This revision petition impugns order dated 03.6.2015 and 17.10.2017 of the learned Civil Judge and learned Addl.
District Judge, Gujranwala, whereby the application for the grant of temporary injunction in a suit for specific performance was dismissed and the order was af firmed in appeal.
2. Petitioners filed a suit for specific perfo rmance of an alleged oral agreement of sale dated 14.3.2014, claiming that land measuring 44 kanals and 01 marla at village Keranwalai, Tehsil and District Gujranwala was owned by respondent No.1, who had gifted it to his daughter, respondent No.2; and that the petitioner allegedly came to know that the respondents intended to sell the land, they allegedly contacted respondent No.1 on 13.3.2014 through a common friend and thereafter visited the house of respondent No.1 at Lahore; where in the presence of Khalid Javaid, Muhammad Nazir and Altaf Ahmad Alvi, a bargain for the sale of land was struck for a total consideration of Rs.13,215,000/- at the rate of Rs.2,400,000/- per acre and a sum of Rs.500,000/- was allegedly paid in cash. It was claimed that the respondents allegedly agreed for the registration of the sale deed on 31.5.2014, later on being contacted, the respondent allegedly avoided to meet and ultimately on 03.7.2014 the petitioners filed the suit to enforce the allege oral agreement dated 14.3.2014. An application under Order 39, Rule 1 and 2, C.P.C. was also filed along with the plaint to restrain the respondents from alienating the land or from changing its character and possession.
3. The suit as also the application was resisted by the respondents who in their response, amongst other legal objections, took the stance that the entire story built up in the plaint was false and concocted; the respondents were never contacted, no bargain was stuck with the petitioners, no earnest money was received, the respondents never discussed alienation of the land with the petitioners and that respondent No.2 had already agreed to sell the land in consideration of Rs. 20,373,125/- in favour of Abid Hussain and Muhammad Akram vide agreement dated 23.3.2014 and received Rs. 5,753,125/- as earnest money . It was added that after the said bargain the respondents further received Rs.6,000,00 0/- and in this way, total sum of Rs. 11,753,000/- had already been paid to respondent No.2 by Abid Hussain and Muhammad Akram, the intending buyers. The respondents maintained that with a view to unlawfully obstruct this transaction, the petitioners have filed the suit on a self-fabricated version which has no basis.
4. On hearing both sides, the learned Civil Judge vide order dated 03.6.2015 dismissed the application under Order 39, Rule 1 and 2, C.P.C. observing that the entire case of the petitioner was based on oral assertions which were yet to be proved. The respondents were still in possession and that the petitioner was unable to make out a prima facie and arguable case. The appeal filed by the petitioners ended in dismissal vide order dated 17.10.2017 of the learned Addl. District Judge, Gujranwala.
5. Learned counsel for the petitioners argued that the learned courts below failed to comprehend the real factual position; that the offer, acceptance and payment of consideration which constituted a valid contract, were available in this case as asserted in the plaint; that the affidavit of the witnesses in whose presence the oral agreement was made were annexed with the plaint; and that in these circumstances the petitioners were able to make out a prima facie case for the grant of injunctive relief.
6. Learned counsel for the respondents submitted that both the courts below correctly analyzed the facts and circumstances of the case and for sound reasons declined the application for temporary relief as also the appeal.
Added that the petitioners did not deposit the earnest money in court on the first date of hearing nor have yet made any deposit in this court and therefore they were not entitled to grant of any relief in equitable jurisdiction.
7. The points taken and the submissions made from both sides have been given due consideration in the light of the copies of record annexed with this petition.
8. The petitioners ' whole stance is based on an oral agree ment of sale in terms whereof they claim that the respondents allegedly agreed to sell the suit land in their favour for a total price of Rs. 13,215,000/- and allegedly received Rs. 500,000/- as earnest money . At the present moment the respondents have not only denied the alleged oral agreement but also the very plea of the petitioners that the negotiations for sale took place. The defence taken by the respondents is that no such meetin g was made, no offer for the sale was ever made, the respondents never agreed to sell nor they received any alleged amount of Rs. 500,000/- and that they had agreed to sell the land vide agreement dated 23.3.2014 in favour of Abid Hussain and Muhammad Akram; which deal was made for a sum of Rs. 20,373,125/- and that they had already received Rs. 11,753,125/- (Rs.5,753,125/- + Rs. 6,000,000/-) towards the sale consideration while the balance was agreed to be paid at the time of registration of the sale deed. It was added that the petitioners having acquire d knowledge of the transaction, concoct ed the false narrative of alleged visit, negotiations and alleged oral agreement for payment of Rs.500,000/-. Undeniably the petitioners do not claim issuance of any receipt for the alleged payment of Rs. 500,000/- nor is there any documentary proof to even remotely impart plausibility to assertion that any such arrangement of oral sale existed. The petitioners claim the oral agreement on 14.3.2014, purportedly agreed date for execution of sale deed as 31.5.2014, while the suit was instituted on 03.7.2014. The petitioners allege that the respondents avoided to meet but undeniably the petitioners do not claim to have issued any notice to the respondents pursuant to the alleged oral agreement for performance thereof. The whole case is therefore resting on the oral assertions that need to be proved by very strong evidence as the law envisages that to claim and prove oral agreement, strong, convincing, credible and independent evidence is required. As regards the affidavits, those obviously cannot be used against the respondents unless the deponents thereof are attested on oath subject to cross-examination and are able to corroborate the plea of the petitioners. Be that as it may, the material annexed with the petition at this stage stands rebutted by the respondents; who had in their reply as also the affidavits, denied the existence of any such alleged oral agreement.
It was therefore rightly observed by the learned courts below that the petitioners were unable to make out a prima facie case for the grant of injunctive relief.
9. Another important fact that cannot be over-looked is that this was a case for specific performance where the intending buyer has to ensure that he has the balance price for payment ready in his pocket and that he voluntarily and without waiting for the order of the court, deposits the sale consideration in the court, to prove his bona fide and entitlement to equitable relief in discretionary jurisdiction. It has been observed by the honourable Supreme Court in "Hamood Mehmood v. Mst. Shabana Ishaque and others" (2017 SCMR 2022) that "it is mandatory for the person whether plaintiff or defendant who seeks enforcement of the agreement under the Specific Relief Act 1877, that on first appearance before the Court or on the date of institution of the suit, it shall apply to the Court getting permission to deposit the balance amount and any contumacious/omission in this regard would entail in dismissal of the suit or decretal of the suit, if it is filed by the other side".
10. In the present case, which hinged on the plea of oral sale, the injunctive relief was declined as there was no proof of the earnest money , the alleged oral sale was categorically denied; and therefore, the petitioners were unable to make out a case for injunctive relief. Even in cases where the sale agreement is admitted and the dispute relates to the conduct of the parties inter se in the performance of its terms and condi tions it has been consistently laid that in the matter of injunctive relief, the party approaching the court in discretionary jurisdiction shall display the bona fide by voluntarily depositing the sale price in court without waiting for the court' s order with a view to ex facie prove that he was ready and willing to perform its part.
11. The petitioners who do not claim to have deposited the balance sale price, were not entitled to the injunctive relief in the discretionary jurisdiction. The two courts below for sound reasons and due consideration of the matter refused to grant injunctive relief pending decision of the suit, which order could not be proved to be either fanciful or arbitrary . It is a rule that the discretionary order of subordinate courts cannot be interfered with unless found to be fanciful and arbitrary . Reference can be made to "Shahzada Muhammad Umer Beg v. Sultan Mahmood Khan and another " (PLD 1970 SC 139 ).
12. For the reasons herein before, there is no substance in this revision petition which falls and is accordingly dismissed . It is however noted that any observation made in this order shall not affect the merits of the case, which of courses shall be determined by the trial court after recording of the evidence and on due consideration thereof, being uninfluenced by the observations recorded for dealing with the matter of injunctive relief.