The petitioner/plaintiffs instituted a suit for specific performance of agreement to sell dated 02.10.2013 alongwith perpetual injunction with regard to the suit property fully mentioned in the paragraphs No.1 and 2 of the plaint, against the respondents. Initially, the respondents/defendants were proceeded against ex-parte vide order dated 09.09.2014, but the respondents/defendants No.2 to 5 filed application for setting aside of the ex-parte proceedings on 10.02.2015, which was accepted on 27.05.2016. The suit was duly contested by the respondents No.2 to 5 while submitting written statement and written reply. Again on 08.03.2017, the respondents No.2 to 5 were proceeded against ex-parte, who submitted application for setting aside of the same on 21.03.2017, which was duly resisted by the present petitioner; however, the same was allowed on the statement of the learned counsel for the petitioner subject to cost of Rs.1000/- on 16.01.2018. Vide impugned order dated 06.06.2018, the learned trial Court while dismissing application for grant of temporary injunction directed the petitioner/plaintiff to deposit the remaining consideration of Rs.33,00,000/- within 30 days, otherwise suit would be dismissed. Feeling aggrieved of the said order, the present petitioner preferred an appeal, but remained unsuccessful vide impugned judgment dated 25.10.2018, which has culminated in filing of the civil revision in hand.
2. Avows that learned subordinate Courts while passing the impugned orders have failed to appraise the facts and circumstances of the case with independent judicious mind and the same are not speaking orders, against the mandate of section 24-A of the General Clauses Act, 1897; that the learned trial Court while deciding application for grant of temporary injunction has illegally imposed condition for depositing the remaining consideration of Rs.33,00,000/- within 30 days otherwise suit will be dismissed, such condition cannot be imposed because if the petitioner/plaintif f fails to deposit the amount, only the fate of application for grant of temporary injunction will be decided, hence, the impugned order has been passed in excess of jurisdiction. Adds that when the possession of the suit property is not with the petitioner , order for depositing the remaining sale consideration is uncalled for.
Contends that the impugned order and judgment are result of wrong application of law on the subject. Maintains that learned appellate Court has also failed to play the role of custodian of the rights of the parties by stating in para No.8 of the impugned judgment that petitioner/plaintif f should have complied with the order passed by the learned trial Court for payment of remaining sale consideration to discharge his obligation, by completely ignoring the non - fulfillment of the obligation by respondent/defendant No.1, who with mala fide intention, violating the terms of agreement, transferred the property in the name of defendants/respondents No.2 to 5. All the ingredients for grant of temporary injunction lean in favour of the petitioner; hence, the application ought to have been graced with acceptance instead of dismissing the same. As such, material illegalities and irregularities have been committed by the learned subordinate Courts, which has resulted in miscarriage of justice; thus, by allowing the civil revision in hand, the impugned order and judgment may be set aside, consequent whereof application for grant of temporary injunction may be accepted and direction for deposit of the remaining sale consideration may also be declared null and void. Relies on M/s. BIN BAK INDUSTRIES (PVT .) LTD. and another v. FRIENDS ASSOCIA TES (REGD.) and others (PLJ 2003 SC 24) and ALTAF HUSSAIN QAMAR and 2 others v. IMRAN RASOOL and 5 others (2011 CLC 1891 -Lahore) .
3. Heard.
4. Considering the arguments and perusing the record made available, it is observed that in such like suits, under the enlightened principles of justice, it is bounden duty of the learned trial Court to consider the agreement to sell at the inception and if any amount is found outstanding against the plaintiff, it must order for its deposit in the Court within the time period so granted. In this regard reliance is placed on Malik Imam Bukhsh v. Mohammad Boota (Deceased) through L.Rs. (2017 SCMR 516). In the present case, the cutoff date was 05.12.2013 but the petitioner at the time of filing the suit on 18.12.2013 did not, in order to show his bona fide and willingness to perform his part of agreement, deposit the alleged remaining sale consideration in the learned trial Court but he did not pose his such gesture and even when the learned trial Court ordered as such, he, on 09.07.2018, firstly filed written application for extension of time to submit the remaining consideration amount, and 15 days extension was granted to him, but instead of complying with the order of the learned trial Court, he assailed the order dated 06.06.2018 in appeal. When such a case was brought before the Hon'ble Supreme Court reported as Adil Tiwana and others v. Shaukat Ullah Khan Bangash (2015 SCMR 828), it was invariably held that:- 'The fact remains that the respondent, who was obliged to make payment of the balance sum of Rs.90,00,000/- by 31-12.1995, had failed to fulfil this material obligation until after the judgment of the High Court rendered on 4.4.2013. It would, in our opinion, be highly unfair and inequitable if the respondent is to be granted discretionary relief in the foregoing circum stances, which show failure on his part to make payment or comply with Court orders in spite of the extreme indulgence shown to him by the Court. '
Even in the said celebrated judgment it has been held that:- 'We may also add at this stage that the remedy by way of specific performance is equitable and it is not obligatory on the Court to grant such a relief merely because it is lawful to do so. Section 22 of the Specific Relief Act expressly stipulates so. It is axiomatic that one who seeks equity must do equity . In the present case all equities are squarely in favour of the appellants/defendants and stacked high against the respondent/ plaintiff. This evident from his conduct and is a significant additional reason why the suit filed by the respondent/plaintiff seeking discretionary equitable relief must be dismissed. '
In addition to the above, in the present case, the petitioner failed to satisfy the learned trial Court regarding grant of temporary injunction in his favour , so the same was dismissed, because the possession of the suit property is not with the petitioner/plaintif f and he has allegedly paid a tweak of sale consideration and a huge amount of the same is yet to be paid, which has been ordered to be deposited in the learned trial Court but he did not comply with the same. Usually , in such like cases temporary injunction is granted so that the subject matter (disputed property) remain intact and ultimately could be transferred to a successful party in a litigation and one of the main objects for giving directions to deposit the balance sale consideration in the Court is to see the bona fide of the purchaser, who knocks the door of Court for obtaining a decree for Specific Performance of agreement against the vendor(s); the balance amount so deposited is usually invested in some profit bearing schemes, enabling the vendor/defendant to get an increased amount as sale consideration, having an element of compensation for the time consumed in litigation, inter alia, considering the inflationary trends and in case a purchaser or plaintiff remains unsuccessful, the deposited amount, keeping in view the facts/record of the case, can be returned back to him with accruals in order to safeguard his interest. Thus, non-deposit of balance sale consideration raises a legitimate adverse presumption against the petitioner/plaintiff that he is not serious in performing his part of the agreement or in pursuing his remedy of specific performance, consequently, disentitling him to a decree for specific performance of agreement.
Apart from the above, the petitioner/plaintiff, before the cutoff date, did not issue notice to the respondent/defendant No.1 regarding fulfillment of her part of agreement and his willingness to perform his part of agreement, which shows that he was and is not serious in performing his part of agreement. For a part seeking a remedy of specific performance, it is mandatory that he should apply to the Court for depositing the balance amount and any contumacious/omission in this regard entails in dismissal of the suit or decretal of the suit, if it is filed by the other side. In the present case, no such exertion was made by the petitioner/plaintiff, rather when the Court ordered him to deposit the balance consideration, he firstly lingered on the matter and requested for extension of time, which was granted, but later on he agitated the order through appeal and when failed to get favourable decision, filed the instant civil revision and contumaciously kept on disobeying all such orders.
5. Another factor in this case is that in plaint the petitioner has pleaded that after entering into alleged agreement to sell and its attestation by the Notary Public on 02.10.2013, the possession of the disputed property was handed over to him, but while agitating the order dated 06.06.2018 passed by the learned trial Court in appeal, he averred that possession of the disputed property was with the respondents/defendants No.2 to 5 and same is the situation in the present civil revision; in such a scenario, there remains no justifiable reaso n with the present petitioner for defying the Court 's orders by not depositing the balance sale consideration.
6. The case law relied upon by the learned counsel for the petitioner, with utmost respect to the same, has no relevance to the peculiar facts and circumstances of the case in hand, because in Altaf Hussain Qamar and 2 others' case the temporary injunction was granted with a condition to deposit balance consideration amount and failure to deposit the same would result into dismissal of the suit, which ought not have been ordered, but in the present case the application for grant of temporary injunction has been dismissed, issues were framed and thereafter the learned trial Court ordered, in second part of the impugned order, to deposit the sale consideration amount within 30 days otherwise suit will be dismissed; thus, the said part would be considered as an independent order, which was mandatory in the light of supra mentioned judgment reported as Malik Imam Bukhsh v. Mohammad Boota (Deceased) through L.Rs. (2017 SCMR 516); same was the situation in M/s. BIN BAK INDUSTRIES (PVT.) LTD. and another v. FRIENDS ASSOCIATES (REGD.) and others (PLJ 2003 SC 24); thus, both being on distinguished premises are not helpful to the petitioner's case.
7. The above portrayal and discussion lead me to the conclusion that one who seeks equity must also do equity , which is not depicting on the part of the petitioner/plaintif f; thus, by placing reliance on the judgments supra and Rabnawaz and 13 others v. Mustaqeem Khan and 14 others (1999 SCMR 1362 ), the civil revision in hand as well as the suit instituted by the present petitio ner/plaintif f alongwith all pending application(s), stands dismissed. Copy of the judgment be transmitted to the learned trial Court for further proceedings.