1. J.AVID IQBAL, J.-- The background in which this petition for leave to appeal arises is this that an agreement to sell two shops in Property No. 93 measuring 3 Marlas and 37 sq. Ft. And comprising of Khasras Nos. 3671, 3675 and 3676 situate in Kutchery Bazar, Faisalabad was completed between the parties on 15th March, 1984 for the sale consideration of Rs.25,00,000 out of which Rs.4,00,000 was paid by the petitioners to the respondent as earnest money. In agreement it was recited that the respondent was the sole owner of the said shops, that these were free from any encumbrances, and that the sale would be completed by 15th September, 1984. It is contended on behalf of the petitioners that to manifest their bona fides they had deposited the balance amount of Rs.21,00,000 in the Habib Bank Limited but the respondent did not honor his commitment to complete the sale by 15th September, 1984. As a result the petitioners filed a suit for specific performance of the agreement, dated 15th March, 1984. The suit was filed on 2nd October, 1984, however, during the pendency of the above suit eight other persons including Muhammad Amin filed a partition suit against the petitioners as well as the respondent claiming that they were owners to the extent of some shares in the properties situate in Khasras Nos. 3671, 3675 and 3676.
2. On 11th October, 1984 on the application of the plaintiffs in the partition suit the civil Court issued an interim injunction to the effect that the defendants should restrain from selling any portion of the disputed property. Thereupon, the present petitioners amended their plaint on 7th October, 1984 in the suit for specific performance adding the prayer that a decree be passed against the respondent-defendant for the refund of earnest money along with the penalty agreed upon.
3. Subsequently they moved another application on 25th March, 1985 under Order VI, Rule 17 of the Code of Civil Procedure praying that the parties to the partition suit should also be added as parties to their suit for specific performance. However, their application dated 25th March, 1985 was rejected by the trial Court on 1st April, 1985 and on the same date the suit of the petitioners for specific performance was decreed on the concession of the respondent and the petitioners were directed to deposit the balance of the sale price by 15th June, 1985. It was contended on behalf of the petitioners that suit for specific performance was decreed without any notice to them as they were not present at that time. Consequently they filed Civil Revision No. 1086 of 1985 in the Lahore High Court, Lahore against the order passed by the trial Court, dated 1st April, 1985 refusing to allow joining parties in the partition suit as parties in the suit for specific performance. At the same time F.A.O. No. 103 of 1985 was filed in the Lahore High Court, Lahore against the order, dated 11th October, 1984 restraining the sale of any portion of the disputed property in the partition suit. Eventually the civil revision was dismissed as withdrawn for the reason that suit for specific performance having been decreed, the revision would not lie, and the F.A.O. Was also dismissed as withdrawn as the petitioners could avail of their remedy before the trial Court. Thus, the position of the petitioners was that since their suit for specific performance had been decreed, they had been directed to deposit the balance amount of Rs.21,00,000 of the sale price before 15th June, 1985 but on the other hand due to the injunction, dated 11th October, 1984 the decree for specific performance could not be executed. Faced with this the petitioners filed Writ Petition No.2312 of 1985 assailing the order of the trial Court, dated 1st April, 1985 but their writ petition was also dismissed. Subsequently they moved two applications in their suit: one under Order XXXIX, Rule 4, C.P.C. Praying for modification of the injunction order, dated 11th October, 1984 in the partition suit or its vacation, and the other under section 151 /152, C . P. C . For the correction of the decree for specific performance, dated 1st April, 1985. They also applied under section 148, C.P.C. Praying that the trial Court extend the time in making payment of the balance of the sale price but these three applications were rejected vide order, dated 13th June, 1985. Facing this situation the petitioners filed R.F.A. No. 160 of 1985 along with the miscellaneous application for suspension of operation of the decree but the appeal was dismissed by a Division Bench of the Lahore High Court, Lahore, vide judgment, dated 29th June, 1985 for the reason that the order earlier passed by the High Court in writ petition, dated 28th May, 1985 operated as res judicata and that the appeal without compliance of the order of the trial Court for payment of the balance of the sale price for which no extension of time had been obtained had no force on merits. It is this order of the High Court which is being challenged before us.
4. The crux of the arguments of the learned counsel is that he wishes to pay the balance amount of Rs.21,00,000 and which he could have paid by 15th June, 1985 had no injunction been issued in the partition suit in respect of the same property, dated 11th October, 1984. It was argued that the observations made by the learned Judge while dismissing the writ petition could not operate as res-judicata when in compliance with the same petitioners had availed of the remedy under Order XXXIX, Rule 4, C.P.C. Before the trial Court whereby they had prayed for either modification of the order granting temporary injunction in the partition suit or for its vacation but that application was rejected. It was next submitted that the petitioners could not comply with the order of the trial Court for making payment of the balance amount of the sale price for the injunction order was a bard and their application for extension of time in making payment of the balance amount was rejected. On the other hand on behalf the respondent-caveator learned counsel has urged that legally the petitioners had no locus standi to move this petition for leave to appeal. According to the learned counsel the shops in question which were sold under the agreement to the petitioners did not constitute part of the disputed property and if the plaintiffs in the partition suit had instituted the same it was possibly at the instigation of the petitioners as they were trying to back out from completing the contract of sale. It was submitted that the sale agreement was to be completed by 15th September, 1984 and that the partition suit has been instituted at the instigation of the petitioners on 9th October, 1984 only so that they could back out from the agreement. It was argued that when the suit for specific performance was decreed in favour of the petitioners on 1st April, 1985 the counsel for the petitioners was present in the Court as is evident from the order, dated 1st April, 1985 and it could not be said that it had been passed without notice to the petitioners. They were directed in the said order to deposit the balance amount of the sale price by 15th June, 1985, but they did not do so. Since this is the position, according to the learned counsel for respondent-caveator it is not a fit case for the grant of leave.
5. We have carefully considered the arguments of learned counsel for both the sides. In our view the contentions raised by the learned counsel for the petitioners require further examination. Therefore, leave is granted.
6. It is hereby directed that the Civil Judge before whom the partition suit titled Muhammad Amin etc. v. Haji Muhammad Nawaz Khan etc. Is pending should decide it within a period of six months from date under periodic intimation to this Court. We are also of the view that the petitioners in spite of their efforts could not deposit the balance of the sale price as directed by the trial Court because of the existence of the order of injunction. We, therefore, think that it will be in the interest of justice if extension to deposit the remaining amount is allowed subject of course to all just legal objections by the other side. The balance shall be deposited with the learned trial Court within a month's time.
7. Security for costs Rs.2,000. The appeal to be heard on the present record with permission' to the learned counsel for the parties to file additional documents if they so desire.