IN THE HIGH COURT OF SINDH, KARACHI

High Court Appeal No.301 of 1998

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Date Order with Signature(s) of Judge(s)

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Present:

Muhammad Ali Mazhar, J.

Abdul MaalikGaddi, J.

Dr. (Mrs.) Anwar Mangi ……… Appellant

Versus

M/s. Pak Commodities

International & 02 others ……… Respondents

1. For hearing of CMA No.1654/1998

2. For hearing of CMA No.1656/1999

3. For Regular hearing.

Mr. Jam Zeeshan Ali, Advocate for the Appellant.

Mr. K. A. Wahab, Advocate for Respondent No.1.

None present for respondents No.2 and 3 though served.

Date of hearing : 16.02.2017

J U D G M E N T

Abdul MaalikGaddi, J.–Through this High Court Appeal, the appellant has assailed the legality and propriety of the order dated 14.09.1998 passed by the learned Single Judge of this courtin Civil Suit No.1712 of 1997 filed by the respondent No.1 against the appellant and respondents No.2 and 3 for recovery of Rs.80,00,786/- and for permanent injunction, whereby the learned Single Judge sitting on original side after hearing the learned counsel for the parties on application under Order XXXIX Rule 1 and 2 read with Section 151, C.P.C., filed by the respondent No.1 (CMA No.9097 of 1997), disposed of the said application by order which is impugned in this appeal, whereas, the order on rest of the applications being CMA Nos.765, 4561and 3799 of 1998, showing in the impugned order,have not been challenged or argued by the parties counsel. However, the order on CMA No.9079 of 1997 has been seriously challenged through this appeal.

2. The facts relevant for the purpose of disposal of this appeal as alleged by the respondent No.1 in the suit are that he is a businessman of import and export of rice and vide agreement dated 17.11.1990 executedin between the respondent No.1 and appellant alongwith her father, late Ali Hassan Mangi and as per said agreement, the respondent No.1 agreed to supply 5000 matric tons of 385 Basmati rice on credit basis to the appellant and her late father. It is averred that till 21.02.1991, the respondent No.1 supplied to the appellant and her late father 10,00,000Kgs of Basmati rice packed in 10,000 bags, valued at Rs.1,15,00,000/- exclusive of cartage and a sum of Rs.35,00,000/- was paid by the appellant and her late father to the respondent No.1 towards the cost of rice leaving a balance of Rs.80,00,786/-. It is also averred that the appellant and her late father vide their letters dated 09.11.1993 and 21.12.1995, admitted their liabilities to pay the said balance amount and assured the respondent No.1 for its due payment. The appellant and her late father further confirmed deposit of title deeds in respect of their property bearing survey No.3, sheet No.CL-9, situated in Civil Lines, Karachi, as security for repayment of the said outstanding amount. Two postdated cheques bearing Nos.425867 and 425868 drawn at UBL, Hotel Intercontinental Branch, Karachi, covering the balance amount were also delivered/handed over by late Ali Hassan Mangi as security for repayment of the balance amount but the same have not been encashed. The grievance of the respondent No.1 (plaintiff in suit) is that inspite of categorical assurance and securities furnished by the appellant and her late father, the balance amount of Rs.80,00,786/- was not paid by the appellant and her late father to him. It appears from the record that alongwith plaint in the suit, an application under Order XXXIX Rule 1 and 2, C.P.C., being CMA No.9079 of 1997 had been filed by the respondent No.1 seeking prohibitory order against the appellant (Dr. Mrs. Anwar Begum) and respondent No.2 (Aftab Ahmed Mangi and respondent No.3(GhaniUsman) from selling, transferring/renting or creating any charge on property bearing survey No.3, sheet No.CL-9, situated at Dr. Ziauddin Ahmed Road, Karachi, till the disposal of the suit. It also reveals from the record that the appellant and respondent No.2 have filed their counter affidavit against injunction application and also filed their written statementsin which they have denied all the allegations leveled against them by stating that the case and claim of the respondent No.1 is based on forgery and misrepresentation. However,the appellant has also agitated her counter claim in her written statement.Whereas, the case of the respondent No.3 is that he had purchased the property bearing survey No.3, sheet No.CL-9, situated at Dr. Ziauddin Ahmed Road, Karachi, from the appellant through agreement of sale dated 20.10.1997in the sum of Rs.3,58,95,930/- and a substantial amount i.e. Rs.35,89,593/- and Rs.18,00,000/-had already been paid by him to the appellant as part payment. However, in para 3 of his written statement,while replying the paragraph No.6 of the plaint, he stated that respondent No.1 approached this court with clean hands and during the argument of respondent No.3 before the learned Single Judge showing his willingness to deposit suit amount in court to safeguard the interest of respondent No.1 in case, prohibitory order in respect of transfer/sale of the aforesaid plot is vacated by the court. Therefore,the learned Single Judge after perusing the pleadings of the parties and hearing them at length passed the following conditional/consent order. The operative part of the said order is reproduced as under:-

“(a) That the defendant No.1 shall be at liberty to execute a sale deed in favour of defendant No.3 in respect of property bearing survey No.3/1, sheet No.CL-9, measuring 3418.66 square yards, situated at Dr. Ziauddin Ahmed Road, Civil Lines, Karachi, in terms of sale agreement dated 20.10.1997, executed between defendant No.1 and 3 subject to prior deposit of suit amount of Rs.80,00,786/- (Rupees Eighty Lacs Seven Hundred Eighty Six only) by defendant No.1 and/or by defendant No.3 with the Nazir of this Court. On such amount being deposited the same will be invested by the Nazir in some profitable government security.

(b) If for any reason same transaction of the aforesaid property does not materialize, the same shall remain attached and defendant No.1 shall not create any third party interest on the said property.”

3. It is contended by the learned counsel for the appellant that the impugned order passed by the learned Single Judge on CMA No.9079 of 1997 is against law and facts as the same has been passed on the basis of incorrect facts liable to be set-aside. According to him, the entire case of the respondent No.1 (plaintiff in suit) is based on forged and fabricated documents and at no point of time, the appellant entered into an agreement with the respondent No.1 for purchase of Basmati rice either individually or in collaboration with her father (late Ali Hassan Mangi). Per learned counsel, the injunction application was not maintainable as there was no memorandum of deposit of title deeds creating an equitable mortgage in favour of respondent No.1 in respect of the property in question and even otherwise there is nothing on record to prove that any mortgage was created by the appellant in favour of respondent No.1. As to the applicability of the provision of Order XXXIX Rule 1 and 2 C.P.C. it is argued by him that in the given circumstances of this case, provisions of Order XXXIX Rule 1 and 2 C.P.C. are not applicable and no order for attachment before judgment can be passed by the court as the ingredients of Order XXXVIII Rule 5, C.P.C. have not been fulfilled by the respondent No.1. Per learned counsel, the learned Single Judge has passed order under Order XXXVIII Rule 5, C.P.C., even though no such application was before him and in doing so, he has exceeded his jurisdictionnot vested him liable to be set-aside.It is next argued by learned counsel for the appellant that the learned Single Judge before passing the impugned order did not referthe matter to hand writing expert to compare the admitted signatures of the appellant on written statement as well as on the letters dated 09.11.1993 and 21.12.1995, however, chose to compare the signature himself, who was not hand writing expert, therefore, wrongly observed in the order about the similarity of the signature of the appellant in her written statement and on letters dated 09.11.1993 and 21.12.1995, therefore, no reliance can be placed on this observation at this stage.In support of his arguments, learned counsel for the appellant has relied upon the following case laws:-

i. Messrs H. Nizam Din & Sons Ltd. Karachi v. M.V. “Oroomee” and 4 others reported as PLD 1977 Karachi 722;

ii. Associated Drillers Ltd., Karachi v. Messrs Dirk Verstoop B. V., Karachi reported as PLD 1979 Karachi 734;

iii. Messrs D.H.L. International Ltd. v Messrs N.T.C. Ltd. reported as 1982 CLC 1360;

iv. FarhatImrana v. Etimad (Pvt.) Ltd. reported as 2015 YLR 2674;

v. Farida Saeed v. KhurramZafar reported as 2016 CLC 251.

4. Conversely, the learned counsel for respondent No.1 has supported the impugned order passed by the learned Single Judge of this courtby arguing that the impugned order has been passed after considering the pleadings of the parties and documents on record. Per learned counsel, the appellant and her father (late Ali Hassan Mangi) have in terms of their letters dated 09.11.1993 and 21.12.1995available at page No.43 and 51 of the suit file, admitted their liability to pay the suit amountof Rs.80,00,786/-. According to him, admittedly the appellant (Dr. Mrs. Anwar Begum) had entered into an agreement of sale in respect of the property bearing survey No.3, sheet No.CL-9, Dr. Ziauddin Ahmed Road, Karachi with respondent No.3 (GhaniUsman) just to sale out the said property with the sole intention to delay and obstruct the decree that may be passed against the appellant. He added that on the basis of pleadings of the parties and documents on record, the respondent No.1 has a good prima facie case to maintain/upheld the impugned order. More particularly, in view of the arguments of Mr. Abdullah, Advocate on behalf of respondent No.3 (GhaniUsman) before the learned Single Judge to the effectthat he would be ready and willing to deposit suit amount in court to safeguard the interest of the respondent No.1, if prohibitory order in respect of transfer/sale of the aforesaid plot is vacated by this court. Per learned counsel, although the instant application has been filed by the respondent No.1 before the learned Single Judge under Order XXXIX Rule 1 and 2, C.P.C., yet this court is fully competent to pass consent order in view of stand taken by respondent No.3 for attachment before judgment as ingredients of Order XXXVIII Rule 5, C.P.C. have been fully complied with.

5. We have heard the learned counsel for the parties at a considerable length and perused the record.

6. The case of the respondent No.1 is basedupon agreement dated 17.11.1990 allegedly executed by the appellant alongwith her late father, Ali Hassan Mangi with respondent No.1 regarding supply of 5000 matric tons of Basmati riceon credit basis to the appellant and her father. According to respondent No.1, the rice was supplied to the appellant and her father as per agreement, but suit amount has not been paid. Respondent No.1 has claimed that the appellant and her father have in terms of their letters dated 09.11.1993 and 21.12.1995, available at page Nos.43 and 51 of suit file,alongwith two post-dated cheques bearing Nos. 425867 and 425868 covering the balancesuit amountissued in favour of respondent No.1, admitted their liability to pay the suit amount, but said liability has not been fulfilled. We have gone through the pleadings of the parties and documents on record tentatively showing the sufficient material on record to establish that an agreement did exist between the respondent No.1 and appellant alongwith her late father with regard to supply of 5000 matric tons of Basmati rice on credit basis. The appellant has, however, denied having entered into any such agreement with respondent No.1, though allegedly signed by the appellant, but no attempt/efforts have so far been made by the appellant for referring the agreement to hand writing expertto ascertain as to whether her signature appearing on the agreement was genuine or otherwise as the matter pertains to year 1997. However, under the circumstances, learned Single Judge while exercising the power under Article 84 of the Qanun-e-Shahadat Order, 1984 compared the signature of appellant appearing on agreement and other documents on record and tentatively was of the view that there is enough similarity in the signature of the appellant on written statement, agreement dated 17.11.1990 and two letters dated 09.11.1993 and 21.12.1995 to arrive a tentative conclusion that the agreement in respect of supply of rice does bear signature of the appellant and so also on said letters and on the basis of these documents as well as paragraph No.3 of the written statement of respondent No.3, the respondent No.1 has made out a prima facie case as to the existence of business relation between respondent No.1 and the appellant alongwith her late father. As far as the objection of the learned counsel for the appellant that the learned Single Judge chose to compare the signature on aforesaid documentshimself instead of referring the same to the handwriting expert and the procedure adopted by him was not proper. Reverting to the contention raised by the learned counsel for the appellant, it is suffice to say that Article 84 of the Qanun-e-Shahadat Order, 1984 is an enabling provision leaving the direction of the court to satisfy itself as to proof of the handwriting or the signature in case any dispute has been raised as to genuineness. One of the mode for proving such handwriting or signature is by reference thereto a handwriting expert for comparison, however, the court is also empowered to compare the disputed handwriting or signature with the admitted signature and then arrive at its own findings as per principle laid down by the hon’ble Supreme Court of Pakistan in Ali Ahmed alias Ali Ahmed Mia v. The State reported as PLD 1962 SC 102. It is also settled principle of law that court in certain eventualities is enjoined with powers to itself compare signatures alongwith other relevant material to effectively resolve main controversy. Therefore, the procedure adopted by the learned Single Judge in this regard cannot be termed as contrary to law. Reliance in this respect placed onS.M. Zaheer v. Pirzada Syed Fazal AliAjmeri reported as1974 SCMR 490 and Haj Muhammad Khan and 02 others v. Islamic Republic of Pakistan and 02 others reported as 1992 SCMR 2439.

7. It has vehemently been argued by learned counsel for the appellant that while passing the impugned order, the learned Single Judge has passed an order under Order XXXVIII Rule 5 of C.P.C., even though no such application was before him, as such, according to him, the respondent No.1 is not entitled to any indulgence in the matter of attachment. We have, however, not felt persuaded to agree with learned counsel for the appellant for the reason that there is no denial that appellant has entered into an agreement of sale in respect of the property bearing survey No.3/1, sheet No.CL-9, measuring 3418.99 square yards situated at Dr. Ziauddin Ahmed Road, Civil Lines, Karachi with respondent No.3 (GhaniUsman) and in case, no prohibitory orders are passed, the respondent No.1 would left with nothing to execute the decree that would be passed in the suit against the appellant, as admittedly, the interest of respondent No.3 has been created in the suit property.Even otherwise, it appears from the record that the impugned order appears to consent/conditional one and has been passed after hearing the parties counsel particularly, Mr. Abdullah Advocate appearing on behalf of respondent No.3 (GhaniUsman), who arguedbefore the learned Single Judge as under:-

“It is contended by Mr. Abdullah Advocate that indefinite continuation of order of injunction would cause serious prejudice to defendant No.3. It has, therefore, been contended by the learned counsel for defendant No.3 that defendant No.3 is ready and willing to deposit suit amount in court to safeguard the interest of the plaintiff in the suit in case, prohibitory order in respect of transfer/sale of the aforesaid plot is vacated by the court.”

8. Nazir report on record shows that respondent No.3 has not complied with the order dated 14.09.1998 in Suit No.1712 of 1997.

9. Even otherwise, respondent No.3 (GhaniUsman) in paragraph No.3 of his written statement while replying paragraph No.6 of the plaint has stated that after careful scrutiny of annexure P-1 with the plaint, it transpired that plaintiff/respondent No.1 has come before this court with clean hands. Thus, under the facts and circumstances of the case as well as the documents relied by respondent No.1 with the plaint, the respondent No.1 has made out prima facie case to safeguard his interest by maintaining the impugned order till decision of the case.

10. The object of the attachment before judgment is to prevent and attempt on the part of the defendant of defeating the realization of the decree, which may ultimately be passed against him. It is a preventive and not a punitive action. Attachment can be ordered if the court is satisfied that the defendant is about to dispose of the whole or any part of his property with intent to obstruct or delay the execution of the decree with or without application as the court has to consider/seen the substance of the case to meet the ends of the justice. Here in this case, as observed above, respondent No.3 executed a sale agreement with the appellant. The agreement in between the appellant and respondent No.3 dated 20.10.1997 is on record. This agreement has not been disputed by the appellant; therefore, under the facts and circumstances of the case, the impugned order passed by the learned Single Judge appears to in accordance with law and has also been passed on the basis of equity. The case law cited by the learned counsel for the appellant has been perused and considered by us, but did not find applicable to the facts of the present case, hence, are not helpful for him.

11. In view of the above facts and circumstances of the case, no perversity, illegality and incorrectness have been found in the impugned order. Learned Single Judge while passing the impugned order has appreciated all the facts involved in the case. No illegality has been pointed out. We, therefore, under the facts and circumstances of the case, could not find any merits in this appeal, which is dismissed, as such, the listed applications have become infructuous, hence, the same are disposed of.

12. Before parting with the order, we would like to make it clear that any observations in this order are tentative in nature and shall not effect the merits of the case during trial. It also appears from the record that in this matter, issues have already been framed and the case is ripe for evidence so we expect that the learned Single Judge will preferably decide the suit within six months.

Karachi.

Dated: 16.05.2017

JUDGE

Faizan A. Rathore/PA*