2023 C L C 2050
[Balochistan]
Before Rozi Khan Barrech, J
ALAMZAIB KHAN----Petitioner
Versus
KASI BEHRIA TOWN MAIN JINNAH ROAD, QUETTA through CEO ----Respondent
Civil Revision No.401 of 2022, decided on 20th March, 2023.
(a) Civil Procedure Code (V of 1908) ---
----O. XXXIX, Rr. 1 & 2 ---Interim injunction, grant of ---Object, purpose and scope ---
Temporary injection by its nature is a preventive remedy with the object of maintaining
status quo and preventing irreparable damage or preserve subject matter of litigation until trial is concluded ---In order to succeed in obtaining a temporary injunction, a plaintiff has to
establish co -existence of three conditions or ingredients. (i) prima facie case, (ii) possibility
of suffering an irreparable loss if temporary injunction is declined and (iii) balance of convenience leaning in his favor ---Of such three conditions, existence of prima facie case is
foundational and other two conditions are considered once plaintiff establishes a prima facie case in his favor ---Words 'prima facie' means 'at first sight' or 'on first impression'---
Existence of right of plaintiff is to be adjudged on the first sight on comparative consideration of pleadings of the parties ---Court has to form its opinion as to who has a
better case after tentatively analyzing rival contention of parties as contained in their pleadings ---If Court is satisfied that case of plaintiff is on a better footing and on conclusion
of trial relief may be granted to him in all likelihood, then Court can infer that plaintiff has a prima facie case--- To ascertain whether a plaintiff has a prima facie case, Court tentatively
examines not only pleadings of the parties but their affidavits, counter affidavits and documents appended with plaint and written statement.
(b) Specific Relief Act (I of 1877) ---
----Ss. 12, 42 & 54--- Civil Procedure Code (V of 1908), O.XXXIX, Rr.1 & 2 ---Suit for
specific performance of agreement to sell, declaration and injunction ---Interim injunction,
grant of ---Prima facie case---Petitioner / plaintiff sought specific performance of agreement
to sell entered into with respondent / defendant regarding purchase of suit property for which he had already paid more than 50% of consideration amount ---Trial Court and Lower
Appellate Court declined to grant interim injunction in favour of petitioner / plaintiff ---
Validity ---Petitioner / plaintiff purchased plot from respondent / defendant for total
consideration amount of Rupees 800,000/ - on monthly installment basis, out of which
petitioner had paid advance amount of Rupees 40,000/ - and monthly installments were fixed
as Rs. 10,000/ - per month and until December 2019, amount deposited had become around
Rupees 380,000/ - which was more than 50% of the total amount of the plot in question---
Both the Court below while passing orders in question lost sight of such factual background
and principles for grant of injunction--- Petitioner had a good prima facie case and balance of
convenience lied in his favor ---If respondent / defendant further allotted plot in question to
third party, loss would be caused to petitioner / plaintiff ---Interim injunction was to avoid
multiplicity of suits or inclusion of strangers to suit property---High Court did not find any
justification before fora below to reject request of petitioner / plaintiff for grant of ad interim
injunction, as he had made out a case in his favor ---High Court set aside orders passed by
two Courts below and interim injunction was granted in favor of petitioner / plaintiff ---
Application was allowed accordingly.
Taimoor Shah Kakar for Petitioner (Absent).
Mohibullah Kakar for Respondent (Absent).
Date of hearing: 16th March, 2023.
JUDGMENT
ROZI KHAN BARRECH, J. ---The petitioner had filed a suit for declaration,
specific performance of agreement/iqrarnama dated 05.02.2017 and permanent injunction along with an application under Order XXXIX, Rules 1 and 2, C.P.C. read with section 151, C.P.C. before learned Senior Civil Judge -IV, Quetta ("the trial Court") seeking the following
relief:
"It is, therefore, respectfully prayed that pending disposal of suit the respondent may kindly be restrained from cancelling the allotment, transferring, alienating and creating any kind of third party interest with respect to plots in question till final disposal of the suit, with any other relief, in the interest of justice."
3.(sic) The respondents resisted the suit along with an application under Order XXXIX,
Rules 1 and 2, C.P.C. read with section 151, C.P.C. While submitting his written statement, he controverted the assertions contained in the plaint.
4. After hearing arguments on the application under Order XXXIX, Rules 1 and 2 read
with section 151, C.P.C. of the learned counsel for the parties, the trial court dismissed the application of the petitioner on 22.12.2021. ("impugned order") and the appeal so filed by the petitioner was also dismissed by learned Additional District Judge -IV, Quetta ("the appellate
Court") vide order dated 25.04.2021. Both the orders of fora below are impugned through this petition.
Despite repeated calls, there is no appearance on behalf of the parties.
In such circumstances, I am left with no other option except to decide the matter on
the basis of material available on record.
5. The trial court, as well as the appellate court, have dismissed the application of the
appellant seeking a grant of temporary injunction. Temporary injunction, by its nature, is a
preventive remedy with the object of maintaining the status quo and prevent irreparable damage or preserve the subject matter of the litigation until the trial is concluded. In order to succeed in obtaining a temporary injunction in a case, a plaintiff has to establish the co -
existence of three conditions/ingredients, i.e., (i) prima facie case; (ii) possibility of suffering
an irreparable loss if temporary injunction is declined; and (iii) the balance of convenience
leans in his favour. Of the above referred three conditions, the existence of prima facie case
is foundational, and the other two conditions are considered once the plaintiff establishes a prima facie case in his favour.
6. The words 'prima facie' means 'at first sight' or 'on first impression'. Therefore, the
existence of the right of the plaintiff is to be adjudicated or the first sight on comparative consideration of the pleadings of the parties. The Court has to form its opinion as to who has a better case after tentatively analyzing the rival contention of the parties as contained in their pleadings. If the Court is satisfied that the case of the plaintiff is on a better footing, and on the conclusion of the trial, relief may be granted to him in all likelihoods, then the Court can infer that the plaintiff has a prima facie case. To ascertain whether a plaintiff has a prima facie case, the Court tentatively examines not only the pleadings of the parties but their
affidavits, counter -affidavits, and the documents appended with the plaint and the written
statement.
7. Having observed so, it is imperative to analyze the factual matrix of the instant case.
The petitioner instituted the suit for specific performance on the basis of the agreement dated
5.02.2017 with the contention that the respondent launched a Housing Scheme with a name and style of Kasi Behria Town in the year 2016 situated at Mohal and Mouza Mehtarzai,
Tappa Baleli, Tehsil Saddar, District Quetta; that the petitioner purchased Plots Nos. D257 and D259 measuring 2400 sq ft from the respondent at the total consideration amount of Rs.8,00,000/ - on a monthly installment basis, out of which the petitioner had paid the
advance amount of Rs.40,000/ - and the monthly installments were fixed as Rs.10,000/ - per
month. The petitioner and respondent entered into an agreement dated 5.2.2017 under certain terms and conditions at the office of the respondent. It is further averred in the plaint that after the execution of the sale agreement, the petitioner remained vigilant in tendering monthly installments of the plots in question up to December 2019, but the respondent declined to receive the due installment in lieu of shops in question for the month of January 2020. The petitioner repeatedly approached the respondent for submission of monthly installments of the plots in question, but the respondent, on one pretext or another delayed the matter, and finally, the respondent called the petitioner with the intimation that since the respondent has procured the NOC from QDA and demanded enhanced rate of plots in question more than double of agreed rate with direction to reduce into writing new agreement and in case of failure that he will cancel the allotment of plots in question and will allot the same plots to some other person on the enhanced rate which act of the respondent is illegal and mount to departure from validly executed agreement dated 5.2.2017.
8. On the other hand, the respondent took the stance that since the petitioner, as per
clause- 2 of the agreement dated 5.02.2017, has badly and failed to perform the part of the
agreement, which resulted that the petitioner after, execution of the agreement failed to
deposit monthly installment despite publication in December 2019, which resulted in
cancellation of allotment of the petitioner.
9. At this stage, for the purpose of establishing a prima facie case, it certainly belies all
logic that a huge amount was paid by the plaintiff/petitioner in respect of the plots in question in favour of the respondent.
10. The petitioner has purchased Plots No. D257 and D259 measuring 2400 sq ft from the
respondent at the total consideration amount of Rs.8,00,000/ - on a monthly installment basis,
out of which the petitioner had paid the advance amount of Rs.40,000/ - and the monthly
installments were fixed as Rs.10,000/ - per month. Until December 2019, the petitioner had
paid Rs.10,000/ - per month, which becomes around Rs.3,80,000/ -, which becomes more than
50% of the total amount of the plot in question.
11. Both the courts below, while passing the impugned orders, have lost sight of the
above factual background and the principles of a grant of injunction. The petitioner is having a good prima facie case.
12. The balance of convenience lies in favour of the petitioner, and if the respondent
further allotted the plots in question to the third property, irreparable loss will be caused to the petitioner, and it would avoid multiplicity of suits or inclusion of strangers to the suit property.
13. I find that there was no justification before the fora below to reject the request of the
petitioner for a grant of ad- interim injunction, as prima facie, the petitioner has made out a
case in his favour. Resultantly, the impugned orders dated 22.12.2021 passed by the trial Court and 25.04.2022 passed by the appellate Court are hereby set aside, and the application so filed by the petitioner under Order XXXIX, Rules 1 and 2, C.P.C. is allowed. The respondent is directed not to create any third -party interest in the suit property till the
disposal of the main suit.
MH/145/Bal. Application allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
let us know.