' UMAR ATA BANDIAL, J.---The appellant/vendee filed a suit for specific performance of an agreement for sale of land ("land") at a price of Rs,13.26 million out of which the appellant had paid earnest money in the amount of Rs,6 million. The learned trial Court vide impugned order dated 10- 10-2006 directed the deposit of the balance sale price as condition for grant of stay against further alienation of the suit property. Aggrieved by the terms of the said order, the appellant complains that the respondents stand unduly benefited. They shall continue to derive advantage from the usufruct of the land and shall also have the use of full price for the land fixed in the agreement to sell. On the other hand, as a condition of stay the appellant is out of pocket for the entire sale price of the land and also without its possession. He has relied on the view expressed in Ibrar Ahmad and another v. Munawar Ahmad 1998 MLD 601, that in case of dilatory steps by the vendor both the vendor and the vendee may as a condition for grant of stay be called to deposit in Court the respective portions of the sale price of property' retained by each Alternatively, he relied upon the principle in Khizar Hayat Kahn v. Mussarat Rabbani PLD 1995 Lah. 438 that holds the condition of pre-deposit of the balance sale price not to be an inflexible rule for granting a temporary injunction. The imposition of the condition depends on the facts of each case, in particular, whether a vendee had derived any benefit under the agreement to sell or not.
2. On the other hand learned counsel for the respondents has relied on Fateh Muhammad v.
Muhammad Hanif and others PLD 1990 Lah. 82, Sh. Muhammad Taqi v. Muhammad Anwar Khan Ghouri 1983 CLC 1085 and Ibrar Ahmad Khan Tareen v. Munawar Saeed 1994 SCMR 1764 to submit firstly, hat condition of pre-deposit is necessary and secondly, as laid down by the Hon'ble Supreme Court that the recall of such a condition is a matter of discretion to be exercised by the learned trial Court.
3. In the present case, there is also an allegation that the respondents have applied dilatory tactics in the suit in order to aggravate the injury of the appellant/plaintiff who is out of possession and has not derived any benefit under the agreement to sell.
4. The contentions raised and case law relied by the learned counsel for the respondent were considered in Hayat Kahn v. Mussarat Rabbani PLD 1995 Lah. 438 whereon the following opinion was expressed:- "In my humble opinion, no such general rule can be laid down. On the other hand, the question as to whether or not condition of any nature should be imposed while issuing temporary injunction would depend upon facts of each case. If prima facie it is shown that the plaintiff/petitioner has always been ready and willing to perform his part of the contract and also that he has not derived any benefit under the agreement, there would be hardly any justification for directing that he should deposit the balance amount of consideration especially when possession of the property is with the opposite side. If, however, conduct of the petitioner/plaintiff is not free from doubt or he has been deriving some benefits under the agreement, the Court will be justified in calling upon him to deposit balance amount of consideration as a condition."
5. #TS#An important purpose of granting interim relief is to safeguard the interests of the parties to a triable cause so that, inter alia, their lis is preserved pending adjudication. It is neither meant to confer undue advantage on a party to a lis nor to impose an undue burden on him but to find the balance of convenience between the parties in order to satisfy the purpose of interim relief. It is in that context that the conduct of a party under an agreement to sell and the benefit, if any, derived by him under that agreement may become relevant considerations for determining the conditions for grant of interim relief. The present case involves grievance about the conduct of respondent- vendors and imbalance in greater benefit accruing to them under the condition for grant of interim relief. These are aspects that do merit notice in fixing the terms of interim relief, if any.
6. It is understood that settling the terms for grant of interim relief is a discretionary matter to be determined by the learned trial Court. In the present case, for determining the conditions for grant of stay, the learned trial Court did not notice the conduct of the parties and of undue advantage, if any, that may be conferred on either of them as element of the balance of convenience. The appropriate course in the circumstances would, therefore, be to allow the learned trial Court to apply its mind afresh to the relevant criteria for settling the terms of an interim order, if any, in the present case. Such an approach is consistent with the view expressed by the Hon'ble Supreme Court in Ibrar Ahmed Khan-Tareen v. Munawar Saeed 1994 SCMR 1764 as follows:-- "5. We do not propose going into the merits of the question of competency of appeal, the refusal to condone the delay and the bona fide of the petitioner because the matter relates to an interim regulatory order valid only for the purposes of and during the pendency of the litigation. The parties affected by it are at all times entitled on cause being shown to get appropriate amendment in it.
The grievance of the petitioner is that while such a restraint was being imposed on him in the matter of alienation of the property the plaintiff/respondent should have been called upon to deposit or guaranteed the balance amount due as price of the land. We do not think that there is any absolute restraint on the petitioner in making such a request to the Court as this aspect of the matter has not been considered by it in the interim order that has been passed. If there is inordinate delay in disposing of the suit itself then also such a request can be made with a view to seek suitable alteration in the interim order."
7. From the foregoing observations it is clear that a change of circumstance or a new factor are matters that may be taken note of by the learned trial Court that passed the interim injunction. In the present' case, the criteria of whether the appellant vendee is ready and willing to perform his obligation under the agreement, has derived any benefit thereunder and whether the respondent vendor has prolonged the litigation to deter the vendee are aspects that may be considered by the learned trial Court. The matter is, accordingly, sent to the learned trial Court to reconsider the terms, if any, upon which an interim injunction ought to be granted to the appellant vendee. In this behalf learned trial Court shall invite the parties to state their respective stands and entitlement as to terms of interim relief by filing fresh application and reply thereto which shall be determined without prejudice to or delay in the proceedings in the main suit.
8. Appeal allowed.