IN THE HIGH COURT OF SINDH AT KARACHI

H.C.A. No.229 of 2017

___________________________________________________________________ Date Order with signature of Judge

___________________________________________________________________

PRESENT:

Mr. Justice Aqeel Ahmed Abbasi

Mr. Justice Mahmood A. Khan

For hearing of main case.

21^st February 2022

Mr. Taqdeer Ali Khan, Advocate for Appellants.

Mirza Sarfaraz Ahmed, Advocate for Respondent No.1.

Mr. Jawad Dero, Addl. A.G. Sindh.

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O R D E R

Instant High Court Appeal has been filed against an order dated 20.03.2017 passed by the learned Single Judge of this Court in Suit No.1884 of 2015, whereby, an application filed by the appellants under Order XXXIX Rules 1&2 CPC, seeking restraining order against the respondents regarding creating any third party interest in respect of the subject property, has been dismissed.

2. Learned counsel for the appellants has argued that the appellants have a prima facie case as disclosed in the plaint and the application filed seeking injunction, therefore, the learned Single Judge was not justified to dismiss such application merely on the ground that since there is unexplained delay in filing the suit, whereas, a third party interest has been created in respect of the subject property, therefore, the appellants are not entitled to injunctive relief. According to learned counsel for the appellants, unless the respondents are restrained from creating any further third party interest in respect of the suit property, the purpose of filing the suit will be frustrated. It has been prayed that the impugned order may be set aside.

3. Conversely, the learned counsel for the respondent No.1 has vehemently opposed the contention of the learned counsel for appellants and submitted that the very suit filed by the appellants is barred by law, as the appellants are seeking cancellation of a registered conveyance deed in respect of the subject property, which was executed in the year 1977, however, such delay has not been explained by the appellants, nor any evidence or material whatsoever has been produced before the learned Single Judge in the suit to support their claim. Per learned counsel, evidence of both the parties has already been recorded in the suit and the matter is ripe for final arguments and announcement of judgment and decree. It has been further contended by the learned counsel for the respondent No.1 that the restraining order being sought by the appellants through injunction application is otherwise misconceived and cannot be granted, as third party interest in respect of the subject property has already been created, whereas, the father of appellants, has admittedly contested the matter before the Revenue Authorities, who have already passed order in the year 1987, which has otherwise attained finality. Learned counsel for the respondent No.1 further argued that none of the ingredients for grant of injunction in favour of the appellants, including prima facie case, irreparable loss or injury and balance of inconvenience, are in favour of grant of injunction, therefore, the impugned order is unexceptionable and requires no interference by this Court in instant High Court Appeal.

4. We have heard the learned counsel for the parties and perused the record as well as impugned order passed by the learned Single Judge, which reflects that after having taken the stock of the relevant facts, inordinate delay in filing the suit seeking cancellation of the registered documents, which was admittedly executed in the year 1977, whereas, the predecessor-in-interest of the appellants appears to have agitated the grievance before Revenue Authorities, who passed the order in the year 1987, whereafter, reportedly no proceedings were filed by the appellants except the present suit filed in the year 2015, however, without explaining the delay. It has been informed that the suit is ripe for final arguments and announcement of judgment and decree, whereas, third party interest has already been created in respect of the subject property in the year 1977 within the knowledge of the appellants, who have also claimed alternate relief in the shape of compensation and damages, which otherwise would be adequate remedy under the facts and circumstances of the case, as reflected in the pleadings.

5. Accordingly, we do not find any factual error and legal infirmity in the impugned order passed by the learned Single Judge while exercising the discretion as vested in the Court after having taken into consideration the aforesaid three ingredients for grant of injunction, therefore, do not require any interference by this Court in the instant High Court Appeal. Consequently, instant appeal is dismissed. However, the appellants will be at liberty to pursue the suit pending before the learned Single Judge, who may pass appropriate orders and/or judgment and decree strictly in accordance with law, without being influenced by dismissal of instant High Court Appeal in the above terms.

J U D G E