PLJ 2022 Quetta (Note) 60
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXIX Rr. 1 & 2--Specific Relief Act, (I of 1877), Ss. 39, 42 & 54--Application for grant of temporary injunction was accepted--
Appeal--Allowed--Ingredients for temporary injunction--Object of Grant of interim injunction--No deprivation of respondents from property--Object of interim injunction--Third party interest--Direction to--Party to suit has to establish prima facie case, balance of convenience and irreparable loss for temporary injunction--The three ingredients must co-exist in favour of a party--Petitioners have not sought any relief which deprived the Respondent No. 1 from property, only prayed to maintain status quo in respect of suit properties till disposal of suit. It is well settled principle that the object of granting interim injunction is to ensure that the suit property would not be alienated in case of decree of the suit in favour of plaintiff; execution thereof does not become difficult--The order passed by Additional District Judge-VII, Quetta is set aside--The respondent is directed not to create third party interest in suit properties till disposal of main suit--Revision petition allowed.
[Para 8 & 9] A & C
Transfer of Property Act, 1882 (IV of 1882)--
----S. 52--Principle of lis pendes--Protection of right of plaintiff--Appellate Court while vacating stay order observed that “by virtue of principle of lis pendens as enumerated in Section 52 of Transfer of Property Act, 1882, right of plaintiffs is well protected” The principle of lis pendes is no ground to refuse temporary injunction.
[Para 9] B
2005 CLC 925 ref.
M/s. Gul Hassan Tareen and Arif Bazai, Advocates for Petitioners.
Mr. Akram Shah, Advocate and Mr. Muhammad Ayub Tareen, Assistant Advocate General for Respondent No. 1.
Date of hearing: 6.7.2021.
PLJ 2022 Quetta (Note) 60
Present: Abdul Hameed Baloch, J.
versus
MUHAMMAD YAHYA KASI and others--Respondents
C.R. No. 430 of 2020, decided on 12.7.2021.
Judgment
The petitioners/plaintiffs assailed order dated 09th November, 2020 (impugned order) passed by Additional District Judge-VII, Quetta, (appellate Court) whereby interim order dated 14th September, 2020 passed by Senior Civil Judge-IV, Quetta was set aside and application under Order XXXIX, Rules 1 and 2, C.P.C. was dismissed.
2. Concise facts of the case are that the petitioners/plaintiffs filed a suit for declaration, partition, cancellation, permanent injunction and rendition of accounts against the respondents/ defendants in the Court of Senior Civil Judge-IV,
3. The Respondent/Defendant No. 1 filed written statement and controverted the contention of the petitioners/plaintiffs by raising legal as well as factual grounds. He also filed rejoinder to the application under Order XXXIX, Rules 1 and 2, C.P.C. and prayed for dismissal of the application.
4. The Respondents/Defendants Nos. 3 and 4 also filed their written statement and admitted the contention of the petitioners/plaintiffs. The official respondents/defendants filed their separate written statement and rejoinder to the application under Order XXXIX, Rules 1 and 2, C.P.C.
5. Meanwhile the Respondent/Defendant No. 1 filed an application for transposition of Respondents/Defendants Nos. 2 to 4 as plaintiffs which was allowed by the trial Court vide order dated 1st November, 2019.
6. The trial Court heard arguments on application under Order XXXIX, Rules 1 and 2, C.P.C. and vide order dated 14th September, 2020 accepted the application. Being aggrieved the Respondent/ Defendant No. 1 filed appeal before appellate Court, who vide order dated 9th November, 2020 accepted the appeal and vacated the stay order, hence the petitioners/plaintiffs are before this Court.
7. Heard and perused the record with the assistance of learned counsel for the parties. It would not be irrelevant to reproduce Order XXXIX, Rule 1, C.P.C., which reads as under:
“ORDER XXXIX, RULE 1, C.P.C. Cases in which temporary injunction may be granted.--Where in any suit it is proved by affidavit or otherwise--
(a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or
(b) that the defendant threatens, or intends, to remove or dispose of his property with a view to defraud his creditors.
The Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, until the disposal of the suit or until further orders.”
8. As per above provision the party to the suit has to establish prima facie case, balance of convenience and irreparable loss for temporary injunction. The three ingredients must co-exist in favour of a party. Admittedly the petitioners have not sought any relief which deprived the Respondent/Defendant No. 1 from the property, only prayed to maintain status quo in respect of the suit properties till disposal of the suit. It is well settled principle that the object of granting interim injunction is to ensure that the suit property would not be alienated in case of decree of the suit in favour of plaintiff; execution thereof does not become difficult.
9. The appellate Court while vacating the stay order observed that “by virtue of principle of lis pendens as enumerated in Section 52 of Transfer of Property Act, 1882, the right of plaintiffs is well protected” The principle of lis pendes is no ground to refuse the temporary injunction. Reliance is placed on case Mst. Nazir Begum v. Muhammad Tahir 2005 CLC 925, wherein it was held:
“10. The applicability of the doctrine of lis pendens has been held by this Court as no ground for refusing to issue temporary injunction in case titled Sardar Wali Muhammad v. Sardar Muhammad Iqbal Khan Mokal and 7 others PLD 1975 Lah. 492 with the following main observation:
“I am of the view that the applicability of principle of lis pendens is no ground for refusing to issue a temporary injunction. In case where prima facie the property in suit is jointly owned by a party, the denial of the right of one party by the other may be a source of causing irreparable loss and injury. In the present case the suit has been filed for rendition of accounts against Sardar Wali Muhammad. If he alienates this property, the persons who will be in possession of the property by way of alienation will have to be impleaded as party to the case at least in order to compel them to make a restitution of whatever income and profits the plaintiff is deprived. In these circumstances, I am of the view that the temporary injunction was rightly issued and the balance of convenience was in favour of the issuance to temporary injunction inter alia on the ground that it would avoid multiplicity of suits or inclusion of stranger to the suit. The appeal of Sardar Wali Muhammad has no force and is liable to be dismissed.”
The question of grant of injunction on the ground that the purchaser was bound by the doctrine of lis pendens was also discussed in the case of Haji Gul Muhammad Haji Ismail and others v. Munawar Ali Khan and others 1987 MLD 2828 wherein it was held:
“The object of granting interim injunction is to maintain the status quo and not to disturb it. The Defendants 3 to 6, therefore, cannot be allowed to sell, alienate or deal in any manner whatsoever or develop or to construct a building or to change the entire situation to the disadvantage of the other party.”
In order to prohibit and avoid introduction of strangers the grant of injunction was upheld by this Court in the case of Fateh Muhammad v. Muaammad Hanif and another PLD 1990 Lah. 82 in the following terms:
“Though rule of lis pendens applied to the suit for specific performance and amply protected the plaintiff against apprehended pendente lite alienations, yet in order to prohibit and avoid introduction of strangers into the lis which is likely to enlarge the scope of dispute between the parties, injunction ought to issue to prohibit the defendants from transferring the land in suit.”
11. The criteria as mentioned hereinabove, in the cases cited (supra), there is no cavil with the proposition that despite applicability of the doctrine of lis pendens, the Court can pass temporary injunction to avoid multiplicity of the proceedings and to prohibit the introduction of strangers into lis to enlarge the scope of dispute between the parties, provided the petitioner succeeds in establishing his case on the parameters of prima facie case, balance of convenience and irreparable loss and injury, in its favour.
Keeping in view of above circumstances the revision petition is accepted. The order dated 9th November, 2020 passed by Additional District Judge-VII,
No. 1 is directed not to create third party interest in the suit properties till disposal of the main suit. No orders as to costs.
(Y.A.) Petition dismissed
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