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Ch. ABDUL MAJID FAROOQI Em-Respondents

Civil Revision blot 725 of 1977. heard on 30th September, 1989,

(a) Capital Development Authority Ordinance (XXIII of 1960)-----

S. 49-E-Ouster of jurisdiction of civil Courts-Courts, held, can examine validity of acts of statutory functionary to find out whether or not it exceeded its powers and S. 49-E no bar to exercise of such powers.---[Jurisdiction].

(b) Civil Procedure Code (V of 1908)-

O. XXXIX, r. 2--Temporary injunction-Plaintiff for grant of temporary injunction, must have an arguable case-Issue of temporary injunction held, discretionary with Court.--[Injunction].

Syed Sardar Shah Bokhari for Petitioner.

Qurexhi Mahmood Ahmad for Respondents.

Date of hearing : 30th September, 1980.

The plot in dispute was offered for lease by the petitioner-Authority, to the respondents for a term of 33 years, extendable for two successive terms of 33 years each, for construction of a swimming pool. The respondents by their letter dated 22-8-1974, accepted the offer: The allotment was confirmed on 13-5-1975, and as per conditions thereof, the respondents paid to the Authority a sum of Rs. 1,21,000 comprising the premium and other charges. They were required to submit the building plans and drawings, to the Authority within a period of four months of the confirmation of allotment but they did not abide by this condition and on 13-9-1975, applied to the Authority for the enlargement of time. The time was extended by it up to 13-12-1975. It appears that the respondents instead of submitting the plans, applied to the Authority for permission to alienate the plot to some one else. The Authority, however, under its letter dated 8-1-1976 cancelled the allotment and forefeited 10 % of the premium. The plans subsequently sent by the respondents to the Authority, were returned to them and the decision cancel ling the allotment reaffirmed.

2. It was under these circumstances that the respondents filed a declaratory suit questioning the validity of the cancellation of allotment and prayed for grant of permanent injunction restraining the Authority from dispossessing them from the plot in dispute. Alongwith the suit they filed an application for temporary injunction. The Authority resisted the suit, 'as well as the application. The learned Senior Civil Judge found that though the allotment was confirmed on 13-5-1975, yet the possession was delivered to the respondents on 4-12-1975, and the allotment was cancelled about a month thereafter. He maintained that the question of delay in delivery of possession, required consideration and further took note of the issue as to whether or not, the time was the essence of the contract, but came to the conclusion that these points could not be determined at that stage. In view of his these findings by this order dated 9-7-1976, he allowed the application.

3. In appeal the learned Additional District Judge, who was seized of the case maintained that by* virtue of the correspondence between the parties, prima facie, the contract of lease came into existence between them. He was also influenced by the payment of premium and delivery of possession which in his opinion attracted application of section 53 A of the Transfer of Property Act. The factum of extension of trine by the Authority; further prevailed with him, to tentatively hold that the time was not predominant feature of the contract. He thus upheld the grant of injunction to the respon dents and by his order dated 11-3-1977, dismissed the appeal filed by that Authority

This order has been a .sailed through this Revision;

4. The learned counsel for the Authority heavily relied on section 49-E of the C. D. A. Ordinance, to urge that the civil Court has no jurisdiction to question the legality of the orders passed by the Authority. It was contended that the respondents were mere licensees and the only remedy open to them was to file a suit for damages. Much emphasis was laid by the learned counsel on the respondents' failure to submit the building plans and drawings to the Authority within time and it was earnestly argued that they male fide intended to transfer the plot to others.

5. None of these submissions would furnish valid basis to intervene in exercise of revisions jurisdiction. It is well settled that notwithstanding the incorporation of provision in a statute, as to the exclusion of the civil Court's jurisdiction, the Courts can examine the validity of acts of a statutory function ary, to find out whether or not it exceeded its powers. The nature of the respondents' possession ; the effect of extension of time ; the alleged delay in delivery of possession such questions which can more properly he gone into at the trial. To qualify for grant of injunction what the plaintiff' has to show is that he has an arguable case. I feel that the points raised in this suit are such that a temporary injunction has got to be issued in the respondents' favour. The requirements of law for grant of interim relief to the respondents are amply satisfied in this case. It is also to be noticed that the issue of temporary injunction is discretionary. It has not been shown that the discretion exercised by the Courts below in favour of the respondents is arbitrary or capricious . -

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