1. ' This appeal is directed against the order of a learned Single Judge of this Court dated 22-2-1981 disposing of an application under Order XXXIX rule 4, C.P.C. filed by appellant. By the aforesaid order the learned Single Judge while permitting the appellant to withdraw the sum of Rs, 10,00,000 deposited by him in Court vacated the interim injunction which was granted on condition of deposit of the above amount in Court and simultaneously observed that the suit of the appellant which was for specific performance of the contract and damages will now be treated as only for damages. This latter part of the order by which the learned Judge directed that the suit will henceforth be treated as one for damages only is challenged in this appeal.
2. ' The order of the learned Single Judge is dated 22-2-1981 and a certified copy thereof was granted to the appellant on 2-3-1981. It is, therefore, time-barred by six days. An application under section 5 of the Limitation Act has been filed supported by the affidavit of the counsel for the appellant for condonation of the delay in presenting the above appeal. The statements made in the affidavit of counsel are not controverted by respondent. In his affidavit the counsel for the appellant has stated that prior to 26-3-1980 the interlocutory orders passed by a learned Single Judge on the original side were nct appealable but by Ordinance X of 1980 such orders were also made appealable before a Bench of the Court. It is also stated in the affidavit that as in the Ordinance X of 1980 no limitation is prescribed for filing of such appeals he looked into the Limitation Act and having failed to find any appropriate provision therein applicable to such appeals, he consulted two very Senior counsel of this Court who advised him that such an appeal could be presented within thirsty days of the order. It is further stated that acting on the above advice of senior Members of the Bar he filed the appeal on 26-3-1981, considering it within time. The above statement made on oath by the learned counsel which is not disputed before us does show that he acted bona fidely in relying on the advice of senior counsel and therefore we are inclined to condone the delay considering the fact that the counsel was recently enrolled as an Advocate of this Court. The delay in presenting the appeal is accordingly condoned. On merits the learned counsel for the appellant contended that the suit instituted by the appellant was for specific performance as well as for damages and by holding that as a result of withdrawal of the amount deposited by the appellant from the Court the suit will be considered as one for damages only, the learned single Judge has prejudged the suit of appellant. It is also contended that the sum of Rs, 10,00,000 was deposited as a condition for grant of injunction and the effect of withdrawal of that amount could only be the discharge of injunction. On the other hand Mr. Wajihuddin Ahmad the learned counsel for the respondent, contended that the order passed by the learned Single Judge was a consent order and therefore no appeal against such an order was competent under the law.
3. It is also contended by the learned counsel that the injunction in the case was granted in favour of the appellant on condition of deposit of the sale consideration in Court and it was further provided in that order that the respondent could withdraw the said amount within one month of such deposit upon furnishing security in the Court. It is accordingly contended that as soon as the deposit was made in this Court a right accrued to the respondent to withdraw this amount which right was defeated by allowing the withdrawal of the amount from the Court by the appellant and therefore the learned Single Judge rightly held that as a result of withdrawal of the amount the suit remained only one for damages. It is further urged by the learned counsel for the respondent that on 2-12-1980 when injunction was granted by the learned Single Judge in favour of the appellant in the suit on condition of deposit of the balance of sale consideration there was also another suit pending in this Court in respect of the same property instituted by another person being suit No, 870/79 in which a similar order was passed directing the plaintiff in that suit also to deposit the balance of the sale consideration in Court but the plaintiff in that suit made no deposit perhaps for the reason that the appellant had already made a deposit in his suit and therefore when the appellant withdrew the amount from the Court the respondent Was left with no remedy against the plaintiffs in the two Suits and therefore for these reasons also the order of learned Single Judge is not liable to be interfered with. We have considered the arguments advanced by the learned counsel for the parties and are of the view that the order passed by the learned Single Judge is liable to be modified for the following reason.
4. ' We have carefully gone through the order of learned Single Judge and are of the view that it was not a consent order. The learned Single Judge in fact only pointed out to the counsel for the appellant the effect of withdrawal of the amount from the Court by the appellant on the suit instituted by him but in spite of that he insisted for the withdrawal of amount from the Court. The appellant never consented to the passing of the above order. Such being the position it cannot be said that the order passed by the learned Single Judge was a consent order. The learned counsel for appellant is right in contending that the amount of Rs, 10,00,000 was deposited by the appellant as a condition for grant of injunction and therefore when he withdrew the said amount from the Court the only effect of withdrawal was that the injunction stood vacated. The learned Single Judge was therefore, not justified in ordering that the suit will henceforth be treated as only one for damages. The effect of withdrawal of the balance of sale consideration from the Court by appellant on the relief of specific performance claimed in the suit should have been left to be determined by the learned Single Judge at the trial of the suit. By holding at that stage that the suit of the appellant will be considered only for damages now, the learned Single Judge almost prejudged the whole suit at a stage when the parties were yet to go on the trial and produce evidence. We accordingly modify the order of the learned Single Judge to the extent that the suit of the appellant will be deemed to be both for specific performance as well as for damages but the effect of withdrawal of balance of the sale consideration from the Court by the appellant will be considered by the Court at the trial of the suit. However, keeping in view the peculiar circumstances of this case, we direct the office to fix this case before the learned Single Judge in the month of May, 1983 for regular hearing and we hope that the learned Single Judge will give priority to this case over other cases. In the circumstances of the case there will be no order as to costs.