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-- O. XXXIX, rr. 1 & 2-Temporary injunction-Suit for' specific performance filed at a stage when writ of attachment already issued and plaintiff likely to be dispossessed - Factors making circum stances doubtful and reflecting lack of bona fides on part of plaintiff-Grant of injunction will amount to stay of execution of writ of ejectment which was duly issued by a Court of competent jurisdiction--Party seeking interference of Court to stay another judicial proceedings - Should establish that unless it is granted there will be multiplicity of actions - Plaintiff failing to establish such situation-High Court putting defendant to terms that if she is able to obtain possession of disputed house she will not sell it or in any manner transfer or create charge of any nature nor shall she. part with possession of house.

Azhar Ali Siddiqui for Plaintiff.

Ikram Ahmad Ansari for Defendant.

Date of hearing : 23rd May, 1982.

This is plaintiff's application for temporary injunction restraining the defendants from interfering with the plaintiff's possession in respect of Bungalow No. T-7 15th East Street Pakistan Defence Services Officer Co-operative Housing Society Ltd. The plaintiff has alleged that by an agreement to sell dated 24th April, 1972 the defendant agreed to sell the disputed property to the plaintiff for Rs. 1,80,000 under the agreement, which also recites that in respect of ejectment proceedings filed against the plaintiff's husband Sami Jaffari entire arrears have been paid to the 19931 defendant. The defendant has taken steps to eject the plaintiff's husband from the disputed premises under the guise of ejectment proceedings. The plaintiff claims that the entire arrears have been paid and as she has agreed to purchase the property her possession may not be disturbed

The defendant in the counter-affidavit filed by her has denied that has d greed to sell the property. She has denied execution of agreement and receipt.

The plaintiff's husband Sami Jaffari was the tenant of the house. The defendant had filed Ejectment Application No. 2069/70 against Sami

Jaffari which was allowed in March. 1972. The defendant has pleaded that on 13th April, 1972, Sami Jaffari addressed a letter to the defen dant stating that be was enclosing draft of Rs. 3,000 and promised to pay the balance of arrears after some time. As the balance was not paid and the house was not vacated the defendant filed Exh. Application 6/75 which was dismissed as Sami Jaffari could not be served. The defendant also filed Suit No. 1666/75 for recovery of arrears of rent which was decreed ex parte. The defendant again filed execution application No. 1 /77 against Sami Jaffari for delivery of possession which was served through publication: Sami Jaffari took several dates for filing objections but he failed to do so and ultimately on 16th July, 1978 the Court issued the writ of ejection. The plain tiff's husband Sami Jaffari filed an appeal against the order of eject ment passed in Exh. No. 1/77 and for the first time stated that the defendant's husband /attorney has agreed to sell the property to him and accepted Rs. 80,000 as part payment. The defendant's attorney filed counter-affidavit denying the sale. Sami Jaffari then withdrew his appeal on 2nd October, 1980. The plaintiff then filed the present suit on 2nd March, 1982, for specific performance and injunction.

Mr. Azhar Ali Siddiqui ' the learned counsel for the plaintiff has contended shat the ejectment order was passed in March, 1972 and thereafter on 29th April, 1972 the -defendant agreed to sell this property to the plaintiff and that is why no execution application was filed. No doubt there is some delay in filing the execution application but the defendant has explained that as Sami Jaffari had paid Rs. 3,000 and requested for time the execution application was not filed, it was however filed in 1975 which was dismissed and again it was repeated in 1977 which was served by publication. If the plaintiff had purchased the property then an objection should have been filed, by Sami Jaffari stating all these facts. This was not done. In appeal all these facts were pleaded but when the defendant denied the execution -of sale agreement and receipt Sami Jaffari withdrew the appeal. The plaintiff also did not take any step in the matter to resist ejectment.

So far sale is concerned, it has been denied by the defendant. There seems to be obvious contradiction to the plea taken by the plaintiff. According to her the defendant has agreed to sell the pro perty to her. But Sami Jaffari in Civil Appeal No. 309/78 had pleaded that he has agreed to purchase the property from the defendant. In these circumstances the delay in filing execution application cannot lead to the inference that it was not filed earlier as the defendant had agreed to sell this property to the plaintiff:

The learned counsel- for the plaintiff has contended that as there is an agreement to sell and receipt for Rs. 80,000 the plaintiff has made out a prima facie case. As the execution of these documents have been denied and further as there are circumstances which create doubt in the genuineness of the agreement for sale the plaintiff has failed to make out a prima facie case.

Mr. Ikram Ansari the learned counsel for the defandant has conten ded that as Sami Jaffari by his letter dated 13th April. 1972 had pleaded for time for payment of arrears, how could it be possible for his, wife to arrange payment of Rs. 80,000 and arrears of rent. This fact is a strong circumstance against the plaintiff's plea. I would refrain from dealing with it as it will amount to entering into the merits of the case which at this interlocutory stage, it is proper to avoid.

The plaintiff has filed this suit for specific performance about ten years after the alleged agreement for sale. She has not explain ed this long delay. On the other hand it has been filed at a stage when writ of attachment has been issued and she is likely to be dispossessed. All these factors make the circumstances doubtful and reflect lack of bona fides on the part of the plain tiff. The grant of injunction will amount to stay the execution of writ of ejectment which has been duly issued by a Court of competent jurisdiction. Such an injunction order will amount to stay the execution of writ of attachment issued against the husband of the plaintiff. Where a party seeks the interference of the Court to stay another judicial proceeding then he should establish that unless it is granted there will be multiplicity of actions. The plaintiff has failed to .establish it, therefore, the application cannot be granted. However considering the facts and circumstances of the case and in the interest of justice the defendant is put to terms that if she is able to obtain the possession of the disputed house she will not sell it or in any manner transfer or create charge of any nature nor shall she part with the possession of the said house till further order. With these observations the application is dismissed.

M.Y.H. Order accordingly.

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