' Through this appeal/order dated 31-7-1996 passed by the Civil Judge 1st Class, Islamabad has been challenged, whereby the appellant was ordered to deposit consideration amount in the Court in terms of U.S. Dollars equivalent to Rs,1,80,00,000 at the rate prevailing on the date of agreement i,e, 24-5-1995, after deducting U.S. Dollars 60,000 already paid as earnest money on 24-5-1995, within one month failing which the application for temporary injunction will be deemed to have been dismissed.
2. Brief facts of the case are that the appellant/plaintiff filed a suit for specific performance against the respondent/defendant on the basis of sale agreement dated 24-5-1995 in the Court of Civil Judge 1st Class, Islamabad alongwith suit, he also filed an application under Order 39, Rules 1 and 2 of C.P.C. For temporary relief of injunction.
3. The parties entered into the disputed agreement relating to the property bearing Farm No,42 in Poultry and Vegetable Scheme No,II, Extension Sihana, Islamabad with all the residential structure alongwith servant quarters etc. And land measuring 9 acres, belonging to the respondent. It was agreed to be sold and transferred in favour of the appellant from the CDA on payment of Rs,1,80,00,000 (rupees eighteen million only), Rs,90,00,000 being price of the land and Rs,90,00,000 being price of the construction and structure thereon. Out of the said amount the appellant paid U.S. $ 60,000 equivalent to Rs,20,00,000 as earnest money as per conversion rate prevailing at the time of execution of the agreement, to the respondent through pay order No,151703 dated 24-5- 1995 drawn on Bank of America, Islamabad. The appellant has to pay the balance amount of Rs,1,60,00,000 after deducting the earnest money.
4. The suit of the appellant is still pending in the Court of the Civil judge 1st Class, Islamabad, and the application for grant of temporary injunction was contested by the parties. The Trial Court after hearing the arguments on the application for grant of temporary injunction passed, the impugned order, against which the present appeal has been preferred by the appellant.
5. Learned counsel for the appellant has contended that the condition imposed by the learned Trial Court is unjustified. He prays that the impugned order may be modified to the extent that the appellant be allowed to furnish bank guarantee from the Bank of America, Islamabad of the balance' amount in Pak rupees,
6. On the other hand, learned counsel for the respondent submits that the appellant is bound to pay him the balance price in US dollars, as agreed upon in the agreement. He further submits that it is option of the respondent to accept the balance amount in Pakistani currency or in US dollars as per conversion rate prevailing at the time of execution of the agreement i,e, 24-5-1996. Furnishing of bank guarantee is not acceptable to respondent as appellant has already got extension of time.
7. I have heard the arguments of the learned counsel for the parties at length and gone through the agreement .Dated 24-5-1995 and the impugned order. Learned, counsel for the appellant has referred judgment reported in Khizar Hayat khan v. Mussarat Rabbani PLD 1995 Lah: 438, and contended that injunction order should not be subjected to the deposit of the balance amount. I have gone through the said judgment which was passed in a suit for specific performance of the agreement. The relevant portion of the abovesaid judgment is as under:--- "Undisputedly, power to issue temporary injunction during the pendency of a suit is in the discretion of the Court and while exercising that discretion, it is open to a Court to impose conditions subject to which it would grant temporary injunction."
' It is also observed in the said judgment that:--- '...In a suit for specific performance the grant of temporary injunction should not always and invariably be made subject to the deposit of the balance amount of consideration by the plaintiff.
On the other hand, the question as to whether or not condition of any nature should be imposed while issuing temporary injunction would depend upon facts of each case."
8. This judgment in no way support the contentions of the learned counsel for the appellant rather it favours the plea of the respondent. In the abovesaid case the Court came to the conclusion that the appellant has been acting negligently and has been delaying the completion of the sale-deed without any justification and the order imposing the condition by the Trial Court was maintained.
9. No hard and fast rule can be laid down restricting the powers of the Trial Court with regard to the imposition of any condition while granting temporary injunction. The imposition of a condition depends upon the facts and circumstances of each case.
10. On the other hand, learned counsel for the respondent submits that respondent is willing to execute the sale-deed but the appellant is adopting delaying tactics to comply with the terms and conditions of the agreement for execution of the sale-deed. Meanwhile the respondent started construction of another house on the hope that the remaining sale price shall be paid to him in the light of the agreement and the same shall be utilized by him in the new project i,e, construction of another house but the failure on the part of the appellant has burdened him with financial loss. He has also submitted that respondent is entitled to receive the balance amount in US Dollars as agreed between the parties. He relies on the judgment Terni S.P.A. v. PECO (Pakistan Engineering Company) Ltd., 1992 SCMR 2238, wherein it is held that:--- "Justice demands that the credition should not suffer from fluctuations in the value of the Pakistani rupee. If his contract is for a foreign currency and he has bargained for the same, he should get that currency and no other."
11. The perusal of clause 13 of the agreement shows that the appellant agreed to pay the balance amount according to the desire of the respondent, who will determine himself whether he would receive the same in Pakistani currency or in US dollars. The execution and the contents of the agreement are admitted by the parties. The respondent has demanded the payment of the balance amount in US dollars and the appellant is bound to pay the said amount as desired by the respondent in the light of clause 13 of the agreement.
12. The learned trial Court while dealing with the application for grant of interim injunction has exercised its discretion of imposing condition to deposit the balance amount in the Court to ascertain the bona fide of the appellant. The reasons given by the Trial Court are neither perverse nor against the sound judicial principles in exercising the discretionary powers. The facts of the case indicate that the appellant could. Not arrange the balance sale consideration in time and requested the respondent for extension of time, whereupon additional agreement of sale was executed on 26-10-1995 in continuation of the previous sale agreement dated 24-5-1995, which has become final and operative between the parties. In spite of the fact that further time was provided to the appellant to arrange the balance consideration but he failed to perform his part of contract. As a result whereof the respondent invoking clause 15 of the agreement, forfeited the earnest money and cancelled the agreement to sell. Non-payment of the balance amount has caused financial loss and damage to the respondent, who had started the construction of the house under the hope of getting the remaining sale price. The request of the appellant for furnishing bank guarantee in peculiar facts and circumstances of the case cannot be accepted.
13. Both the parties have alleged non-fulfilment of the agreement on each other but one fact is significant that the agreement dated 24-5-1995 was extended on 26-10-1995 with a view to extend the period for payment of the balance amount in favour of the appellant but that time has also elapsed and the appellant failed to perform his part of contract. Hence the sale-deed could not be executed in the terms stipulated in the agreement. The learned Civil Judge has rightly relied upon the judgment reported as Muhammad Nazir v. Yaqoob Khan and others 1994 CLC page 12 Lahore, wherein it is held that:--- "In a suit for specific performance of agreement to sell immovable property, equitable relief of temporary injunction must be subjected to deposit of sale consideration for adequately safeguarding interests of owner of property and also to judge the earnestness of would-be vendee in his claim in suit."
14. In the light of the facts and circumstances of the present case, the impugned order calls for no interference. The discretion exercised by the learned Civil Judge does not suffer from any illegality or material irregularity. Hence the appeal is dismissed without any order as to costs.