2006 PLP 1123 (CLC)

MUHAMMAD MUZAMMAL KHAN, J.

Instant appeal is directed against the order, dated 28-1-2005 passed by the learned Civil Judge, Faisalabad, whereby on application of the respondents under Order XXXIX, rules, I and 2, C.P.C., appellant was restrained from alienating the suit property.

2. Succinctly, relevant fact's are that respondents filed a suit for possession through specific performance of an agreement to sell dated 22-12-2003 with the averments that the appellant failed to perform his part of contract and possession of the land was not handed over as per agreement, after receipt of huge earnest money. Respondents along with their plaint filed an application under Order XXXIX, rules 1 and 2, C.P.C. praying restraint order against the appellant from alienating the suit property by any means whatsoever.

3. Appellant being defendant in the suit contested the same and opposed grant of temporary injunction by filing his written statement/ reply, the learned Civil Judge seized of the matter, after hearing the parties confirmed the temporary injunction already granted by him vide order, dated 28-1-2005 and framed issues arising out of controversial pleading of the parties and put them to trial. The appellant aggrieved of acceptance of stay application of the respondents filed instant appeal with the claim that he being owner, could not be restricted to alienate the same and that without requiring the respondents to deposit the agreed balance sale price, the injunction prayed could not have been issued. The respondents in response to notice by this Court appeared and were represented through their counsel.

4. I have heard the learned counsel for the parties and have examined the record, appended herewith. Appellant in spite of urging interpolation and incomplete nature of the agreement to sell dated 22-12-2003 admitted its execution and receipt of earnest money of Rs.27,50,000 in place of Rs.50,00,

000. Terms of the agreement on the basis of which the respondents have filed a suit for specific performance, were also not refuted by the appellant whereunder it was agreed that actual physical possession of the land has been handed over to the respondents and they will pay another amount of Rs.1,00,00,000 (One crore Rupees) as per agreement. During the course of hearing learned counsel for the appellant offered to deliver possession of the suit-land forthwith, in case respondents pay the settled amount of Rs.l Crore. This offer clearly depicted that possession of the suit-land is still with the appellant. Narrations of the agreement revealed that respondents entered into agreement for development of the land by laying some housing scheme and were to pay part of the sale consideration on 22-3-2004 after developing the land, possession of which was not handed over to them. Tentatively, claim of the appellant regarding payment of one crore rupees without handing over of possession ,and without giving crucial period of one year and three months to the respondents, is opposed to the terms settled between the parties. Respondents had made out a prima facie/arguable case in their favour and they could not be further burdened to pay/deposit another amount of Rs.1,00,00,000 without giving them possession of the suit-land, contrary to the agreement.

5. Restraint on alienation of the suit property would not result in any irreparable loss/injury to the appellant whereas the same may occur to the respondents who will face further complications and multiplicity of proceedings. Balance of convenience also leaned in favour of the respondents and the appellant would not suffer any inconvenience in case the injunction issued is allowed to continue. Respondent's suit has already reached at the stage of evidence which could not be recorded on account of stay of proceedings by this Court, hence recall of injunctive order issued by the trial Court which was granted after due consideration of respective cases of the parties and according to the settled principle governing issuance/refusal of prohibitory orders, at this stage, appeared to be not just/fair. Scan of record and impugned order, revealed that restraint order is not arbitrary/fanciful and being within the four corners of law, admitted no exception. It is however, made clear that all the findings by this Court and those by the trial Court are only confined to disposal of stay matter and would not influence the trial Court while deciding the suit on merits according to the law and 'evidence of the parties, which ultimately they will produce.

6. For the reasons noted above, trial Court committed no error of law and its impugned order being lawful is maintained whereas instant appeal being devoid of any merit is dismissed. In view of the nature of dispute between the parties, the trial Court is directed to endeavour to conclude the proceedings in the suit expeditiously. There will be no order as to costs. M.B.A./A-88/L??????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.