PLJ 2022 Lahore 791
Civil Procedure Code, 1908 (V of 1908)--
----O.XXXIX, Rr. 1 & 2--Specific Relief Act, 1877 (I of 1877), Ss. 12, 42 & 54--Suit for specific performance, declaration and perpetual injunction--Refusal of application for interim relief--Acceptance of appeal--oral agreement to sell--Balance of convenience--Powers of Court--Conversion of civil revision into writ petition--Essentials for grant of interim relief--Development of two residential colonies--Three essentials for grant of interim relief were in favour of respondents--Modification in judgment passed by appellate Court--High Court has power to convert one type of proceedings into another kind and therefore, subject to petitioners depositing requisite Court fee present Civil Revision is converted into a constitutional petition--The trial Court dismissed application without taking into account averments raised by respondents and without alluding to documents presented by respondents--Trial Court did not at all allude to documentary evidence appended with plaint which, atleast, prima facie, supported and confirmed contents of civil suit in question--All three factors lean prominently and conspicuously in favour of respondents before this Court and appellate Court has rightly granted interim relief to them in this matter--All amounts deposited by way of dues had been deposited by Waseem Sultan and not petitioners before this Court--Respondents indeed have a prima facie case and since petitioners had already resorted to selling plots on their own, balance of inconvenience also tilts in their favour--Judgment passed by appellate Court stands modified to extent that petitioners shall be allowed to sell 50% of plots on commercial side and 50% of plots on residential side in two societies in question while retaining 50% plots on commercial side and 50% plots on residential side so as to not to frustrate eventual decision passed in suit in question--Petition dismissed.
[Pp. 794, 795, 796, 798 & 800] A, B, C, D, E & F
2004 SCMR 1092, 1998 SCMR 376, 2020 CLC 1074,
2020 CLC 1094 ref.
Mr. Tariq Mehmood Dogar, Advocate for Petitioners.
Ch. Daud Ahmad Wains, Advocate for Respondents.
Date of hearing: 10.2.2022.
PLJ 2022 Lahore 791
[Multan Bench Multan]
Present: Muhammad Shan Gul, J.
FAROOQ ARSHAD etc.--Petitioners
versus
Mst. SHAZIA WASEEM etc.--Respondents
C.R. No. 557-D of 2021 converted into W.P. No. 2048 of 2022,
heard on 10.2.2022.
Judgment
This Civil Revision is not maintainable after the amendment made in Section 115, CPC by the Province of Punjab by means of adding sub-clause (5) to the section. The newly inserted sub-clause (5) reads as follows:
“(5) No proceedings in revision shall be entertained by the High Court against an order passed by the District Court under Section 104,”
This amendment was inserted in the Code of Civil Procedure through the Punjab Amendment Act XIV of 2018 dated 20.03.2018, therefore, a constitutional petition, if at all, should have been filed in the matter and not a Civil Revision. The office of this Court realizes its mistake and begs pardon. Learned counsel for the respondents objects to this Civil Revision in its present form but the learned counsel for the petitioners insists that this Court has the jurisdiction to convert one type of proceedings into another and provided the petitioners’ approach is not barred by the law of limitation, a civil revision can be ordered to be converted into a constitutional petition.
2. It has been noted that the Civil Revision was filed within one month of the impugned judgment passed by the appellate Court and therefore, is not hit by limitation or for that matter by the doctrine of laches. In view of the law laid down by the Hon’ble Supreme Court of Pakistan in the case of Muhammad Akram vs. DCO, Rahim Yar Khan and others (2017 SCMR 56) at Paragraph 7:
“The Courts are sanctuaries of justice, and in exercise of authority to do ex debito justitiae, that is to say remedy a wrong and to suppress a mischief to which a litigant is entitled. No fetters or bar could be placed on the High Court and or this Court to convert and treat one type of proceeding into another type and proceed to decide the matter either itself provided it has jurisdiction over the lis before it in exercise of another jurisdiction vested in the very Court or may remit the lis to the competent authority/forum or Court for decision on merits. Courts have been treating and or converting appeal into revisions and vice versa and Constitution Petitions into appeal or revision and vice versa. Even time consumed pursuing remedy before a wrong forum in appropriate cases could always be condoned (see Shamsul Haq and others v. Mst. Ghoti and 8 others (1991 SCMR 1135)”
As also in view of Capital Development Authority, Islamabad through its Chairman vs. Khuda Bakhsh and 5 others (1994 SCMR 771) in the last paragraph and the case of Shamsul Haq and others vs. Mst. Ghoti and 8 others (1991 SCMR 1135) at Paragraph 10 where it has been held as under:
“Learned counsel then reiterated the argument that the High Court was not right in converting the Revision into a Writ Petition at a point of time when the Revision was no more competent. There is no force in this point either. Recently it has been held by this Court in a number of cases that there is no limit and bar on the High Court to convert a revision into a writ petition. This essentially is a question of exercise of discretion.”
This Court has the power to convert one type of proceedings into another kind and therefore, subject to the petitioners depositing requisite Court fee (Rs. 1500/- since there are three petitioners), the present Civil Revision is converted into a constitutional petition and office is directed to allot a number to this writ petition today.
3. Through this judgment, the titled Writ Petition is sought to be decided.
4. Respondents No. 1 to 4 before this Court i.e. plaintiffs in the Civil Court, instituted a suit for specific performance of an oral agreement dated 30.12.2017 as also declaration and perpetual injunction against the petitioners, i.e. defendants in the civil suit. Along with the suit, the respondents filed an application for interim relief/interim injunction which was refused by the learned trial Court vide order dated 16.02.2021. An appeal was filed against the said order and which appeal was accepted vide order dated 05.04.2021 and it was ordered that the petitioners before this Court are restrained from selling the plots of the societies in any manner and are also barred from changing the nature of the plots and from any development work in the said societies. The petitioners have approached this Court against order dated 05.04.2021 passed by the learned appellate Court.
5. The facts of the case are that the respondents maintained that an oral agreement dated 30.12.2017 was entered into between their deceased predecessor-in-interest Waseem Sultan and the petitioners before this Court in the presence of Naeem Sultan, Sohaib Maqbool and Muhammad Ashraf whereby the deceased predecessor-in- interest of the respondents Waseem Sultan was made an offer to develop two residential colonies on the land owned by the petitioners and which offer was accepted by the predecessor-in-interest of the respondents i.e. Waseem Sultan and it was agreed that Waseem Sultan shall develop two residential colonies by the names of Hassan Garden and Farooq Garden on the land owned by the petitioners, will incur all expenses for the said development and will also procure requisite permissions and allowances from concerned departments and regulatory authorities and that the petitioners would not spend any money in this respect and as a quid pro quo, out of the plots spanning an area of 90 kanals, the predecessor-in-interest of the respondents would be entitled to plots situated on 30% of the said area i.e. 27 kanals in consideration of development of the said residential colonies.
6. It has been explained in the civil suit that since the petitioners and respondents are closely related and since the predecessor-in- interest of the respondents Waseem Sultan had earlier remained involved in business dealings with the petitioners during his life time, the said oral agreement was not reduced into writing.
7. It is stated in the plaint that from January 2018 till August 2018, the predecessor-in-interest of the respondents incurred expenses while gaining requisite permissions and allowances and subsequently in developing the said residential colonies. That, likewise, expenses were incurred for the purpose of marketing and advertising the said colonies but that in September 2018, the predecessor-in-interest of the respondents was diagnosed with liver cancer and passed away on 14.02.2019.That Waseem Sultan, the predecessor-in-interest of the respondents had spent Rs. 3 crore on development and similar other nuances of the said residential colonies. That after his death, the respondents approached the petitioners for the ‘consideration’ but in November 2019 it became clear that the petitioners were not interested in honouring the oral agreement and that through their conduct (they had started selling plots on their own) it became evident that the petitioners had no inclination to honour or perform their side of the agreement and it is therefore, that a suit was instituted.
8. Alongwith this suit, an application under Order XXXIX Rules 1 & 2 CPC was also filed but was dismissed in a near perfunctory manner by the trial Court. The approach of the trial Court while adjudicating the application for interim relief has come across as strange! The trial Court adjudicated the application for interim relief in a lackadaisical manner and the order dated 16.02.2021 passed by the trial Court clearly reveals that neither does it qualify as a proper judicial order nor does it contain adequate reasons for refusing the interim relief in question. The trial Court dismissed the application by means of one small paragraph without taking into account the averments raised by the respondents and without alluding to the documents presented by the respondents. Without evaluating the matter in its true perspective, the trial Court proceeded to dismiss the application for interim relief by means of a one-liner, “the claim of the plaintiffs requires evidence to be recorded” and dismissed the application. It has been noted with concern that the trial Court did not at all allude to the documentary evidence appended with the plaint which, atleast, prima facie, supported and confirmed the contents of the civil suit in question.
9. The respondents thereafter approached the District Court and filed an appeal in the matter. An Additional District Judge vide judgment dated 05.04.2021 set aside the order passed by the trial Court dated 16.02.2021 and granted interim relief in the matter through a very well-reasoned judgment and which judgment, as will be explained in the narrative ahead, is unexceptionable and not susceptible to interference in constitutional jurisdiction.
10. The judgment passed by the appellate Court has been perused and it may straightaway be observed that not only does the judgment take into account all essential facts but the same also deals with the objections raised by the petitioners through their written statement as also through their arguments and it is only after being satisfied about the case being conspicuously a prima facie case that interim relief has been granted in the matter.
11. The appellate Court noted in its judgment that three living witnesses supported the oral agreement to sell and that 54 documents in original were produced by the plaintiffs which provided near impregnability and a kind of bond of fate to the existence of an oral agreement to sell and also consequentially destroyed the stance of the petitioners before this Court about the plaintiffs’ predecessor-in- interest remaining ill and bed ridden during the crucial time period or about him being financially uncomfortable and not well placed. Interestingly, the appellate Court noted, that all 54 documents in original pertaining to different aspects of development of the said societies including but not limited to applications, correspondence, receipts, deposits etc. in relation to gaining permissions and allowances from departments and regulatory authorities were all in the custody of the respondents and not the petitioners and even more interestingly these documents coincided with the time period during which the plaintiffs claim that part performance of the oral agreement to sell had taken place. The petitioners before this Court, on the other hand, were not in custody of a single original document, atleast they did not produce any before the appellate Court. Even more alarmingly, all amounts paid and deposited as a result of demand notices, challans etc. pertaining to development of the two housing societies had been so deposited by the deceased predecessor-in-interest of the plaintiffs. Similarly, all letters or correspondence addressed to concerned departments and regulatory authorities and issued by such departments and regulatory authorities in response were in the name of Waseem Sultan, the deceased predecessor-in-interest of the plaintiffs as a DEVELOPER of the said societies.
13. On the other hand, the appellate Court noted, the names of the petitioners did not figure anywhere in the said letters and correspondence and were conspicuously and fatally missing. The appellate Court also rightly noted that power of attorney by Petitioners No. 2 & 3 in favour of petitioner No. 1 with respect to the two societies was also an afterthought since it had been executed after the crucial time period. Furthermore, what also convinced the appellate Court in agreeing with the contentions raised by the plaintiffs were the documents produced by them establishing the fact that their deceased predecessor-in-interest was financially comfortable and a man of means who had travelled widely and therefore, the stance set up by the petitioners about them helping Waseem Sultan financially lost its bite.
14. It is therefore that the appellate Court ruled that the plaintiffs had succeeded in establishing a prima facie case and since the plaintiffs were of young age, one of them is a minor, one of them is a widow and two of them ailing old parents of Waseem Sultan deceased and since the petitioners before this Court had already unilaterally alienated some of the plots in the societies, balance of inconvenience also tilted in favour of the plaintiffs and if interim relief was not granted to them, they would suffer irreparable loss by means of being faced with incessant and unstoppable litigation and that in the event their suit succeeded there would be no plot to be given to them if interim relief was not granted.
15. Learned counsel for the petitioners submits that the appellate Court did not allude to the indisputable fact that the matter required recording of evidence for its resolution and that therefore, there was no prima facie case on the basis of which interim relief could have been extended. He relies on the decision passed by the trial Court and supports it.
16. On the other hand, learned counsel for the respondents supports the judgment passed by the appellate Court and submits that a comparison of the judgment passed by the appellate Court with the order passed by the trial Court conspicuously reveals that the appellate Court has rightly interfered with the order passed by the trial Court since the trial Court had failed to take into account relevant facts and documents present on record and had thereby failed to exercise jurisdiction vesting in it and which mistake was suitably remedied by the appellate Court.
17. Heard. Record perused.
18. It has been held on numerous occasions by the Hon’ble Supreme Court of Pakistan that for the purpose of gaining interim relief in a matter, three essentials or benchmarks have to be met and satisfied. The rubicon or the threshold remains that of a prima facie case, irreparable loss and balance of convenience.
19. In the case before this Court, all three factors lean prominently and conspicuously in favour of the respondents before this Court and the appellate Court has rightly granted interim relief to them in this matter. What clinches the issue of interim relief in their favour is the stark fact and reality that all and any correspondence with respect to the development of societies to and fro regulatory authorities and administrative departments of the government has taken place between the predecessor-in-interest of the respondents and government departments and regulatory authorities and in all such correspondence, it is Waseem Sultan deceased who has been mentioned and acknowledged as a DEVELOPER and that the names of the petitioners are not mentioned anywhere in such correspondence. Furthermore, what also lends support to this aspect is the fact that all amounts deposited by way of dues had been deposited by Waseem Sultan and not the petitioners before this Court. If we add the aspect of three alive witnesses supporting the oral agreement to sell, the respondents indeed have a prima facie case and since the petitioners had already resorted to selling plots on their own, balance of inconvenience also tilts in their favour.
20. The Hon’ble Supreme Court of Pakistan in the case of Puri Terminal Ltd. vs. Govt. of Pakistan through Secretary, Ministry of Communications and Railways, Islamabad and 2 others (2004 SCMR 1092) has held in paragraph 21 as follows:-
“21. No doubt an injunction is a form of equitable relief and is to be issued in aid of equity and justice, but not to add injustice. For grant of such relief, it is mandatory to establish that in order to obtain an interim injunction, the applicant has not only to establish that he has a prima facie case, but he has also to show that the balance of convenience is on his side and that he would suffer irreparable injury/loss unless he is protected during the pendency of suit.”
21. The Hon’ble Supreme Court of Pakistan in the case of Regional Commissioner of Income-Tax Corporate Region, Karachi and 2 others vs. Sham Muhammad Baloch (1998 SCMR 376) has held in paragraph 3 as follows:
“5. In the light of well-settled principles for the grant or refusal of temporary injunction in accordance with law, which are, firstly, whether the plaintiff has a prima facie good case, secondly, whether the balance of convenience lies in favour of the grant of the injunction, and thirdly, whether the plaintiff would suffer an irreparable loss if the injunction is refused, the two Courts below and the learned Judge of the High Court have not comprehended the above principles including the one whether the respondent had a prima facie good case.”
22. In the case of Niagara Mills (Pvt.) Ltd. vs. Wisal Ahmed Monoo and another (2020 CLC 1074), it has been held in paragraph 9 as under:
“9. Injunction being equitable relief, could be granted in aid of justice, but not otherwise. Appellant has failed to prove the ingredients necessary for grant of temporary injunction as required under Order XXXIX, Rules 1 and 2, C.P.C. It is well-settled that no injunction could be issued unless all ingredients i.e. prima facie case, balance of convenience and irreparable loss to the aggrieved party were existed.”
23. In the case of Saleem Mahmood Akhtar and 2 others vs. Assistant District Officer and 5 others (2020 CLC 1094), it has been held in paragraph 4 as follows:
“4.There are three basic ingredients, i.e. prima facie arguable case, irreparable loss and balance of inconvenience which are required to be established for grant of interim injunction and even if one of the said ingredients is missing, relief cannot be granted to the party seeking interim injunction.”
24. Seen from all angles, the judgment passed by the appellate Court is indeed in accordance with law while the order of the trial Court is bad in law. There is no merit in this constitutional petition and, therefore, the same merits dismissal.
25. At this stage, learned counsel for the petitioners submits that it would be equitable and fair if the judgment of the appellate Court insofar as it imposes a complete embargo on the sale of plots may be diluted so as to read that 50% of plots on the commercial side and 50% plots on the residential side in both societies shall not be sold during the pendency of the suit while the petitioners shall be at liberty to undertake sales with respect to remaining 50% plots on the commercial side and 50% of plots on the residential side. Learned counsel for the petitioners submits that this is indeed a fair demand because the respondents even as per their own claim are only seeking 30% plots in the two societies and therefore, restraint in respect of 50% plots on the commercial side and 50% plots on the residential side shall suffice to protect the interests of the respondents. Learned counsel for the respondents responds that this offer may be acceptable if this Court were to subject such sale to confirmation by the trial
Court in each instance while the suit is pending. This, likewise, is a fair ask and is therefore, countenanced.
26. In this view of the matter, while dismissing this constitutional petition on merits, it is, however, ordered that the judgment passed by the appellate Court stands modified to the extent that the petitioners shall be allowed to sell 50% of plots on the commercial side and 50% of plots on the residential side in the two societies in question while retaining 50% plots on the commercial side and 50% plots on the residential side so as to not to frustrate the eventual decision passed in the suit in question. The sale in respect of these 50% plots on the commercial side and 50% plots on the residential side shall always be subject to confirmation by the trial Court during the pendency of the suit.
27. With this slight modification, this constitutional petition is dismissed.
(Y.A.) Petition dismissed
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