' MUHAMMAD JEHANGIR ARSHAD, J.---The petitioner filed a suit on 15-5-2004 against the petitioner for specific performance of agreement to sell dated 31-12-2003 in respect of land measurint, 4- kanal situated in Mouza Darvish Muhammad Tehsil and District Bahawalpur. It has been averred in the plaint that the transaction took place between the parties for a sum of Rs.2,00,000, out of which the petitioner/plaintiff paid Rs.55,000 as earnest money on 31-12-2003 at the time of execution of the said agreement, whereas the remaining agreed price of Rs.1,45,000. Had to be paid on 15-5- 2004 when the sale-deed had to be executed. It is further alleged in the plaint that thereafter, the petitioner approached the respondent along with balance amount of Rs.1,45,000 with the request of complete the sale-deed but respondent/defendant not only refused to honour the agreement but also forcibly snatched from him the original agreement of sale. The suit was contested by the respondent/defendant who in his written statement vehemently denied the execution of any said agreement as well as receipt of advance sale price of Rs.55,000 and termed the said agreement as forged, fictitious and non-existent. The petitioner/plaintiff along with the said plaint, also moved an application under Order XXXIX, Rules 1 and 2 C.P.C. Seeking temporary injunction pending decision of the suit, restraining the respondent/defendant from interfering into petitioner's possession or alienating the same to any body else. The learned trial Court vide order dated 20-10- 2004 allowed the said application of the petitioner/plaintiff with the following terms:-- ...In these circumstances, defendant is directed not to disturb the possession and position of the suit property but plaintiff party is advised to deposit the remaining amount of the contract in the Court within 15-days and in case of non-deposit of remaining amount i.e. 1,45,000 instant application for temporary injunction shall stand dismissed feeling aggrieved of the above condition imposed by the learned trial Court, the petitioner filed an appeal but the same was dismissed by a learned Addl. District Judge, Bahawalpur vide impugned order dated 18-2-2005.
Hence, this Civil Revision.
2. Learned counsel for the petitioner has vehemently argued that the condition imposed by the learned trial Court and confirmed by the learned Appellate Court is not only too harsh but also violative of law declared by the Hon'ble Supreme Court of Pakistan in case "M/s. Bin Bak Industries (Pvt.) Ltd. And another v. Friends Associates (Regd) and others (2003 SCMR 238) and "Friends Associates (Regd) through Managing Partner, Lahore and 3 others v. Messrs Binn Bak Industries (Pvt.) Limited through Chief Executive, Faisalabad and 9 others" (PLD 2003 Lah. 17).
3. Since this Civil Revision had arisen out of an interim order passed during pendency of a suit, therefore, instead of keeping this matter pending after formally admitting it, I directed issuance of preadmission notice. Pursuant thereto, Mr. Nadim Iqbal Chaudhry, Advocate has appeared on behalf of the respondent and argued the case.
4. The learned counsel for the respondent while placing reliance on the case of "Khizar Hayat Khan v. Mussarat Rabbani" (PLD 1995 Lah. 438); "Muhammad Banaras Khakan v. Miss Rubina Chaudhary and others (1997 CLC 997) and "Muhammad Yousuf v. Messrs Urooj (Private) Ltd., through Managing Director and another" (PLD 2003 Kar. 16), argued that the two Courts below have committed no illegality or irregularity while passing the impugned order.
5. Arguments heard. Record perused.
6. The judgments cited by the learned counsel for the petitioner, no where lay down as a rule of thumb that in suit for specific performance of agreement to sell, the Court has got no jurisdiction to impose any condition while granting temporary injunction, as prayed for. The Hon'ble Supreme Court of Pakistan, in the reported case "M/s. Bin Bak Industries (Pvt.) Ltd. And another v. Friend Associates (Regd.) and others" (2003 SCMR 238) merely agreed with the following opinion of this Court given in the case of "Friends Associates (Regd) through Managing Partner, Lahore and 3 others v. Messrs Binn Bak Industries (Pvt.) Limited through Chief Executive, Faisalabad and 9 others"
(PLD 2003 Lahore 17) and finding no fault in the same dismissed the appeal:-- "Attending to last plea first, it may be held that it is not a rule of law that essentially in all the cases, of specific performance while granting temporary injunction to the plaintiff, the Court should impose condition of deposit of balance consideration. It depends upon the facts and circumstances of the case enabling the Court to exercise its discretionary equitable relief. In the instant case, the agreement dated 1-10-1995 between the parties is not a simple agreement in nature of sale purchase of immovable property, rather it is for the development of the suit property, enabling the appellants to develop the land and sell plots to third parties and to pay amounts to the respondents from the sale proceeds of such sales, though within a specified period as stipulated in the agreement. But as the respondents prima facie are found at fault in not handing over the entire suit property to the appellants for the purpose of such development, therefore, the imposition of condition for the deposit of the balance consideration in the facts and circumstances of the case, would be harsh and runs against the settled Rules for the exercise of discretion."
' Hence, in the light of the observations of the case in "Friends Associates (Regd.) through Managing Partner, Lahore and 3 others v. Messrs Binn Bak Industries (Pvt.) Limited through Chief Executive, Faisalabad and 9 others" (PLD 2003 Lahore 17) and maintained by the Hon'ble Supreme Court in the case "M/s. Bin Bak Industries (Pvt.) Ltd., and another v. Friends Associates (Regd.) and others" (2003 SCMR 238), it cannot be said that the Court is precluded with any power/jurisdiction to impose condition rather, what is gathered from the observations of the Hon'ble Supreme Court in the cited judgment, is that the Court while imposing condition has to see the facts and circumstances of each case separately. Similar view was taken by this Court in the case "Khizar Hayat Khan v.
Mussarat Rabbani" (PLD 1995 Lahore 438). Admittedly for the present the alleged agreement to sell is not available with the petitioners, for which he has given an excuse that the same was snatched from him by the respondent. This being a question of fact is yet to be determined after recording of evidence, that's too by way of secondary evidence. Moreover, when the petitioner says that he was ready and willing to enforce the contract after payment of the alleged balance amount, the presumption is that he is having money in his pocket and sitting outside the Court awaiting direction of the Court. Again it is beyond one's prudence that land valuing Rs.2,00,000 (as is alleged in the plaint) he is allegedly enjoying the possession just by payment of 1/4th of the price, especially when the execution of the alleged agreement of sale is not only denied by the respondent but also he has termed the same as forged and fictitious. In these circumstances, the petitioner, even by way of precaution in order to show his bona fides, should have frankly offered for the deposit of the balance amount as ordered by the trial Court. His resistance with the said order prima facie is neither reasonable nor based on norms of justice.
7. For what has been discussed above, I am constrained to hold that no illegality or irregularity has been committed by the two Courts below while passing the impugned order with the above said condition. The relief for specific performance being equitable one and Court can refuse such a relief even accepting the execution of agreement to sell, hence, to say that by attaching condition the learned trial Court has wrongly exercised his jurisdiction, is not correct. This petition therefore, has no force and is dismissed. However, to dispel the apprehension of the petitioner that impugned order for deposit of entire balance amount is harsh and also to strike balance the impugned order to the extent of direction to deposit the entire balance amount of Rs.1,45,000 is reduced to deposit Rs.1,00,000 and in case if the petitioner deposits the said amount in the trial Court till 31-5-2005, the application filed by him seeking temporary injunction shall be deemed to be accepted, otherwise, the same shall stand dismissed.