executed registered gift deed in favour of defendant No,3 on 15-11-1980 and in consequence to such registration of the gift deed, the property was mutated in the name of defendant No,3 on 21-1-1981. The defendant No,3 claimed to be in possession of the property in question from 1971 to 1980, with defendant No,4 and thereafter from 1980 to 1994 in his own right. It was also pleaded that in the year 1991 defendant No,1 executed the power of attorney in favour of defendant No,5, who filed an ejectment proceeding against defendants Nos. 3 and 4 which was pending, when the defendant No,1 allegedly executed another power of attorney in favour of the plaintiff, who filed another ejectment case bearing No, 192/92 against defendant No,2, Raees Ahmed, a fictitious person, who never appeared before the Court and obtained ex parte order under the garb of such ex parte order the plaintiff maliciously and illegally dispossessed the defendants Nos. 3 and 4 and after a long round of litigation under the orders of the Supreme Court the possession was restored to the defendant No,3 on 18-11-2000.
9. Kazim Imam Jan, after having sold the property to defendant No,4 had no right in suit property, whatsoever to execute any power of attorney or gift deed in favour of any party as such the claim of the plaintiff on such basis has no legs and liable to be rejected, the gift deed even otherwise is void. No case on the basis of manipulated documents is made out for injunction on the contrary if the prayer is allowed the defendant shall be seriously prejudiced.
10. ' I have, heard Mr. Muhammad Sharif, learned counsel of the plaintiff and Mr. Syed Sajjad Ali Shah, learned counsel for the defendants.
11. ' Before embarking on the respective contentions on merits. Propose to deal with the objection taken about the maintainability of the application on the ground of res judicata as earlier application was dismissed as withdrawn by order, dated 27-8-1995.
12. ' The plaintiff through C.M.A.No,1778 of 1993 prayed for injunctive order as follows:-- "Restrain the defendants Nos. 1 to 6, their agents, servants and representatives working on their behalf or through them by using any document in between from 20-6-1972 to 16-12-1992, from any office in respect of sale, transfer, or mutation of Plot No, C/79, Block, F.B. Area, Karachi in any Court of law or Government or some Government Agencies till disposal of the suit."
13. ' The aforesaid application was dismissed as not pressed by order, dated 27-8-1995, the operating order reads as follows:--- "Mr. Agha has filed an application by Mr. G.M. Saleem, Advocate fer plaintiff stating that he does not press this application. The application is, consequently, dismissed."
14. ' Learned counsel for the plaintiff contended that the plaintiff is not precluded from repeating an application with the same prayer in changed circumstances, as such second application would not be hit by the principle of res judicata. In support of his contention, has referred the case of Arjum Singh v. Mohindra Kumar and others (AIR 1964 SC 993), wherein the scope and applicability of principles of res judicata was explained by Indian Supreme Court. Rajagopala Ayyangar, J; speaking for the Court observed as follows:--- "(10) That the question of fact which arose in the two proceedings was identical would not be in doubt. Of course, they were not in successive suits so as to make the provisions of S.11 of the Civil Procedure Code applicable in terms. That the scope of the principle of res judicata is not confined to what is contained in section 11 but is of more general application is also not in dispute. Again, res judicta could be as much applicable to different stages of the same suit as to findings on issues in different suits. In this connection we were referred to what this Court said in Satydhan Ghosal v. Sm.
15. Deorajin Debi, (1960) 3 SCR 950: AIR 1960 SC 941 where Das Gupta, J. Speaking for the Court expressed himself thus: "The principle of res judicata is based on the need of giving a finality to judicial decisions. What it says is that once a res is judicata, it shall not be adjudged again. Primarily it applies as between past litigation and future litigation. When a matter-- whether on a question of fact or on a question of law---has been decided between two parties in one suit or proceeding and the decision is final, either because the appeal was taken to a higher Court or because the appeal was dismissed, or no appeal lies, neither party will be allowed in a future suit or proceeding between the same parties to canvass the matter again. The principle of res judicata applies also as between the two stages in the same litigation to this extent that a Court, whether the trial Court or a higher Court having at an earlier stage decided a mater in one way will not allow the parties to re-agitate the matter again at a subsequent stage of the proceedings."
16. ' Mr. Pataki laid great stress on this passage as supporting him in the two submissions that he made: (1) that an issue of fact or law decided even in an interlocutory proceeding could operate as res judicata in a later proceeding, and next (2) that in order to attract the principle of res judicata the order or decision first rendered and which is pleaded as res judicata need not be capable of being appealed against."
17. "( 13) It is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before the Court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same, basis after the same has once been disposed of the Court would be justified in rejecting the same as an abuse of the process of Court."
18. ' The dictum laid down in the case of Arjun Singh (supra) by Indian Supreme Court is that (interlocutory) orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation. The principle of res judicata does not apply to the finding on which these orders are based, though if applications were made for relief on the same basis after the same has once been disposed of, the Court would be justified in rejecting the same as an abuse of the process of Court.
19. ' The instant case, on examination in the light of above dictum, one could safely say that prayer for injunctive order restraining the defendants from creating third party inter would amount to abuse of the process of the Court for the reason that the plaintiff has not pressed her application for the same relief, when she got the possession of the suit premises and repealed the same when she was dispossessed under orders of the Court, such change in the circumstances would not have any effect on such relief. The plaintiff while in possession could have asked for restrain order against the defendants from creating third party interest, as such, I am of the view that once the application for injunction restraining the defendant No,3 from creating third party interest was not pressed. The repetition of the same prayer amounts to abuse of the process of the Court.
20. ' So far the relief restraining the defendants from damaging or making alteration or addition in the building has been made of the first time, One could say that the same has been made with latches as the suit was filed in the year 1995 and the prayer has been made in the year 2000 after the lapse of about 17 years.
21. ' Reverting to the merit of the application, the main thrust of the arguments of learned counsel for the plaintiff was based on the ground that the plaintiff is owner of the property by virtue of gift deed in her favour by the actual owner, Kazim Imam Jan and mutation has been effected in her favour, if third party interest is created or status of the property is changed, the plaintiff would be seriously prejudiced.
22. ' Learned counsel for the defendant has vehemently contended that Kazim Imam Jan had no transferable right in the property, once he has received the sale consideration in full under sale agreement, dated 24-2-1977 and executed general power of attorney, whereunder the sale-deed was effected in favour of defendant, Javed, who has gifted the property to Gul Muhammad. To support his contentions, he referred the agreement of sale by Kazim Imam Jan, dated 24-2-1977.
23. He further contended that the property was mortgaged with Eastern Federal Insurance Company vide mortgage deed, dated 31-3-1965 for a sum of Rs,25,000, which was paid by defendant No,1 instead of handing over the original document to the defendants again mortgaged the property by taking loan from the Agricultural Development Bank of Pakistan. It was further contended by him that the sale agreement and execution of the power of attorney are admitted by defendant, Kazim Imam Jan. The property was mutated in favour of the defendant No,3 and the possession was also with him. The plaintiff fraudulently filed ejectment application against fictitious persons and obtained the ejectment of the defendant No,3 but her attempt was frustrated by order in F.R.A.
24. No,143 of 1998. The possession was restored on 18-11-2000, the leave to appeal was refused by the Supreme Court. He further contended that the gift deed in favour of the plaintiff is also void for want of possession. He contended that according to gift deed, she was put in physical possession, whereas the possession was with the defendants at the time of execution of the gift deed, as such the gift deed is void for want of possession. He further contended that the plaintiff got the mutation effected in her favour in violation of order, dated 8-3-1994 passed by this Court, whereby plaintiff was restrained from parting with possession or creating any incumbrance or taking any action prejudicial to defendants Nos. 3 and 4 in respect of the suit property, thus he contended that neither the plaintiff has made out a case for grant of injunction nor she has approached the Court with clean hands, as such she is not entitled for the injunction.
25. ' The plaintiff's case is solely based on declaration of gift and mutation. Admittedly the mutation effected in favour of the plaintiff is in violation of order, dated 8-3-1994 passed by this Court. The prima facie, the declaration of gift is void for want of possession. Admittedly at the time of gift/declaration of gift, the defendants Nos. 3 and 4 were in possession of the suit property, as such the plaintiff has failed to make out a case for injunction. No allegation of damage, alteration and addition has been alleged by the plaintiff. The possession of original document by the plaintiff will not make a prima facie case in her favour, when the original owner has denied the execution of power of attorney in favour of the plaintiff and has appointed defendant No,5 as his attorney. Even otherwise if any change is effected in respect of the suit property during the proceedings, the principle of its pendens would come into play as envisaged under the provision of section 52 of the Transfer of Property Act. Therefore, I am of the view that the plaintiff has failed to make but a case for restrain order. The application is dismissed, however, with no order as to costs.