1. ' This is an application under Order 39 Rules 1 and 2 read with section 94, C.P.C. The plaintiff has filed a suit for specific performance in regard to a sale agreement dated April, 1987 executed between the plaintiff and the defendant No,1 in respect of Plot No, LY/12/60 admeasuring 3,168 Sq. Yards situated at Mir Muhammad Baluch Road, Lea Market, Karachi. The defendants Nos. 2 and 3 are the subsequent purchasers after the said agreement between the plaintiff and the defendant No,1. It has been alleged that in terms of the said sale agreement the said plot was to be divided into two halves wherein a multi-storeyed building was to be constructed and the handing over of the said plot to the plaintiff was to be carried out in two phases. The plaintiff thereafter has paid a total amount of Rs,13,50,000 to the defendant No,1 and the plaintiff is willing to pay to the said defendant the remaining contending amount in terms of the said agreement. The plaintiff is already alleged to be in possession of half of the plot but the defendant has failed to hand over the second portion of the plot to the plaintiff by deliberately violating the terms of the said agreement. The plaintiff was to build a godown and the remaining construction was to be carried on over the said godown and after execution of the sale agreement the defendant No,1 also executed a general power of attorney in favour of the plaintiff. Thereafter the plaintiff commenced construction on the first half portion of the plot but thereafter the defendant No,1 violated the terms and conditions of the agreement as pointed out earlier. The defendant No,1 has not only revoked the general power of attorney executed by him in favour of the plaintiff but he has sold the property to the defendants No,2 and 3 and the sale-deed was also got registered with the Sub-Registrar, Karachi. The plaintiff claims that the defendants No,2 and 3 are subsequent purchasers who had notice of the plaintiff's claim, therefore, the plaintiff, being already in possession of a portion of the plot in part performance of the said sale agreement is entitled to obtain cancellation of the sale-deed executed in favour of the defendants Nos.2 and 3.
2. ' The case of the defendants, on the other hand, is that the construction carried on by the plaintiff pursuant to the said sale agreement was substandard with the result that the plaintiff was directed to remove the whole of the said unuathorised construction and to stop further work by the Karachi Building Control Authority. The matter was thereafter referred to by the parties to arbitrators and the arbitrators directed that the construction should be carried out under advice of architects of both the parties. However, despite the same the plaintiff's architect vide his letter dated 18-2-1989 withdrew his supervision and therefore the plaintiff was asked by the Karachi Building Control Authority to, stop further construction. Thereafter the Schemidts Hammertest carried out in respect of the columns erected_ by the plaintiff revealed that the same were far below the standard, requiring demolition. In the meanwhile the plaintiff also abandoned the work and consequently the relationship between the plaintiff and the defendant No,1 came to an end. Thereafter the property was sold by the defendant No,1 to the defendant No,3 for a total sale consideration of Rs,20,00,000.
3. The defendant No,1 has handed over the physical and constructive possession of the property to the defendants Nos.2 and 3 and has also executed a general power of attorney in their favour.
4. Since 7-64989 the defendants Nos.2 and 3 are in lawful constructive and physical possession of the property without any let or hindrance. The plaintiff thereafter started issuing threats to the defendants with the result that Suit No,1202/89 was filed by the defendants against the plaintiff for permanent injunction.
5. ' I have heard Miss Afroz Ahsnul Haq, learned counsel for the plaintiff and Mr. R.F. Virjee and Mr. Iqbal Kazi, learned counsel for defendants Nos.1, 2 and 3 respectively. Learned counsel for the defendants have opposed the application mainly on the grounds, firstly that the sale agreement in para-14 thereof refers to another understanding between the parties in Gujrati and according to the learned counsel, since the said document in Gujrati has not been produced by the plaintiff, specific performance of the agreement cannot be granted by the Court. Reference in this respect was made to clause (c) of section 21 of the Specific Relief Act which provides that a contract, the terms of which the Court cannot find with reasonable certainty, cannot be specifically enforced. The second argument of the learned counsel for the defendants has been that since there was an agreement to construct a godown the same cannot be specifically performed in view of the provisions of section 21 (b) of the Specific Relief Act which provides as follows:- "21. The following contracts cannot be specifically endorsed:-
(b) a contract which runs into such minute or numerous details, or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the Court cannot enforce specific performance of its material terms."
6. ' Miss Afroz Ahsanul Haq, on the other hand has argued that the contract being for sale of the property could be specifically enforced.
7. Although it is true that para No,14 of the agreement refers to some other understanding between the parties in Gujrati and the same has not been produced before the Court but the mere non- production of the Gujrati document in Court would not attract the provision of section 21 (c) of the Specific Relief Act to the present case. No doubt, absence of complete agreement between the parties as to the essential terms of a contract may render the agreement unenforceable specifically but as none of the parties to the suit referred to the said understanding in Gujrati in the correspondence or notices exchanged between the parties, copies of which have been filed alongwith their respective pleadings, it appears that the terms of the said document were not such as would have material bearing upon the terms agreed between the parties vide agreement dated April, 1987 (Annexure-`A' to the plaint). Such agreement in Gujrati, if any, may be produced in evidence when the same is recorded by the Court but in my opinion non-production of such agreement/understanding would not attract the provision of clause (c) of section 21 of the Specific Relief Act as pointed out earlier. In fact, contracts contemplated by clause (c) appear to be such contracts, the terms of which cannot be clearly ascertained by the Court or in other words, which are vague or incoherent. I am, therefore, unable to agree with the first contention of the learned counsel for the defendants.
8. ' So far as the next contention of the learned counsel is concerned, the learned counsel have argued that an agreement in respect of construction cannot be specifically enforced as the same would be hit by the provisions of Section 21 (b) of the Specific Relief Act. Reliance has been placed by Mr. Iqbal Kazi upon M/s. Karachi Gas Co., Ltd., Karachi v. M/s. Fancy Foundation (PLD 1977 Karachi 191), wherein a similar question arose before the Court for determination. It was observed by the Court as follows:- "11. Now the prayer for injunction is being sought as an ancillary relief and therefore necessarily has reference to the main relief of specific performance. The plaintiffs in order to show that they have a prima facie case must not only show that there was a contract between the parties but that prima facie the contract still subsisted and further that all the prerequisites for grant of such relief were present in the case or that there is nothing to impair the remedy sought at the trial. In this connection I might with advantage refer to Marghub Siddiqi v. Hamid Ahmed (1974 S. C M R 519) where their Lordships of the Supreme Court made the following observations:- "Although ad interim injunctions are granted under Order XXXIX, rule 1 of the Code of Civil Procedure, the principles, which govern the grant of injunction contained in the Specific Relief Act, have also to be kept in view. Under section 56, clause F, one of the principles is that an injunction cannot be granted to prevent the breach of a contract the performance of which cannot specifically be enforced. Now it is well-settled that contacts for personal service arc not contracts which could be specifically enforced. The granting of an injunction, therefore, in a service matter like the present one is opposed to the principles of the grant of such injunctions."
9. ' This being the position, it would be legitimately be open to the defendants to show that the contract sought to be enforced is not prima facie capable of specific performance, even for the purpose of temporary injunctions."
10. ' It is, thereafore, pertinent to examine the nature of the contract between the parties. Reference in this respect may be made to the agreement between the parties which has been filed as Annexure 'A' to the plaint. This agreement in the first instance authorises the plaintiff to construct godowns on the ground floor and buildings/offices etc., on the upper floors and according to clause No, (5) of the agreement, it was stipulated that after completion of such construction the defendant would execute a registered sale-deed in respect of the half of the plot in favour of the plaintiff. The agreement, therefore, clearly shows that it is not a simple agreement of sale of immovable property but the agreement also relates to construction of a building by the plaintiff. Although the contract for sale of immovable property can he specifically enforced, the contract for construction of a building cannot be specifically enforced as such a contract would clearly be hit C by the provisions of clause (b) of section 21 of the Specific Relief Act. As has been held in the two cases just referred to by me in this judgment, that, if it can be prima facie shown that the Court cannot grant the final relief it may also decline to grant the interim relief by way of a temporary injunction.
11. The basic question which, therefore, would arise is whether the Court can prima fade grant specific performance of the agreement Annexure-`A'. If this agreement was a simple agreement for sale of immovable property, in that case, as pointed out earlier, the plaintiff would have been entitled to its specific performance but the difficulty which the plaintiff faces in the present case is that it is not a simple agreement of sal' of immovable property. The agreement is coupled with a stipulation to first construct the godown and buildings on half portion of the plot in question. This part of the contract which would require personal satisfaction of the defendant No,1 in respect of the construction is not capable of specific performance. If part of the agreement cannot be specifically parformed and such E part is interlinked with the rest of the agreement, then the whole of it would be hit by the same disability.
12. ' Miss Afroz Ahsanul Haq has argued that if interim injunction is not granted in favour of the plaintiff the defendants might transfer the property during the pendency of the suit. In this regard I would again like to quote from the same judgment of the Karachi High Court reference to which has already been made in this judgment as it has been observed at page 201 of the report as follows:- "This brings me now to the consideration of the important question of principle of convenience or incovenience. It is common ground that the principle of lis pendens as enacted in Section 52 of the Transfer of Property Act would govern any transfer made by the defendants during the pendency of this suit. It was conceded at the Bar by the learned , counsel for the plaintiffs that Section 52 gives protection to the plaintiffs in so far as any subsequent transfer of the property effected during the pendency of this suit would not affect the rights of the plaintiffs. The protection that the plaintiffs seek by way of temporary injunction is, therefore, already available to them. In case the plaintiff succeeds in obtaining a decree for specific performance of the contract the same shall be binding upon the transferee pendente lite by virtue of section 52 of the Transfer of the Property Act.
13. I am quite conscious while saying so that in the case of Hadly London Bank of Scotland referred to above, the learned Judge- has stated that the only inconvenience that would result by refusal of injunction would be that the plaintiff would have to implead the subsequent purchaser as a party to the suit. However, upon authority it can be stated that the position in the sub-continent by virtue of the statutory provisions of section 52 of the Transfer of Property Act is substantially different. A plaintiff protected by the provisions of the section, is not under obligation, for obtaining effective relief against such transfers, to implead such subsequent transferees who have acquired right in the subject of the litigation through transactions during the pendency of the suit."
14. ' In the result, the application for interim injunction is dismissed.