For the performance of agreement dated 12.9.2002 a suit for specific performance has been instituted by the appellant, which is pending before the trial Court. Alongwith the suit an application under Order 39, Rules 1 & 2 read with Section 151 CPC was filed praying that The respondent may be restrained from alienating, transferring and deposing off and also changing the character/nature and raising any sort of construction over the suit property in any manner whatsoever, till the pendency of the main suit." By filing written statement and reply to the above mentioned application, the defendants/respondents contested the same. On 3.9.2003 the learned trial Judge decided the application who observed that in view of the execution of the agreement having been admitted as also the sale price, the appellant/plaintiff had prima facie case in his favour and accepted the said application restraining the respondents/defendants from alienating/ transferring the property in dispute subject to deposit of balance sale consideration by the appellant/plaintiff in Court within two months. The plaintiff has assailed this order with the grievance that the direction to make deposit of the balance consideration was not warranted by the facts and circumstances of the case.
2. It is contended by the learned counsel for the appellant that while exercising its discretion the learned trial Court has ignored salient features of the case in as much as that out of the sale consideration of Rs, 2,65,00,000/- a sum of Rs, 75,00,000/- had been received by them, which was in their use as also the property as the possession thereof has also been retained by them. It is contended that the appellant/plaintiff had always been ready with the balance price and was willing for the performance of the agreement and the delay was attributable to the defendants who had to secure documents/clearance from Lahore Development Authority. It is further contended that whereas a sum of Rs, 75,00,000/- paid to the respondents/defendants is being made use by them the appellant has gained no benefit out of the transaction. According to him respondents should have been directed to deposit the said amount in Court. To support his contention that the facts and circumstances of each case are to be kept in view by the Court in making a restraint order or for direction to deposit the balance price, reference has been made by him to Khizar Hayat v. Mussarat Rabbani (PLD 1995 Lahore 438), Said Muhammad V. Abdul Rehman (1996 MLD 60), Dr. Akram Chaudhry v. Ch. Fazal Dad (1997 MLD 1821), Abrar Ahmad and others v.
Munawwar Saeed (1998 MLD 601), Abrar Ahmad Khan Tareen v. Munawar Saeed (1994 SCMR 1764), Pandurang Ganpat. Tanawade v. Ganpat Phairu Kadam and others (1997 PSC 1442), Friends Associates (Regd.) through Managing Partner, Lahore and 3 others v. Messrs Bin Bak Industries (Pvt.) Limited through Chief Executive, Faisalabad and 9 others (PLD 2003 Lahore 17) and Messrs Bi Bak Industries (Pvt.) Ltd. and another v. Friends Associates (Regd.) and others (2003 SCMR 238). The learned counsel for the respondents has in his endeavour to support the order of the trial Court contended that the appellant/plaintiff failed to perform his part as per the agreement within the time specified, therefore, the direction to make deposit of the balance amount has rightly been given by the Court. According to him the amount of Rs, 75,00,000/- stand forfeited by operation of Clause-9 of the agreement. In order to support his contention that in such like matters direction to make deposit of the balance amount for the grant of temporary injunction was justified, reliance has been placed upon Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan (PLD 1956 (W.P.)
Karachi 521), Anjum Rehmat and another v. (Rtd.) Sqn/Ldr. Shaikh Ghulam Sadiq (1981 CLC 276), Sheikh Muhammad Rafiq Akhtar v. Sqn/Ldr. (Rtd.) Shaikh Ghulam Sadiq (1981 CLC 453), Mirza Shah Nawaz Agha v. Iqbal Aziz Khan and 3 others (1986 MLD 1914), Ferozuddin and another v. Tien Ying Lee and others (1987 MLD 2035), Shama Enterprises (Private) Ltd. v. Malik Ghulam Sarwar and others (1989 MLD 21), Fateh Muhammad v. Muhammad Hanif and another (PLD 1990 Lahore 82), Balquees Zaman Khan and others u. Tahir Mehmood Butt (1991 CLC 1507), Wiqar Avais v. Raja Muhammad Shafi Janjua and 4 others (1992 CLC 8), Muhammad Nazir v. Yaqoob 'Khan and others (1994 CLC 12), Manzoor Ahmad and 6 others u. Hamid Shah Gilani and another (1997 SCMR 1443), Muhammad Banaras Khakan v. Miss Rubina Chaudhary and others (1997 CLC 997), and Dr. Akram Chaudhry u.
Ch. Fazal Dad (1997 MLD 1821).
3. The contentions so raised by the learned counsel for the parties have been considered in the light of the material that has been brought on record and the precedents cited by them. The execution of the agreement to sell dated 12.9.2002 is not in dispute nor the price settled and receipt of Rs, 75,00,000/- is disputed. The assertions and counter assertions as to the party responsible for non-performance within the stipulated period extension whereof is claimed by the appellant/plaintiff to have been made by the parties mutually, will be a matter of evidence, which may be produced by the parties in support of their respective pleas. Any finding/inference at this stage may prejudice the case of any of the parties, therefore, maximum restraint is being exercised. However in order to dispose of the matter of temporary injunction a tentative assessm ent of the matter is to be made .by the Court. On such assessment the trial Court has prima facie found the appellant/plaintiff entitled to the grant of temporary injunction who, however, has subjected him to the condition of making deposit of Rs, 1,90,00,000/- i,e, the balance sale consideration, in Court. The respondents/ defendants have not assailed that order, it is the appellant/plaintiff who has felt aggrieved of this condition. From the perusal of the precedents cited by the learned counsel for the parties it is discernable that the preponderance of the approach adopted and view expressed is that while dealing with such a matter i,e, grant of temporary injunction, the Court is to keep in view the facts and circumstances of each case. It is the peculiarity of a matter, which assumes relevance and significance as to what type of order is to be passed by the Court and with what conditions. The normal approach and the ordinary rule followed by the Courts in suits for specific performance is to direct the plaintiff to make deposit of the balance consideration in case an injunctive order is sought from the Court. The reason is quite obvious that the plaintiff is supposed to be ready with settled price and willing to perform his part.
In the latest pronouncement by the Hon'ble Supreme Court of Pakistan in Bin Bak Industries (Pvt.)
Ltd. (Supra), it was observed that "no doubt in a suit of specific performance of contract an order of restraint in respect of the suit property is normally granted subject to the deposit of the balance of the sale consideration but the rule is not absolute and mandatory. The exercise of discretion in this context depends upon the nature of the agreement to sell and facts and circumstances of the case." In view of the peculiar nature of the agreement to sell and a "rare agreement to sell" in that case the judgment of the High Court whereby the order of the trial Court was modified, was maintained. The agreement to sell executed in the present case is usual and is neither extraordinary nor it contains unusual terms. Thus there is no scope or justification for deviation from the normal and ordinary rule in this matter. The contention of the learned counsel for the respondents to this extent thus is not without substance.
4. The Court, however, cannot be oblivious of the fact and the contention of the learned counsel for the appellant that despite parting with substantial amount the appellant has derived no benefit except the litigation to ensue under agreement dated 12.9.2002, whereas the respondents have and are making use of the advance money of Rs, 75,00,000/-. It has been pleaded in the memorandum of appeal also that the Court ought to have required the defendants/respondents to deposit the same. As mentioned above the possession of the suit property, which is situated in the prime part of the city of Lahore, is also with the respondents. Their claim as to forfeiture of the earnest money is yet to be adjudicated by the trial Court. The Court at this stage is to strive for the maintenance of equitable balance being fair to both sides. Suffice it to observe that in order to prevent the ends of justice from being defeated the Court has ample power to maim such interlocutory order as may be considered just and proper. Section 94 of Code of Civil Procedure, 1908 recognizes such powers of the Court. To ascertain whether the ends of justice would be defeated unless an order of induction is passed, the facts and circumstances of each case have to be considered and kept in view. In Muhammad Aref Effendi v. Egypt Air (1980 SCMR 588) the High Court of Sindh while exercising original jurisdiction had declined the temporary injunction in a suit pending before it but on appeal the Hon'ble Supreme Court observed that temporary injunction could be granted on terms. It is deducible from the perusal of judgment of the Hon'ble Supreme Court that while dealing with a matter concerning the grant of temporary injunction the Court can regulate the conduct and dealings of the parties in order to secure their interests. Keeping all this in view, I have considered it just and proper to modify the order of the trial Court in order to secure the interest of both sides. It is ordered that the appellant/plaintiff would make deposit of the balance consideration money in the trial Court before 15th of December, 2003 subject to which the temporary injunction granted by the trial Court will remain operative. Likewise the respondents/defendants will make deposit of the above-mentioned amount of Rs, 75,00,000/- within the same period with the trial Court. A direction of similar nature was made by this Court in Wiqar Avais v. Raja Muhammad Shafi Janjua and 4 others (1992 CLC 8). The amount so deposited shall be invested by the trial Court in some Government approved profit bearing scheme, the disposal whereof will be subject to the final outcome of the litigation between the parties. With the above modification and observations, the appeal is disposed of accordingly.
No, order as to costs.