' This suit has been filed by the plaintiff for specific performance of agreement of sale in respect of the property bearing No, 1504-2, Khalid Bin Waleed Road, P. E. C. H. S., Karachi. Alongwith the suit the Plaintiff has also filed an application for injunction against defendant No. 1 under Order XXXIX, rule 1 and C. P. C.
2. Today I also heard another application for injunction in Suit No, 651 for specific performance in respect same property filed by Shaikh Muhammad Rafiq Akhtar, who has subsequently been joined as defendant No, 2 in this suit. The latter based his claim on an alleged earlier agreement of sale (a receipt) dated 22-5-1979. It may also be mentioned here that Mr. Faizuddin the learned Advocate for the plaintiffs in the present suit acted as an Advocate for the defendant No. 1, when he gave notice dated 4th August, 1979 to Messrs Muzaffar and Co. Advocates for Mr. Shaikh Muhammad Rafiq Akhtar which shows that the present plaintiffs had notice of the prior agreement of sale dated 22nd May, 1979, referred to above, when they entered into the subsequent alleged agreement on .25-7-1979 With the defendant No. 1. By a separate Order I have granted conditional order of injunction in the said Suit No, 651 of 1980.
3. Now I proceed to decide the present application. As would be noted from above observation that the above-mentioned property was allegedly agreed to be sold to one Shaikh Muhammad Rafiq Akhtar on 22nd May, 1979, and subsequently the same property is allegedly agreed to be sold to the present plaintiffs on 25th July, 1979 for a lump consideration of Rs, 11,50,000 out of which Rs, 1,00,000 were received from the present plaintiffs and the balance sale consideration was agreed to be payable to the seller at the time of registration of a conveyance deed before the registering officer, "subject to the condition" that the sale agreement will be made in two weeks' time. On 29th July, 1979 an agreement of sale of the said property was drawn between the parties but it was not signed by the plaintiff No,
2. The defendant No. 1 seller has not denied the execution of the receipt and receipt of the advance consideration but his contention is that making of the agreement of sale within the stipulated period in the receipt was a condition precedent and that as the said agreement was not signed by the Plaintiff No, 2, the said condition precedent was not fulfilled and no valid agreement was thus made between the parties. The contention of the learned counsel for the defendant on this ground is that the agreement suffers from want of mutuality between the parties as in case of breach of the terms of the agreement dated 29th July, 1979 he would not be in a position to sue or specifically enforce the terms and conditions of this alleged agreement against Nadim Rehmat who had not signed or had refused to sign the said agreement. It is also not pleaded by the Plaintiff that Anjum Rehmat the Plaintiff No. 1 had any authority to execute the agreement on behalf of the Plaintiff No,
2. The learned counsel for the defendant has also attacked the receipt as well as the agreement on the ground of fraud, misrepresentation, and conspiracy. He has laid great emphasis on the submission that the property is worth much more than the sale consideration shown in these alleged documents and according to the learned counsel this lends support to his above contentions and therefore according to him the agreement is not enforcible in law or equity.
4. In my view at this stage it is not possible to go into the niceties of questions as to whether the receipt and the agreement of sale are vitiated and are not enforcible for the alleged reasons advanced by the learned counsel. Prima facie apart from the agreement of sale dated 29th July, 1979 the defendant No. 1 had also executed a receipt dated 25th July, 1979, which in my humble opinion sufficient spells out the terms and conditions of the agreement of the sale. The addition of the words "subject to the condition that the sale agreement will be in a weeks time" or the fact that the agreement executed on 29th July, 1979 in the absence of the signatures of Mr. Nadim Rehmat the plaintiff No, 2, in my opinion would not be material for the decision of this application. These questions involve decision on issues in the suit itself and can be determined at the time of the final hearing of the suit after recording evidence.
5. Prima facie therefore the plaintiffs have been able to show that they have an agreement of sale.
In their favour and reliance may be placed on the case of Perveen Begum (1) and other cases referred in Suit No, 651 of 1980 decided by me today in respect of the same property.
6. Moreover, it is settled law that the breach of a contract to transfer immovable property cannot be relieved by compensation in money. If any authority is needed reference may be made to sections 12, 19 and 20 of Specific Relief Act and also the observations of the Hon'ble Supreme Court of Pakistan in the case of Abdul Karim v. Muhammad Shafi (2). The balance of convenience also lies in keeping the property available if the suit is decreed in favour of the plaintiffs.
7. I accordingly grant injunction restraining the defendant No. 1 from selling, damaging or mortgaging the property subject to the condition that the plaintiff shall deposit the balance of the sale consideration within two weeks from the date of this order. In case the amount is not so deposited the injunction granted shall stand vacated,
8. It is further ordered that the amount if deposited as above, the same would be deposited by the Nazir in the fixed deposit with Messrs Habib Bank Ltd. For one year initially. {{FOOT NOTE}}
(1) PLD 1956 Kar. 521 (2) 1973 SCMR 229 {{FOOT NOTE}}