JUDGMENT MALIK MUHAMMAD QAYYUM, J.- This is Fust Appeal from the order of the Civil Judge 1st Class, Lahore dated 7.11.1994 whereby an application under Order 39 rules 1 and 2 CPC filed by the appellant was allowed but subject to the condition that the petitioner should deposit a sum of Rs.6,23.000/- b Court.
2. The dispute arose out of a suit for specific performance of the agreement for sale dated 13.2.1994 whereby respondent agreed to sell the appellant plot bearing No.G.G.27 Phase-4, Lahore Cantt. A sum of Rs.25,000/- was paid as part payment at the time of the execution of the agreement while the balance amount was to be paid on or before 17.2.1994 which was the date fixed for completion of the transaction and execution of the sale deed. According to the appellant, the respondent failed to perform his part which obliged him to i.e the suit. An application under Order 39 rules 1 and 2 C?PC was moved by the appellant before the trial Court for restraining the respondent from alienating the suit land during the pendency of the suit. As already observed, the application was allowed subject to the condition that the balance amount should be deposited in the Court.
3. Sh. Khalil-ur-Rehman's, learned counsel for appellant has argued that there was no justification for the trial Court to have imposed the condition of deposit of balance amount of consideration in the Court and in the facts and circumstances of the case, the application for temporary injunction should have been allowed unconditionally. In the alternative, it has been argued that the condition imposed by the trial Court was onerous and arbitrary and that at the most appellant should have been asked to furnish security.
4. Learned counsel for the respondent has defended the impugned order.
5. 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 was so ruled in Shaikh Muhammad Taqi Vs: Muhammad Anwar Khan Ghauri (1983 CLC 1085), Fateh Muhammad Vs: Muhammad Hanif and (mother (PLD 19. Lahore 82) and Mst Khatoon Begum Vs: Mst Barkatunnisa Begum and 6 others (PLD 1987 Karachi 132). However, with due deference, I am not in agreement with the view that in a suit for specific performance the grant of temporary injunction should always and invariably be made subject to the deposit of the balance amount of consideration by the plaintiff.
6. In my humble opinion, no such general rule can be laid down. On the other had, 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. If prima fade it is shown that the plaintiff/petitioner has always been ready and willing to perform his part of the contract and also that he has not derived any benefit under the agreement, there would be hardly any justification for directing that he should deposit the balance amount of consideration especially when possession of the property is with the opposite side. If, however, conduct of the Petitioner/plaintiff is not free from doubt or he has been deriving some benefits under the agreement, the court will be justified in calling upon him to deposit balance amount of consideration as a condition.
7. In the present case on examination of the present record, the conclusion which follows is that prima facie the appellant has been acting negligently and has been delaying the completion of the sale without any justification. It is not disputed by the learned counsel for the appellant that the sale deed itself could not have been registered at a point of time as the appellant was not in possession of the entire amount of consideration. Despite notice issued to the appellant requiring him to complete the transaction, he did not have the sale deed registered. That being so, no possible exception can be taken to the condition imposed by the trial Court.
As a result of what has been stated above, this appeal is found to be without merit and is dismissed, leaving the parties to bear their on costs.