MEHMOOD MAQBOOL BAJWA, J. --- Calls in question the legality and validity of order dated 23.7.2010 recorded by the learned Civil Judge 1st Class, Daska whereby though the application for temporary injunction made at the instance of the appellant in the suit for specific performance was allowed but with imposition of condition to deposit the remaining balance sale consideration.
The appellant has assailed the vires of imposition of condition regarding deposit of balance sale consideration.
2. The learned counsel for the appellant maintained that in view of the agreement to sell the appellant got prima facie case and irreparable loss as well as balance of inconvenience also lies in favour of the appellant and as such the learned Trial Court should hve granted application without imposition of condition, particularly, when present appellant is out of possession which was taken by the respondents as is evident from paragraph-4 of the written statement. In the attending circumstances, it was maintained that imposition condition is legally not sustainable and has prejudice the case of the appellant. Help was sought from the dictum laid down in M/s. Bhimra Textile Mills Vs. Jameel Ahmed and others (PLD 2009 Lahore 514).
3. The learned counsel for the respondents while defending the order impugned argued that since huge amount is involved, therefore, the learned Trial Court rightly directed the appellant to deposit balance sale consideration in order to test bona fide of the appellant and the omission to deposit the same clearly suggests male fide on the part of the appellant, sufficient to non-suit the appellant in the present appeal. Further maintained that in view of attending circumstances no exception can be taken to the order impugned imposition condition to deposit balance sale consideration.
4. Perusal of order impugned suggests that the learned Trial Court formulated opinion regarding existence of prima facie case, irreparable loss and balance of inconvenience in favour of the present appellant. No doubt, while allowing the petition for temporary injunction, condition can be imposed in order to assess the bona fides of the -party, but nevertheless such condition can be imposed while taking into consideration the attending circumstances as held in M/s. Bhimra Textile Mills Vs. Jameel Ahmed and others (PLD 2009 Lahore 514). Conduct of the plaintiff, his readiness to perform his part of contract, mode and extent of payment of earnest money, factum of possession of plaintiff or adversary, amount of sale consideration are few circumstances to be kept in view while deciding the question of imposition of condition.
5. Admittedly, the learned Trial Court imposed the condition in routine without discussing the circumstances prevailing upon to impose condition. In view of the matter, while accepting the appeal and setting aside the order impugned, matter is ,remanded to the learned Trial Court to decide the application for temporary injunction afresh keeping in view the facts and circumstances of the case in order to impose condition. .