' MUHAMMAD FARRUKH IRFAN KHAN, J.--- Through the filing of the present revision petition, the petitioners have called in question order dated 3-10-2006, whereby the learned trial Court while allowing the application for the grant of temporary injunction, filed by the petitioners, has conditionally confirmed the injunctive order with the direction to the petitioners/plaintiffs to deposit the remaining sale price in the Court within one month, failing which the suit will be dismissed.
Feeling dissatisfied with the aforesaid conditional order, the petitioners filed an appeal before the learned appellate Court but the same was dismissed by the learned Additional District Judge, vide order, dated 21-12-2010, hence this revision petition.
2. Briefly stated the facts of the case are that the petitioners/ plaintiffs filed a suit for specific performance of an agreement to sell dated 28-6-2004 in respect of suit-land along with an application for temporary injunction, seeking issuance of a direction to the respondents to restrain from interfering into the suit land. The respondents/ defendants contested the said application for temporary injunction raising certain preliminary objections. Learned trial Court accepted the application for temporary injunction with the condition that the plaintiffs/petitioners will deposit remaining sale price in the Court, however in case of non-deposit of remaining sale price within a period of one month, suit shall stand dismissed.
3. Learned counsel for the petitioners submits that the impugned order dated 3-10-2006 and judgment dated 21-12-2010 passed by both the learned Courts below are illegal and against the facts of the case; that the learned trial court has committed material Irregularity and illegality while issuing conditional interim relief; that such condition can be imposed only in case the respondents/defendants had admitted the said agreement and ready to get the amount; that the petitioners/plaintiffs have prima facie an arguable case in their favour; that both impugned order and judgment suffer from misreading and non-reading of evidence on record. Relies upon case- law reported as "1992 MLD 1699 (Lahore]".
4. Learned counsel for the respondents has opposed this revision petition stating that the learned trial Court was competent to impose such condition. Relies on "PLD 1990 Lahore 82".
5. I have heard both the learned counsel for the parties and perused the record with their assistance.
6. Both the learned Courts below hive observed that admittedly the petitioners/plaintiffs filed suit for specific performance of an agreement to sell on the basis of a duly registered document. The learned trial Court has rightly granted a stay order, however to the extent that it directed that in case of failure of the petitioners to deposit remaining sale price, the suit of the appellants would stand dismissed, is beyond its jurisdiction while deciding an application under Order XXXIX Rules 1 and 2, C.P.C. The direction to deposit the remaining sale price as a condition to the grant of temporary injunction may be justifiable but the learned trial Court could certainly not direct that in the event of non-compliance of that requirement, the suit shall stand dismissed.
7. The business before the learned trial Court on the date of passing of impugned order dated 3-10- 2006 was to consider passing judgment on application under Order XXXIX Rules 1 and 2, C.P.C. And the main suit was not fixed for the said date as such the Court could not take up the question of dismissal of the suit. If the learned Courts below are allowed to proceed to pass orders without or in excess of jurisdiction taking the parties by surprise, this would play havoc with the scheme of the C.P.C., which should be strongly deterred. Guidance can also be taken from the case-law reported as "1993 SCMR 1949 [Supreme Court of Pakistan] titled Qazi Muhammad Tariq v. Hasin Johan and 3 otheRs," The relevant paragraph at page 1951 reads as under:- "A perusal of the record indicates that the suit of the appellant was dismissed on a day which was not fixed for its hearing; it was a day appointed for hearing arguments on the application for temporary injunction filed by the appellant. In the absence of the appellant all that the learned trial Judge could do was to dismiss the application for temporary injunction. It could not proceed beyond that and dismiss the suit as well. Quite clearly its order in this regard was without jurisdiction and void."
8. The petitioners have filed the suit averring that there was an agreement to sell between the parties, which may be specifically enforced while the respondents have denied the existence of any such agreement, therefore, learned trial Court could only decide the suit after framing of issues and recording of evidence.
9. As to the contention of the learned counsel for the petitioners that even the grant of interim injunction with the condition of the deposit of the balance sale amount in the Court is travelling beyond the requirements of Order XXXIX, Rules 1 and 2, C.P.C. Is not tenable. The learned trial Court may grant interim injunction under Order XXXIX, Rules 1 and 2, C.P.C. As it thinks fit, which may include imposition of any condition keeping in view the following criteria:---
(i) Presence of prima facie arguable case.
(ii) Factor of irreparable loss.
(iii) Balance of inconvenience.
' As it is the case of the petitioners that they are in possession of an agreement to sell in respect of the suit-land and wish that the respondents meet their obligation to mutate the suit-land in their favour, while considering the aforesaid factors Nos.i to iii to be in favour of the petitioners and issuing interim injunction, the learned trial Court considered it prudent to direct the petitioners to deposit the balance sale consideration to show their bona fide.
9. In this view of the matter the revision petition in hand is allowed and the impugned judgment dated 21-12-2010 is set aside and the impugned order dated 3-10-2006 passed by the learned trial Court is modified to the extent that if the remaining sale price is not deposited in the Court within a period of one month from the receipt of certified copy of this order, the order for grant of interim injunction would stand recalled.