' This is an application under Order XXXIX, rules 1 and 2, C. P. C. Filed by the plaintiff in the suit which he has brought against the defendant for specific performance of an alleged agreement of sale of Bungalow No, 150-J-2, Khalid Bin Waleed Road is Pakistan Employees' Cooperative Housing Society, Karachi. The Plaintiff in support of his claim alongwith the plaint has produced receipt executed by the defendant on 22-5-1979, which reads as follows :- "Received a sum of Rs, 50,000 (Rupees fifty thousand) from Shaikh Muhammad Rafiq Akhtar resident of 21/13 First Central Lane Defence Housing Society, Karachi-by Cheque No, S/25 154128, dated 22-5-1979 on M. C. B. Ltd. Zaibunnisa Street, Saddar, Karachi S/Daft 4425 towards the Earnest Money of sale Bungalow No, 150-J-2 Khalid Bin Waleed Road, PECHS, Karachi-29 with construction thereon for a total sum of Rs, 10,50,000 (Ten lacs, fifty thousand). A sale agreement shall be signed by both the parties usual terms and conditions in sale of properties within a period of two months from today. In case of the purchasers refusing to purchase wilfully the said property the earnest money will be forfeited similarly the seller if wilfully refused is unable to transfer the said property the said earnest money will be refunded without any hesitation. The title is possessed and will be offered. The necessary certificates in respect of the property for transfer will be obtained by me but charges will be borne by the purchaser for registration. S. G. Sadiq."
2. The first contention of the defendant is that mere execution of the receipt has not eliminated into a binding contract to sell the property to the plaintiff but it is a mere agreement, to enter Into an agreement which in law is not enforceable. The learned counsel for the defendant has further argued that in any case the receipt itself provides alternate remedy that in case the seller wilfully refuses or is unable to transfer the said property the earnest money will be refunded without any hesitation and thus without prejudice to other defence open to him, the Plaintiff is only entitled to refund of the earnest money and which amount in fact was sent to him by cheque dated 22-7- 1979. The receipt has also been attacked by the defendant as the ground of fraud, misrepresentation and conspiracy. The further contentions is that the value of the property is much higher than that which is shown in the receipt and which fact according to learned counsel, supports his above submission that it is not equitable to enforce the alleged agreement. Lastly it was contended that the receipt does not contain all the material terms and conditions of the agreement.
3. For the purposes of deciding this application we have to ascertain that the plaintiff has a good prima facie case, secondly, whether the balance of convenience lies in favour of the grant of injunction and thirdly whether the plaintiff would suffer irreparable loss if injunction is refused as laid down in the case of Mohammad Umar Begum (1).
4. In support of the application and to establish prima facie case reliance has been placed upon the case of Parveen Begum v. Muhammad Sarwaz Khar (2) where Mr. Justice Inamullah Khan while construing the terms of receipt which appears to be similar in material respects to the receipt in present case, observed as follows :- "Under the Contract Act, a 'contract' means an agreement enforceable by law, 'without going into the niceties of the difference between the words 'agreement' and 'contract' the parties considering the tenor of the whole document may have used the word 'agreement' especially when it preceded the words 'of sale' to mean the contract."
' The learned Judge also cited with approval the following paragraphs 1155 and 1156 from Fry on Specific Performance :- "1155. The jurisdiction of the Court in injunction is often ancillary to that is specific performance, for the purpose of preventing the defendant making a use of some legal interest or right vested in him in a way inconsistent with the equity claimed by the plaintiff, or embarrassing the plaintiff by dealing with the property during the pendency of the action, or obstructing the performance of some act incidental to the execution of the contract. The court will in many cases interfere and preserve property in status quo during the pendency of a suit, in which the rights to it are to be decided, and that without expressing and often without having the means of forming, any opinion as to such rights'. (Per Lord Cottenham in Great Western Railway Co. V. Briminghan and Oxford Unnction Railway Co." 2 Pb.
602.
"1156. In the class of cases now to be considered the injunction is therefore granted, upon interlocutory application and until the trial, on the plaintiff showing a prima facie case for specific performance. It is not necessary that it should be clear that the plaintiff will (1) PLD 1979 SC 139 (2)
PLD 1956 Kar. 521 succeed at the trial ; it is sufficient if there is ground for supposing that relief may be given. For on this application the Court will not decided delicate points, nor allow it to be resisted on points, such as delay, which can only be decided at the trial."
5. The above principles laid down as far back as 1956, have consistently been followed by this Court and reference in this connection be made to the order passed in the case of Mst. Hajra Bai v. Mst.
Amtul Batul (Suit No, 17/78) by Mr. Justice Naimuddin wherein the learned Judge after discussing the case-law held that :- "At this stage this Court cannot give any finding on the question as to whether in fact any fraud was committed by the plaintiff in obtaining the receipt or whether the sale agreement was for Rs, 4,60,000 as asserted by the plaintiff in the plaint or Rs, 6,60,000 as contended by the learned counsel for the defendant. The defendant admits that there was a sale transaction. The only contention is that the transaction was not complete. This point is to be adjudicated upon at the trial of the suit and not at this stage. I accordingly grant injunction, as prayed for subject to the condition that the plaintiff shall deposit the balance of the alleged sale consideration, namely, Rs, 4,60,000 within one month and shall furnish security for the alleged balance of Rs, 2 lacs, to the satisfaction of the Nazir of this Court within one month."
' For the purpose of appreciation of the above observation the receipt under consideration in that suit is reproduced below : "Received Rs, 5,000 (Rupees five thousand only vide Cheque No, S B M 474745 dated 3-11-77 drawn on Habib Bank Ltd. From Mst. Hajra Baig Mohammad towards part payment of sale consideration of Rs, 4,60,000 for lacs sixty thousand only, of my property bearing Plot No, 713/1 adjacent to Fatmi Masjid, situated on Dr. Jackson Road, Off Jamshed Road, Fatma Jinnah Colony, Karochi, admeasuring 1000 (one thousand) square yards, for which a separate agreement of sale will be executed later on within a week hereof."
6. A similar point arose in Suit No, 109/78 (Mohammad Yousuf v. Mohsin Ali Khan) filed for specific performance of an alleged agreement of sale of an open plot in which a receipt of earnest money in respect of sale of an immovable property for agreed amount of consideration and providing for signing of a separate sale agreement came up for decision in interlocutory proceedings. An application for grant of injunction was filed restraining the defendant from selling or disposing of the property till the decision of the suit. The learned Judge (Mr. Justice Ajmal Mian) is this case also following the judgment given by Mr. Justice Inamullah Khan in the case of Parveen Begum observed :- "What is to be seen is, as to whether the parties have agreed upon the price. The aforesaid receipt annexed to the plaint of the instant suit indicates that a sum of Rs, 2,25.000 was agreed to between the parties as the price of the plot in suit. Since the above receipt prima facie indicates a sale agreement. I grant status quo order against the defendant subject to the conditions that the plaintiff shall deposit the balance of the sale price with the Nazir of this Court within two weeks.
7. In the light of the discussion above I am of the view that prima facie the plaintiff has established an agreement of sale, though I would clarify that the submissions made by the learned counsel would still be open for adjudication of the trial of the suit and the observations made above in interlocutory proceedings are tentative.
8. If the property is allowed to be bold away or alienated during the pendency of the suit the plaintiff would be seriously prejudiced and embarrassed. It is settled principle of law that unless and until contrary is proved the Court shall presume that the breach of a contract to transfer cannot adequately be relieved by compensation in money. Reference be made to section 12 of the Specific Relief Act and the case of Abdul Karim v. Mohammad Shafi (1 which also support the view that damages are not considered as adequate compensation in place of or in substitution of specific performance of such a contract. The balance of convenience thus also lies in grants of injunction.
9. I would therefore grant injunction restraining the defendant from selling damaging and/or mortgaging the property subject to the condition that the balance of the sale consideration is deposited by the Plaintiff with the C Nazir of this Court within two weeks, failing which the injunction granted shall stand vacated.
' In case the plaintiff deposits the amount in Court, it would be open to the defendant to apply for its withdrawal within one month on the security of the property which is subject-matter of suit or on any other security to the satisfaction of the Nazir. If no such application is made the Nazir shall deposit the amount in fixed deposit with M/s. Habib Bank Ltd., initially for one year. Injunction granted. {{FOOT NOTE}}
(1) 1973 SCM R 225