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Civil Miscellaneous Application No.646 in Suit No.156 of 1985, decided on 21st April, 1985.
---S.15--Civil Procedure Code (V of 1908) O. XXXIX, Rr. 1 & 2--Eviction of tenant--Where owner of property had filed eviction procedings against tenant, such proceeding, held, could not be frustrated through collateral means under another proceedings--Application filed by tenant in pending civil suit against defendant/owner for restraining him from ejecting plaintiff tenant through rent case, dismissed being misconceived in circumstances.
---S.15--Transfer of Property Act (IV of 1882), S.53-A--Provisions of S.53-A of Act IV of 1882 were available to be used as weapon of defence in ejectment proceedings only against seller of disputed property--Defendant admittedly being transferee of such property for consideration without notice of earlier sale, held, could not tic restrained from pursuing remedies available to him under law.
Sami Ahmed Tirmizi for Plaintiff.
This is an application for restraining defendant No.2 from ejecting the plaintiff from House No.R-30, Block-9 Federal 'B' Area, Karachi. The facts of this case are that, according to the learned counsel for the plaintiff, the plaintiff transferred this property under a sale agreement dated 30-3-1964 to defendant No.l for a sum of Rs.12,000 with a right of repurchase. According to the learned counsel, it was a Benami transaction and defendant No.l had to convey the property to the plaintiff. It is alleged that on 18-3-1982 the defendant executed a receipt acknowledging a payment of Rs.1,05,000 which, according to the learned counsel for the plaintiff, included the payment of Rs.17,000 which was paid to the brother-in-law of defendant No,1 on 18-10-1977. The defendant promised to convey the title in the property by executing a sale-deed. Contrary to this assurance the defendant No.l by a registered sale-deed dated 24-5-1982 sold away to defendant No.2 the said property. Thus, defendant No.2 has become the purchaser of the property for valuable consideration under a registered document of title. Defendant No.2 has now filed ejectment proceedings being R.C. No.4624 of 1983 in the Court of learned Rent Controller praying for ejectment of the plaintiff.
This application is filed for an injunction praying for restraining the defendant No.2 from ejecting the plaintiff in those proceedings. This is on the face of it a misconceived application. Moreover, if the owner of a property filed a suit for ejectment of a tenant, the proceedings cannot be frustrated through collateral means under another proceeding. The application is, therefore, dismissed.
Mr. Sami Ahmed Tirmizi has a notion that he can have an injunction on the reading of section 53-A of the Transfer of Property Act. Section 53-A of the said Act can be used as a weapon of defence in ejectment proceedings only against the seller of property. But admittedly defendant No.2, who is a transferee for consideration without notice of the earlier sale cannot be restrained from pursuing the remedies available to him in law.
H.B.T./G-6/K Application dismissed.
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