F I R S T A P P E A L A G A I N S T O R D E R AGAINST ORDER DATED

BEFORE HONOURABLE LAHORE HIGH COURT, LAHORE.

FIRST APPEAL AGAINST ORDER NO: ________________________/2013

M E M O O F P A R T I E S

____, SON OF ____ RESIDENT OF HOUSE NO. ___, DISTRICT____

……Appellant

V E R S U S

_____, SON OF ____ RESIDENT OF HOUSE NO. _____, DISTRICT____

……Respondent

F I R S T A P P E A L A G A I N S T O R D E R
AGAINST ORDER DATED ____, PASSED BY LEARNED TRIAL COURT, WHEREBY APPLICATION FOR TEMPORARY INJUNCTION FILED BY THE RESPONDENT IN SUIT FOR SPECIFIC PERFORMANCE WAS ACCEPTED.

APPELLANT 

THROUGH

______
Advocate High Court

M E M O O F A P P E A L
Respectfully Sheweth:
1. That the addresses of the parties for the purpose of service by this Honourable have correctly been given above.

2. That through the instant appeal, the appellant humbly seeks indulgence of this Honourable Court for setting aside order dated ____ passed by Learned Civil Judge, Lahore, whereby application filed by the Respondent for Temporary Injunction in suit for specific performance was accepted. Copies of Plaint and order sheet of the suit are appended herewith as Annex-A for kind perusal of this Honourable Court & impugned order is at Pages No: ____.

3. That succinctly stated facts giving rise to the filing of instant appeal are that admittedly the appellant is owner of House No. ____, Lahore (hereinafter referred to as “the suit property”). The suit property was rented out to the mother of the respondent, namely, Mst. _____ for a period of 11 months from ____ to ____. After expiry of the rent agreement, the appellant asked Mst. ____/mother of the respondent to hand over the vacant possession of the suit property to the appellant as he needed the same for his personal need. Instead of delivering possession of the suit property to the appellant, Mst.____ requested him repeatedly to extend the period till November, 2011 as her son’s marriage was going to take place. On humanitarian grounds, the appellant allowed mother of the respondent and her family to live in the property till November, 2011.

4. That on 1st of November, 2011, the appellant, once again, asked Mst.____ to vacate the property by 30th November as he required the same for his personal need, Mst.____, however, approached the appellant along with her son/Respondent and requested the appellant to let her live in the suit property till 5th of January, 2012. Mst.____ asked her son/Respondent to give the appellant a cheque of Rs. One Million dated 04.11.2011 as guarantee for appellant’s utilization, therefore, the appellant permitted Mst.____ and the respondent to live in his house till 05.01.2012.

5. That on 25.12.2012, Mst.____ again approached the appellant at his residence at Rawalpindi and assured him that she would vacate the property on 05.01.2012, the petitioner, therefore, issued a cheque of Rs. One Million dated 25.12.2011 bearing No.____ in favour of the respondent/_____.

6. That on 06.01.2012, the appellant visited the suit property and asked the respondent and Mst.____ to vacate the suit property as promised by her. The respondent and her mother, _____, adopted hostile style and started blackmailing the appellant. Mst._____ and her son/Respondent claimed that cheque of Rs.One Million was earnest money for a deal of the house; whereas, the appellant never ever entered into any agreement to sell regarding the suit property with the respondent. The appellant, therefore, was constrained to file an ejectment petition against Mst._____ before Rent Controller, _____, Lahore; same is still pending for adjudication.

7. That Respondent also filed a suit for specific performance on 09.05.2012 against the appellant, alleging therein that the appellant and the respondent had entered into an oral agreement to sell on 03.11.2011 regarding the suit property. Furthermore, it was alleged that the total consideration was Rs. 10,300,000/- (One Crore & 3 Lacs) and that the cheque dated 04.11.2011 issued previously by the Respondent to the appellant was as earnest money. An application for temporary injunction was also filed by the Respondent along with the plaint. Learned Trial Court granted ad-interim injunction vide order dated 11.05.2012 on the ground that the respondent had produced ‘a copy of agreement to sell’ executed between the Respondent and the appellant.

8. That the appellant appeared before Learned Trial Court in aforesaid suit and contested the same by filing written statement. It was asserted by the appellant therein, that no agreement to sell whatsoever was ever executed between the parties and that the cheque dated 04.11.2011 was issued by the Respondent on the direction of her mother namely Mst._____ as guarantee cheque with permission to utilize the same; the appellant prayed for dismissal of the suit filed by the Respondent. Along with written statement reply to the application for temporary injunction was also filed.

9. That after submission of written statement, Learned Trial Court fixed the case for arguments on application for temporary injunction filed by the Respondent. After hearing arguments, Learned Trial Court accepted the application filed by the Respondent under Order 39 Rule 1 & 2 read with section 151 CPC for grant of Temporary Injunction vide order dated 13.04.2013 (hereinafter referred to as “the impugned order”). 

10. That impugned order dated 13.04.2013, passed by Learned Trial Court, whereby application under Order 39 (1)(2) CPC was accepted is not sustainable in the eyes of law and same is liable to be set aside inter-alia on the following:
G R O U N D S O F O B J E C T I O N S
a. That the impugned order dated 13.04.2013 is against the law laid down by Superior Courts, perverse, arbitrary, capricious, illogical and against the record.

b. That Learned Trial Court decided the application under Order 39(1)(2) CPC and passed the impugned order in complete disregard of the pleadings of the parties. Learned Trial Court not only ignored admissions made by the respondent in his plaint but assertions of the appellant in written statement were also not taken into consideration; hence, impugned order suffers from a conspicuous and a glaring error of law and fact, which could not sustain.

c. That Learned Trial Court completely relied upon the assertion of the Respondent that the cheque of Rs.1 Million was given to the appellant as earnest money, whereas, version of the appellant was not taken into account that the cheque was issued to the appellant as guarantee/security for his utilization.

d. That as a matter of fact, the respondent in connivance with his mother, Mst. _____ gave impugned cheque and asked the appellant to use the same just to entrap the appellant. They deceptively made the appellant to believe that the impugned cheque was issued in his favour with permission to use and that the amount was completely at his disposal till the suit property was vacated by the Respondent and his mother, Mst._____. That the appellant also issued a cheque in favour of the respondent of Rs. 1 Million on 25.12.2011 bearing No.____.
e. That Learned Trial Court has observed in the impugned order that a guarantee cheque cannot be encashed before violation of any agreed terms or before expiry of period for which guarantee cheque was issued. Learned Trial Court paid no heed to the assertions made and arguments advanced by the appellant that the cheque was issued with permission to utilize. The fact of permission of utilization should have been discussed by Learned Trial Court while passing the impugned order.

f. That furthermore, Learned Trial Court observed in impugned order that the appellant failed to point out that whether the appellant earlier took any rental amount from the plaintiff/respondent on behalf of his mother as the cheque was issued by the respondent. It is submitted that the respondent had admitted relationship of landlord and tenant between the appellant and himself in his plaint. Relevant portion of the plaint, wherein, admission to the extent of relationship of tenancy has been admitted is produced as under:
“5. That….It was also settled that the possession of the suit property would be relinquished in favour of Defendant No.1 at the end of November and thereafter, defendant No.1 would hand over the possession of the suit property in favour of plaintiff and it was at the end of November, 2011, plaintiff handed over the possession of the suit property as their relationship as landlord and tenant came to an end……”.

In the light of aforesaid relevant para of the plaint, admission of relationship of landlord and tenant is clear. Admitted facts need not to be proved; therefore, failure of appellant to point out that any rental amount was taken by him from the respondent/plaintiff on behalf of his mother cannot harm him.

g. That existence of any agreement to sell has yet to be proved, there is no evidence on record that there existed any agreement to sell and that the impugned cheque was given as earnest money. Issuance of cheque of Rs.1 Million which was given as guarantee with permission to utilize is being cleverly misinterpreted to create an impression that the said amount was paid toward part payment of sale consideration, which is patently incorrect. The suit filed by the respondent is fraudulent and an attempt to deprive the appellant of his valuable property.

h. That it is settled law that in order to be entitled for interim relief, the claimant must establish all three ingredients for grant of interim relief in his favour i.e. Prima Facie Case, balance of convenience and irreparable loss. However, in the instant case, the respondent has not been able to establish any one of the three ingredients for grant of interim relief, therefore, impugned order whereby application under order 39 Rule 1 & 2 CPC was accepted is liable to be set aside.

i. That while granting ad-interim injunction, Learned Trial Court observed that a copy of agreement to sell was produced by the respondent, whereas, in the impugned order it has been declared by the trial Court that the respondent alleged oral agreement to sell. Hence, on the face of the record, impugned order is perverse and contradictory, therefore, not maintainable. 

j. That the appellant humbly seeks permission of this Honourable Court to raise additional grounds of objections at the stage of arguments.

11. That the instant appeal is being preferred after giving notice to the respondents about filing of the instant appeal in compliance of provisions envisaged in Order 43 Rule 3 C.P.C. Copies of notice sent to the Respondent and receipt of courier service are appended herewith as Annex-B & B/1.


P R A Y E R
In aforementioned circumstances and submissions, it is humbly prayed from this Honourable Court that instant appeal may kindly be accepted, impugned order dated 13.04.2013 passed by Learned Trial Court may graciously be set aside and application for grant of temporary injunction filed by the Respondent before Trial Court may kindly be dismissed.
Any other relief which this Honourable Court deems fit & appropriate and which has not been prayed for inadvertently may kindly also be granted to the appellant in the wider interest of justice & fair play.


APPELLANT 

THROUGH

Accepted by:

                                                                                               

Falak Sher Bhati

                                                                                                Advocate Kasur

                                                                                          Chamber No 96-97

                                                                                                District Bar Association Kasur