practical purposes - Defendants had failed to prove the existence of alleged agreement to
sell - Alleged agreement to sell was not a registered document and was not adequate by
itself to confer a title upon defendants - No evidence on record to rebut such evidence of
plaintiff beyond the averments in written statement, which alone were not rebuttal of
plaintiffs' evidence - Documentary evidence of plaintiff had been rejected as being
managed documents without assigning any Justifiable reason therefor - Concurrent findings
of Courts below were manifestly perverse, suffering from non-reading of evidence on
material points and flagrant misreading of evidence on record - High Court was Justified in
such circumstances to interfere with concurrent findings in exercise of Jurisdiction under
S.115, C.P.C. - High Court set aside impugned Judgments/decree and remanded the case
to Trial Court for its decision in accordance with law on all highlighted points after affording
ample opportunity to parties to produce evidence, if they desired so. 2002 CLC 1770 Nur
Jehan Begum v. MuJtaba Ali Naqvi 1991 SCMR 2300; Messrs Shalimar Ltd., Kar. v.
Raisuddin Siddiqui 1979 CLC 338; Sh. Manzoor Ahmed v. Mst. Iqbal Begum 1989 SCMR
949; Muhammad Yousif v. Syed Wali Muhammad Shah 1994 CLC 132; Orient Match
Company (Pvt.) Ltd. v. Banking Tribunal for Kar. and Sukkar 1996 CLC 1718; Khairul Nisa
v. M. Ishaque PLD 1972 SC 25; Abdul Hakeem v. HabibulLah. 1997 SCMR 1139; Kanwal
Nain v. Fateh Khan PLD 1983 SC 53 and Anwar Bibi v. Abdul Hameed 2002 SCMR 144 ref.
Unregistered sale agreement:-- Dismissal of suit for declaration claiming ownership of
land in question, on the basis of unregistered sale agreement - property in question, being
immovable property worth more than Rs.100/- could only be transferred by registered
instrument of transfer - Mere agreement in writing did not create any right, title or interest
in property irrespective of the fact that installment of the same might have been paid by
petitioners - No illegality was committed by Appellate court in rejecting application seeking
amendment of plaint for including additional plea of adverse possession.PLJ 2004 Lah. 51
Waiver. Concept of. Where suit was filed on 15.9.1994 and written statement was filed on
7.5.1997, application under O.VII, R. 11, C.P.C. for rejection of plaint having been filed
after more than 2/1-2 years, objection in respect of multifarious would be deemed to have
been waived. P.L.J.1999 Kar. 218 = 1998 CLC 1425.
Written Notice before Institution of Suit.:-- Suit was filed without first giving notice to
defendant/Authority under S. 20-A, Sindh Buildings Control Ordinance, 1979, since no suit
could be filed against defendant/Authority except after expiry of sixty days' written notice
delivered to or left at the Office of Authority, suit filed by plaintiff was not maintainable.
Mandatory provision of law having not been complied with plaint was rejected especially
when plaintiff had not come up before Court with clean hands and had no cause of action
against defendant/ Authority. P.L.J.2000 Kar. 251 = PLD 2000 Kar. 161.
43. Effect of declaration
A declaration made under this Chapter is binding only on the parties to the suit, persons
claiming through them respectively, and, where any of the parties are trustees, on the
persons for whom, if in existence at the date of the declaration, such parties would be
trustees.
Illustration
A, a Hindu in a suit to which B, his alleged wife, and her mother are
defendants seeks a declaration that his, marriage was duly solemnized and
an order for the restitution of his conjugal rights. The Court makes the
declaration and order, C, claiming that B is his wife, then sues A for the
recovery of B; The declaration made in the former suit is not binding upon
C.
44. Appointment of receivers discretionary
The appointment of a receiver pending a suit is a matter resting in the discretion of the
Court.
Reference to Code of Civil Procedure. The mode and effect of his
appointment, and his rights, powers, duties and liabilities, are regulated by
the Code of Civil Procedure.
Ss 45 -- 51 Omitted
Chapter VIII-Omitted by Ord. 27 of 1981, S. 3, Sch.2
52. Preventive relief how granted
Preventive relief is granted at the discretion of the Court by injunction, temporary or
perpetual.
53. Temporary injunctions
Temporary injunctions are such as are to continue until a specified time, or until the further
order of the Court. They may be granted at any period of a suit, and are regulated by the
Code of Civil Procedure, 19-08 (Act V of 1908)
Perpetual injunctions. A perpetual injunction can only be granted by the decree made at
the hearing and upon the merits of the suit: the defendant is thereby perpetually enjoined
from the assertion of a right, or from the commission of an act, which would be contrary to
the right of the plaintiff.
COURT DECISIONS
Scope - Where breach of obligation by defendant is so patent, that it floats on the surface
of the record, causing immediate, pressing and irreparable injury to the plaintiff, the Court
may, while exercising its powers under S.94 read with S.151. C.P.C., grant a status quo
ante--In case of breach of contract which agreement is not even enforceable under the law,
the Court cannot and should not exercise its Judicial discretion to create a situation, which
has ceased to exist when the lis is commenced. 2002 CLC 77
54. Perpetual injunction when granted
Subject to the other provisions contained in, or referred to by, this Chapter, a perpetual
injunction may be granted to prevent the breach of an obligation existing in favour of the
applicant, whether expressly or by implication.
When such obligation arises from contract, the Court shall be guided by the rules and
provisions contained in Chapter II of this Act.
When the defendant invades or threatens to invade the plaintiff‘s right to, or enjoyment of,
property, the Court may grant a perpetual injunction in the following cases (namely):-
(a)Where the defendant is trustee of the property for the plaintiff;
(b)Where there exists no standard for ascertaining the actual damage caused, or likely to be
caused, by the invasion;
(c)Where the invasion is such that pecuniary compensation would not afford adequate
relief;
(d)Where it is probable that pecuniary compensation cannot be got for the invasion;
(e)Where the injunction is necessary to prevent a multiplicity of judicial proceeding.
Explanation. For the purpose of this section a trade mark is property.
Illustrations
(a) A, lets certain land to B and B contracts not to dig sand or gravel there out. A may sue
for an injunction to restrain B, from digging in violation of his contract.
(b) A trustee threatens a breach of trust. His co-trustees, if any. should, and the beneficial
owners may. sue for an injunction to prevent the breach.
(c) The directors of a public company are about to pay a dividend out of capital or borrowed
money. Any of the share-holders may sue for an injunction to restrain them.
(d) The directors of a fire and life insurance company are about to engage in marine
insurances. Any of the share-holders may sue for an injunction to restrain them.
(e) A, an executor, through misconduct or insolvency, is bringing the property of the
deceased into danger. The Court may grant an injunction to restrain him from getting in the
assets.
(f) A, a trustee for B. is about to make an imprudent sale of a small part of the trustproperty.
B
may
sue
for
an
injunction
to
restrain
the
sale,
even
though
compensation
in
money
would
have
afforded
him
adequate
relief.
(g) A makes a settlement (not founded on marriage or other valuable consideration) of an
estate on B and his children. A then contracts to sell the estate to C. B or any of his children
may sue for an injunction to restrain the sale,
(h) In the course of A‘s employment as a vakil, certain papers belonging to his client, B,
come into his possession. A threatens to make these papers public, or to communicate their
contents to a stranger. B may sue for an injunction to restrain A from so doing.
(i) A is B‘s medical adviser. He demands money of B which B declines to pay. A then
threatens to make known the effect of B‘s communications to him as a patient. This is
contrary to A‘s duty, and B may sue for an injunction to restrain him from so doing.
(j) A, the owner of two adjoining houses, lets one to B and afterwards lets the other to C. A
and C begin to make such alternations in the house let to C as will prevent the comfortable
enjoyment of the house let to B. B may sue for an injunction to restrain them from so
doing.
(k) A lets certain arable lands to B for the purposes of husbandry, but without any express
contract as to the mode of cultivation. Contrary to the mode of cultivation customary in the
district, B threatens to sow the lands with seed injurious thereto and requiring many years
to eradicate. A may sue for an injunction to restrain B from sowing the lands in
contravention of his implied contract to use them in a husband like manner.
(l) A, B and C are partners, the partnership being determinable at will. A threatens to do an
act tending to the destruction of the partnership property. B and C may, without seeking a
dissolution of the partnership, sue for an injunction to restrain A from doing the act.
(m) A, a Hindu widow in possession of her deceased husband‘s property commits
destruction of the property without any cause sufficient to justify her in so doing. The heir
expectant may sue for an injunction to restrain her.
(n) A, B and C are members of an undivided Hindu family. A cuts timber growing on the
family-property, and threatens to destroy part of the family house, and to sell some of the
family utensils. B and C may sue for an injunction to restrain him.
(o) A, the owner of certain houses in [Karachi], becomes insolvent. B buys them from the
official assignee and enters into possession. A persists in trespassing of land damaging the
houses, and B is thereby compelled, at a considerable expense to employ men to protect
the possession. B may sue for an injunction to restrain further acts of trespass.
(p) The inhabitants of a village claim a right of way over A‘s land. In a suit against several
of them, A obtains a declaratory decree that his land is subject to no such right. Afterwards
each of the other villagers sues A for obstructing his alleged right of way over the land. A
may sue for an injunction to restrain them.
(q) A, in an administration suit to which a creditor B, is not a party, obtains a decree for the
administration of C‘s assets. B proceeds against C‘s estate for his debts. A may sue for an
injunction to restrain B.
(r) A and B are in possession of contiguous lands and of the in underneath them. A works
his mine so as to extend under B‘s mine and threatens to remove certain pillars which help
to support B‘s mine. B may sue for an injunction to restrain him from so doing.
(s) A rings bells or make some other unnecessary notice so near house as to interfere
materially and unreasonably with a physical comtort of the .occupier can be sued for an
injunction restraining A from making the noise.
(t) A pollutes the air with smoke so as to interfere materially with the physical comfort of B
and C. who carry on business in a neighbouring house. B and C may sue for an injunction to
restrain the pollution.
(u) A infringes B‘s patent. If the Court is satisfied that the patent is valid and has been
infringed, B may obtain an injunction to restrain infringement.
(v) A pirates B‘s copyright. B may obtain an injunction to restrain the piracy, unless the
work of which copyright is claimed is libellous or obscene.
(w) A improperly uses the trade mark of B. B may obtain an injunction to restrain the user,
provided that B‘s use of the trade mark is honest.
(x) A, a tradesman, holds out B as his partner against the wish and without the authority of
B. B may sue for an injunction to restrain A from so doing.
(y) A, a very eminent man, writes letters on family topics to B. After the death of A and B,
C, who is B‘s residuary legatee, proposes to make money by publishing A‘s letters. D, who is
A‘s executor, has a property in the letters, and may sue for an injunction to restrain C from
publishing them.
(z) A carries on manufactory and B is his assistant. In the course of his business, A imparts
to B a secret process of value. B afterwards demands money of A, threatening, in case of
refusal, to disclose the process to C, a rival manufacturer. A may sue for an injunction to
restrain B from disclosing the process.
Court Decisions
Appreciation of evidence:-- Appellate Court below in reversing findings of Trial Court had
not only misread the evidence on the record, but had also shown ignorance of latest
dictums of superior Courts - Appellate Court below exercised Jurisdiction not vested in it by
setting aside and reversing well-reasoned Judgment of Trial Court without any legal and
factual Justification - High Court, in exercise of its revisional Jurisdiction, set aside Judgment
and decree of Appellate Court and restored that of Trial Court which was based on proper
appreciation of evidence and was perfectly in conformity with the latest pronouncement of
superior Courts. 2001 CLC 1013
Comfort and amenities of life:-Petitioners set up two heavy electric press and two electric
motors for manufacturing footballs causing violent vibration shaking foundation of houses.
Suit dismissed by trial Court, decreed by appellate Court holding that noise and vibration
produced by football manufacturing machines interfered with civic amenities of respondents.
Appeal against. Almost house of petitioner is at distance of 10 to 11 feet from house of
respondent. Petitioner had installed two foot-ball pressing machines which were run by two
electric motors. There is sufficient evidence on record that working of these machines
created so much noise that it interfered with comfort and amenities of life in house of
respondents/ plaintiffs. One of defendants, appeared as DW-1. He even could not controvert
that aforesaid machines created vibrations and very abnormal noise. Appellate Court was
eminently correct and Justified in coming to conclusion that noise and vibration created by
machines installed in house of petitioners were so abnormal and intense that it constituted
perennial actionable private nuisance. It caused physical and mental discomfort to
occupants of house and affected structure of respondents/ plaintiffs house. View taken by
appellate Court is Just, correct and does not suffer from any Jurisdictional or legal error
calling for any interference in revisional-Jurisdiction. P.L.J.2000 Lah. 807.
Concurrent findings:-- where trial Court and Appellate Court concurrently dismissed the
suit and appeal filed by the plaintiff --If the concurrent findings of fact by the courts below
are the result of misreading of evidence on record, it becomes duty of high Court to set
aside the same in exercise of its jurisdiction under S. 115, C.P.C – but no error in reading
the evidence had been committed by the Trial Court or Appellate Court - Plaintiff had failed
to point out any material irregularity or illegality justifying setting aside the concurrent
findings by the Courts below - High Court declined to interfere with the judgments and
decrees passed by the Courts below -. PLD 2003 Pesh. 44
Documentary evidence--*Statement with regard to total outstanding amount against the
plaintiff as arrears was prepared by "Wasal Baki Nawees" which was a public functionary
working under the control of the defendant-Government---Said document which was
produced by the defendant Government-itself and was admitted in evidence, would be
binding on defendant in suit filed against it---Defendant after relying upon said document,
could not wriggle out of the vigour of the same. 2002 M L D 797
Evacuee Trust Properties:-- Judgment & Decree passed by Trial Court on oath on Holy
Quran set aside in appeal and case remanded for trial on merits. Any dispute in respect of
property, like suit property, would be governed, by Act XIII of 1975 i.e. Evacuee Trust
Properties (Management and Disposal) Act, 1975. As and when question arises as to
whether evacuee property is attached to charitable, religious or educational trust or
institution or not, shall be decided by Chairman whose decision shall be final and shall not
be called in question in any court. Jurisdiction of Civil Court is barred u/S 14 of said Act.
Order of trial court as well as appellate court are without Jurisdiction. P.L.J.1996 Pesh. 29
1995 CLC 2028.
Restoration of possession:--Executing court had jurisdiction to pass any order for
committing the contemner in prison by exercising jurisdiction under O. XXI, R. 32(1) & (2),
C.P.C by restoring possession if it was proved that the order had been violated - Order for
appointment of local commission was set aside and constitutional petition was disposed of
accordingly. 2004 M L D 402
Instances for grant of Perpetual injunction:-- Perpetual injunction can be granted even in
matters of violation of contract, breach of trust, infringement of copy right, patent, trade
mark, easement, nuisance etc.. Exclusive right to use plaintiff's photographs and T.V.
images for advertising purposes was acquired by defendants under agreement for a
specified period and after its termination, defendants may be entitled to restain all such
advertisement materials upon which picture, image or photograph of plaintiff are printed
and published but they are not entitled to use same for public consumption in any
periodical, newspapers, T.V. or films after termination of such agreement. Prima facie, the
plaintiff has established a case for grant of interim injunction in her favour. Plaintiff who
claims to be a model, if refused interim injunction, may be deprived of her livelihood and,
therefore, balance of convenience is also in her favour. P.L.J.1997 Kar. 278 = PLD 1997
Kar. 57.
Interim injunction, grant of - When perpetual injunction cannot be granted, there is no
question for the grant of temporary injunction. 2002 CLC 77
Interim injunction in favour of the plaintiffs - Contention of the defendants was that as
the plaintiffs had not sought declaration about their ownership and title in the suit whereas
the other relief, in the form of injunction, possession and mesne profits being dependent
upon ownership of plaintiffs, same could not be granted without a declaration about their
ownership - Validity - Where plaintiffs had not sought declaration of their ownership in the
suit, a consequential relief of injunction, permanent or interim, could not be granted to
them - Due to the material omission in the prayer clause in the suit, the plaintiff, prima
facie, had no case for grant of an interim injunction in their favour - High Court set aside
the interim injunction granted in favour of the plaintiff. 2002 CLC 571
Limitation:--Suit for injunction to restrain defendant from initiation or continuing any
arbitration proceedings in pursuance of contract dated 5-5-1996 - Contention of defendant
was that suit was barred by time - Suit had been filed in pursuance of notice dated 23-42002
by defendant
to
plaintiff
for
invoking
arbitration
clause
in
contract
-
Limitation
would
start
from
date
of
notice
of
defendant
and
not from
date
of
contract
-
Suit,
held,
not
barred
by
law.
PLD
2003
Kar.
284
Perpetual injunction, grant of - - Suit for restraining the defendant from interference with
the lawful possession of the plaintiff was decreed by the Trial Court and the Judgment and
decree were affirmed by First Appellate Court - Second appeal against the Judgments and
decrees passed by the two Courts below was dismissed by the High Court - Validity - S.C
does not interfere in the conclusion of High Court which appears to be based upon adequate
evidence both oral and documentary and is given in a detailed well-considered Judgment
and is supported by cogent reasons and careful analysis of relevant material - Defendant
failed to point out any misreading or non-reading of evidence nor there was any
Jurisdictional or legal flaw in the Judgment and decree passed by High Court - Factual
controversy in the present case had been resolved after proper appreciation of evidence.PLD
2002 S.C607 1986 SCMR 763; 1977 SCMR 511; 1972 SCMR 273 and 1971 SCMR 94 ref.
Public passage - Dispute was with regard to use of suit land as public streets/passages -
Defendants claimed to have purchased the whole Khasra Nos. and no public street was
included in the same - Trial Court, on the basis of evidence available on record, was of the
view that the previous owners had abandoned the suit land for the purpose of public streets
and the area used as streets was not included in. the sale-deed executed in favour of the
defendants, hence, the suit was decreed - Appellate Court reversed the findings recorded by
the Trial Court and allowed the appeal - Validity - Where suit land was established to be a
passage for the residents dedicated by the previous owners and the defendants had not
purchased the entire area of the Khasra No., the defendants had no right to convert the
disputed land to their exclusive use by closing the streets - Appellate Court had erred in
assuming that the plaintiffs were before the Court to enforce a right of easement when in
fact they were seeking injunction against obstruction of public passage - Judgment and
decree passed by the Appellate Court were set aside. 2002 CLC 318
Registration of Document:-- When the sale mutations in dispute were made,
consolidation proceedings were pending, alienation and mutation, in absence of registered
sale-deed and also without obtaining necessary permission of the Consolidation officer were
illegal - Record showed that no such general power of attorney was produced in the
evidence before the Trial Court as such same being non-existent, the question of its validity
would not arise at all -An document that purported to create right, title or interest in
immovable property required compulsory registration - If the General power of attorney was
in existence, the same should have been compulsorily registered and mere attestation of
general power-of-attorney by the Notary Public was not sufficient to meet the requirement
of law. PLD 2003 SC 159
Remedies against of Breach of contract - - Only two remedies are available to the
aggrieved person, either to seek specific performance of the contract, or to seek for
damages - Where specific performance cannot be granted under the law, as a substitute,
the plaintiff is not entitled to file a suit for declaration or for that matter a suit for perpetual
injunction, 2002 CLC 77 Malik and Haq v. Muhammad Shamsul Islam PLD 1961 SC 531;
Kar. Shipyard Works v. Muhammad Shakir Sheikh 1993 CLC 330: Shahid Mahmood v. KESC
1997 CLC 1936; Alvi Sons v. Government of East Pakistan PLD 1968 Kar. 222 and M.
Farooq v. Suleman A.G. PanJwani PLD 1977 Kar. 88 ref.
Requirements of Notice:--Suit was filed without first giving notice to defendant/Authority
under S. 20-A, Sindh Buildings Control Ordinance, 1979, since no suit could be filed against
defendant/Authority except after expiry of sixty days' written notice delivered to or left at
the Office of Authority, suit filed by plaintiff was not maintainable. Mandatory provision of
law having not been complied with plaint was rejected especially when plaintiff had not
come up before Court with clean hands and had no cause of action against defendant/
Authority. P.L.J.2000 Kar. 251 = PLD 2000 Kar. 161.
Restraint of arbitration proceedings:--Suit filed by defendant claiming damages arising
out of same contract was still pending - If defendant was able to prove its case, he would be
suitably compensated for breaches, if any, committed by plaintiff - If parties were allowed
to proceed before arbitrator, and ultimately suit of plaintiff was lowed and defendant was
restrained from initiating or continuing with arbitration proceedings, then both parties would
suffer irreparable loss as huge amount would be incurred on proceedings before arbitrator in
foreign country - Proceedings before arbitrator could not be allowed to proceed
simultaneously with proceedings of suit filed by defendant as same might result in
conflicting judgments - If at any stage, defendant was found entitled to invoke arbitration
clause - same could be done without any difficulty - Plaintiff would be exposed to
inconvenience, if arbitration proceedings were allowed to proceed and then halted -
Application under O. XXXIX, Rr. 1 & 2, C.P.C was granted and arbitration proceedings were
restrained till disposal of suit. PLD 2003 Kar. 284
Suit for specific performance of agreement to sell and injunction - Transposition of
defendant as plaintiff - Plaintiff made an offer not to press the suit subject to refund of
earnest money paid by him - One of the defendants accepted offer and refunded earnest
money subject to forfeiture in case he failed to find a suitable buyer for a higher value,
within four months - Some defendants (other than that, who refunded earnest money) on
their own filed amended plaint transposing themselves as plaintiffs seeking relief of
mandatory injunction against defendant having refunded earnest money - Validity - Entirely
new facts had been pleaded in amended plaint, wherein relief was claimed only, against one
defendant, who had refunded earnest money-Complexion, character and nature of the suit
of specific performance and injunction had been changed to that of mandatory injunction -
Right or interest available to original plaintiff/vendee had not been acquired by said
defendants - Rather said rights and interest had been assumed and acquired by defendant,
who while refunding earnest money to original plaintiff had undertaken to buy suit property
either by himself or through his nominee - Defendant by doing so had stepped into the
shoes of original plaintiff, thus, Court transposed him as plaintiff being vendee - Such
transposition would not change character, complexion or nature of the suit for specific
performance - Amended plaint filed by some defendant was rejected in circumstance. In
amended plaint, pleadings in suit for specific performance were no more there, instead
entirely new facts were pleaded, relief was directed against one defendant only.
Complexion, character and nature of the suit for specific performance and injunction had
been changed to that of mandatory injunction seeking implementation of orders passed in
the suit. Had there been any claim/suit in respect of administration, partition and
distribution of the estate of deceased pending inter se the parties, then of course
transposition of some of the defendants as plaintiff in the matter could have been possible.
There was no order for the transposition of other defendants as plaintiffs. Contention of said
other defendants that when Court granted two weeks further time to file amended plaint, in
fact it allowed transposition of parties could not be sustained for the reasons, firstly there
was no earlier direction of filing amended plaint or order for transposition of parties;
secondly even if it was presumed that by granting time to file amended plaint, transposition
of parties was allowed, then there was nothing on record, whereby transposed parties were
allowed to amend the pleadings to an extent that entire complexion, nature and character of
suit was changed. Amended plaint filed by said defendants transposing themselves as
plaintiff was rejected. Transposition of parties could be ordered by the Court both on
application of any party or suo motu in case where Court was satisfied that any party to a
proceedings had stepped into the shoes of another or interest of any party to the
proceedings had either been acquired, transferred, assumed by way of assignment,
devolution, transfer in any lawful manner only then transposition of such party could be
ordered to avoid multiplicity of the proceedings to cut short the litigation provided nature,
character and completion of suit was not changed. Defendants had not acquired any right or
interest as vendee in the suit property which were available to original plaintiff/vendee.
Rights and interest as vendee of the suit property were assumed and acquired by the other
defendant who in fact while refunding the earnest money to original plaintiff undertook to
buy the subject property either himself or through his nominee. By doing so in fact he had
stepped into the shoes of original vendee/plaintiff. If any person was to be transposed, it
was the defendant who could be transposed as plaintiff being vendee. By ordering
transposition of said defendant as plaintiff, neither the character, complexion nor nature of
the suit for specific performance would be changed. Under the circumstances, defendant
was ordered to be transposed as plaintiff, name of original plaintiff was struck off and rest
of the defendants were to remain defendants. PLD 2002 Kar. 542 Ahmad Zaman Khan,
Barrister v. Government of Punjab through Collector, Multan and 2 others 1993 CLC 1327;
Yousaf Aziz v. Aqeela Begum PLD 1978 Kar. 205 and Malik Mumtaz Ali v. Pakistan through
Secretary, Refugees and Works, Government of Pakistan, Rawalpindi and 3 others PLD 1971
Lah.395 ref.
Territorial Jurisdiction:-- In a case for injunction to restrain defendant from initiating
arbitration suit was filed at K after return of plaint initially filed at L - Notice for initiation of
arbitration was received by plaintiff at K - Principal/registered office of defendant was at K -
Held, Suit against defendant could be filed at K. PLD 2003 Kar. 284
55. Mandatory injunction
When, to prevent the breach of an obligation, it is necessary to compel the performance of
certain acts which the Court is capable of enforcing, the Court may in its discretion grant
an injunction to prevent the breach complained of, and also to compel performance of the
requisite acts.
Illustrations
(a) A, by new buildings, obstructs light to the access and use of which B has acquired a
light under the Limitation Act, 1908 (IX of 1908)], Part IV. B may obtain an injunction, not
only to restrain A from going on with the buildings but also to pull down so much of them
as obstructs B‘s lights.
(b) A builds a house with eaves projecting over B‘s land. B may sue for an injunction to pull
down so much of the eaves as so project.
(c) In the case put as illustration (i) to Section 54, the Court may also order all written
communication made by B, as patient to A, as medical advisor, to be destroyed.
(d) In the case put as illustration (v) to Section 54, the Court may also order A‘s letter to
be destroyed.
(e) A threatens to publish statements concerning B which would be punishable under
Chapter XXI of the Pakistan Penal Code (XLV of 1860). The Court may grant an injunction
to restrain the publication, even though it may be shown not to be injurious to B‘s
property.
(f) A being B‘s medical advisor, threatens to publish B‘s written communications with him,
showing that B had led an immoral life. B may obtain an injunction to restrain the
publication.
(g) In the cases put as illustrations (v) and (w) to Section 54, and as illustrations (e) and
(f) to this section, the Court may also order the copies produced by piracy, and the trademarks,
statements and communications therein respectively mentioned,to be given up or destroyed.
Court Decisions
Scope - Where breach of obligation by defendant is so patent, that it floats on the surface
of the record, causing immediate, pressing and irreparable injury to the plaintiff, the Court
may, while exercising its powers under S.94 read with S.151. C.P.C., grant a status quo
ante--In case of breach of contract which agreement is not even enforceable under the law,
the Court cannot and should not exercise its Judicial discretion to create a situation, which
has ceased to exist when the lis is commenced. 2002 CLC 77
Principle - Such injunction cannot be granted by way of interim relief as a grant of such
relief would be tantamount to a grant of final relief which would seriously prejudice the
defendants. 2002 CLC 218 Muhammad Yaqub v. Muhammad NasrulLah. Khan and others
PLD 1986 SC 497 and Firozuddin Ahmed v. Trading Corporation of Pakistan Limited and
another 1987 MLD 124 ref.
Unchallenged evidence:--Courts below had committed a grave legal error by overlooking
the admitted position that evidence of plaintiff and his witnesses had gone unchallenged
thus, in law the facts stated by them had to be taken as admitted by defendants - Cross examination of plaintiff was reserved at the request of defendants' Advocate, but they
remained absent on the relevant date-Defendants apparently had chosen not to cross examine
plaintiff
-Plaintiff while producing his documentary evidence had adopted his earlier deposition
on record which covered all material points of fact, but defendants did not not opt to
cross-examine him then
-Alleged agreement to sell on the basis of which defendants claimed to have purchased
disputed plot from plaintiff could not come on record
-Courts below had put entire burden on plaintiff to prove alleged agreement to sell to be
a forged document-Courts below had fallen into a grave mistake in overlooking the admitted
fact that plaintiffs oral evidence had gone unchallenged as he was not cross examined
by defendants
-Resultantly, plaintiffs' version that such was not a sale agreement,but was a document executed
in token of loan obtained by him from predecessor-in-interest of defendants on the condition
that in case of non-payment,the amount would be adjusted towards rent payable by defendant in
respect of disputed plot rented out to him, stood accepted for all practical purposes-Defendants
had failed to prove the existence of alleged agreement to sell-Alleged agreement to sell was not
a registered document and was not adequate by itself to confer a title upon defendants-No
evidence on record to rebut such evidence of plaintiff beyond the averments in written statement,
which alone were not rebuttal of plaintiffs' evidence-Documentary evidence of plaintiff had been
rejected as being managed documents documents documents without assigning any Justifiable reason therefor Concurrent findings of Courts below were manifestly perverse, suffering from from non-reading of evidence on material
points and flagrant misreading of evidence on record- High Court was Justified in such circumstances to interfere with concurrent findings in exercise of Jurisdiction under S.115, C.P.C.
-High Court set aside impugned Judgments/decree and remanded the case to Trial Court for its decision in accordance with law on all highlighted points after affordingample opportunity to parties to
produce evidence, if they desiredso.
2002 CLC 1770 NurJehanBegum v. MuJtaba Ali Naqvi 199 SCMR 2300; Messrs Shalimar Ltd.,
Kar.v. Raisuddin Siddiqui 1979 CLC 338; Sh. Manzoor Ahmed v. Mst. Iqbal Begum 1989 SCMR
949; Muhammad Yousif v.Syed Wali Muhammad Shah 1994 CLC 132; Orient Match Company
(Pvt.) Ltd. v. Banking Tribunal for Kar.and Sukkar 1996 CLC 1718; Khairunnisa Nisa v. M.Ishue
PLD1972SC25;Abdul Hakeemv. HabibulLah. 1997 SCMR 1139; Kanwal Nain v. Fateh Khan PLD 1983 SC 53 and Anwar Bibi v. Abdul Hameed 2002 SCMR 14 ref.
An injunction cannot be granted-
56. Injunction when refused
(a) to stay judicial proceeding pending at the institution of the suit in which the injunction
is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
sell - Alleged agreement to sell was not a registered document and was not adequate by
itself to confer a title upon defendants - No evidence on record to rebut such evidence of
plaintiff beyond the averments in written statement, which alone were not rebuttal of
plaintiffs' evidence - Documentary evidence of plaintiff had been rejected as being
managed documents without assigning any Justifiable reason therefor - Concurrent findings
of Courts below were manifestly perverse, suffering from non-reading of evidence on
material points and flagrant misreading of evidence on record - High Court was Justified in
such circumstances to interfere with concurrent findings in exercise of Jurisdiction under
S.115, C.P.C. - High Court set aside impugned Judgments/decree and remanded the case
to Trial Court for its decision in accordance with law on all highlighted points after affording
ample opportunity to parties to produce evidence, if they desired so. 2002 CLC 1770 Nur
Jehan Begum v. MuJtaba Ali Naqvi 1991 SCMR 2300; Messrs Shalimar Ltd., Kar. v.
Raisuddin Siddiqui 1979 CLC 338; Sh. Manzoor Ahmed v. Mst. Iqbal Begum 1989 SCMR
949; Muhammad Yousif v. Syed Wali Muhammad Shah 1994 CLC 132; Orient Match
Company (Pvt.) Ltd. v. Banking Tribunal for Kar. and Sukkar 1996 CLC 1718; Khairul Nisa
v. M. Ishaque PLD 1972 SC 25; Abdul Hakeem v. HabibulLah. 1997 SCMR 1139; Kanwal
Nain v. Fateh Khan PLD 1983 SC 53 and Anwar Bibi v. Abdul Hameed 2002 SCMR 144 ref.
Unregistered sale agreement:-- Dismissal of suit for declaration claiming ownership of
land in question, on the basis of unregistered sale agreement - property in question, being
immovable property worth more than Rs.100/- could only be transferred by registered
instrument of transfer - Mere agreement in writing did not create any right, title or interest
in property irrespective of the fact that installment of the same might have been paid by
petitioners - No illegality was committed by Appellate court in rejecting application seeking
amendment of plaint for including additional plea of adverse possession.PLJ 2004 Lah. 51
Waiver. Concept of. Where suit was filed on 15.9.1994 and written statement was filed on
7.5.1997, application under O.VII, R. 11, C.P.C. for rejection of plaint having been filed
after more than 2/1-2 years, objection in respect of multifarious would be deemed to have
been waived. P.L.J.1999 Kar. 218 = 1998 CLC 1425.
Written Notice before Institution of Suit.:-- Suit was filed without first giving notice to
defendant/Authority under S. 20-A, Sindh Buildings Control Ordinance, 1979, since no suit
could be filed against defendant/Authority except after expiry of sixty days' written notice
delivered to or left at the Office of Authority, suit filed by plaintiff was not maintainable.
Mandatory provision of law having not been complied with plaint was rejected especially
when plaintiff had not come up before Court with clean hands and had no cause of action
against defendant/ Authority. P.L.J.2000 Kar. 251 = PLD 2000 Kar. 161.
43. Effect of declaration
A declaration made under this Chapter is binding only on the parties to the suit, persons
claiming through them respectively, and, where any of the parties are trustees, on the
persons for whom, if in existence at the date of the declaration, such parties would be
trustees.
Illustration
A, a Hindu in a suit to which B, his alleged wife, and her mother are
defendants seeks a declaration that his, marriage was duly solemnized and
an order for the restitution of his conjugal rights. The Court makes the
declaration and order, C, claiming that B is his wife, then sues A for the
recovery of B; The declaration made in the former suit is not binding upon
C.
44. Appointment of receivers discretionary
The appointment of a receiver pending a suit is a matter resting in the discretion of the
Court.
Reference to Code of Civil Procedure. The mode and effect of his
appointment, and his rights, powers, duties and liabilities, are regulated by
the Code of Civil Procedure.
Ss 45 -- 51 Omitted
Chapter VIII-Omitted by Ord. 27 of 1981, S. 3, Sch.2
52. Preventive relief how granted
Preventive relief is granted at the discretion of the Court by injunction, temporary or
perpetual.
53. Temporary injunctions
Temporary injunctions are such as are to continue until a specified time, or until the further
order of the Court. They may be granted at any period of a suit, and are regulated by the
Code of Civil Procedure, 19-08 (Act V of 1908)
Perpetual injunctions. A perpetual injunction can only be granted by the decree made at
the hearing and upon the merits of the suit: the defendant is thereby perpetually enjoined
from the assertion of a right, or from the commission of an act, which would be contrary to
the right of the plaintiff.
COURT DECISIONS
Scope - Where breach of obligation by defendant is so patent, that it floats on the surface
of the record, causing immediate, pressing and irreparable injury to the plaintiff, the Court
may, while exercising its powers under S.94 read with S.151. C.P.C., grant a status quo
ante--In case of breach of contract which agreement is not even enforceable under the law,
the Court cannot and should not exercise its Judicial discretion to create a situation, which
has ceased to exist when the lis is commenced. 2002 CLC 77
54. Perpetual injunction when granted
Subject to the other provisions contained in, or referred to by, this Chapter, a perpetual
injunction may be granted to prevent the breach of an obligation existing in favour of the
applicant, whether expressly or by implication.
When such obligation arises from contract, the Court shall be guided by the rules and
provisions contained in Chapter II of this Act.
When the defendant invades or threatens to invade the plaintiff‘s right to, or enjoyment of,
property, the Court may grant a perpetual injunction in the following cases (namely):-
(a)Where the defendant is trustee of the property for the plaintiff;
(b)Where there exists no standard for ascertaining the actual damage caused, or likely to be
caused, by the invasion;
(c)Where the invasion is such that pecuniary compensation would not afford adequate
relief;
(d)Where it is probable that pecuniary compensation cannot be got for the invasion;
(e)Where the injunction is necessary to prevent a multiplicity of judicial proceeding.
Explanation. For the purpose of this section a trade mark is property.
Illustrations
(a) A, lets certain land to B and B contracts not to dig sand or gravel there out. A may sue
for an injunction to restrain B, from digging in violation of his contract.
(b) A trustee threatens a breach of trust. His co-trustees, if any. should, and the beneficial
owners may. sue for an injunction to prevent the breach.
(c) The directors of a public company are about to pay a dividend out of capital or borrowed
money. Any of the share-holders may sue for an injunction to restrain them.
(d) The directors of a fire and life insurance company are about to engage in marine
insurances. Any of the share-holders may sue for an injunction to restrain them.
(e) A, an executor, through misconduct or insolvency, is bringing the property of the
deceased into danger. The Court may grant an injunction to restrain him from getting in the
assets.
(f) A, a trustee for B. is about to make an imprudent sale of a small part of the trustproperty.
B
may
sue
for
an
injunction
to
restrain
the
sale,
even
though
compensation
in
money
would
have
afforded
him
adequate
relief.
(g) A makes a settlement (not founded on marriage or other valuable consideration) of an
estate on B and his children. A then contracts to sell the estate to C. B or any of his children
may sue for an injunction to restrain the sale,
(h) In the course of A‘s employment as a vakil, certain papers belonging to his client, B,
come into his possession. A threatens to make these papers public, or to communicate their
contents to a stranger. B may sue for an injunction to restrain A from so doing.
(i) A is B‘s medical adviser. He demands money of B which B declines to pay. A then
threatens to make known the effect of B‘s communications to him as a patient. This is
contrary to A‘s duty, and B may sue for an injunction to restrain him from so doing.
(j) A, the owner of two adjoining houses, lets one to B and afterwards lets the other to C. A
and C begin to make such alternations in the house let to C as will prevent the comfortable
enjoyment of the house let to B. B may sue for an injunction to restrain them from so
doing.
(k) A lets certain arable lands to B for the purposes of husbandry, but without any express
contract as to the mode of cultivation. Contrary to the mode of cultivation customary in the
district, B threatens to sow the lands with seed injurious thereto and requiring many years
to eradicate. A may sue for an injunction to restrain B from sowing the lands in
contravention of his implied contract to use them in a husband like manner.
(l) A, B and C are partners, the partnership being determinable at will. A threatens to do an
act tending to the destruction of the partnership property. B and C may, without seeking a
dissolution of the partnership, sue for an injunction to restrain A from doing the act.
(m) A, a Hindu widow in possession of her deceased husband‘s property commits
destruction of the property without any cause sufficient to justify her in so doing. The heir
expectant may sue for an injunction to restrain her.
(n) A, B and C are members of an undivided Hindu family. A cuts timber growing on the
family-property, and threatens to destroy part of the family house, and to sell some of the
family utensils. B and C may sue for an injunction to restrain him.
(o) A, the owner of certain houses in [Karachi], becomes insolvent. B buys them from the
official assignee and enters into possession. A persists in trespassing of land damaging the
houses, and B is thereby compelled, at a considerable expense to employ men to protect
the possession. B may sue for an injunction to restrain further acts of trespass.
(p) The inhabitants of a village claim a right of way over A‘s land. In a suit against several
of them, A obtains a declaratory decree that his land is subject to no such right. Afterwards
each of the other villagers sues A for obstructing his alleged right of way over the land. A
may sue for an injunction to restrain them.
(q) A, in an administration suit to which a creditor B, is not a party, obtains a decree for the
administration of C‘s assets. B proceeds against C‘s estate for his debts. A may sue for an
injunction to restrain B.
(r) A and B are in possession of contiguous lands and of the in underneath them. A works
his mine so as to extend under B‘s mine and threatens to remove certain pillars which help
to support B‘s mine. B may sue for an injunction to restrain him from so doing.
(s) A rings bells or make some other unnecessary notice so near house as to interfere
materially and unreasonably with a physical comtort of the .occupier can be sued for an
injunction restraining A from making the noise.
(t) A pollutes the air with smoke so as to interfere materially with the physical comfort of B
and C. who carry on business in a neighbouring house. B and C may sue for an injunction to
restrain the pollution.
(u) A infringes B‘s patent. If the Court is satisfied that the patent is valid and has been
infringed, B may obtain an injunction to restrain infringement.
(v) A pirates B‘s copyright. B may obtain an injunction to restrain the piracy, unless the
work of which copyright is claimed is libellous or obscene.
(w) A improperly uses the trade mark of B. B may obtain an injunction to restrain the user,
provided that B‘s use of the trade mark is honest.
(x) A, a tradesman, holds out B as his partner against the wish and without the authority of
B. B may sue for an injunction to restrain A from so doing.
(y) A, a very eminent man, writes letters on family topics to B. After the death of A and B,
C, who is B‘s residuary legatee, proposes to make money by publishing A‘s letters. D, who is
A‘s executor, has a property in the letters, and may sue for an injunction to restrain C from
publishing them.
(z) A carries on manufactory and B is his assistant. In the course of his business, A imparts
to B a secret process of value. B afterwards demands money of A, threatening, in case of
refusal, to disclose the process to C, a rival manufacturer. A may sue for an injunction to
restrain B from disclosing the process.
Court Decisions
Appreciation of evidence:-- Appellate Court below in reversing findings of Trial Court had
not only misread the evidence on the record, but had also shown ignorance of latest
dictums of superior Courts - Appellate Court below exercised Jurisdiction not vested in it by
setting aside and reversing well-reasoned Judgment of Trial Court without any legal and
factual Justification - High Court, in exercise of its revisional Jurisdiction, set aside Judgment
and decree of Appellate Court and restored that of Trial Court which was based on proper
appreciation of evidence and was perfectly in conformity with the latest pronouncement of
superior Courts. 2001 CLC 1013
Comfort and amenities of life:-Petitioners set up two heavy electric press and two electric
motors for manufacturing footballs causing violent vibration shaking foundation of houses.
Suit dismissed by trial Court, decreed by appellate Court holding that noise and vibration
produced by football manufacturing machines interfered with civic amenities of respondents.
Appeal against. Almost house of petitioner is at distance of 10 to 11 feet from house of
respondent. Petitioner had installed two foot-ball pressing machines which were run by two
electric motors. There is sufficient evidence on record that working of these machines
created so much noise that it interfered with comfort and amenities of life in house of
respondents/ plaintiffs. One of defendants, appeared as DW-1. He even could not controvert
that aforesaid machines created vibrations and very abnormal noise. Appellate Court was
eminently correct and Justified in coming to conclusion that noise and vibration created by
machines installed in house of petitioners were so abnormal and intense that it constituted
perennial actionable private nuisance. It caused physical and mental discomfort to
occupants of house and affected structure of respondents/ plaintiffs house. View taken by
appellate Court is Just, correct and does not suffer from any Jurisdictional or legal error
calling for any interference in revisional-Jurisdiction. P.L.J.2000 Lah. 807.
Concurrent findings:-- where trial Court and Appellate Court concurrently dismissed the
suit and appeal filed by the plaintiff --If the concurrent findings of fact by the courts below
are the result of misreading of evidence on record, it becomes duty of high Court to set
aside the same in exercise of its jurisdiction under S. 115, C.P.C – but no error in reading
the evidence had been committed by the Trial Court or Appellate Court - Plaintiff had failed
to point out any material irregularity or illegality justifying setting aside the concurrent
findings by the Courts below - High Court declined to interfere with the judgments and
decrees passed by the Courts below -. PLD 2003 Pesh. 44
Documentary evidence--*Statement with regard to total outstanding amount against the
plaintiff as arrears was prepared by "Wasal Baki Nawees" which was a public functionary
working under the control of the defendant-Government---Said document which was
produced by the defendant Government-itself and was admitted in evidence, would be
binding on defendant in suit filed against it---Defendant after relying upon said document,
could not wriggle out of the vigour of the same. 2002 M L D 797
Evacuee Trust Properties:-- Judgment & Decree passed by Trial Court on oath on Holy
Quran set aside in appeal and case remanded for trial on merits. Any dispute in respect of
property, like suit property, would be governed, by Act XIII of 1975 i.e. Evacuee Trust
Properties (Management and Disposal) Act, 1975. As and when question arises as to
whether evacuee property is attached to charitable, religious or educational trust or
institution or not, shall be decided by Chairman whose decision shall be final and shall not
be called in question in any court. Jurisdiction of Civil Court is barred u/S 14 of said Act.
Order of trial court as well as appellate court are without Jurisdiction. P.L.J.1996 Pesh. 29
1995 CLC 2028.
Restoration of possession:--Executing court had jurisdiction to pass any order for
committing the contemner in prison by exercising jurisdiction under O. XXI, R. 32(1) & (2),
C.P.C by restoring possession if it was proved that the order had been violated - Order for
appointment of local commission was set aside and constitutional petition was disposed of
accordingly. 2004 M L D 402
Instances for grant of Perpetual injunction:-- Perpetual injunction can be granted even in
matters of violation of contract, breach of trust, infringement of copy right, patent, trade
mark, easement, nuisance etc.. Exclusive right to use plaintiff's photographs and T.V.
images for advertising purposes was acquired by defendants under agreement for a
specified period and after its termination, defendants may be entitled to restain all such
advertisement materials upon which picture, image or photograph of plaintiff are printed
and published but they are not entitled to use same for public consumption in any
periodical, newspapers, T.V. or films after termination of such agreement. Prima facie, the
plaintiff has established a case for grant of interim injunction in her favour. Plaintiff who
claims to be a model, if refused interim injunction, may be deprived of her livelihood and,
therefore, balance of convenience is also in her favour. P.L.J.1997 Kar. 278 = PLD 1997
Kar. 57.
Interim injunction, grant of - When perpetual injunction cannot be granted, there is no
question for the grant of temporary injunction. 2002 CLC 77
Interim injunction in favour of the plaintiffs - Contention of the defendants was that as
the plaintiffs had not sought declaration about their ownership and title in the suit whereas
the other relief, in the form of injunction, possession and mesne profits being dependent
upon ownership of plaintiffs, same could not be granted without a declaration about their
ownership - Validity - Where plaintiffs had not sought declaration of their ownership in the
suit, a consequential relief of injunction, permanent or interim, could not be granted to
them - Due to the material omission in the prayer clause in the suit, the plaintiff, prima
facie, had no case for grant of an interim injunction in their favour - High Court set aside
the interim injunction granted in favour of the plaintiff. 2002 CLC 571
Limitation:--Suit for injunction to restrain defendant from initiation or continuing any
arbitration proceedings in pursuance of contract dated 5-5-1996 - Contention of defendant
was that suit was barred by time - Suit had been filed in pursuance of notice dated 23-42002
by defendant
to
plaintiff
for
invoking
arbitration
clause
in
contract
-
Limitation
would
start
from
date
of
notice
of
defendant
and
not from
date
of
contract
-
Suit,
held,
not
barred
by
law.
PLD
2003
Kar.
284
Perpetual injunction, grant of - - Suit for restraining the defendant from interference with
the lawful possession of the plaintiff was decreed by the Trial Court and the Judgment and
decree were affirmed by First Appellate Court - Second appeal against the Judgments and
decrees passed by the two Courts below was dismissed by the High Court - Validity - S.C
does not interfere in the conclusion of High Court which appears to be based upon adequate
evidence both oral and documentary and is given in a detailed well-considered Judgment
and is supported by cogent reasons and careful analysis of relevant material - Defendant
failed to point out any misreading or non-reading of evidence nor there was any
Jurisdictional or legal flaw in the Judgment and decree passed by High Court - Factual
controversy in the present case had been resolved after proper appreciation of evidence.PLD
2002 S.C607 1986 SCMR 763; 1977 SCMR 511; 1972 SCMR 273 and 1971 SCMR 94 ref.
Public passage - Dispute was with regard to use of suit land as public streets/passages -
Defendants claimed to have purchased the whole Khasra Nos. and no public street was
included in the same - Trial Court, on the basis of evidence available on record, was of the
view that the previous owners had abandoned the suit land for the purpose of public streets
and the area used as streets was not included in. the sale-deed executed in favour of the
defendants, hence, the suit was decreed - Appellate Court reversed the findings recorded by
the Trial Court and allowed the appeal - Validity - Where suit land was established to be a
passage for the residents dedicated by the previous owners and the defendants had not
purchased the entire area of the Khasra No., the defendants had no right to convert the
disputed land to their exclusive use by closing the streets - Appellate Court had erred in
assuming that the plaintiffs were before the Court to enforce a right of easement when in
fact they were seeking injunction against obstruction of public passage - Judgment and
decree passed by the Appellate Court were set aside. 2002 CLC 318
Registration of Document:-- When the sale mutations in dispute were made,
consolidation proceedings were pending, alienation and mutation, in absence of registered
sale-deed and also without obtaining necessary permission of the Consolidation officer were
illegal - Record showed that no such general power of attorney was produced in the
evidence before the Trial Court as such same being non-existent, the question of its validity
would not arise at all -An document that purported to create right, title or interest in
immovable property required compulsory registration - If the General power of attorney was
in existence, the same should have been compulsorily registered and mere attestation of
general power-of-attorney by the Notary Public was not sufficient to meet the requirement
of law. PLD 2003 SC 159
Remedies against of Breach of contract - - Only two remedies are available to the
aggrieved person, either to seek specific performance of the contract, or to seek for
damages - Where specific performance cannot be granted under the law, as a substitute,
the plaintiff is not entitled to file a suit for declaration or for that matter a suit for perpetual
injunction, 2002 CLC 77 Malik and Haq v. Muhammad Shamsul Islam PLD 1961 SC 531;
Kar. Shipyard Works v. Muhammad Shakir Sheikh 1993 CLC 330: Shahid Mahmood v. KESC
1997 CLC 1936; Alvi Sons v. Government of East Pakistan PLD 1968 Kar. 222 and M.
Farooq v. Suleman A.G. PanJwani PLD 1977 Kar. 88 ref.
Requirements of Notice:--Suit was filed without first giving notice to defendant/Authority
under S. 20-A, Sindh Buildings Control Ordinance, 1979, since no suit could be filed against
defendant/Authority except after expiry of sixty days' written notice delivered to or left at
the Office of Authority, suit filed by plaintiff was not maintainable. Mandatory provision of
law having not been complied with plaint was rejected especially when plaintiff had not
come up before Court with clean hands and had no cause of action against defendant/
Authority. P.L.J.2000 Kar. 251 = PLD 2000 Kar. 161.
Restraint of arbitration proceedings:--Suit filed by defendant claiming damages arising
out of same contract was still pending - If defendant was able to prove its case, he would be
suitably compensated for breaches, if any, committed by plaintiff - If parties were allowed
to proceed before arbitrator, and ultimately suit of plaintiff was lowed and defendant was
restrained from initiating or continuing with arbitration proceedings, then both parties would
suffer irreparable loss as huge amount would be incurred on proceedings before arbitrator in
foreign country - Proceedings before arbitrator could not be allowed to proceed
simultaneously with proceedings of suit filed by defendant as same might result in
conflicting judgments - If at any stage, defendant was found entitled to invoke arbitration
clause - same could be done without any difficulty - Plaintiff would be exposed to
inconvenience, if arbitration proceedings were allowed to proceed and then halted -
Application under O. XXXIX, Rr. 1 & 2, C.P.C was granted and arbitration proceedings were
restrained till disposal of suit. PLD 2003 Kar. 284
Suit for specific performance of agreement to sell and injunction - Transposition of
defendant as plaintiff - Plaintiff made an offer not to press the suit subject to refund of
earnest money paid by him - One of the defendants accepted offer and refunded earnest
money subject to forfeiture in case he failed to find a suitable buyer for a higher value,
within four months - Some defendants (other than that, who refunded earnest money) on
their own filed amended plaint transposing themselves as plaintiffs seeking relief of
mandatory injunction against defendant having refunded earnest money - Validity - Entirely
new facts had been pleaded in amended plaint, wherein relief was claimed only, against one
defendant, who had refunded earnest money-Complexion, character and nature of the suit
of specific performance and injunction had been changed to that of mandatory injunction -
Right or interest available to original plaintiff/vendee had not been acquired by said
defendants - Rather said rights and interest had been assumed and acquired by defendant,
who while refunding earnest money to original plaintiff had undertaken to buy suit property
either by himself or through his nominee - Defendant by doing so had stepped into the
shoes of original plaintiff, thus, Court transposed him as plaintiff being vendee - Such
transposition would not change character, complexion or nature of the suit for specific
performance - Amended plaint filed by some defendant was rejected in circumstance. In
amended plaint, pleadings in suit for specific performance were no more there, instead
entirely new facts were pleaded, relief was directed against one defendant only.
Complexion, character and nature of the suit for specific performance and injunction had
been changed to that of mandatory injunction seeking implementation of orders passed in
the suit. Had there been any claim/suit in respect of administration, partition and
distribution of the estate of deceased pending inter se the parties, then of course
transposition of some of the defendants as plaintiff in the matter could have been possible.
There was no order for the transposition of other defendants as plaintiffs. Contention of said
other defendants that when Court granted two weeks further time to file amended plaint, in
fact it allowed transposition of parties could not be sustained for the reasons, firstly there
was no earlier direction of filing amended plaint or order for transposition of parties;
secondly even if it was presumed that by granting time to file amended plaint, transposition
of parties was allowed, then there was nothing on record, whereby transposed parties were
allowed to amend the pleadings to an extent that entire complexion, nature and character of
suit was changed. Amended plaint filed by said defendants transposing themselves as
plaintiff was rejected. Transposition of parties could be ordered by the Court both on
application of any party or suo motu in case where Court was satisfied that any party to a
proceedings had stepped into the shoes of another or interest of any party to the
proceedings had either been acquired, transferred, assumed by way of assignment,
devolution, transfer in any lawful manner only then transposition of such party could be
ordered to avoid multiplicity of the proceedings to cut short the litigation provided nature,
character and completion of suit was not changed. Defendants had not acquired any right or
interest as vendee in the suit property which were available to original plaintiff/vendee.
Rights and interest as vendee of the suit property were assumed and acquired by the other
defendant who in fact while refunding the earnest money to original plaintiff undertook to
buy the subject property either himself or through his nominee. By doing so in fact he had
stepped into the shoes of original vendee/plaintiff. If any person was to be transposed, it
was the defendant who could be transposed as plaintiff being vendee. By ordering
transposition of said defendant as plaintiff, neither the character, complexion nor nature of
the suit for specific performance would be changed. Under the circumstances, defendant
was ordered to be transposed as plaintiff, name of original plaintiff was struck off and rest
of the defendants were to remain defendants. PLD 2002 Kar. 542 Ahmad Zaman Khan,
Barrister v. Government of Punjab through Collector, Multan and 2 others 1993 CLC 1327;
Yousaf Aziz v. Aqeela Begum PLD 1978 Kar. 205 and Malik Mumtaz Ali v. Pakistan through
Secretary, Refugees and Works, Government of Pakistan, Rawalpindi and 3 others PLD 1971
Lah.395 ref.
Territorial Jurisdiction:-- In a case for injunction to restrain defendant from initiating
arbitration suit was filed at K after return of plaint initially filed at L - Notice for initiation of
arbitration was received by plaintiff at K - Principal/registered office of defendant was at K -
Held, Suit against defendant could be filed at K. PLD 2003 Kar. 284
55. Mandatory injunction
When, to prevent the breach of an obligation, it is necessary to compel the performance of
certain acts which the Court is capable of enforcing, the Court may in its discretion grant
an injunction to prevent the breach complained of, and also to compel performance of the
requisite acts.
Illustrations
(a) A, by new buildings, obstructs light to the access and use of which B has acquired a
light under the Limitation Act, 1908 (IX of 1908)], Part IV. B may obtain an injunction, not
only to restrain A from going on with the buildings but also to pull down so much of them
as obstructs B‘s lights.
(b) A builds a house with eaves projecting over B‘s land. B may sue for an injunction to pull
down so much of the eaves as so project.
(c) In the case put as illustration (i) to Section 54, the Court may also order all written
communication made by B, as patient to A, as medical advisor, to be destroyed.
(d) In the case put as illustration (v) to Section 54, the Court may also order A‘s letter to
be destroyed.
(e) A threatens to publish statements concerning B which would be punishable under
Chapter XXI of the Pakistan Penal Code (XLV of 1860). The Court may grant an injunction
to restrain the publication, even though it may be shown not to be injurious to B‘s
property.
(f) A being B‘s medical advisor, threatens to publish B‘s written communications with him,
showing that B had led an immoral life. B may obtain an injunction to restrain the
publication.
(g) In the cases put as illustrations (v) and (w) to Section 54, and as illustrations (e) and
(f) to this section, the Court may also order the copies produced by piracy, and the trademarks,
statements and communications therein respectively mentioned,to be given up or destroyed.
Court Decisions
Scope - Where breach of obligation by defendant is so patent, that it floats on the surface
of the record, causing immediate, pressing and irreparable injury to the plaintiff, the Court
may, while exercising its powers under S.94 read with S.151. C.P.C., grant a status quo
ante--In case of breach of contract which agreement is not even enforceable under the law,
the Court cannot and should not exercise its Judicial discretion to create a situation, which
has ceased to exist when the lis is commenced. 2002 CLC 77
Principle - Such injunction cannot be granted by way of interim relief as a grant of such
relief would be tantamount to a grant of final relief which would seriously prejudice the
defendants. 2002 CLC 218 Muhammad Yaqub v. Muhammad NasrulLah. Khan and others
PLD 1986 SC 497 and Firozuddin Ahmed v. Trading Corporation of Pakistan Limited and
another 1987 MLD 124 ref.
Unchallenged evidence:--Courts below had committed a grave legal error by overlooking
the admitted position that evidence of plaintiff and his witnesses had gone unchallenged
thus, in law the facts stated by them had to be taken as admitted by defendants - Cross examination of plaintiff was reserved at the request of defendants' Advocate, but they
remained absent on the relevant date-Defendants apparently had chosen not to cross examine
plaintiff
-Plaintiff while producing his documentary evidence had adopted his earlier deposition
on record which covered all material points of fact, but defendants did not not opt to
cross-examine him then
-Alleged agreement to sell on the basis of which defendants claimed to have purchased
disputed plot from plaintiff could not come on record
-Courts below had put entire burden on plaintiff to prove alleged agreement to sell to be
a forged document-Courts below had fallen into a grave mistake in overlooking the admitted
fact that plaintiffs oral evidence had gone unchallenged as he was not cross examined
by defendants
-Resultantly, plaintiffs' version that such was not a sale agreement,but was a document executed
in token of loan obtained by him from predecessor-in-interest of defendants on the condition
that in case of non-payment,the amount would be adjusted towards rent payable by defendant in
respect of disputed plot rented out to him, stood accepted for all practical purposes-Defendants
had failed to prove the existence of alleged agreement to sell-Alleged agreement to sell was not
a registered document and was not adequate by itself to confer a title upon defendants-No
evidence on record to rebut such evidence of plaintiff beyond the averments in written statement,
which alone were not rebuttal of plaintiffs' evidence-Documentary evidence of plaintiff had been
rejected as being managed documents documents documents without assigning any Justifiable reason therefor Concurrent findings of Courts below were manifestly perverse, suffering from from non-reading of evidence on material
points and flagrant misreading of evidence on record- High Court was Justified in such circumstances to interfere with concurrent findings in exercise of Jurisdiction under S.115, C.P.C.
-High Court set aside impugned Judgments/decree and remanded the case to Trial Court for its decision in accordance with law on all highlighted points after affordingample opportunity to parties to
produce evidence, if they desiredso.
2002 CLC 1770 NurJehanBegum v. MuJtaba Ali Naqvi 199 SCMR 2300; Messrs Shalimar Ltd.,
Kar.v. Raisuddin Siddiqui 1979 CLC 338; Sh. Manzoor Ahmed v. Mst. Iqbal Begum 1989 SCMR
949; Muhammad Yousif v.Syed Wali Muhammad Shah 1994 CLC 132; Orient Match Company
(Pvt.) Ltd. v. Banking Tribunal for Kar.and Sukkar 1996 CLC 1718; Khairunnisa Nisa v. M.Ishue
PLD1972SC25;Abdul Hakeemv. HabibulLah. 1997 SCMR 1139; Kanwal Nain v. Fateh Khan PLD 1983 SC 53 and Anwar Bibi v. Abdul Hameed 2002 SCMR 14 ref.
An injunction cannot be granted-
56. Injunction when refused
(a) to stay judicial proceeding pending at the institution of the suit in which the injunction
is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;
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