Munawwar Saeed respondent herein brought a suit on 21-7-1990 against the present appellant Ibrar Ahmad Khan Tareen for specific performance of a contract based on an agreement to sell dated 27-6-1989 in respect of agricultural land measuring 56 Kanals 14 Marlas situated in village Nangal Sadhan Tehsil Ferozwala District Sheikhuupura alleging inter alia that the defendant being the owner of this land agreed to sell the same to the plaintiff @ Rs,1,75,000 per acre and received a sum of Rs,1,00,000 as earnest money at the time of the execution of agreement stipulating therein that the sale deed would be executed/completed within a period of 90 days but he failed to discharge his legal obligation in spite of the fact that the plaintiff was always ready to make the payment of the balance of sale consideration amounting to Rs,11,40,312.50 and bear the allied expenses and also service of a legal notice dated 16-6-1990 calling upon him to get all the formalities completed within a period of seven days and instead of doing the needful, the defendant sent him a reply dated 25-6-1990 taking false/fake pleas therein and levelling frivolous allegations with mala fide intentions.
2. Alongwith this suit, he also moved an application under O.XXXIX rule 1 & 2 C.P. Code for restraining the defendant from alienating the property in dispute. This application found favour with the learned Civil Judge Ferozwala, then seized of the matter, who vide his order dated 23-4-1991 issued temporary injunction as prayed for. The defendant preferred an incompetent appeal against this order in the Court of learned Addl. District Judge and after its dismissal on 30-5-1991, he brought the matter to this Court (High Court) but having remained unsuccessful he filed a petition for leave to appeal in the Supreme Court of Pakistan which was disposed of on 25-11-1993 with the following observations:-- "The grievance of the petitioner is that while such a restraint was being imposed on him in the matter of alienation of the property the plaintiff/respondent should have been called upon to deposit or guaranteed the balance amount due as price of the land. We do not think that there is any absolute restraint on the petitioner in making such a request to the court as this aspect of the matter has not been considered by it in the interim order that has been passed. If there is inordinate delay in disposing of the suit itself then also such a request can be made with a view to seek suitable alteration in the interim order."
3. Encouraged by these observations, the defendant moved an application on 29-3-1994 under section 151, C.P.C., alleging therein that he had already moved an application under O.XXXIX rule 4 read with Section 151 CPC, praying for the vacation of the stay order granted in favour of the plaintiff, which was still pending and in view of the observations of the Hon'ble Supreme Court, he requested the trial court for a direction to the plaintiff for the deposit of the balance amount, after the disposal of the said application. It was on this application that the impugned order was passed on 4-7-1994. The learned Civil Judge 1st Class Ferozwala did not feel inclined to vacate the temporary injunction restraining the defendant from alienation of the property or to ask the plaintiff to deposit balance amount due as price of the land because as per his observations, excepting the statement of the plaintiffs, his remaining evidence had already been recorded and it was thereafter that this application was moved. According to him, there was no inordinate delay in disposing of the suit and it would not be in the fitness of things to reopen the matter especially when he already intended to dispose of the suit expeditiously by accelerating the proceedings.
4. This FAO was admitted in order to look into the assertion of the defendant in this FAO, based on PLD 1990 Lahore 82, that in a suit for specific performance the temporary injunction cannot be granted, unless the plaintiffs first pays the balance sale price.
5. Both the parties have been heard. In almost similar circumstances in a suit for specific performance on the basis of an agreement to sell, the previous case law was referred to and considered and it was held in Fateh Muhammad v. Muhammad Hand and another PLD 1990 Lahore 82 as under:-- "There is no gain saying that suit for specific performance shall take its own time to reach its final goal. Meanwhile, prices of real estate are not likely to remain static. They constantly show upward trend. Sharp fall in the money value during recent past and corresponding rise in prices of real estate is a relevant factor for the court to consider when issuing an injunction order of the type under consideration. In this view, it shall not be just to bind the defendants from dealing with their own property without .any solid security from their adversary to show his real bona fides in the proposed transaction of sale".
It was also held that there was no material to hold that the plaintiff was not earnest to go on with the sale agreement and pay the balance price for the land in dispute to receive its title from the defendants. It was in these circumstances that it was observed that in a suit for specific performance of the sale agreement when the plaintiff asks for a prohibitory order for restraining the defendant from alienating the property agreed upon to be sold, grant or injunction must be subjected to terms as to deposit of the sale price in Court, because this course shall be only show something about bona fides of the plaintiff seeking specific enforcement of the agreement of sale but shall also relieve the defendant from an unnecessary loss which he was likely to suffer. These observations were taken note of in Balquees Zaman Khan and others v. Tahir Mahmood Butt (1991 CLC 1507) and the impugned order was accordingly modified. The same view was confirmed in Waqar Avais v. Raja Muhammad Shafi Janjua and 4 others (1992 CLC 8) and it was held that it would 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, Respondents No,1 to 3 in the said case also undertook through their counsel that they would also deposit Rs,7,50,000, the sum received by them as advance money, within the same period in the trial Court.
6. After considering the circumstances of the present case in the light of these authoritative pronouncements, I find that while the plaintiff/respondent claimed in his plaint that the defendant failed to abide by the terms of the agreement and to execute/complete the sale deed within 90 days from the date on which the agreement to sell was entered into, the defendant also vehemently maintained inter alia that this suit had been brought for the benefit and on behalf of another person; that initially the time for the execution of the sale deed was extended upto 15-10- 1989 and it was the obligation of the plaintiff to get the sale deed executed according to the terms and conditions settled between the parties but he failed to take any intiative to do the spade work and, therefore, it was only on account of the negligent conduct of the plaintiff that the agreement to sell had fallen through. It has thus to be seen whether time was the essence of the contract and as to who from amongst the parties to the agreement was to blame for non-execution non- completion of the final sale deed. The mere fact that the evidence of the plaintiff was complete except recording of the statement of the plaintiff himself and tendering of certain document should not have weighed with the learned Civil Judge so heavily as to deprive the appellant of the relief sought by him for which he had to knock at various doors and finally go upto the Hon'ble Supreme Court of Pakistan. In view of the law laid down in the aforesaid authorities, the prohibitory order should have been subjected to the condition of depositing the balance of the agreed sale consideration in order to show the bona fides of the plaintiff. I, therefore, feel inclined to accept this appeal.
The result is that this appeal is accepted, the impugned order dated 4-7-1994 is set aside and the temporary injunction issued by the learned Civil Judge is modified to the extent that the prohibitory order would be subject to the condition that the plaintiff/respondent deposits in the Trial Court within a period of two months from the receipt of a copy of this judgment, the balance of the agreed sale consideration i,e, a sum of Rs,11, 40,312,50, failing which the prohibitory order shall stand vacated. The appellant is also awarded the costs of this appeal.
7. Before parting with this judgment, I may observe that the apprehension of the learned counsel for the respondent/plaintiff that after the deposit made by him, the present appellant/defendant may also prolong the proceedings unnecessarily, by delaying the production of his evidence etc; is also not without force. The remedy to this apprehended conduct of the appellant/defendant has also been suggested in the reported judgment Rs,1992 CLC 8 and in such an eventuality, the plaintiff shall also have the right to move an application to the learned Trial Court for a direction to the defendant, to deposit the sum received by him as advance money, within a stipulated period.
8. In case the deposit is so made, the Trial Court shall invest it in a profit bearing scheme approved by the Government for the benefit of the parties to the litigation.