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Civil Appeal No. 93 of 1978 in Civil Petition No. K‑163 of 1978, decided on 26th October 1978.

(On appeal from the order dated Ist October 1978 of the Sind High Court at Karachi in L. P. A. No. 75/71).

Civil Procedure Code (V of 1908)‑

----O. XXXIX, rr. 1 & 2‑‑Injunction‑Balance of convenience‑‑Petitioner a Housing Society allegedly purchasing land, carving out, residential plots according to a development scheme, many members of Society constructing houses on their plots and multistoryed building also constructed by Society itself‑Contesting respondent not in, possession of land in dispute‑Balance of convenience, held, did not in circumstances, lie in favour of issuance of order restraining petitioner from raising any construction at site pending disposal of main appeal and petitioner liable to suffer irreparable loss and injury by virtue of such order‑Impugned order of High Court also not a speaking order Case sent back to High Court for decision afresh.

Nasir Zahid, Advocate Supreme Court and Shafiq Ahmad, Advocate-on‑Record for Petitioners.

Akhtar Mehmood, Advocate‑on‑Record for Respondent No. 1.

Nemo for the Remaining Respondents.

Date of hearing : 26th October 1978.

Anis Ali Khan, respondent No. 1, claiming to be an allottee of land situated in the heart of Karachi, measuring 35.23 acres comprised in Survey Nos. 212 to 220 situated in Deh Gujro Tapo Songal, Tehsil and District Karachi filed a Constitutional petition against the Settlement Authorities in the Sind High Court at Karachi, inter alia, alleging that its disposal by public auction as a building site was against law and without lawful authority. But the petition was eventually dismissed. The respondent then went up in L. P. A. No. 75 of 1971 against the judgment. During the pendency of the appeal the High Court on the 19th of January 1973 also issued a status quo order against respondents Nos. 2, 3 and 4 herein. Petitioner No. 1, a Housing Society had allegedly purchased the land from its auction‑purchasers. It appears that during the pendency of the appeal in the High Court the respondent also issued notices of the stay order to the President and the Honorary Secretary of the Society to desist from raising any construction on the spot. On the failure of the petitioners herein to comply with this notice, respondent No. 1 filed a petition for contempt of Court against them in the High Court. On the 1st of October 1978 the High Court dismissed the petition on the short ground that the petitioners herein were not parties to the appeal and were therefore, not bound by the stay order. However, at the same time the Court passed a fresh order against the petitioners restraining them raising any construction at the site pending the disposal of the main appeal. In the meantime, on the application of the petitioners, they have been impleaded as additional respondents in the appeal pending in the High Court.

This is a petition for special leave to appeal from the order dated 1st of October 1978 thus passed by the High Court restraining the petitioners from making any construction at the site in dispute pending the disposal of the main appeal.

We have heard the learned counsel far the petitioners as well as the contesting respondent No. 1 in this petition. Before us the learned counsel for the petitioners has laid stress to contend that the peti tioners as the bona fide purchasers of the land for valuable con sideration from its auction‑purchasers are in lawful possession thereof since 1972‑73. They have already carved out about 500 residential plots in accordance with a development scheme and have allotted them to the members of the Society who are in continuous possession thereof. Many of them have already completed the construction of their houses and the construction by several others is in hand. The petitioner‑Society has also constructed a multi‑storeyed building having 98 flats and several shops by incurring an expenditure of more than Rs. 40 lakes and the building was almost 70 % complete before the 1st of October 1978 when the impugned) order was passed by the High Court.. The contesting respondent No. 1 was not in possession of the land in dispute. According to the learned counsel the respondent has no prima facie case. in the appeal. At any rate the balance of convenience does not lie in favour of the issuance of the impugned order and the petitioners are liable to suffer irreparable loss and injury by virtue of the impugned order. Even otherwise the conduct of respondent disentitles him to any such equitable relief. But we find that the impugned order passed by the High Court is not a speaking order and it does not deal with any of these considerations, which require serious attention of the Court. Before us the learned counsel for the respondent could not defend the impugned order and after some initial hesitation agreed that the case may be sent back to the High Court for a decision afresh after hearing both the parties. We, therefore, convert this petition into an appeal, accept the same and vacate the impugned order dated Ist of October 1978 and send back the case to the High Court for a fresh decision in the matter in accordance with law after hearing the parties. The parties are directed to appear before the High Court on the 1st of November 1978. No cost.

Case remanded.

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