1984 MLD 10

[Karachi]
Before Naimuddin and Ibadat Yar Khan, JJ
GHIASUDDIN and another--Appellants
versus
MOINUDDIN--Respondent
High Court Appeal No. 6 of 1984, decided on 30th April, 1984.
Code of Civil Procedure (Amendment) Ordinance (X of 1980)--
---S. 15--Law Reforms Ordinance (XII of 1972), S. 3--Intra-Court Appeal--Appellants
challenging order of Single Judge requiring him to deposit an amount which was allegedly
balance of sale consideration of plot in dispute--Appellants raising construction on entire plot of
land whereas they had title only on half portion of same--Appellants enjoying fruit of entire
property without a legal title in respect of half portion thereof and likely to admit tenant or even
sell property which might give rise to further litigation and complications--Order of Single Judge
requiring appellants to deposit said amount, held, unexceptionable in circumstances.
S. Abbas Zia for Petitioners.
Respondent in person.
Date of hearing: 30th April, 1984.
JUDGMENT
NAIMUDDIN, J.--This Intra-Court Appeal is from the order dated 11-1-1984, whereby a
learned Single Judge of this Court on original side, dismissed two applications, one under Order
XXXIX, rules 1 and 2, C.P.C. for temporary injunction, and the other under Order XL, rule 1,
C.P.C. for appointment of a receiver filed by the respondent/plaintiff against the appellants
/defendants. The learned Judge however, directed the appellants /defendants to deposit a sum of
Rs. 1,25,000 which is allegedly the balance amount of sale consideration in Court within 11
months from the date of the order without prejudice to the defence of the appellants.
2. The facts giving rise to this appeal very briefly stated, are that the respondent has filed a suit in
this Court against the appellants praying inter alia for a decree for possession of half portion of
the plot of land bearing No. HV-2/56, situated at Premji Koonverji Road, near Allana Majid,
Karachi and for declaration that the construction made on the said plot by the appellants is
illegal, unauthorised and liable to be demolished and in the alternative claiming for a decree of
Rs. 2,00,000 with interest and costs.
3. It is admitted fact that the respondent is the owner of half portion of the plot of land. The
appellants have claimed that by an agreement of sale dated 10-2-1983, the respondent has agreed
to sell his half portion of the plot of land to appellant No. 1 for a consideration of Rs. 2,00,000.
According to him he had paid a sum of Rs.1,50,000 to the respondent which is acknowledged by
the respondent in the agreement of sale as well as by a separate receipt. The respondent has
however, denied the agreement as well as the receipt of Rs. 1,50,000 allegedly paid to him in
cash. His case in the plaint is that on 17-2-1983, he left Pakistan for Saudi Arabia in connection
with his service there and on 19th his brother Naimuddin was called upon by Muhammad Sharif,
the brother-in-law of the respondent as well as brother-in-law of appellant No. 1 who took him to
the shop of Mairaj Ahmed known as 'Western Marine' opposite Tibet Centre, M. A. Jinnah Road,
Karachi. On reaching there Mairaj Ahmad paid a sum of Rs. 25,000 to Naimuddin, wrote a
receipt in the name of the respondent and asked Naimuddin, the brother of the respondent to sign
the same. Naimuddin objected as the receipt was in the name of the respondent and he could not
sign the same as it would not be legal and proper to execute the receipt in the name of the
respondent. But ultimately he signed the receipt on receiving the amount. He has further stated
that although there was no agreement to sell between him and appellant No. 1 he still requested
appellant No. 1 to pay the balance amount of Rs. 1,75,000 through a legal notice dated 21-8-
1983, served upon appellant No. 1. But he still failed to pay the same. It may be pertinent to
reproduce in extenso the notice and the reply thereto here as the same state initial stands of the
parties. These read as follows:----
Registered A / D . Dated: August 21, 1983 .
"To
Mr. Ghayasuddin s/o Riazuddin,
H . V . 56, Allana Masjid, Mama Road,
Ramswami Tower, Nishtar Road,
Karachi.
Dear Sir,
Under instructions from my client Mr. Naimuddin son of Haji Aminuddin, resident of
House No. 25, Masha Allah Square, Off Nishtar Road, Karachi, I have to address you as
under:--
(1) That Plot No. H.V. 2-56, measuring 100 sq. yds. Mama Road, near Allana Masjid,
Ramswami Town, is the joint property of you and Moinuddin brother of Naimuddin and
son of Haji Aminuddin i.e. 50 sq. yds. belongs to you and 50 sq. yds. belongs to Mr.
Moinuddin:---
(2) That you agreed to purchase half portion of aforesaid plot belonging to Mr.
Moinuddin for Rs. 2,00,000 (Rs. two lacs only) and paid Rs. 25,000 (Rs. twenty-five
thousand only) as earnest money to my client on 16-2-1983 and the balance amounting to
Rs. 1,75,000 (Rs. one lac and seventy-five thousand only) was to be paid at the time of
transferring his rights in your favour.
(3) That Moinuddin is out of Pakistan as such his brother Naimuddin has accepted the
aforesaid amount on his behalf.
(4) That you have started construction over the entire plot including 50 sq. yds. of Mr.
Moinuddin for which you are not authorised unless and "until you pay the aforesaid
balance amounting to Rs. One lac seventy-five thousand only and my client get half of
his portion transferred in your name. This act of yours is illegal, unjust and without any
authority and you should stop the same at once.
In view of the facts mentioned above I do hereby call upon you to desist from
encroaching his half portion and making any sort of construction over his portion, failing
which there shall be no alternative but to report the matter to the Martial Law Authorities,
Police and he would also seek appropriate remedy both in civil and criminal Courts and
you shall be responsible for the consequences."
Dated 2-9-1983.
To
Mr. Najamuddin Qureshi, [Link]. (Alig.), LL.B., Advocate.
For and on behalf of Mr. Ghayasuddin son of Riazuddin H.V. 56, Allana Masjid, Juna Road,
Ramswami Tower, Nishtar Road, Karachi.
Dear Sir,
With reference to your notice dated 21-8-1983, on behalf of your above-named client, you are
hereby informed as under:----
That my client refused to recognize your client Mr. Najmuddin as he has no authority to
challenge the transaction, further it appears that he has not given you the complete facts and he is
not aware of the exact position.
In view of this position, you are hereby requested to advise your client to desist from such mala
fide -and unwarranted allegations, else he would land himself in trouble for which he shall be
entirely responsible." '
" My client is seriously considering to file a suit for damages, and also criminal case for
defamation."
4. On the injunction application the Nazir was appointed as Commissioner to inspect the site and
report the construction made on the appellant's plot of land and on 19-12-1983, the appellants
were directed to deposit a sum of Rs. 50,000 being the admitted balance amount of sale
consideration.
5. In dismissing the application for temporary injunction what weighed with the learned, Single
Judge is the fact that no prayer is made in the suit for recession of the agreement and further fact
that respondent was not disputing that he agreed to sell the property and received R9. 25,000
towards sale consideration and that the document "C1" which was filed by the respondent prima
facie shows that the possession of the land was delivered by the father of the respondent to the
father of the appellants, and the construction of ground floor was completed and first floor was in
advance stage of construction. lie however, directed the appellants to deposit a sum 'of Rs.
1,50,000 which was allegedly due according to the respondent towards sale consideration in
Court as stated hereinbefore.
6. We have heard Mr. S. Abbas Zia learned counsel for the appellants.
He submitted that the order of deposit of Rs. 1,50,000 in Court in the circumstances of the case is
not proper.
However, we are of the view that in the circumstances of the case the order is just and proper for
without obtaining any title to the half portion of the plot of land the appellants have raised
construction on the entire plot of land and the Nazir's report shows that they have allowed at least
one shop in the building to be occupied by some other person which they may not have done
without receiving certain amount by way of advance rent or consideration. Thus, they are
enjoying the fruit of property without having a legal title in respect of half portion of the plot of
land. Further, it is quite possible that they may admit tenants and/or may agree to sell the same to
other persons and thus further enjoy the property giving rise to future litigation and compli-
cations. The agreement on which the appellants laid reliance as well as the receipt are denied by
the respondents as being forged documents. Even the amount of consideration of Rs. 1,50,000
alleged to have been paid was not paid by any pay order or cheque. It was allegedly paid in cash.
Further, when the respondent served notice on the appellants and made a demand for payment of
the balance amount of Rs. 1,75,000, this assertion was not denied. An evasive reply was given
which we have quoted hereinbefore in extenso.
7. In our view it would have been proper for the Court to have ordered maintenance of the status
quo but since there is no appeal or cross-objection against the order by the respondent we have to
maintain the order which in our view also is just and proper in the circumstances of the case.
After we had dismissed the appeal, Mr. Abbas Zia learned counsel for the appellants prayed for
two months time to deposit the amount in terms of the order of the learned Single Judge.
Mr. Abul Khair Advocate for the respondents has appeared and consents to the grant of the
prayer. The deposit of amount as per order of the lower Court may be made on or before 30th
June, 1984.
M.Y. H. Appeal dismissed.