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Civil Revision No. 194 of 1966, decided on 14th November 1966.

O. XXXIX, r. 4‑Injunction‑Discharged on misapprehension of fact and law and upon irrelevant considerations‑Injunction restored‑Civil Procedure Code (V of 1908), S. 115.

Where the trial Court was under the misapprehension that plaintiff was not in possession of the building plot whereas, admittedly she was in possession, and where it had misdirected itself as to the real question which the Court was called upon to consider, viz., that the cancellation by the K. D. A. of the plaintiff's allotment of the building plot was not valid, and a temporary injunction already issued in favour of the plaintiff, was discharged by the Court on irrelevant considerations, the discharge order was set aside by the High Court in revision and the order of injunction restored.

Azmatullah and Zahoorul Haque for Applicant.

Shamsul Haq for Respondent No. 1.

Fakhruddin for Respondent No. 2.

Dates of hearing: 24th October and 14th November 1966.

This is a revision application under section 115, C. P. C. arising out of Suit No. 2311'65 in which the present applicant Mst. Hamida Begum as a plaintiff had obtained an injunction from the Court of the III Civil Judge, Karachi on 14‑3‑66 after hearing the plaintiff and the defendant No. 1, the Karachi Development Authority. This injunction was vacated upon an application by Mr. Manzoor Ahmad Sheikh who was impleaded as a defendant at his own request. The plaintiff's appeal to the District Judge having been dismissed the present revision has been filed in this Court.

2. The material facts are these: Upon a plot of land bearing No. C/134 in the area described as K. D. A. Scheme No. 1 was first allotted to one S. M. Saeed by the Karachi Improvement Trust on 10‑1‑55. This S. M. Saeed sold the occupancy right of this plot to the present plaintiff Hamida Begum and this was approved by the Karachi Development Authority on 16‑9‑58. It may be mentioned that the K. D. A. had, in the meantime, succeeded the Karachi Improvement Trust. The plaintiff was by letter of 16th September 1958 informed of this approval and was asked to take over possession of the said plot. It is the case of the plaintiff as well as of the K. D. A. that the plaintiff did take over physical possession of the plot. On 15‑3‑63 the K. D. A. called upon the plaintiff by a letter to pay the ground rent amounting to Rs. 275. This was paid by the plaintiff on 18‑3‑63. A notice dated 18‑11‑64 was served by the K. D. A. on the plaintiff to which it was stated that it had been found that the plaintiff had not made the requisite construction on the land, thereby committing breach of the condition No. 12 of the terms and conditions of allotment. It was added that if by 28‑11‑64 sufficient proof was not given that construction had been made the allotment shall stand cancelled on the said date, viz., 28‑11‑64 and that the K. D. A. will re‑enter upon the land and take possession thereof. The plaintiff sent a representation in answer to this notice to the K. D. A. on 23‑11‑64 in which she prayed for one year's time for construction and gave reason for not constructing upon it so far. No action was taken on that letter. Mr. Jamaluddin Shaikh showed me the file of the Department and all that happened after the receipt of the said letter of 23-11‑64 was that the allotment was cancelled. This cancellation took place on 18‑1‑65 and the laconic order in this respect merely reads "cancelled". The plaintiff was informed by the Administrative Officer that the plot had been cancelled with immediate effect for non‑compliance of clause 12 of the terms and conditions of the allotment and 10 % of the total occupancy value with ground rent thereon was forfeited. The plaintiff was further required to surrender all relevant documents in respect of the said plot and apply for the refund of the balance of the amount. The plaintiff made a further representation on 24‑3‑65 against this cancellation and informed the K. D. A. that the plan for the building had been approved by the K. M. C. and that the reason why this building had not been built was because they were busy constructing another commercial building. No reply of this representation was given to the plaintiff who on 30th April 1965 filed a suit being Suit No. 116/65. against this cancellation and obtained a temporary injunction. It seems that this suit was filed without notice to the Karachi Development Authority and so this was withdrawn in August 1965 with the permission of the Court to file a fresh suit. This was followed by the present suit which was filed soon thereafter. An application for injunction restraining the K. D. A. from disturbing the possession of the plaintiff was again moved and after notice to the K. D. A. and hearing both the parties the learned III Civil Judge passed an order on 14‑3‑66. The learned Civil Judge after stating the facts observed:‑

"The plaintiff's case is based upon the documents referred to above and she has challenged the terms of the alleged agreement regarding her obligation to raise the construction on the plot within a period of 2 years. She is in possession of the approved plan of the K. M. C. for construction on the plot and necessary documents of transfer from the defendants. She has prima facie a good case and if any threatening action by the defendant is taken it is likely to result in irreparable loss to her."

The injunction that the learned Civil Judge granted was to the effect that status quo be maintained and that neither party shall proceed to effect tiny change in the situation as it existed at the time of the order. This order was passed as I have said on 14‑3‑66 and it was on 11‑7‑66 that the defendant No. 2 Mr. Manzoor Ahmed Shaikh applied for being made a party to the suit. He was so impleaded and it; was on his application under Order XXXIX, rule 4 that the injunction which had been earlier granted by the learned civil Judge was vacated by his older 7‑9‑66. The learned Civil Judge seems to have been vastly impressed by the fact that in the earlier proceedings neither the plaintiff nor the K. D. A. had disclosed the fact that this plot had been allotted to the ‑defendant No. 2. This allotment, it appears was made on 6‑4‑65. However, there was no evidence on record to show that the plaintiff was aware of this allotment and as far as the K. D. A. is concerned an affidavit had beta filed opposing the grant of injunction to the plaintiff and the order passed by the learned Civil Judge was in the teeth of opposition by the K. D. A. Yet the learned Civil Judge was pleased to observe that there was force in the contention of the defendant No. 2 that the K. D. A. had colluded with the plaintiff: The learned Civil Judge also went on to observe that there was no document on the side of the K. D. A. to show that the plaintiff had been given possession of this plot. This observation was made in spite of the fact that it was the case of the K. D. A. that possession had been given to the plaintiff. In fact, an affidavit had been filed on behalf of the K. D. A. in the previous suit that possession had not been given to the plaintiff by the K. D. A. Indeed, if possession had no been given the K. D. A. could not have acted in terms of clause 12 of the agreement, because it is only 2 years from the date of possession that the allottee is required to complete the building.

3. The learned Civil Judge observed that "on the plaintiff's site there is neither any document of possession from the K. D. A., nor from the previous allottee whose transfer in her favour was approved by the K. D. A. On the contrary, the later dated 16/17th September 1958 from the Land Manager of the K. D. A. to the plaintiff and subsequent cancellation of allotment letter dated 18‑1‑65 addressed to her by the K. D. A. showed that she was called upon to take possession of the plot when transfer in her favour was approved and after the allotment was cancelled due to her committing breach of certain conditions she was called upon to surrender all relevant documents in respect of the plot and to apply for refund of the balance amount. The cumulative effect of these letters pima facie is that she had never taken lawful possession of the plot from the K. D. A., for if she had taken it she should have been called upon to surrender the possession at the time of cancellation of the allotment order and she would have had some document of possession." This quotation shows that the learned Civil Judge was trying to catch any straw to justify vacating the order of injunction which he himself had passed on a finding that a prima facie case has been made out. At one place, the learned Civil Judge said that on the side of the plaintiff there was no document to show that she had obtained possession from the K. D. A. yet he was aware of the letter of 17‑9‑58, to which he has referred that the‑ K. D. A. on their part had given possession to the plaintiff. Not only that, they had even charged ground rent from the plaintiff and it was the case of the K. D. A. that possession had been given to the plaintiff. As against all this the learned Judge found some material in the circumstances that when the allotment of the plaintiff was cancelled the K. D. A. merely asked the plaintiff to surrender documents and apply for refund and did not ask for possession and therefore, the conclusions was reached that the plaintiff prima facie had never taken lawful possession I am completely at a loss to follow the reasoning of the learned Civil Judge. He further went on to observe.

"I do not think these documents would furnish better proof of possession than the actual delivery of possession in favour of the defendant No. 2 by the K. D. A."

Upon what material the learned Judge came to the conclusion that actual delivery of possession had taken place in favour of the defendant No. 2 it is not clear. On the other hand, the documents show that the allotment to the defendant No. 2 was made on 6‑4‑65 and on 7‑4‑65 a letter was written to him to contact the Executive Engineer to take over possession. Simultaneously with this another later was signed by somebody on behalf of the defendant No. 2 which contained a statement on behalf of the said allottee:

"I accept the plot allotted to the applicant/me in the condition as it, is today."

Both these forms of 7th April 1965 are the printed forms of the K. D. A. and prima facie it, would appear that these paper transactions were done in hot haste. It is, however, difficult from these documents to draw an inference that actual possession was given by the K. D. A. to the defendant No. 2. The learned Civil Judge further observed:‑‑‑

"The issue of injunction in favour of the plaintiff would completely knock out the status and position of the defendant No. 2 and would on the one hand dislodge him before he has been given chance to establish his case by disproving the plaintiff's case and on the other hand pre‑Judge that the action of the K. D. A. in cancelling the plaintiff's allotment and granting it to the defendant No. 2 and giving him possession was illegal and pending the suit it would keep the plaintiff in unduly advantageous position."

4. It is plain to me that the learned Civil Judge mis directed himself as to the real question which he was called upon to consider. Admittedly, in this case the plaintiff was in possession at the time of the filing of the suit and on the date when this order was passed the question to consider was whether there was a triable issue on the main question raised by the plaintiff, viz. that the cancellation of her allotment by the K. D. A. was not valid. It is obvious that if the plaintiff succeeded on this question the defendant would fade out from the picture and whatever bad happened in his favour after the cancellation of the allotment of the plaintiff would be of no legal effect and would come upon him no right. On the question of possession having regard to what has been said above and particularly as it was the case of the K. D. A. that possession has been given and ground rent had been charged from the plaintiff, the K. D. A. would have no power to dispossess the plaintiff without recourse to legal process. This position was conceded at the hearing before me having regard to the provisions of the K. D. A. order as they stood at the material time. That being so, it would follow that the K. D. A. would have no power to give possession of the plot to the defendant No. 2.

5. The learned Civil Judge was of the opinion that the plaintiff had not come with clean hands because she had suppressed the fact of allotment to the defendant No. 2. As I have said there was no evidence to show that she was aware of this allotment. Moreover, considering that she was challenging the validity of the cancellation of her allotment the subsequent allot ment to the defendant No. 2 was of very little significance. The real dispute in the suit was between the plaintiff and the K. D. A. and not between the plaintiff and the defendant No. 2.

6. The learned Civil Judge further observed that though there was allotment in favour of the defendant No. 2 and possession was handed over to him either on 7th or 8th April 165 there was completely bill on the side of the plaintiff until August 1965 when she came to Court. This was not a correct statement of facts because the plaintiff had filed her first suit on 30th April 1965.

7. On appeal by the plaintiff against the order of the learned Civil Judge the learned District Judge also failed to see the real issues involved in the case at the stage at which the order of the Civil Judge was passed. With regard to the contention of the plaintiff that she had signed no agreement with the K. D. A. and, therefore, she could not be accused of violating any term, he observed that even if no time limit was fixed the construction had to be completed within a reasonable time. He went on to add that the housing societies bad also prescribed time limit for the purposes of construction by the allottee. He also took the view that the plaintiff prima facie did not acquire possession by lawful means and she had taken advantage of the absence of the defendant No. 2 who had gone abroad. He further observed that the plaintiff in order to recover possession from the defendant No. 2 ought to have had recourse to legal process but instead she took the law into her own hands and trespassed on the plot. From what I have said above I am clearly of the opinion that these observations were completely unjustified.

8. The learned District Judge was also of the opinion that the filing of the first suit without notice and following it up by a second suit after notice showed that the plaintiff had not come with clean hands and particularly because she had not impleaded the defendant No. 2. I am unable to agree. If the plaintiff's suit, assuming it was a bona fide one, suffered from a technical defect of want of notice, there was nothing unclean about withdrawing that suit with the permission of the Court and filing a fresh suit as was done in this case. As to the non‑impleading to the defendant No. 2 I need not repeat what I have already said.

9. Considering that the plaintiff was in possession on the date of the suit the main thing to consider was whether there was a triable issue in the suit and further whether the plaintiff would suffer loss by this possession and whether the balance of convenience was on her side. With regard to the first point there is no dispute that substantial questions of law and fact would arise in the case. Firstly, whether in the absence of the plaintiff having signed the agreement form which contained the penal clause, her allotment was liable to be cancelled with reference to clause 12. Secondly, whether the time limit in clause 12 was intended to be of the essence of the contract, particularly when that clause itself provided that the construction had to be made within 2 years or within such extended period as the Chairman might grant. The further question would be that when time in this respect was not of the essence of the contract as it was obviously not whether the K. D. A. could by a unilateral action make it of the essence of the contract Abdul Hamid v. Abbas Bhai (P L D 1962 S C 1). Thirdly, whether the Court would not in such cases, assuming that the finding on all these points were against the plaintiff, relieve her against forfeiture. Fourthly, whether the cancellation of the allotment of the plaintiff without due consideration of her application for extension of time and the subsequent allotment to the defendant No. 2 of the plot was a bona fide act.

10. With regard to the question of balance of convenience it is sufficient to say that the prices of these plots as was stated at the Bar and is well known have gone up by five to six times. The defendant No. 2 had merely paid the original price. Therefore, the deprivation of possession of the plaintiff would cause an irreparable loss to her and the balance of convenience was on her side.

11. For the reasons given both the orders passed by the learned Civil Judge and the learned District Judge are set aside as having been passed on misapprehension of fact and law and in certain instances upon irrelevant consideration. The temporary injunction first granted by the Civil Judge by his order-dated 14‑3‑66 is restored. The costs of this revision shall be costs in the suit.

A. H.

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