' This is an application by the plaintiffs for grant of a temporary injunction restraining defendants from transferring, alienating, or creating any encumbrance upon the suit property, pending the decision of the suit.
2. The facts formic g the background of the controversy in this suit may be briefly stated. The dispute in this case relates to a plot of land bearing Survey No, 7/3, St. No, S. R. I. Sarai Quarter, measuring about 3,325. S. Yards , situated at I. I. Chandigarh Road, Karachi. The defendants. Messrs Fancy Foundations are the owners of this plot and it is admitted that in 1967 the plot was covered by buildings and structures. The case of the-plaintiffs is that in about April 1967, the parties entered into an oral agreement whereby the defendants agreed to sell to the plaintiffs the property in suit which was known as Nariman Kothari Chambers at the rate of Rs, 1,000 per sq. Yards. Under the terms of the agreement, the plaintiffs paid a total sum of Rs, 30,00,000 out of the consideration of Rs, 33,25,000, between 20.4-1967 and 16-5-1967. On 20-11-1969, the defendants confirmed the existence of the contract in a letter addressed by them to the plaintiffs wherein they acknowledged the receipt of the aforesaid amount of Rs, 30,00,000 and informed the plaintiffs that necessary formalities regarding the execution of conveyance deed and registration thereof will be completed as soon as the remaining tenants are ejected enabling them to hand over clear possession of the plot. It is pertinent to mention that in this very letter it was further disclosed that the defendants had already commenced necessary action to eject the remaining tenants. It is common ground between the parties that the litigation between the defendants and the tenants of the property terminated by judgment of the Supreme Court dated 30.5-1974 by which finally the orders of ejectment passed against the tenants were upheld and the tenants were directed to vacate the premises within four months. It was, however, observed by the Supreme Court that at the appropriate time it will be open to tenants to apply to the Rent Controller for relief under subsection (5-B) of section 13 of the West Pakistan Urban Rent Restriction Ordinance, 1959 which provides for re-instatement of a tenant in the new building constructed on the same site.
3. At this stage it may be mentioned that the case of the plaintiffs as set out in the plaint as well as in the correspondence exchanged between the parties all along was that the defendants had agreed to sell to the plaintiffs the suit property free from all claims, charges, liens, or encumbrances and that they had undertaken to transfer possession without restriction or qualification. The plaintiffs alleged that they were ready and willing always to perform their part of the contract and to pay the balance of purchase price but the defendants were avoiding to perform their part of the contract. Accordingly, the plaintiffs sent notice dated 2-1-1975 calling upon the defendants to complete the transaction of sale and hand over clear possession within six weeks. In this notice which is produced as Annexure E to the plaint it was clearly asserted that the defendants had agreed under the terms of the contract to hand over clear possession free from the rights and claims of others, but the possession that was now being offered by them was subject to the rights of the tenants to reinstatement as declared by the Supreme Court. It was, therefore, required of the defendants in this notice to negotiate and settle with the tenants of the property and deliver possession thereof free from rights of the tenants. It seems that correspondence had been captiously exchanged between the parties much of which has been produced by the parties in support of their respective cases. The plaintiffs finally by their notice dated 16-7-76 called upon the defendants to hand over to the plaintiffs clear possession of the property" and to convey the same by making out a valid subsisting marketable title in favor of the plaintiffs, and complete the sale against the receipt of the balance amount of Rs, 3,25,000. They also claimed in this notice the payment of rents realized by defendants from the tenants as well as the proceeds of the debris, as it appears that by that time the standing structures and buildings on the plot in question had been raised down. In this notice the plaintiffs also disclosed that the defendants were trying to sell the suit property to some other party for a higher amount and warned them to exist from doing so. Since no response was forthcoming from the defendants the plaintiffs filed the present suit on 30-7-1976 praying for the relief of pacific performance of the contract of sale along with a decree for payment rents and proceeds of debris and a sum of Rs, 36,67.239.76 as compensation for refusal and delay in performance of contract. In the alternative plaintiffs prayed for a money decree for Rs, 99,92,239.76 comprising the sum of Rs, 30,00,000 paid as advance consideration and Rs, 33,25,000 by way of compensation for breach of contract and the remaining amount as interest.
4. Along with the plaint the plaintiffs submitted the present application for interim relief of temporary injunction as stated earlier. The defendants have resisted the application and have filed counter-affidavit. They have denied that any contract was arrived at between the parties containing the terms and conditions as alleged. According to them an understanding was reached between them in relation to the plot in suit which was referred to in the minutes the meeting of the Board of Directors of the plaintiffs company held in May 1971 wherein a decision was recorded regarding the probable rate at which the said plot could be purchased from Fancy Foundation. t is their case that this understanding was confirmed by the defendants in their letter dated 20-12-1969 (Annexure A to the plaint) which clearly states that action for ejectment of tenants was in progress.
However, V'e defendants admit having received from the plaintiffs a sum of Rs, 30,00,000 in terms of the understanding referred to above. They further alleged that they kept the plaintiffs informed about the various stages of the litigation between them and the tenants, and therefore they have vehemently denied the allegation that the plaintiffs were kept in dark regarding the true nature of the proceedings against the tenants. The defendants have categorically asserted that the plaintiffs were aware of the right of the re-instatement of tenants in the new building prescribed by law by amendment of the West Pakistan Rent Restriction Ordinance, 19)9 by the amending Act issued in 1965. In this connection the defendants have relied upon various documents consisting of correspondence exchanged between the parties from 20-11-1969 to 14-11-1974. In short the plea of the defendants is that the understanding between the parties as contained in letter Annexure A to the plaint did not contain a stipulation that possession of the property would be handed over to the plaintiffs unimpaired by the statutory rights of the evicted tenants for re-induction in the new building. The defendants have further alleged in their affidavit that in view of the fact that legal proceedings instituted for ejectment of the tenants was likely to take considerable time, the plaintiffs agreed in December 1969 that the plot in suit be transferred to the Pakistan Chrome Mines Ltd., for a profit. -But, they changed their mind once again and decided to retain the plot for themselves. However, the defendants pressed this fact into service and urged that on account of this they were absolved of all liabilities in this aspect. The defendants then submitted that after the decision of the Supreme Court in all good faith they offered to hand over the possession to the plaintiffs after getting the delivery thereof from the tenants. It is their case that the plaintiffs declined to accept the possession and were not ready and willing to perform their part of the contract. In these circumstances the defendants alleged that they were free to enter into a valid agreement for the sale of the plot and did so in favour of the Muslim Commercial Bank Ltd , Karachi prior to receiving ad interim orders of injunction passed by this Court, The defendants have also taken a plea that the plaintiffs by their letters dated 13-12-1972, 9-2-1973, and 14-11-1974 categorically agreed to accept back the sum of Rs, 30,00,000 paid by them and to treat the contract as cancelled. Further they alleged that by their letter dated 12-12-19-,5, the defendants finally terminated the understanding between the parties in view of the breach on part of the plaintiffs, and this position was acquiesced in by the plaintiffs by their long silence for about seven months. It was, according to them, after the ' plaintiffs have learnt of the agreement of sale entered into between the defendants and Muslim Commercial Bank Ltd., that the plaintiffs mala fide claim specific performance of the alleged contract.
5. In support of the application, Mr. Snaraf Faridi, learned counsel appearing for the plaintiffs submitted that the documentary evidence produced by the plaintiffs, specially the letter written by the defendants hated 20-11-1969 Annexure A clearly established a strong prima facie case that the parties entered into a contract whereby the defendants agreed to sell the plot in suit to the plaintiffs for the stipulated consideration. It was accordingly contended by the counsel that in order to protect the interests of the plaintiffs it was necessary to maintain the property which is the subject-matter of this suit in status quo. He further urged that the blatant assertion on the part of the defendants that they wish to transfer their rights and interests in the property to a third party under a contract entered into subsequent to the contract in suit, clearly make out a case of irreparable injury to the plaintiffs If the injunction prayed for is not granted. Learned counsel laid great stress upon the admitted fact of the defendants having received Rs 30,00,000 being nearly 90 per cent. Of the entire consideration for sale and went on to argue that this amount was illegally retained on false pretexts by the defendants for their own use over a long period of 9 years. In order to establish balance of convenience in favor of plaintiffs, learned counsel invoked the doctrine of Bs pendens and placing reliance on two decisions of this Court, urged that where in a case it is shown that a valid contract for sale of immovable property prima fade exists Between the parties, ancillary relief by way of injunction restraining transfer of the properly in dispute is invariably granted. In this connection he placed reliance on Miss Iqbal Fatima v. Kaiser Tanveer (1), Perveen Begum v. Mohammad Sarwat Khan (2) and S. N. Gupta v. Sardar Nanda Ghosh (3).
6. Mr. Sharaf Faridi submitted that the plaintiffs insisted upon the defendants to settle the claim of the tenants as regards their right of rehire diction in the new building under a bona fide belief that the contract provided for possession to be handed over to the plaintiffs free from any such rights.
However, if the Court comes to the conclusion at the time of decision of this suit that such rights are a necessary incident of the transfer of title to the plaintiffs as a private of Estate, they would be willing to accept the property subject to such rights. He, therefore, strongly contended that this question is not material for the purpose of deciding the question whether in view of the plaintiffs' past assertion, they are entitled to specific performance of the contract so as to subject their title to the rights of the tenants,
7. Mr. Khalid Ishaque, learned counsel appearing for defendants in reply contended that it is legally impossible to transfer possession of the plot free from rights of the tenants in view of the legal position arising out of the decision given by the Supreme Court. He urged that if the contract provided transfer of possession free from all such claims, then the contract is unenforceable by the doctrine of frustration, inasmuch as, it is not possible to perform it in terms of the alleged stipulation. The submission of the counsel was that the Court in an action for specific performance cannot substitute a different contract for the one entered into between the parties and therefore if the original contract has become impossible of
(1) PLD 1976 Kar. 734 (2) PLD 1956 Sind 521
(3) PLD 1960 Dacca 153 ' performance the only result would be to refuse specific performance of the contract. Learned counsel also raised the plea of limitation and referring to the letter dated 9-2-1973 (Annexure D/28), contended that to the knowledge of the plaintiffs the defendants had declined to hand over the possession to them in the manner demanded by them more than three years prior to the institution of the suit. Counsel invited my attention in to letter dated 13-12-1972, Annexure D/27 filed by the defendants and submitted that this furnishes the clear proof of the fact that the plaintiffs abandoned the contract and greed to accept money compensation and consequently they cannot row plead that they were ready and willing to perform their part of the contract. Learned counsel next strongly contended that the plaintiffs have been guilty of laches in so far as they threatened legal action as far back as 9.2-1943 (Annexure D/28) but remained quiet for more than three years, which disentitled them from seeking equitable relief. Counsel also contended that there is overwhelming documentary evidence to show that there exists a fundamental disagreement between the parties regarding the terms of the contract and no contract can be specifically performed of which the terms are not certain or unambiguous. Referring to the arguments of the learned counsel for the plaintiffs, counsel contended that the plaintiffs, themselves are seeking to enforce an altered contract and therefore the defendants could not be blamed for their refusal to perform the alleged contract in its original form.
8. I have given my best consideration to the respective contentions and arguments advanced by the learned counsel for the parties. Hiving regard to the voluminous documentary evidence produced by the parties, all said and done, the conclusion is inescapable that, prima facie, there existed a contract for sale of the suit property between the parties. Without meeting to decide the issue finally, for the present purpose, I would not hesitate to express that to my mind it is unimaginable that a huge sum of Rs, 30,00,000 was parted with only on a pious wish that the sale of the property would come about in the future. However, the question that has vexed my mind is, is this fact alone sufficient to pass order of injunction tying down the hands of the defendants from dealing with their property? And if not, will the plaintiff be able to avail the remedy sought in the suit by way of specific performance if the suit is decreed for that relief?
9. As to the first question Mr. Sharaf Faridi emphatically contended that the Court is not required to go into the niceties of the case on merits at this stage. Learned counsel made this submission in an effort to tide over the forceful contention of other side that there is clear documentary evidence available to show that at one stage the plaintiffs had abandoned the contract and demanded refund of the advance payment. It is needless for me to burden this order with the decision as to what is meant by prima facie case and of the considerations which weigh with the Court in -V e matter of grant of temporary injunction. The principles governing the discretion for granting such relit f are now very well laid down. I am unable to agree that the question of injunction can be approached with any hard and fast rule like a mathematical formula. Injunction is a discretionary and equitable relief and each case has to be decided in the light of its own facts and circumstances.
10. I agree that the decision in such cases lies within a narrow compass and care is required not to adjudicate an issue as such at this stage but, nonetheless, in order to judge whether the plaintiff has made out a prim fade case, the assessment of the facts of the case in the limited sense is inevitable. In am, therefore, of the clear opinion that a Court for this purpose would be well within the bounds of legitimate exercise of this jurisdiction to take into consideration the admitted documents placed before it. It is needless to say that all such assessments are of tentative nature and do not bind the Court trying the suit at the hearing. If authority is required for this proposition reference may he made to cases reported in 1970SC MR 654 and PLJ 1975 SC 71.
11. Now the prayer for injunction is being sought as an ancillary relief and therefore necessarily has reference to the main relief of specific performance. The plaintiffs in order to show that they have a prima jack case must not only show that there was a contra& between the parties but that S prima facie the contract still subsisted and further that all the prerequisites for grant of such relief were present in the case or that there is nothing to impair the remedy sought at the trial. In this connection I might with advantage refer to Margin.Th Siddiqi v. Hama Ahmad (1) where their Lordships of the Supreme Court made the following observations:- "Although as interim injunctions are granted under Order XXXIX, rule IL of the Code of Civil Procedure, the principles, which govern the grant of injunction contained in the Specific Relief Act, have also to be kept in view. Under section 56, clause F, one of the principles is that an injunction cannot be granted to prevent the breach of a contract the performance of which cannot specifically be enforced. Now it is well settled that contracts for personal service are not contracts which could be specifically enforced. The granting of an injunction therefore, i3 a service matter like the present one is opposed to the principles governing the grant of such injunctions."
This being the position, it would legitimately be open to the defendants to show that the contract sought to be enforced is not prima facie capable of or specific performance, even for the purposes of temporary injunction.
12. In the light of the above principles I shall now examine the circumstances of this case. In Annexure P/27 which is letter dated 13-12-1972, addressed by the plaintiffs to the defendants it was stated as follows:- "It was not proper for K. G. C. To have paid Rs, 30,00,000 without obtaining possession of the plot.
Fancy Foundation should, therefore, arrange to hand over clear possession of the plot to K. G. C.
Within three months; alternatively K. G. C. Would be prepared to accept back amount paid to Fancy Foundation plus interest for the period. Fancy Foundation should either arrange to retain the plot for itself or sell it to some other party."
' Again in Annexure 28 which is a letter dated 9-2-1973, the plaintiffs stated as follows:- "I, therefore, write to request to arrange to hand over vacant possession of the Airman Kothari Chambers plot to K. G. C. Without any encumbrance within one month from the date of this letter and make out marketable title and complete the sale and conveyance within three months as otherwise we shall consider that the agreement for sale has been cancelled and the Fancy Foundation will be liable
(1) 1974 SCM R 519 ' to refund the amount of Rs, 30,00,000 to K. G. C. With interest from the date of payment and other costs."
' In Annexure D/15, which is a letter date I 14-11-1974, the plaintiffs again wrote as under:- "We shall, therefore, be grateful if in "accordance with this indication you will kindly arrange to have vacant possession of the plot of Nariman Kothari Chambers, free from all encumbrances, given to us immediately failing which we would be constrained to request you kindly to refund the entire amount of Rs, 30,00,00a paid by us towards purchase price of the plot together with interest."
' On 4-7-1975, defendants' Advocate write to the plaintiffs vide Annexure D/23 saying that the defendants were willing to hand over the vacant possession of the plot as it had been obtained from the tenants pursuant to the judgment of the Supreme Court dated 30-5-1973. It was further stated in this letter that the arrangement for sale of the above-mentioned property to the plaintiffs was subject to the claim of the tenants for re-instatement. It was stated at the Bar by Mr. Khalid Ishaque that as many as six times the possession was offered, but the plaintiff insisted on the defendants to settle the claim of the tenants as regards re-induction in the new building to be erected on the plot. This position is reflected in the notice given through the Advocate by the plaintiffs dated 2-4-1975 (s).Annexure B to the plaint). It was stated in this notice as under "Our clients accordingly require you to negotiate and settle with the tenants and occupants of the property and make the property free of rights and claims of others and free of clog or other restrictions on the property and its title."
From the above circumstances, two things emerge, prima fade, namely that at one stage the plaintiffs were willing to accept refund of the advance payment along with interest and other charges; and the at until the filing as the suit the plaintiff insisted on the possession to be delivered free from claims of the evicted tenants, whereas the defendants continued to offer possession subject to all legal rights vesting in the tenants under the judgment of the Supreme Court: It was in the context of these circumstance that Mr. Khalid Ishaque forcefully contended that the plaintiffs are di entitled to discretionary relief as by their own showing monetary compensation was considered adequate relief by them. Alpo that the parties were a variance as to the essential terms of the contract regarding the nature of the possession to be delivered by the defendants. In this connection, learned counsel placed reliance on Ratnji Patel v. Rao Krishwar Singh (1), which w a case for specific performance of contract for sale of immovable property. Their Lordships of the Privy Council refused decree for specific perform on the finding that compensation in money was an adequate relief to the plaintiff and in view of the express provisions contained in sections 12(c and 21(a) of Specific Relief Act. He also cited the case of Bari Kishna v. K. C. Gupta (2) in which following the above Privy Council case, it was held that in a suit for specific performance of contract where it is established that the plaintiff had himself at one stage offered to accept damages as adequate compensation in place of specific performance, the jurisdiction to grant specific performance is barred by section 21(a), Specific Relief Act.
12-A. Since Mr. Sharaf Faridi strongly relied upon the judgments mentioned earlier I would consider the same in the light of the present case
(1) AIR 1929 P C 190 (2) AIR 1949 All. 440 ' The first case referred to above by the learned counsel namely Mst. Iqbal Fatima v. Kaiser Tanveer
(1) is my own judgment in a case for grant of temporary injunction. The passage relied upon is contained in para. 9 of the judgment which states that it was not necessary to give finding on the factual controversies raised by the parties as they would be subject-matter of decision at the trial and that what was necessary to see was whether the plaintiff had made out an arguable case by raising a serious question to go to trial, There can be no cavil against the proposition of law stated in the passage as the same is axiomatic in regard to the matters of temporary injunction. However, the perusal of the judgment will show that tentative assessment of the facts of the case was undertaken for the purpose of determining prima fade case. The second case referred was Perween Begum v. Mohammad Sarwat Khan (2) in which in a suit for specific performance of contract for sale of plot of" land the Court granted temporary injunction restraining time defendant from transferring the property. In this case, Inamullah, J., (as he then was) had relied upon the observations of Lord Justice Turner in the case of Halley v. The London Bank of Scotland 3). As the counsel particularly relh:d upon this observation it is necessary to reproduce it, which is as under: - "I have always understood the rule of the Court to be that, in a case where there is a clear and undoubted contract as to the validity of which no dispute arises for the sale of the property, the Court will not after that contract has been entered into permit the vendor to transfer the legal estate to a third person notwithstanding the Its pendent will operate against that third person, and I think that as well founded in principle, because the effect of the contract is to pass the whole equitable interest out of the vendors. So long as the contract is an undisputed contract the whole of the property is in equity transferred from the vendors to the pur baser; the vendor then becomes a trustee for the purchaser and the trustee cannot be permitted to deal with the legal estate so as to inconvenience the purchaser."
' In order to appreciate the full impact of the dictum contained in this passage I have examined the whole judgment of the Court of Chancery and I propose to discuss the effect thereof in some detail.
This case pertained to an appeal arising out of an order of the lower Court granting an injunction whereby the defendants were restrained from selling certain houses and property belonging to the defendants which were the subject to an alleged contract with the plaintiff. The plaintiff had brought a suit for specific performance of the contract for lease of the property. The decision of this appeal was in favor of the appellant and the order of injunction was dissolved. Lord Justice Turner after stating the general rule contained in the reproduced passage went on to observe as under :- "I think, therefore, that in a case where there is an undisputed and clear contract, there the Court will undoubtedly interfere in restraining, the vendor from transferring the legal estate to a third person. That however, as I think, is only in cases where there is a clear undisputed and undoubted contract. Now, without giving any opinion upon the result of this case, which I am very anxious not to do, inasmuch=
(1) PLD 1976 Kar. 734 (2) PLD 1956 Kar. 521
(3) 12 L T R 747 ' as it is not now the proper time to decide the question as to what effect of this contract would be, I go no further than to say that 1 think it is undoubtedly open to serious question what the result of this suit may be, so far as respects the contract, entered into by it e plaintiff, and in that case I apprehend the question whether the vendor shall be permitted to transfer to a third person the legal estate he comes a question of comparative convenience or inconvenience; and here, I think, there is no doubt whatever as to the direction in which the balance of convenience or inconvenience lies; on the one side there is nothing more than that the legal estate will be tar sphered to a third person possibly, and that the transfer of the legal estate to that third person may render it necessary for the vendor either to amend cr file a supplementary bill and being the party to whom the legal estate is transferred before the Court. Terre is nothing therefore but the extra cost which will be incurred by that proceeding and which it will be quite in the power of the Court to deal with at the hearing of the case, if the plaintiff should succeed in this suit. On the other hand, if this injunction is maintained and the defendants are prevented from dealing with the estate at all by reason of the pendency of this suit the consequence may be. And as it is stated at the bar, will be that they may be prevented from entering into beneficial contract"
' In view of these circumstances the Court of Appeal came to the conclusion that the comparative inconvenience by the grant of temporary injunction weighed in favor of refusal to grant the interlocutory relief.
13. With all respect to the learned Judge who decided the Karachi case I would further point out that the rule adopted by the learned Judge pertained to the peculiar legal position under the English Law which recognizes a distinction between legal and equitable estates. Under the English Law, a contract cf sale of real property makes the purchaser the owner in equity of the estate. Such a distinction is not recognized in our system of law which is governed by statutory provisions. Be that as it may, the subsequent passage reproduced by me in this judgment quite clearly shows that the learned Judges of the Court of Appeal in the English case did not regard the dictum stated by them as an invariable rule governing the question of temporary injunction in suits for specific performance of contract for the sale of real property. The judicial opinion in England has not been consistent in this regard which is illustrated by the decision in the case of Turner y. White (1) which was similarly a case of injunction in a suit for specific performance, to restrain a vendor from letting or selling the estate. The Master of Rolls, Lord Lansdale, in this case said that he would not now decide on the validity of the contract; and, as to the injunction to restrain the defendant the motion was refused with a condition that a -purchaser pendente lite would take the property subject to the rights of the -plaintiff. From the examination of these cases, therefore, I have come to the conclusion that each case depends on its own facts and circumstances and no hard and fast rule can be laid down in every case of specific performance of contract for sale of the immovable property, without having regard to the respective inconvenience resulting from the grant of temporary injunction, the Court is to grant such relief. Cases can be conceived where such relief may unhesitatingly be given, as for instance, where in pursuance of the written contract for sale of such property, the vendor has delivered to the vendee possession of the property in part performance of the contract, the balance of inconvenience in such a case would obviously be in favor of grant of temporary injunction. This principle is also deducible from the following observation in the judgment under discussion in the Karachi case:- "It is always left to the Court to find out whether the contract is one which would prima fade entitle the plaintiff to the relief he has sought for."
' For these reasons in my opinion this judgment also does not support the case of the defendants. It is not necessary for me to burden this order with the discussion of the decision in S. M. Gupta & Company v. Sardar Nanda Ghosh (1) as it deals with the general principles for the grant of temporary injunction which are quite well-established.
14. This brings me now to the consideration of the important question of balance of convenience or inconvenience. It is common ground that the principle of !Is pendens as enacted in section 52 of the Transfer of Property Act would govern any transfer made by the defendants during the pendency of this suit. It was conceded at the Bar by the learned counsel for the plaintiffs that section 52 gives protection to the plaintiffs in so far as any " subsequent transfer of the property effected during the pendency of this suit would not affect the rights of the plaintiffs. The protection that the plaintiffs seek by way of temporary injunction is therefore ahead', available to them. In case the plaintiff succeeds in obtaining a decree for specific performance of the contract the same shall be binding upon the transferee pendent lite by virtue of section 52 of the Transfer of the Property Act. I am quite conscious while saying so that in the case of Hally v. London Bank of Scotland referred to above, the learned Judge has stated that the only inconvenience that would result by refusal of injunction would be that the plaintiff would have to implead the subsequent purchaser as a party to the suit. However, upon authority it can be stated that the position in the sub-continent by virtue of the statutory provisions of sect on 52 of the Transfer of Property Act is substantially different. A plaintiff protected by the provisions of this section. Is not under obligation, for obtaining effective relief against such transfers. To implead such subsequent transferees who have acquired right in the subject of the litigation through transactions during the pendency of the suit. This precise question came up for consideration before a Full Bench of the Kerala High Court in the case of Lakshimanan v. Kamal (2) while repelling the contention of the subsequent transferees that the decree and the execution proceedings were not binding on them as they were not impleaded in the suit, the Court observed as under :- "If a transfer or other dealing with a suit property pendente lite is void as against the decree-holder and he is entitled to ignore it and it cannot affect his rights under the decree no purpose will be served by bringing on record after the transfer the transferee or the person in whose favour the property has been dealt with; and to insist that the transferee or the persons in whose favor the property has been dealt with should be brought on record in such cases would only be to hold out a premium to persons who desire to escape from their legal obligations and unnecessarily protract legal proceedings
(1) PLD 1960 Dacca 153 (2) AIR 1959 Ker. 67 ' and would defeat the very purpose for which section 52 of the Transfer of Property Act has been enacted."
' Similar view was held in Munilal v. Bhaiya Lal (1). Indeed the learned counsel for defendant himself contended that section 52 of the Transfer of Property Act extends statutory protection to the rights of the plaintiffs.
15. It was argued with some vehemence by Mr. Khalid Ishaque that the balance cf inconvenience weighs heavily in favour of the defendants inasmuch as it is quite evident that by lapse of time the defendant would be prejudiced if their bands are tied so far as dealing with the property is concerned as they are being offered attractive price for their property. In the event cf the suit failing to succeed as regards the relief of specific performance, the loss that would be occasioned to them would result in depriving them of utilising the funds procured from the disposal of the property for being used for the purpose of their business. Counsel argued that in case they allowed the property to remain unconstructed, they would be exposing themselves to criminal prosecution under the Urban Rent Restriction Ordinance, 1969. Whereas if the injunction is refused the plaintiffs' rights in case of a decree for specific performance would remain unaffected. On the other hand, if the injunction is issued the defendants will have to keep the plot of land vacated and unutilised as long as the suit is pending which in the present situation is likely to take considerable time. Mr. K alid Ishaque stated at the Bar that the defendants woulat be prepared to expressly mention the pendency of the present suit in the conveyance deed in case any transaction comes about regarding transfer of the suit property which would ensure notice to the purchaser that his rights will be subject to the decree in the suit. Having regard to these circumstances, therefore, there i3 no doubt in my mind that the balance of inconvenience lies in favour of the defendants.
16 . Looking therefore at the matter in the light of the afore3aid discussion, I am led to the conclusion that the plaintiffs have not succeeded in making out a prima facie case, principally having regard to the fact, as can at present be judged, that they were willing to accept money compensation G for dropping the contract. The probabilities of the case as regards the-balance of convenience or inconvenience also seem to weigh against the confirmation of the order for temporary injunction. There is thus no case made out for grant of this application.
17. However, the circumstances of the case very strongly warrant a order for putting the defendants to terms. The necessity to do so, to m mind, arises out of the consideration that the defendants have fluted at this stage to make out any justification for withholding the amount of Rs, 3 toes received by them towards the transaction in controversy, as it appears the defendants, even if the breach is established to be on the side of the plaintiffs, are not going to suffer any loss on that account. As earlier stated, for about nine long years the defendants had the use of the huge sum of money and if the respective positions of the parties remain as they appear to be, there is every chance of the plaintiffs succeeding to get a decree for the refund of this amount. While therefore refusing to confirm the injunction, in order to protect the interests of the plaintiffs, I would order the defendants to deposit the sum of Rs, 30,00,000 in Court within one month from this date and after they have done so, the amount would
(1) AIR 1962 Madh. Pra. 34 ' be deposited by the Nazir of this Court in the Habib Bank, Court Road Branch, Karachi, as a time deposit at the m sximum available interest. The ad interim order shall continue in force until the amount is paid and upon failure by the defendants to do so within the period stated above, the ad interim order shall stand confirmed, but if they so deposit the amount, the same shall stand vacated. It may be clarified that this order shall not be treated as authority to transfer or otherwise deal with the property as contemplated by section 52 of the Transfer of Property Act and any transfer or dealing with the property shall be subject to the decree in this suit. The defendants shall further, in case of any transfer, expressly mention the fact of pendency of this sait in the conveyance deed or other instrument of transfer.
18. In the result, the application is disposed of on terms stated above. The costs to be the costs in the cause.