MUHAMMAD AMEER BHATTI, J. --- This appeal is directed against the order dated 27.01.2011 passed by the learned Trial Court whereby the application under Order XXXIX, Rules 1 & 2, CPC filed by the appellant was dismissed.
2. The brief facts of the case are that the appellant filed a suit for possession through specific performance alongwith the application under Order XXXIX, Rules 1 & 2, CPC for grant of interim relief to the extent that the respondents should not alienate the land in dispute to the extent of 75- Marlas, which has been alleged to be sold to the appellant through the agreement to sell dated 23.02.2010 purportedly executed by respondent No. 1 for consideration of Rs. 45,00,000/- out of which Rs. 40,00,000/-was paid at the time of execution of the agreement to sell and remaining amount had to be paid on 10.03.2010 at the time of handing over the possession of the land in question. It was also averred in the plaint that the respondents No. 3 to 7 were the original owners of the land measuring 30-Kanals, 01-Marla which was purchased through a registered agreement to sell by respondent No. 1 alongwith two others namely Muhammad Asif and Zulfiqar A.I for a consideration of Rs. 2,72,00,000/-. This registered agreement to sell had not been denied by any of the respondents. It is observed that possession was not handed over to the said vendees, however, the same was to be handed over to the said vendees (of registered sale-deed) at the time of making the instalment of Rs. 58,00,000/- on 10.03.2010. As averred in the plaint, the appellant on the basis of this registered agreement to sell, entered into an agreement to sell with one of the vendees namely Sabir A.I respondent No. 1 for a land measuring 75-Marlas for a consideration of Rs. 45,00,000/-out of which Rs. 40,00,000/- has been paid as an earnest money at the time of execution of this agreement to sell and the balance amount had to be paid on 25.07.2010, at the time of execution of the sale-deed. The possession of the land in dispute was to be delivered on 10.03.2010 after reclaiming/recovering it from the original vendors/owners of the land. The application alongwith the suit had been contested by the respondents/defendants by way of filing their independent written statement and written reply of the application under Order 39, Rules 1 & 2 CPC, wherein they controverted the facts of the case and the learned Trial Court vide order impugned dated 27.01.2011 dismissed the application on the ground that the protection under Section 52 of Transfer of Property Act is available to the plaintiff, as he will not suffer any irreparable loss. Further held that no prima facie good arguable case was made out from the production of documents, as such, the application has no merits and dismissed and since then, this matter is pending without making any headway in the trial before the learned Trial Court.
3. I have heard the arguments of the learned counsel for the parties and have gone through the record of the case.
4. It is admitted by the defendant No. 1/ respondent No. 1 that he purchased the stamp paper but not for the purpose of this agreement to sell but for execution of some rety in favour of appellant in lieu of some disputed checques and appellant with the collusion of Advocate prepared this agreement to sell. Although in written statement he denied not only the execution of this purported agreement to sell but also denied the relationship with the appellant.
5. Another aspect of the case is that the original agreement to sell is admitted by the parties and none has claimed that the said agreement to sell has been cancelled due to non-payment of the instalments. It is noticed that in the written statement filed by the respondent No. 1/defendant No. 1 on 06.10.2010, wherein he claimed himself to be the owner of the colony of AI-Rehman and same respondent No. 1 has been admitted as owner in possession (alongwith two others) by the respondent Nos. 3 to 7 (original owners/vendors) in their written statement. From bare reading of their written statement, the argument of the respondents No. 3 to 7/defendants stands falsified (non-payment of instalment and consequent cancellation of agreement between respondent No. 1 and respondents No. 3 to 7) and I feel that the appellant has a good prima facie case and balance of convenience also tilts in his favour. If the respondents are not restrained from alienating of the land to the extent of 75-Marlas out of the total share of the respondent No. 1/defendant No. 1, the appellant is bound to suffer an irreparable loss in such eventuality,
6. Following meticulous analysis of the record, three cardinal ingredients i.e. (i) prima facie case;
(ii) balance of convenience; (iii) irreparable loss/injury do exist for granting the injunctive relief in favour of the appellant, thus warranting that 75-Marlas of land be put aside/reserved till the decision of the case. Such perceptive interim arrangement will, of course, be mutually beneficial inasmuch as it will not only save the appellant from irreparable damage but also prevent the possibility of any prospective complication for the litigating parties.
7. The averments of the plaint reveal that the claim of the appellant is based on an agreement to sell wherein no specific number of plots has been given, only 75- Marlas were agreed to be sold to the appellant by the respondent No. 1 out of his share from his total. As such, the restraint order could not be passed in favour of the appellant about the specific numbers of plots.
8. In this view of the matter, the appeal is allowed and the respondents are restrained to sell the land to the extent of 75-Marlas within Al-Rehman colony out of the share of the respondent No 1 till the final adjudication is made in the learned Civil Court subject to payment of balance amount Rs.
5,00,000/- in the learned Trial Court within 15 days from this order. In default, injunction shall not operate. However, during the period of 15 days allowed for deposit of the balance amount, defendants shall not alienate the land. It may be observed that balance amount if deposited shall be invested in same profit bearing approved scheme of the Government.
9. The learned Trial Court is directed to decide the suit after recording the evidence of the parties within a period of eight months from the order of this Court. The appellant is directed to lead his complete evidence on or before 30.07.2012, and thereafter, the respondents shall complete their evidence as early as possible so that the case could be decided within period stipulated by this Court in the earlier para of this order.
F.A.O. Allowed.