Asif Ali Vs Amjad Ali etc

FORM No. HCJD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

W.P.No. 13761 of 2026 Asif Ali Vs. Amjad Ali (deceased) through legal heirs, etc.

Sr. No. of Date of order/ Order with signature of Judge, and that of order/ Proceeding Parties’ counsel, where necessary proceedings 04.03.2026. Malik Haq Nawaz, Advocate for petitioner. Mr.Qamar Zaman Qureshi, Additional Advocate General Punjab; Dr. Muhammad Azeem Raja, Syed Ali Allow-u-Din, Syed Imran Ehsan, Ch. Imtiazullah Warraich, Sh. Waseem Ahmed, Aitzaz Aslam Chaudhry, Syed Muhammad Haider Kazmi, Muhammad Abu Bakar Attique, Malik Muhammad Zareef, Advocates.

Mr.Qamar Hanif Ramay, Assistant Attorney General for Pakistan.

Through this constitution petition, Asif Ali (Plaintiff/petitioner), who claims to be beneficiary of written agreement to sell dated 25.06.2024 executed by Amjad Ali, deceased, (defendant/respondent), in his favour for consideration of Rs.26,00,000/-, has called in question judgment dated 04.12.2025 passed by Additional District Judge, Pindi Bhattian, District Hafizabad and order dated 05.11.2025 passed by Civil Judge, Pindi Bhattian, District Hafizabad, whereby the application filed by petitioner for the grant of temporary injunction in a suit for specific performance of the afore-referred agreement to sell has been concurrently dismissed.

2.Briefly stated the facts of the case are that the petitioner claims that Amjad Ali (deceased), who is being represented by his legal heirs, agreed to sell his property measuring 6-Marlas situated in Mauza Pindi Bhattian, Tehsil Pindi Bhattian, District Hafizabad to

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the petitioner for total sale consideration of Rs.26,00,000/- vide sale agreement executed between the parties in the presence of witnesses on 25.06.2024 and at the time of execution of agreement, received as earnest money an amount of Rs.22,00,000/- as partial payment of sale consideration in the presence of the witnesses and handed over the possession to the petitioner whereas the remaining portion of sale consideration amounting to Rs.4,00,000/- was to be paid on 25.04.2025 at the time of getting the sale deed registered. However, prior to the said date, Amjad Ali (deceased) died on 15.03.2025 and the petitioner approached his legal heirs for receiving the remaining payment and transferring the property in his favour by getting the sale deed registered, which they refused, resulting in filing of suit for specific performance and permanent injunction against them. Along with the suit, the petitioner also filed an application for the grant of interim relief for seeking order of the court to restrain the respondents from further alienating the suit property or dispossessing him therefrom in any manner whatsoever.

3.The respondents contested the suit by filing written statement wherein the afore-referred agreement as well as receipt of consideration was denied by the said respondents and further the application for the grant of interim relief was also contested on the afore-referred grounds.

4.The learned trial court vide its order dated 05.11.2025 dismissed the application for grant of interim relief filed by the petitioner. The appeal preferred against the said order was also dismissed vide judgment dated 04.12.2025. Both the afore-

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referred order and judgment of both the courts below are under challenge through the titled constitution petition.

5.The learned counsel for petitioner has argued that the ingredients for grant of temporary injunction were made out from the record as the petitioner is in possession of the suit property on the basis of written agreement to sell executed between the parties in presence of marginal witnesses and having paid Rs.22,00,000/- to the predecessor-in-interest of the respondents which is a substantial portion of total sale consideration of Rs.26,00,000/- whereas after the death of the respondent, his legal heirs had gone back on his words and were trying to deprive him of the fruits of the agreement to sell by further alienating the suit property to some other party in contravention of afore-referred agreement, therefore, it is claimed that the petitioner is entitled for the grant of interim relief by setting aside the orders passed by courts below.

6.Heard, record perused.

7.The petitioner, in his plaint for seeking decree for specific performance of agreement to sell, has relied upon written agreement dated 25.06.2024 allegedly executed by the predecessor in interest of respondents in his favour for sale of suit property against total consideration of Rs.26,00,000/- out of which amount of Rs.22,00,000/- is claimed to have been paid in cash in the presence of the marginal witnesses and possession was delivered.

8.The contention raised by the respondents through their written statement is that such a transaction was not ever entered between the parties

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nor any payment was received by their predecessor- in-interest and the alleged agreement is a fabricated document which has been prepared after death of their predecessor just to deprive the respondents through fraud of the property owned by them.

9.I have gone through the contents of the agreement to sell relied upon by the petitioner. In the said agreement, it is claimed that substantial amount of sale consideration has been paid at the time of execution of agreement and only a small portion of the same remains outstanding whereas the said assertion has been denied by the respondents through their written statement. It is yet to be established through evidence that why and how, while executing the alleged agreement to sell, an amount of Rs.22,00,000/- was paid in cash to Amjad Ali (deceased), who was predecessor in interest of the respondents, without execution of any corresponding document or transaction through banking channel to corroborate the said transaction. Besides, the claim of petitioner that he is in possession of the suit property in furtherance of the afore-mentioned agreement to sell has also been denied by the respondents. Therefore, although the counsel for the petitioner asserts the genuineness of the said transaction as the same has been entered into between the parties in the presence of marginal witnesses, yet as the agreement and the payment made thereunder are disputed, the same have to be established as genuine by recording of evidence and do not give rise to prima facie case in favour of the petitioner. Moreover, if the petitioner holds the possession, it is yet to be established that he holds the afore-referred possession in consequence of

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afore-referred agreement to sell, which is yet to be proved and mere possession without any corresponding right to hold possession would not entitle the plaintiff/petitioner to grant of interim injunction. Reliance may be placed on Muhammad Ali versus Mahnga Khan (2004 SCMR 1111). Besides merely being in possession of the suit property could not be made a basis to equip the petitioner with injunction for an indefinite period, unless the right to obtain possession and to continue to hold the said possession under some legal right is established on the record. Reliance is placed on Muhammad Ahmad Farooq and another versus Province of Punjab through Member Judicial-VII, BOR, Punjab Lahore through DCO/Collector District Sahiwal and 12 others (2018 MLD 959).

10.Besides, the balance of convenience is in favour of the respondents who are the owners of the property as compared to the petitioner who is only relying upon an alleged agreement to sell for the reason that agreement to sell by itself does not create title in the property but only creates a right to obtain specific performance of agreement to sell, which itself is an equitable discretionary relief that could be allowed or declined by the court on the basis of material available before it. Moreover, the petitioner was required to show that he would suffer an irreparable loss if interim relief is not granted but nothing has been asserted or available on the record which could convince this Court that petitioner would suffer any loss if interim injunction is not granted to him, therefore, as all the ingredients for grant of temporary injunctions were not made out, hence, both the courts

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below were justified in refusing the grant of discretionary relief of temporary injunction in favour of the petitioner.

11.The next ground raised by the learned counsel for the petitioner is that the respondents despite being aware of the claim of the petitioner on the basis of aforementioned agreement to sell have not challenged the agreement before any forum, therefore, the said agreement is to be deemed to have been admitted as genuine and petitioner should be granted interim relief. However, I am not inclined to agree with the said assertion for the reason that the agreement to sell by itself does not create a title or any legal effect except to seek remedy for its enforcement and it was sufficient for the respondents to deny the genuineness of the agreement through written statement which means that they claim the said agreement to be void and as a consequence they were not required to challenge the same through a separate suit in terms of the principles laid down in judgment titled Muhammad Akbar Shah versus Muhammad Yusuf Shah and others (PLD 1964 SC 329), wherein it is provided that a voidable transaction is essential to be got set aside but there is no need to have a void transaction set aside. The relevant portion of the judgment is reproduced below:

“The principle which is applicable cannot be disputed either on authority or in reason. The principle is that if the transaction which is sought to be set aside was a voidable one, it is essential that the transaction be set aside. If it be not voidable, but void, the question of setting it aside would not arise. As to whether a transaction is voidable or void there is a simple criterion: did the transaction create any legal effects, that is, did the transaction transfer, create or terminate or otherwise affect any rights? In a void transaction no legal effects are produced.

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In a voidable transaction legal effects are produced but some person has the right to avoid the transaction and if he exercises that option the process by which rights were affected is reversed and the original situation as it existed before the transaction is restored (subject to adjustment of equities). If the Court which is dealing with the question of limitation reached the conclusion after considering the evidence before it that the transaction in dispute by its own force produced legal effects it would be necessary that the transaction be set aside and limitation will be governed by the article applicable to the setting aside of the transaction. If it comes to the conclusion that by itself the transaction produced no effects no need for setting it aside will arise. It is necessary to state here that a voidable transaction should not be confused with a transaction which prima facie looks valid and in relation to which the burden of proof will be on the party alleging its invalidity. There may be a document in existence a registered deed of sale or mortgage or some other transaction, which is by presumption genuine and the person who purports to be its executant may have the burden on him to show that it is a forgery. Still it is not a voidable transaction because ultimately when the Court comes to the conclusion that it is a forgery it will be found that in fact the document never affected any right. That is the criterion for determining whether a document is void or voidable. Its apparent validity or the question of burden of proof is in this respect irrelevant. No person is bound to sue for setting aside a document just because it is raising a presumption against him. There is no need for the person who is shown to be the executant of the forged document to sue for its cancellation or for setting it aside though he may be taking a risk in allowing the document stand for proof of forgery may become difficult as time passes. A transaction which is not genuine may have been incorporated even in the revenue records which have a presumption of correctness. Still there is no need to have the transaction set aside for revenue records are only evidence of it and do not affect title. If the Court finds that there is no true basis for the entry in the record-of-rights its conclusion would be that there never did exist any transaction which affected any rights. "Setting aside" is wholly inappropriate for a document which has produced no legal effects though the expression is sometimes loosely used in respect of a declaration of invalidity of a document.”

(emphasis supplied)

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12.In a subsequent case titled Khalid Hussain and other versus Nazir Ahmad and others (2021 SCMR 1986), the Supreme Court has reiterated that it is not necessary for a party to file a suit for cancellation of a void document.

13.In view of the principles enunciated in the judgments referred above it is observed that where a document is not claimed to be void rather voidable at the option of one party, the said party has to challenge the same by filing a suit for cancellation of the same but where the said party denies execution of the document and claims the same to be void, fabricated and based on fraud, there was no need to file suit for cancellation of the same. In the present case, the respondents do not claim that agreement to sell was executed and could not be enforced due to some defect in its execution or non-fulfillment of any condition provided therein resulting in treatment of such document as voidable, rather in the present case, the execution of the agreement to sell and receiving payment thereunder has been denied altogether by claiming the said agreement as fabricated, based on fraud and thus void, hence there was no legal requirement for the respondents to challenge the agreement to sell allegedly executed by their predecessor in interest through a separate suit as the same had not created any legal right in favour of the petitioner or any other person and the respondents were not precluded from denying the genuineness of the said agreement through written statement by treating the same as a void document.

14.The petitioner apprehends that the respondents may transfer the property to some outsider during the

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pendency of the civil suit filed by the petitioner against the respondents but the rights of the petitioner would stand protected under the principle of lis pendens. The learned counsel for the petitioner has relied upon Sardar Wali Muhammad versus Sardar Muhammad Iqbal Khan Mokal and 7 others (PLD 1975 Lahore 492) to argue that principle of lis pendens is not a valid and solid ground to refuse temporary injunction. There is no cavil to the said proposition of law, however, the facts of the said case were different from this case as the said case related to joint property and one party was denying the rights of the other party and the court held that the said party had a prima facie case and ingredients for grant of temporary injunction were made out. But in the present case, by denial of genuineness of the agreement and to have received payment thereunder, neither the prima facie case is made out nor the other essential ingredients for grant of temporary injunction are available which may have tilted the scale in favour of the petitioner. Hence, the afore-referred case is distinguishable, therefore, this Court is not inclined to interfere in the judgment and order passed by the courts below whereby the application for the grant of temporary injunction has been declined.

15.For what has been discussed above, no ground to interfere in the impugned judgment and order passed by the courts below is made out whereby the same could be held to have been passed without jurisdiction or lawful authority and be declared as nullity in the eye of law. Resultantly, this petition being devoid of merit is dismissed.

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16.However, it is made clear that the afore-referred observations made by this Court are tentative in nature and the learned trial court shall decide the afore-referred lis pending between the parties on its own merits without being influenced by any observation made by this Court.

(Muzamil Akhtar Shabir) *KMSubhani* Judge Approved for reporting