' IJAZ-UL-AHSAN, J.--- The appellant assails the order dated 12-9-2009 passed by a learned Civil Judge at Gujranwala, in a suit for Specific performance.
2. It is averred in the suit that the parties had entered into an agreement for sale of immovable property. The agreed price was a sum of Rs.4.5 million. It was alleged by the respondent that he had paid earnest money in the sum of Rs.15,25,000 which fact is not denied by the appellant. It is also not denied that the respondent is in possession of the suit property although the position taken by the appellant is that such possession was not given pursuant to the agreement to sell.
According to the petitioner respondent was in possession in his capacity as a tenant. The respondent also alleged that he has paid an additional sum of Rs.2.4 million subsequently, the petitioner denies receipt of any additional amount.
3. The learned counsel for the appellant submits that the respondent had failed to pay the balance amount despite having received legal notices and that time was of the essence of the agreement.
He argues that in these circumstances the learned lower Court was not justified in issuing an interim injunction.
3A. I have heard the learned counsel for the appellant and gone through the documents attached with this appeal. I find that the question whether or not time was of the essence needs deeper probe which can only be undertaken after recording of the evidence. Keeping in view the fact that the agreement to sell is admitted by both sides and receipt of earnest money in the sum of Rs.15,25,000 is also not denied by the appellant, a prima facie case in favour of the respondent has been made out. In case the appellant is not restrained from alienating the suit property during pendency of the suit for specific performance, the respondent would suffer irreparable loss and the possibility of multiplicity of proceedings cannot be ruled out. The respondent being in possession, the balance of convenience also leans in favour of the respondent.
4. In view of the above, I do not find any illegality in the order passed by the learned Civil Judge, Gujranwala. The appeal is accordingly dismissed in limine. It is, however, clarified that the observations made in this order are only of a tentative nature and shall not affect the merits of the case.