This First Appeal from Order calls in question order dated 30th of May, 1989 passed by Mian Arshad Mahmood, Civil Judge First Class, Lahore.
2. The facts necessary for the purposes of this appeal briefly stated, are that the appellants instituted a suit against the respondents for a declaration the at the plaintiffs arc owners in possession of shop No. 120 with an area of 664 sq. Ft., they having paid that total consideration and the rent in accordance with the agreement to sell dated 31-7-1982 w.e.f. 31st of January, 1983; that letters dated 4-11-1985, 11-11-1985, 1-2-1986 and 16-3-1989 are illegal, unlawful and malicious having been issued under colourable exercise of jurisdiction and in violation of terms and conditions of agreement to sell and thus of no legal effect qua the proprietary rights of the plaintiffs. It was alternatively prayed that a decree for specific performance of the agreement to sell may be passed in favour of the plaintiffs and against the defendants. As a consequential relief it was prayed that the defendants be restrained from claiming any additional price of any area added to the shop and from interfering with the possession and ownership of the plaintiffs over the shop in dispute in any manner whatsoever including through ejectment proceedings. A sum of Rs. 2,00,000 has also been claimed as damages in the plaint.
3. Alongwith the plaint the plaintiffs filed an application under Order XXXIX, Rules 1 and 2 and Section 151 of the Code of Civil Procedure for grant of a temporary injunction so as to restrain the defendants from interfering with the ownership and possessory rights of the appellants/plaintiffs upon the shop in dispute.
4. The application aforementioned filed by the appellants/plaintiffs was resisted by the respondents/defendants and a reply thereto was also filed by them. It was, inter alia, asserted by the respondents that the terms and conditions of sale were settled between the Punjab Steel Traders Society (Registered) Loha Market Landa Bazar Lahore to which arrangement the appellants/plaintiffs were also signatories as members of the Society and that the appellants having not complied with the terms of the aforementioned agreement the respondents were well within their legal right to take appropriate legal measures as may be available to them.
5. The learned Civil Judge by his order dated 30th of May, 1989, allowed the application and issued a temporary injunction in favour of the appellants and against the respondents subject to the condition that the appellants shall furnish a bank guarantee in respect of the alleged additional price claimed by the respondents as the balance of the agreed price of the shop, land underneath, land behind and in front of the shop. The bank guarantee was to be furnished by the appellants upto 15th of June, 1989 and has to be to the effect that in case the Court directs the deposit of the said amount in Court it shall be so done. It has also been directed that if the plaintiffs fail to furnish the bank guarantee, their application for temporary injunction shall stand dismissed.
6. By order dated 13th of June, 1989 record of the trial Court was sent for and it was also directed that the respondents be asked to appear at the preliminary stage of hearing.
7. In response to the said direction the respondents have appeared through Mr. Aamar Raza A.
Khan, Advocate who has placed on record certain documents to show the true import of the terms under which the sale of the shop in question had been agreed to between the parties which included the Punjab Steel Traders Association (Registered), Loha Market, Landa Bazar, Lahore.
8. The learned counsel for the appellants only contended that the learned trial Court has fallen into an error by attaching the condition to the grant of injunction in that according to the terms and conditions of sale, the appellants were not obliged to pay the price of the land behind the shop and in front thereof.
Elaborating his contention the learned counsel for the appellants contended that since the appellants are not claiming any right to the land behind and in front of the shop and are only claiming the sale in their favour of the actual shop in occupation the demand for payment of the additional price which in fact is the price of the aforementioned parcels of land is unjustified.
9. On the contrary, the learned counsel for the respondents referred to the documents placed on record today and submitted that the terms of sale agreed to between the parties can succinctly be spelt out from the various documents, which are:---
(i) That the agreed price of Rs. 75,000 per marla;
(ii) That the appellants and the other members of the aforementioned Traders Society had agreed to pay price at the same rate in respect of the land at the back of the shop and in front thereof excluding a strip of land measuring 25 ft. Wide which is a road in the Loha Market, Lahore.
It was urged in the same context that the learned Civil Judge was justified in safeguarding the interest of the respondents by asking for furnishing of bank guarantee in case the suit of the plaintiffs/appellants ultimately fails.
10. Having given consideration to the controversy involved I am of the view that the contentions t wised on behalf of the appellants have no force. The issuing of an injunction subject to any condition is a matter in the discretion of the Court of first instance and unless it is shown that the attachment of the condition is arbitrary and not in consonance with the attendant circumstances of the case such a discretion could not be interfered with by the Court of appeal or revision, as the case may be. In the case in hand from the attendant circumstances it is manifest that while imposing the condition the learned trial Court has given due consideration to the totality of the controversy and in order to safeguard the interest of both the parties passed the order granting the injunction but attaching a condition for furnishing of bank guarantee so that the interest of the defendants/respondents is also safeguarded. Such an exercise of discretion is not the one which can be legitimately questioned or interfered with.
11. I am not intentionally commenting upon the merits of the respective contentions raised on behalf of the parties lest it may cause prejudice to the case of either of them at the time of final determination of the matter. I suffice by observing that the documents today placed on record do show that attachment of condition for furnishing bank guarantee cannot be held to be arbitrary or ordered without adverting to the facts of the case. It may also be observed that by attaching of the condition no damage whatsoever will be caused to the appellants as in case they are able to show that they are not obliged by the terms of sale to pay the additional amount claimed by the defendants the bank guarantee will stand discharge. Contrarily, if the condition is not attached then the respondents would be placed at a disadvantageous position as they may be involved into further litigation for securing their rights that may accrue to them on the final adjudication of the case.
12. In view of the foregoing discussion I find no merits in this appeal which is accordingly dismissed in limine.
13. At this stage, the learned counsel for the appellants requests that the time allowed by the trial Court for furnishing of bank guarantee has since expired and, therefore, the appellants may be given further opportunity for furnishing the bank guarantee.
14. I see justification in this re4uest because the time allowed by the trial Court has already lapsed on account of pendency of appeal in this Court. I, therefore, allow 15 days time to the appellants from today for furnishing of the bank guarantee.
A.A./2-125/L