1. ' Sole point for decision in this first appeal by the plaintiff in the suit for specific performance from an interlocutory order passed in its course was whether issue of temporary injunction stopping pendente lite alienation of the land which is subject-matter of litigation between the parties, could be subjected to terms. Learned counsel on the authority of Rulings of this Court in case of Badr-ud- Din v. Muni Lal and others AIR 1934 Lahore 26 (2) and Muhammad Shaheen Aziz Niazi v.
2. Muhammad Baqir and another 1985 CLC 2733 contended that the Court had neither jurisdiction nor power to attach conditions to the grant of equitable relief of temporary injunction under Order XXXIX, rule 1, Civil Procedure Code. Learned counsel referred to Article 175 of the Constitution of Islamic Republic of Pakistan and argued that Court could exercise only that power which was conferred on it by law and could not assume to its any power to amend the law or legislate. In this behalf, reference was made to the case in The State v. Zia-ur-Rehman and others PLD 1973 Supreme Court 49, The Federation of Pakistan through the Secretary, Establishment Division, Government of Pakistan, Rawalpindi v. Saeed Ahmad Khan and others PLD 1974 Supreme Court 151.
3. As against the proposition convassed on behalf of the appellant it was urged on behalf of respondent by her learned counsel that in terms of section 52 of Specific Relief Act, preventive relief by injunction, temporary or perpetual, is allowed at the discretion of the Court and grant or refusal of temporary injunction is regulated by the provisions in Civil Procedure Code. Further, the Court in exercise of its equitable jurisdiction is armed with enough authority to impose terms, absence of its express mention in Rule 1 of Order XXXIX, Civil Procedure Code notwithstanding. Learned counsel referred to my decision in Fateh Muhammad versus Muhammad Hanif and another PLD 1990 Lahore 82 where, in agreement with the view expressed in decisions from Karachi jurisdiction I had subscribed to this view.
4. ' After having set out the legal proposition advanced by the parties' learned counsel, a brief resume of facts in the case shall be profitable. A piece of land measuing 5 Kanals, 4 Marlas bearing plot No,70 Garden Block, New Garden Town, Lahore belonged to Mst. Iqbal Zamani Begum. She died and was survived by her husband and two sons. They are respondents 1 to 3 in the appeal. On 16-10- 1985, legal heirs of the deceased-owner acting through respondent No,4 agreed for the sale of the above plot to the appellant for a consideration of Rs,22,00,000 and received Rs,7,50,000 in advance as earnest money. Sale of the plot was agreed to be finalized by or before 15-9-1986. By a meeting held on 15-9-1986, agreement to sell was terminated and advance money was to be returned to the appellant. A letter to that effect was despatched by the appellant to respondent No,4. On 16-9- 1986, it was mutally agreed that if repayment of advance money with compensation was not made within fifteen days, the transfer/sale of the plot shall then take place within one month after its exemption from L.DA. Two post-dated cheques in the sum of Rs,7,50,000 and 1,50,000, drawn upon Habib Bank Ltd., were delivered to the appellant within fifteen days from 16-9-1986. On 3-1- 1987, these cheques were presented to the Bank for their encashment but since payments were stopped by the drawers, the cheques could not be honoured. Thereupon, on 12-6-1989, appellant brought the suit for specific performance of agreement to sell in his favour for sale to be finalized and registered alongwith an application for temporary injunction for stopping pendente lite alienation of the plot in question was also put in. The respondents resisted the suit. The trial Court dismissed the application for temporary injunction. Reasons for doing so were not much relevant because the learned counsel for respondents did not oppose the prayer for grant of temporary injunction subject to deposit of balance consideration in the trial Court for judging of bona fides of the appellant in the transaction and for safeguarding the monetary interests of the respondents.
5. As observed above, short question for decision in the appeal was whether terms could be imposed.
6. Relief of specific performance is discretionary, and, so also the grant of equitable relief of temporary injunction. In case of Badr-ud-Din, a learned Single Judge of this Court, upon comparision of language in Rule 1 of Order XXXIX with Rule 5 of Order LXI, Civil P.C. Held that:-- "But as the present case falls within the purview of Order 39, rule 1, Civil P.C., no order as to security is necessary, as this rule does not impose any such condition upon an order passed under it. Mr. Shamair Chand has not been able to refer to any authority for the view that in a case falling under Order 39, rule 1, Civil P.C., the Courts should order the petitioner to furnish security to compensate the decree-holder for any loss that may be caused by a temporary injunction against him being granted, and he does not contend that the case before me is not governed by Order 39, rule 1."
7. ' Proceeding upon the above legal premises the learned Judge issued a restraining order without terms. On similar distinctions, the decision in the other case of Alam and others proceeds. Contrary to the above statement, there are three Rulings froth the Karachi jurisdiction in Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan PLD 1956 (W.P.) Karachi 521, Feroz-ud-Din and another versus Tien Ying Lee and others 1987 MLD 2035 (1), Shama Enterprises (Private) Ltd. v. Malik Ghulam Sarwar and others 1989 M LD 21. The first ruling is by a learned Single Judge and the following two by the Division Benches of the Karachi High Court. In the case of Fateh Muhammad, I agreed with the rule as to imposition of terms laid down in Karachi jurisdiction and followed it. In A. Batcha Saheb v. Nariman K. Irani and another AIR 1955 Mad. 491 and Chandkanwar and others v. Rambhaja and another AIR 1957 Rajasthan 329, power to impose conditions on grant of temporary injunction was assumed to exist. Both the above cases fell under Order XXXIX, rule 1, Civil P.C. In case from Rajasthan High Court, the Court said:-- "Learned counsel urges that a condition cannot be attached to the grant of injunction. This is not correct. The grant of injunction is in the nature of equitable relief and condition can be imposed so that the intrest of other party may also be safeguarded. There is no prohibition under the Code that a condition cannot be attached to an injunction."
8. ' In the case decided in Madras jurisdiction, the Court took the view that the Court in granting a temporary injunction had undoubtedly power to impose terms as a condition to the granting of injunction but the imposition of such terms must be reasonable and such as not to make it impossible for party to comply with them thereby virtually denying relief which it otherwise be ordinarily entitled to. So far as the power to impose conditions to granting of termporary injunction under Order XXXIX, rule 1, C.P.C., it was found to exist and no doubt was expressed about it. These two cases were brought to my notice by Mr. Sahgal himself. There is no doubt that in a suit for specific performance, the plaintiff must be eveready and willing to perform his part of the contract and one of the essential parts of the contract is readiness to make payment of the balance consideration. In view of the aforesaid state of law, more particularly my own view expressed in Fateh Muhammad's case, issue of temporary injunction in a suit for specific performance for stopping pendente lite alienation of the land in dispute must be subjected to terms and all that has been said at the bar by learned counsel for appellant, has not pursuaded me to alter or change my view. Therefore, it shall be equitable and in the fitness of things that the respondents be restrained from alienating the plot in dispute subject to deposit of balance consideration in the trial Court within forty five days of the order passed by this Court. Similarly, respondents 1 to 3 have undertaken through their learned counsel that they shall also deposit Rs,7,50,000, the sum received by them as advance money within the same period in the trial Court. In default of deposit of the balance consideration by the appellant, the stay shall not operate but transfer shall be subject to the rule of lis pendens. In case, the parties deposit the amount i,e. The appellant, balance consideration and the respondents 1 to 3 the sum received in advance, the trial Court shall invest it in a profit bearing scheme approved by the Government for the benefit of the parties to the litigation.
9. As for trial of the suit, it shall be expedited and finalized within four months as agreed to by both the parties. In view of time limit set for the trial, parties and the trial Court shall avoid unnecessary adjournments and trial of the suit should proceed as set on each day of hearing.
10. ' With these observations, the appeal is being allowed as indicated above. There shall be no order as to costs of this appeal.