KARACHI: Plea rejected for injunction in property suit
By Our Reporter
KARACHI, May 13: Justice Shabbir Ahmed of the Sindh High Court has rejected a plea for prohibitory injunction in the Allah Wala Market case.
Through CMA 9440/2002 under Order 39 Rules 1 and 2 read with Section 151 of CPC, plaintiff Mohammed Yusuf had sought prohibitory injunction against the defendants (Urooj Pvt Ltd and Haji Shafiqur Rahman) restraining them from transferring, selling, gifting, encumbering, alienating or in any manner creating third-party interest in the suit property comprising 47 shops situated on the ground floor of Allah Wala Market on plot No RB-7/11, M. A. Jinnah Road, Karachi, till the decision of the suit.
Brief facts for the purpose of disposal of the application were that the defendant No 1 was owner of the building on plot No RB-7/11, popularly known as Allah Wala Market situated on M. A. Jinnah Road.
It was the case of the plaintiff that he entered into a sale agreement with the defendant No 1 through their attorney (defendant No 2) for the purchase of 47 shops on the ground floor.
It was his case that at the time of execution of the said agreement a sum of Rs2.6 million was paid in cash against receipt executed by the defendant No 2. The plaintiff came to know about advertisement in newspaper whereby the defendant No 1, through Javed Khalid, Ms Nuzhat and Ms Sultan Begum, managing director and directors, respectively, purportedly notified for general information that the registered power of attorney, executed by them in favour of the defendant No 2 in respect of the suit property had been revoked and cancelled.
Counsel for the defendant No 1 has contested the application by filing counter-affidavit of Javed Khalid, managing director and attorney of the defendant No 1, whereby the agreement for sale dated 26. 6. 2001 or any other agreement was denied with the plaintiff. It has been pleaded that the agreement for sale has been fraudulently and collusively been manipulated between the plaintiff and the defendant No 2. The latter was just acting as a broker and had no authority to sell any shop but only negotiated to bring the buyer for the sale of the shops on the ground floor of the suit property.
The defendant No 2 also filed a counter-affidavit and supported the plaintiff by admitting that an agreement had been entered into by him in exercise of powers vested in him under the general power of attorney under clause (iv) thereof. He had been authorized by the defendant to negotiate for sale of the suit property.
Rasheed A. Razvi was counsel for the plaintiff. Kamal Azfar represented the defendant No 1. M. G. Dastagir was counsel for the defendant No 2.
The question which required determination was whether the defendant No 2 was conferred with the power of outright sale in terms of general power of attorney.
Justice Ahmed referred to three clauses of power of attorney, which were also cited by counsel for the plaintiff. Clause (i) gives power to manage, administer and look after the affairs of the shops on the ground floor and to complete necessary formalities and documents in this respect before the Revenue Registrar Authority, Excise & Taxation, and the KDA for transfer, mutation, registration, conveyance deed, sub-lease of the suit property in the name of purchaser and to do all such acts and things, which might be necessary in that regard.
The power to negotiate or complete necessary formalities and documents would not confer attorney with power of sale, he observed, saying that it was case of the parties that on the same day, MoU had also been signed between the principal and the agent whereby the attorney was authorized with power regarding change of tenant and outright sale/transfer/ownership of any shop with limitation imposed on consent of the principal and minimum limit of sale price of Rs900,000 a shop.
If the two documents were read conjunctival, then the agent had been conferred with powers of rent collector to deal with tenants, undertake legal proceedings against them to bring buyer and to present documents before respective authorities with power to sell with limitation imposed that sale with the consent of the principal and with minimum price of Rs900,000 a shop and for the said act the agent was compensated by remuneration/commission on Rs50,000 a shop on sale, he observed.
In this background, Justice Ahmed was of the view that balance of convenience did not lie in his favour and the defendant would be put to inconvenience if they were restrained from exercising right and power in respect of their property.
In the light of the above discussion, he was of the view that the plaintiff had failed to make out a case for injunction.
