' Muhammad Khalid Idrees, the appellant has filed this petition to impugn the validity and correctness of the order dated 28.11.2014 passed by learned Civil Judge, Lahore, whereby he was ordered to deposit the remaining sale consideration in the Court within one month.
2. Shortly put, the facts are that the appellant instituted a suit for possession through specific performance, averring therein that Amanat Ali, Respondent No, 1, herein entered into an agreement to sell with him in respect of Plot No, 1070, Block X, Phase VII, measuring 1 kanal, situated at Defence Housing Authority, Lahore Cantt for a consideration of Rs, 64, 75,000/-, out of which Rs, 5,00,000/- was allegedly paid by him as earnest money. It was further maintained by him in the plaint that the defendant/Respondent No, 1 was not willing to execute a sale deed in his favor nor did he obtain the requisite NOC from DHA, Lahore, obliging him to institute the suit.
3. Along with the plaint, the appellant filed an application under Order XXXIX, Rules 1 & 2, CPC for the grant of interim relief. He had sought an injunctive order to restrain the alleged vendor/defendant from making further alienation(s) of the suit plot.
4. The learned trial Court seized with the suit allowed the application moved by the appellant vide order dated 28.11.2014 in the following terms:-- ' As admittedly from the perusal of contents of plaint and written statement agreement to sell was executed by Defendant No, 1 in favour of plaintiff and earnest money of about Rs, 5,00,000/- allegedly had been paid. It is version of plaintiff that he was ready to pay the remaining consideration but due to non-cooperation of the defendant registered deed could not be executed. So in order to avoid any further complication application for temporary injunction is accepted with the direction to deposit the remaining consideration in the Court within one month.
Interim injunction already granted is confirmed till the final decision of the suit.'
5. The appellant has taken exception to that part of the aforesaid order by which he was required to deposit the balance consideration of sale into the Court within one month. In support of the appeal, learned counsel for the appellant contents that there was no warrant to impose a condition upon the appellant/plaintiff to make a deposit of the balance sale consideration, especially when he was not put into position. He has made the grievance that plot in question could not be transferred in the name of the appellant because of the inaction and sluggishness of the defendant, who could not manage an NOC from the Defence Housing Authority's defendant/Respondent No,
2. It has also been maintained by him that the plot in question is' subject to some sort of lien. All these reasons were, are sufficient for not imposing the condition upon the appellant to deposit the balance sale consideration of Rs, 59,75,000/-. To fortify his submissions, he has placed reliance upon the judgments reported as 'M/s. Bashir Textile Mills versus Jameel Ahmed and others' (PLD 2009 Lahore 514) and 'Muhammad Sharif and others versus Nabi Bakhsh and others' (2012 SCMR 900).
6. I have heard the learned counsel for the appellant at considerable length. I am unable, to agree to the contentions raised by the learned counsel for the appellant.
7. In a suit for specific performance, the relief is always considered discretionary. More often than not, in plaints instituted in suits for specific performance, it is stated that the plaintiff has all along been ready to perform his part of the agreement. In other words, the plaintiff seeks to create the impression that he can not be faulted for not carrying out his part of bargain and that he was prevented from doing so by the vendor due to his mala fide intent or for some other reasons disclosed in the plaint. Such an assertion on his part leads to the inevitable conclusion that he has had sufficient resources to meet his obligations. In case he tends to drag his feet and fails to comply with a condition imposed by the Court at the time of granting injunction, it exposes the bona fides of his claim. That is why, over the years, in a suit for specific performance, the Courts have started requiring the plaintiff to make a deposit of the remaining sale consideration to test his bona fides. Furthermore, if the rights of the defendant are to be protected and the balance struck, such a condition cannot be regarded as punitive or harsh or unreasonable, particularly when the defendant is to be restrained from alienating the suit property.
8. In the case of 'Muhammad Nazir versus Yaqoob Khan and others' (1994 CLC 12), it was held by this Court that:- ' .. In a suit for specific performance of an agreement to sell immovable property, equitable relief of temporary injunction must be subjected to deposit of outstanding sale consideration for adequately safeguarding the interests of the owner of the property and also to judge the earnestness of the would-be vendee of his claim in the suit. This view was reiterated in Waqar Avais v. Raja Muhammad Shafi Janjua etc. 1992 CLC
9. In Fateh Muhammad versus Muhammad Hanif (PLD 1990 Lahore 82), it was observed as under:- `Ordinarily, in a suit for specific performance of the sale agreement, when the plaintiff asks for a prohibitory order for restraining the defendant from alienating the property agreed upon to be sold, grant of injunction must be subjected to terms as to deposit of the sale price in Court. Above course shall not only show something about bona fides of the plaintiff seeking specific enforcement of the agreement of sale but shall also relieve the defendant from an unnecessary loss which he is likely to suffer.'
10. In Wasir Hassan Khan versus Muhammad Khalid Rafique' (2007 MLD 116), the law was reiterated as follows:- It is settled law as has also been held by this Court in the judgment relied upon by the learned counsel for the appellant that in a suit for specific performance of an agreement to sell the vendee/plaintiff must deposit the balance admitted consideration in order to entitle him for grant of temporary injunction.'
11. In the case of 'Muhammad Idrees versus Sher Muhammad (2005 MLD 1872) [Lahore], the underlying object behind imposing a condition to deposit the sale consideration was expounded in the following words:- ' ...When the petitioner says that he was ready and willing to enforce the contract after payment of the alleged balance amount, the presumption is that he is having money in his pocket and sitting outside the Court awaiting direction of the Court.'
12. In the case of Haji Allah Rakha etc. Versus Mst. Nayyar Bano, etc.' (NLR 1995 SCJ 806) the Hon'ble Supreme Court of Pakistan upheld the view taken by this Court, holding as under:- `Order granting temporary injunction subject to deposit of remaining sale price would not be harsh as purpose of ordering deposit of remaining sale price is to test bona fides of plaintiff.'
13. In the case of Manzoor Ahmad and 6 others versus Hamid Shah Gilani and another' (1997 SCMR 1443), a condition imposed by the trial Court at the time of passing the restraining order in a suit for specific performance in the following words, was upheld:.
' Tor the foregoing reasons, the application for grant of ad interim injunction is accepted as prayed for subject to the condition that the plaintiff shall deposit the remaining sale consideration i,e, Rs, 22,00,000/- in the Court by 30.11.1994 otherwise the injunction would not operate. However, the plaintiff may deposit the above mentioned amount in any profit-bearing scheme of his choice.'
14. No doubt, a discordant note was struck in some judgments, but on closer examination of those cases judgments, it is revealed that they proceeded on their own facts. For one reason or another, the Court did not deem it necessary to impose any condition upon the plaintiff, but at the same time it was added in all those judgments that it is discretionary with the Court to impose or not a condition upon the plaintiff before passing the restraining order.
15. Be that as it may, I do not find any infirmity or jurisdictional defect in the impugned order nor can the same be held as unreasonable, harsh, oppressive or arbitrary. There appears no ground to interfere with the discretionary order passed by the learned trial Court. However, in the interest of justice, and in order to test the bona fides of the appellant he is provided another opportunity to make a deposit of the balance sale consideration amounting to Rs, 59, 75,000/- into the learned trial Court within a period of three weeks, failing which the petition moved by him for the grant of temporary injunction shall be deemed to have been dismissed. In case the plaintiff makes the requisite deposit, the money might be invested in Defence Saving Certificates or some other profit- bearing scheme so as to take care of the depreciation in the value of the Rupee.
16. For what has been stated above, this appeal being devoid of any merits is dismissed in limine.