1. ' AMIR HANI MUSLIM, J.--- The present proceedings are offshoot of three cases having chequered history, which cases are pending adjudication before this Court. The defendants in these proceedings have filed suit No,1291 of 2007 in this Court against the plaintiffs for Declaration, Recovery of Money and Damages, inter alia, on the ground that the defendant has failed to comply with the terms of the Agreement for raising construction and the plaintiffs have not been paid money by the defendants according to the terms of agreement. In this regard, an Architect was appointed by the parties, who submitted the report according to which report, an amount of Rs,7,627,934 was found to have been paid excess by the defendant to the plaintiffs.
2. ' Subsequently, in the said suit an injunction application was filed by the plaintiff, on which ad- interim order was passed by this Court restraining the defendant (plaintiff in the said suit) from raising construction of any nature on the suit plot. This injunction application was heard on 2-9- 2008 in Suit No,1291 of 2007 and was dismissed on merits. It is further claimed that in the intervening period contempt application was also filed against the defendant, which contempt application is still pending. During the course of these proceedings, the defendant claims that the plaintiff used to extend threats to the defendant and, therefore, at one point of time the defendant under duress showed willingness and had signed a letter by which Mr. Usman Alvani, was appointed Arbitrator by the parties. It is further contended that before the Arbitrator could enter into reference he was intimated through a letter by the defendant that the proceedings of arbitration be deferred. It is claimed by defendant that the Arbitrator in spite of the said letter continued with the proceedings in which the defendant did not participate. The Arbitrator had given Award which Award was filed in Court unilaterally by the Arbitrator on its own and notices were ordered and now the proceedings are pending adjudication. This Award filed by the Arbitrator was numbered as Suit No,944 of 2008 to which the defendant has filed the objections.
3. ' On the other hand, the, injunction application in Suit No,1291 of 2007 filed by the plaintiffs was dismissed. In the said order it was observed that the plaintiff (Defendant in Suit No,1291 of 2007) had neither filed any counter claim nor suit for Arbitration, therefore, there was hardly any justification for providing them any interim relief. It is stated at bar that on account of the observations incorporated in the order passed in injunction application the present suit was filed by the plaintiffs, in which initially an injunction application was filed, which is numbered as CMA No,9484 of 2008 and during the pendency of the said injunction application, another application C.M.A. No, 10474 of 2008, under Order XXXIX, Rule 5, C.P.C., was filed on which an ad interim order has been obtained. On 5-11-2008 and now another application C.M.A. No,11060/2008, under Order XXXIX, Rules 1 and 2, C.P.C. Has been filed, which is listed today for orders with the prayer that defendant shall not be allowed to enter the premises, which is under construction. The third application even does not disclose that earlier the two other interlocutory applications are pending adjudication.
4. ' It is contended by learned counsel for the defendant that all the three applications, two of them are listed for orders today and the other two applications CMA No,10474 of 2008 and CMA No,9484 of 2008, which are not listed by the office today, are taken up for hearing with the consent of the learned counsel for the parties. It is contended by learned counsel for the plaintiffs that the injunction in the given case ought to have been granted as the Arbitrator has passed an Award, which has been filed in this Court and the defendant has only one property, and if he is allowed to sell it, it would defeat the claim of the plaintiff. It is further contended that if the defendant is allowed to enter in the suit plot, on which construction has been raised, it may also prejudice the interest of the plaintiff. The learned counsel for the defendant on the other hand submits that these are hardly grounds on which interim relief of the nature can be granted. According to him, the defendant is a financial institution and there is no likelihood of its winding up or otherwise.
5. ' I have heard the learned counsel and have perused the record. The first order dated 2-9-2008, passed in Suit No,1291 of 2007 by this Court dismissing the injunction application of the plaintiffs (defendants in said suit) and no appeal has been preferred against it, which order has attained finality.
6. ' The learned counsel for the plaintiffs fairly conceded that issues involves in Suit No,1291 of 2007 are common to the issues involved in the case in hand. Both the cases are between the same parties with the difference that Suit No,1291 of 2007 was filed by the defendant in Suit No,1448 of 2008 whereby Suit No,1448 of 2008 has been filed by the plaintiffs, who are defendant in Suit No,1291 of 2007. Secondly, the entire controversy between the parties rests on an Agreement, executed between the parties and it is pleaded that the defendant has paid excess amount to the plaintiffs, who were required to undertake construction in terms of the agreement. The plaintiffs' claim that the defendant in violation of the terms of the Agreement has not paid any excess amount for the additional construction and in fact they are liable to pay more than Rs,70 Lacs towards the additional construction. This is in fact a suit for specific performance of the contract. The party seeking relief of performance of contract cannot seek the performance of contract as a matter of right. It is the direction of the Court to grant a relief of the nature or in the alternate if the party is A able to quantify the damages by producing material in evidence it can get such claim. Injunction application of the nature, in no way, could be allowed in a suit for specific performance of the contract wherein the party steps into the shoes of the owner or as partner as has been asked in the present proceedings. The Architect has identified the construction raised by the plaintiffs in the report. Further restrain on construction through another injunction application in another case is impermissible once such application of the plaintiff has been dismissed by this Court in collateral proceedings. The scope of Order XXXVIII, Rule 5, C.P.C. Is also limited and party in 'the hope that it will get money decree in their favour cannot resort to invoke the provisions of Order XXXVIII, Rule 5, C.P.C. Unless it places on record the material in terms of the provisions of Order XXXVIII, Rule 5, C.P.C. There is no such material available on record which could warrant allowing the application of B attachment as prayed. The law requires that an order of attachment can only be passed once the Court is satisfied which satisfaction of the Court has to be objective and not subjective. I am clear in my mind that the applications referred to herein above, ex facie, for the afore-said reasons are misconceived and are accordingly dismissed.
7. 'The office shall fix the present suit with Suit No,1291 of 2007 and Suit No,944 of 2008 for hearing and disposal together.