The order, dated 12-5-1997, passed by the learned Civil Judge, while disposing of an application under Order 39, Rule 10, Order 38, Rule 5 and section 151 of C.P.C., in a suit for recovery of Rs.25,00,000 and for declaration and damages, has been assailed in this appeal.
2. The suit proceeds with the allegations, that respondent No. l was interested in the purchase of office building on canal, respondent No.2 contacted him on behalf of the appellant and showed him a house, facing the canal, the respondent No. l offered Rs.75,00,000 for house facing the canal, a sum of Rs.1,00,000 was paid through cheque dated 14-1-1997 as token money, after some negotiation, respondent No. l was informed that the owner was willing to sell the house facing canal for Rs.85,00,000, respondent No. l accepted the price, informed the same through respondent No.2, an agreement to sell was written, but full description of the property was not supplied, an additional sum of Rs.24,00,000 was paid by respondent No. 1, the parties signed all pages of the agreement to sell except page No.5, which contained schedule, the agreement was not complete till the same was signed on all pages, and that subsequently, on checking of the site-plan, it was found that house facing canal did not belong to the appellant and that since the agreement was not complete between the parties, therefore, respondent No. l was entitled to the return of the amount advanced and for the payment of damages. With these allegations respondent No. 1, claimed return of earnest money, declaration to the effect that the agreement had become inoperative and of no legal effect, and also for a decree for payment of damages.
3. In the application, under Order 39, Rule 10 of C.P.C., read with Order 38, Rule 5 and section 151 of C.P.C., filed alongwith the plaint, it was claimed, that pending decision of the suit, the appellant be directed to deposit Rs.25,00,000 in the Court and the same may be invested in a saving or other account bearing mark-up at the current bank rate. A direction was also sought against the appellant for providing details of property. An order restraining the appellant from transferring or alienating the suit property or from creating any right or interest thereon, pending decision of the suit was also prayed for.
4. The appellant contested the suit as also the application, inter alia stating therein, that the suit was not maintainable, respondent No. l had forged a material document with an attempt to misguide the Court, material facts were either concealed or distorted, respondent No.2 had never acted as agent of the appellant and in fact he acted as an agent of respondent No. l and that the offer made by the plaintiff/respondent No. l was for the purchase of house No. 7-B/ 1, Canal Bank and that the appellant had never made any misleading representation. It was further pleaded, that all documents including sale-deed, excise record and related documents were provided to respondent No. l who drafted the agreement. Page No.5 of the agreement which contained schedule describing the property was to be filled in and only description of the property lying on the western side 7-B/1, Canal Bank was left blank on account of non-availability of exact number of property situated on that side. However, the location of properties situated in northern, southern and eastern, of 7-B/ 1, Canal Bank, Lahore was clearly given which was sufficient to ensure correct identification of Property No.7-B/ 1, canal bank Lahore. According to the appellant, respondent No. l intentionally removed the original page of the agreement to sell appended a fabricated page after adding two clauses and removing the date and information regarding measurement and number of property and description of the properties situated on northern, southern and eastern sides of property 7-B/1, Canal Bank, Lahore. However, it is asserted, that page 2 of the agreement to sell adequately and sufficiently described that the property agreed to be sold was "of that piece of land bearing No.SE-29-R-7 and also known as 7-B/l, measuring one Kanal situated at Canal Bank Lahore". It was, therefore, claimed that there could be no confusion or mistake regarding identity of the property. A copy of the original page 5 which was tele-faxed by respondent No. l from his own E.x machine, containing the above details was appended with the written statement and it was alleged, that the agreement was concluded, it was not inchoate. According to the appellant, in terms of the contractual obligations respondent No.1 was legally bound to pay the remaining amount within one month from the date of agreement which he did not fulfil and, therefore, the appellant reserved the right to claim damages and to make loss/damages on account of default on the part of respondent No. 1. The application for the interim relief was also contested with the assertions, that the requirements of Order 39, Rule 10 and Order 38, Rule 5 of C.P.C. Were not made out and that the amount was paid as earnest money which the respondent No. l could not claim to be returned. .
5. The learned trial Court vide order, dated 12-5-1997 directed that the amount of Rs.25,00,000 shall be deposited by appellant in Court and while the other relief claimed in the application was declined. This order has been called in question in the present appeal.
6. Learned counsel for the appellant argued that the application for interim relief was filed under Order 39, Rule 10, Order 38, Rule 5 and section 151 of C.P.C. The ingredients of Order 39, Rule 10 and Order 38, Rule 5 of C.P.C. Were not fulfilled, as the appellant was not holding any amount' in trust nor admitted to have ever held any amount in trust for respondent No.1 and also as there was no allegation or material to show that the appellant was leaving the territorial limits of Court or disposing of the property with intent to obstruct and delay the execution of decree. Further submitted, that there was no prima facie case in favour of respondent No.1 and that keeping in view the admitted pages of the agreement, it could not be said that there was any confusion as to the identity or description of the property, hence the respondent No.1 could not voluntarily claim repudiation of agreement or seek a declaration of agreement having become inoperative. On behalf of respondent, the case was partly argued by Ch. Muhstaq Ahmad Khan, Advocate whereafter the arguments were concluded by Syed A.I Zafar, Advocate, respondent No. 1, himself.
7. It was argued from the side of respondent No. 1, that the appeal was not maintainable as the order was passed under section 151 of C.P.C., the agreement was inchoate and incomplete, the appellant made misrepresentations and committed fraud by showing a property which did not belong to him, received money on making representations. Further argued, that it was just in the circumstances of the case to pass an order for the deposit of the money. Reference was also made of letters, dated 1-3-1997 and 5-3-1997 to contend that the schedule could not be signed because of the dimensions were not known. A reference was also made to the written statement filed by respondent No.2 (defendant No.2) in the suit to contend that he had acted as an agent and admitted the claim of respondent No. 1. Further submitted, that the appellant did not claim any loss or damages nor claims to have forfeited the amount and, therefore, liable to deposit the same in Court pending disposal of the suit. At this stage, learned counsel for the appellant, submitted that the appeal may be treated as revision and disposed of accordingly. He further offered that the appellant was prepared to furnish security to the effect that if the suit is decreed, she will pay the suit amount alongwith profits at the bank rate, within 15 days from the date of decree, from the date of filing of the suit till the grant of decree.
8. The contentions raised by the learned counsel for the parties have been minutely considered and record of the case perused.
9. The review of the impugned order, will show, that the learned Civil Judge, did not record any valid reason for issuing a directive for deposit of the amount under reference. All that, he did, was that the contentions of both the sides were reproduced and the order was concluded with the observation that the contentions raised by the parties required full trial and could not be disposed of summarily unless the parties furnished the evidence on this material proposition and since the amount has been received for the impugned transaction, therefore, the same should be deposited in the Court.
10. This was hardly any reason for issuing such a directive. Law requires that the order must be supported by solid reasons, depicting application of mind, narrating the basis therefore and the justification for the relief granted. In the absence of a prima facide case, which a party has to make out, no interim relief could be claimed. Without finding the existence of prima facie case and other conditions, showing grant of relief as just and lawful, the Court could not have issued such-like directive.
11. In the present case respondent No. l claimed that he was offered a house facing canal and that subsequently it revealed that the appellant did not own any property facing canal. A copy of the agreement has been placed on record. According to respondent No. 1, he was approached by respondent No.2 as an agent of the appellant which fact has been denied by the appellant. On the record no power of attorney or letter of authority has been placed to prima facie establish that respondent No.2 had ever acted as agent of the appellant. The appellant has also denied, that the agreement was incomplete or that the copy of the schedule was the one which has been placed on record by respondent No. 1. To the contrary, a facsimile copy of the schedule, purported to have been sent on the fax of respondent No. l has been placed on the record with the allegation, that originally the same was the schedule forming part of the agreement which has been removed and other clauses have been forged. This document cannot be overlooked at this stage and will be prima facie sufficient to controvert the claim in regard to the schedule made by respondent No. 1.
12. Admittedly, the parties are not disputing pages 1 to 4 of the agreement, copy of which has been placed on record by respondent No. l . The recital of the document reads as follows:-- "Whereas the vendor declares and claims that she is the sole, absolute and exclusive owner and is seized, possessed of and otherwise sufficiently entitled to of that piece of land bearing S-E-29-R-7 and also known as 7-B/1 measuring one Kanal situated 7-Canal Bank, Lahore (hereinafter referred to as the said property) which is more fully described in the schedule hereunder written, the same having been acquired by sale-deed dated 8-10-1988 registered with Sub-Registrar Model Town, Lahore as document No.14325, Book No.1, Volume 87 on 9-10-1988."
13. The perusal of recital of the agreement would, therefore, reveals two things; namely, number of the property and the source of title. The agreement is stated to have been drafted by respondent No. 1. It cannot be said that the agreement was drafted without looking into the sale-deed, dated 9-10-1988, which was specifically mentioned to be the title deed of the vendor. The number of the property is prima facie mentioned in the recital, alongwith the particulars of the sale-deed, copy of which is on the record. It is not the case of respondent No.1, that property No.7-B/ 1 is facing canal.
This being so, the allegations of an offer for the property facing canal do not prima facie borne out from the existing material.
14. In the given circumstances, at present, there is no material placed on record by respondent No. 1, to prima facie support the plea, that the house offered and as given in the agreement was facing canal. In the presence of the admitted material on record and leaving aside the disputed part, it cannot be said that any prima facie case was made out for seeking indulgence to' gain interim relief.
15. The provisions of Order 39, Rule 10 of C.P.C. Were not at all attracted as neither appellant was holding the money as trust nor he admitted to have held the money as a trust. On the contrary, the admitted position is that the money paid was earnest amount for the purchase of the house while clause 11 of the agreement, gives right for forfeiture of the earnest amount and rescission of Contract by the vendor in case, the buyer fails to perform obligations in terms of the agreement.
Clause 11 forms part of page 4 of the agreement which bear the signatures of the parties and figures in undisputed part of the agreement. This being so, respondent No. l may have to cross insurmountable hurdle for making out the case for the refund of the earnest money. Obviously, till such time evidence is produced to prove the agreement as claimed by respondent No. l and plea raised is established, no claim can be made for the refund of the money. At this stage, in the absence of any material, supporting prima facie, the allegations made in the plaint, the appellant could not be directed to return the earnest money or deposit the same in the Court which otherwise the appellant could insist to have forfeited.
16. The order for deposit of the amount in question, at this stage will tantamount to grant a decree in anticipation which is never permissible in law. There is no allegation that the appellant was disposing of the property or leaving the limits of Court with intent to obstruct the decree. Even the relief against alienation of property and other relief claimed in the application were declined by the trial Court which order was never challenged by respondent A No. l by way of appeal or revision.
17. For the reasons given hereinabove, it is observed that the impugned order cannot be said to be just and equitable in the circumstances of this case. Learned counsel for the appellant has made an offer during arguments that the appellant is prepared to furnish security to the effect that if the suit is ultimately decreed, she will pay the decretal amount alongwith profits at the bank rate, from the date of filing of the suit till payment, within 15 days from the date of decree. This offer appears to be reasonable and fully covers and secures of apprehensions of respondent No. 1. The appeal was filed by the appellant, as the order was passed on application under Order 39, Rule 10 of C.P.C.
The order reveals that the relief was given under section 151 of C.P.C., which of-course was not appealable. However, this appeal is treated as revision and decided as such.
18. For the reasons hereinabove, this revision is accepted, the impugned order dated 12-5-1997 of the learned trial Court is set aside, and the application under Order 39, Rule 10 of C.P.C. Filed by respondent No. l shall be deemed to have been dismissed. It is, however, directed that the petitioner shall furnish security in the trial Court, to the effect, that if the suit is decreed, she will pay the decretal amount alongwith profits accrued thereon, from the date of filing of the suit till payment of the decretal amount, within 15 days of the decree. The security shall be furnished by a person having immovable property equivalent to the amount of security, with the undertaking that he would not dispose of the property, pending decision of the suit.
19. The learned trial Court shall decide the main suit within three months by accelerating the proceedings and, if necessary, by recording day to day proceedings in the suit. Any observation made in this order, is tentative for the purpose and disposal of this revision itself which shall not effect either side in the decision of suit on merits. No order as to cost.