1. ' In this suit for specific performance of contract, possession and permanent injunction. Listed Application (C.M.A.. No.5057 of 2004) under Order XXXIX, rules 1 and 2, C.P.C. Has been filed seeking restraining orders against the defendant not to create any third party interest.
2. ' It appears that plaintiff entered into an agreement of sale dated 7-10-2003 with the defendant in respect of SD House bearing No.40 situated in Complex of Askari Apartments III, School Road, behind Kidney Centre/Hockey Club of Pakistan, Karachi Cantt. For a total sale consideration of Rs.70,00,000. In terms of the Agreement, the plaintiff paid a sum of Rs.10,00,000 in advance. It was further stipulated in the agreement that a further sum of Rs.10,00,000 would be paid by the plaintiff to the defendant on or before 15-12-2003 and balance amount of Rs.50,00,000 on or before 15-1- 2004. It appears that two instalments were paid in time. It is the case of the plaintiff that the defendant on the pretext that the original documents of the suit property are not traceable and refunded the amount of Rs.10,00,000 on 10-2-2004. It is stated that the balance amount of Rs.50,00,000 was originally payable on 15-1-2004. However, it was decided that balance amount would be payable by the end of April, 2004. It is the case of plaintiff that the defendant has turned dishonest on account of escalation in the price and cancelled the agreement unilaterally through letter dated 9-6-2004 received on 12-6-2004. When this matter came up on 26th July, 2004 the Court, while issuing the notice to the defendant, directed the parties to maintain status quo. It appears that pursuant to the order dated 13-1-2005, the plaintiff deposited the balance amount of Rs.60,00,000 with the Nazir of this Court through cheque dated 28-1-2005.
3. ' Mr. Nawaz Shaikh, learned counsel for the plaintiff submits that since the plaintiff has deposited the amount; therefore, is entitled for injunctive relief.
4. ' It is stated by the learned counsel for the defendant that originally the plaintiff did not adhere to the time as set out in the agreement and in fact he represented to be deeply in financial crises. The defendant refunded the second instalment to the plaintiff through cheque, such fact has been endorsed on the sale agreement. It is stated that on account of financial difficulties faced by the plaintiff further time was extended up to 'the end of April, 2004 but the defendant never came forward to fulfil the commitment. Consequently, through notice dated 9-6-2004 (Annexure "D" to the plaint) which is self-explanatory proof, the deal was cancelled. It is further stated that though the defendant was entitled to retain the amount of Rs.10,00,000 paid as advance as damages she expressed her desire to refund the same in good spirit. Mr. Abdus Samad, learned counsel for the defendant further contends that since there is delay and once the agreement was cancelled, nothing remains to be specifically enforced.
5. ' I have heard the arguments and perused the record.
6. ' It appears that the common Estate agent, Akbar Hameed Lodhi had filed obliging affidavit for both the parties which can hardly be relied upon as a credible as on one or the other score he has supported both the parties but fact remains that there is no dispute that the defendant never claimed that the original documents, power of attorney of the subject property are not traceable as claimed by the plaintiff. Explanation as offered by the defendant for the amount of Rs.10,00,000 received back by the plaintiff appears to be plausible for the reason that despite cancellation notice admittedly received by the plaintiff on 12-6-2004. Plaintiff remained quite till he filed suit on 24-7-2004 that is almost after one and a half month. Secondly, this Court on 13-1-2005 directed to deposit the balance amount within 15 days as requested by him, which amount was deposited through two pay orders dated 27th and 28th January, 2005. A party seeking specific performance of the contract has to act with promptitude, as delay may at time defeat discretionary injunctive relief. Admittedly, the plaintiff had received the cancellation notice dated 12-6-2004 yet they waited for over a month before approaching this Court and the instant suit was filed on 24-7-2004.
7. In case of the nature and more particularly in point in time where the property in Karachi City is experiencing phenomenal and unprecedented increase day in and day out. There is a great tendency of holding of the property by paying advance amount till such time the prices are escalated and onward commitments are made before the deal is finalized. Looking to such tendency and trend in such transaction regularly coming to the attention of the Court and on account of the failure of the plaintiff to approach Court with promptitude. On the contrary, plaintiff approached much after the cancellation of agreement. In my humble estimation, no case for the injunction is made out. In view of the foregoing, I do not find any merit in the listed application which is accordingly dismissed. Ad interim orders stand vacated. However, the defendant is directed to deposit the amount of Rs.10,00,000 with the Nazir of this Court within ten (10) days and the plaintiff shall be entitled to withdraw the same after due verification and identification. The plaintiff may also withdraw the amount deposited by him in this Court.