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First Appeal from Original Orders Nos.38 and 39 of 1982, decided on 17th April, 1983.
---S.12--Civil Procedure Code (V of 1908), O.XXXIX, Rr.1, 2 & O. XLIII. R.1--Suit for specific performance on basis of agreement to sell--Temporary injunction restraining defendants from alienating land and raising construction thereof till disposal of suit granted to plaintiff by Trial Court--Order impugned in appeal--Where plaintiff had a prima facie or an arguable ease and had paid a substantial amount, trial Court's grant of status quo in his favour till disposal of suit after careful consideration of case and in accordance with guiding principles of superior Courts, held, could not be interfered with.
Riaz Anwar for Appellant.
M. Asif Jan for Respondent No.1.
Mian Abbas Ahmad and Malik Sharif Ahmad for Respondents Nos.2 and 3.
Date of hearing: 17th April, 1983.
-F.A.O. No.38 of 1982 filed by Muhammad Hussain and F.A.0. 39 of 1982 filed by Mst. Saeeda Begum, Ahmad Raza and Mst. Yasmin, arise from the order of the learned Senior Civil Judge, Vehari, whereby he on 5--7-1982, in a suit for specific performance filed by Muhammad Shafi, respondent against Muhammad Hussain and others, granted temporary injunction under Order 39, Rules 1 and 2 C.P.C.
2. The facts giving rise to these appeals in brief are that on 18-7-1981 Muhammad Shafi filed a suit for specific performance of agreement to sell against Muhammad Hussain. Thereafter on the application of Muhammad Shafi, plaintiff, under Order 1, Rule 10 C.P.C. Mst. Gaeeda Begum, Ahmad Raza and Mst. Yasmin, respondents 2 to 4, wife, son and daughter, respectively, of Muhammad Hussain defendant and Hashim and four others respondents 5 to 9 were impleaded as defendants vide order, dated 8-3-1982 passed by the trial Court. Along with the suit Muhammad Shafi, respondent No.l/ plaintiff, moved application for grant of temporary 'injunction. This application was contested. The trial Court: however, through the impugned order granted the temporary injunction maintaining status quo, restraining the defendants from alienating the land and raising construction thereon till the disposal of the suit. Hence these appeals.
3. Learned counsel contends that the trial Court has not appreciated the question of grant of temporary injunction in accordance with the guiding principles laid down by the superior Courts inasmuch as Muhammad Shafi has no prima facie or arguable case; the balance of convenience is not on his side and in case the temporary injunction is not granted he would not suffer any irreparable loss. Learned counsel explains that Muhammad Hussain had transferred the disputed land to Mst. Saeeda Begum, Ahmad Raza and Mst. Yasmin, through registered sale-deeds much before the execution of the agreement to sell in favour of Muhammad Shafi, plaintiff /respondent No.l and as such Muhammad Hussain could not enter into the agreement to sell with Muhammad Shafi, therefore, he has no prima facie case. Furthermore if stay is not granted, Muhammad Shafi plaintiff/ respondent can be adequately compensated by money.
4. As against this learned counsel for Muhammad Shafi, respondent has defended the impugned order.
5. After hearing the learned counsel we find that there is an agreement to sell purporting to have been executed by Muhammad Hussain which shows that a huge amount of Rs.4,30,000 was paid as earnest money; that subsequent thereto Muhammad Hussain received Rs.3,15,000 through a receipt and as such a total amount of Rs.7,45,000 has been received by Muhammad Hussain; that Mst. Saeeda Begum, Ahmad Raza and Mst. Yasmin are the wife, son and daughter of Muhammad Hussain; that in the amended plaint bona fide of transaction of sale by Muhammad Hussain in their favour has been challenged; that the agreement to sell recites that the possession has been delivered to Muhammad Shafi; that since a huge amount has been paid to Muhammad Hussain, therefore, prima facie it appears that the possession was actually delivered otherwise he would not have paid such a huge amount; and that respondents 2 to 4 have further alienated the land to respondents 5 to 9.
6. For what has been found above we are convinced that Muhammad Shafi respondent No.l has a prima facie or at least an arguable case and since he has paid Rs.7,45,000 to Muhammad Hussain, other two, essentials have, therefore, to be found in his favour. Even otherwise the trial Court has simply maintained status quo till the disposal of the suit which in the circumstances appears to be just and proper. The trial Court has considered the question of temporary injunction carefully and that too in accordance with the guiding principles laid down by the superior Courts and as such the contentions raised by the learned counsel do not make out a case for interference with the impugned order.
7. There being no force in these appeals the same are dismissed with costs.
A.A./M-147/L Appeals dismissed.
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