2005 PLP 1695 (YLR)

I intend to decide the following appeals by one consolidated order having similar facts and law arising out of one impugned order of the learned trial Court: (i) F.A.O. No.65 of 2004. (ii) F.A.O. No.88 of 2004 (iii) F.A.O. No.94 of 2004

2. The brief facts out of which aforesaid appeals arise are that Plot No.36 measuring

4. Kanals, Block-10, Sector B/I, Quaid-e-Azam Town, Lahore is owned by Mian Muhammad Ibrahim, who has executed an agreement to sell with Malik Muhammad Bashir through his attorney Naveed Aamar Raja. According to the terms and conditions of the agreement, Rs.1,00,000 is fixed as earnest money which .has been paid by Malik Bashir Ahmad to Mian Muhammad Ibrahim through his attorney Naveed Aamar Raja on 10-3-2002 and balance amount has to be paid by the appellant/plaintiff till 10-4-2004, but the respondents failed to execute the sale-deed in favour of the appellants. The appellants being aggrieved filed a suit for possession through Specific Performance of the Agreement in the Court of Civil Judge 1st Class, Lahore along with an application for ad interim relief under Order XXXIX, rules 1 and 2, C. P. C. The learned trial Court granted ad interim relief to the appellants in the following terms:- "In order to test the bona fide of the plaintiff, he is directed to furnish the bank guarantee to the tune of Rs.1,70,00,000 within 15 days of passing of this order. Resultantly this application for the grant of temporary injunction is accepted and respondents Nos.1 to 2 and 4 to 7 are restrained from selling changing the nature of the suit property. If the plaintiff fails to furnish the bank guarantee within 15 days, then this petition for the grant of temporary injunction shall be deemed to have been dismissed. "

3. The appellant Malik Bashir Ahmad being aggrieved filed F.A.O. No.65 of 2004. Naveed Aamar Raja and others being aggrieved filed F.A.O. No.88 of 2004 and Mst. Saeeda Anwar and others being aggrieved F.A.O. N.o.94 "of 2004 against the said order.

4. The learned counsel of the appellant in F.A.O. No.65 of 2004 submits that agreement dated 10-3-2002 was written between the appellants and Naveed Anwar Raja on 6-4-2004, which was signed by the parties on 10-4-2004. Subsequently the date of execution was extended from 9-12-2002 to 9-1-2003 with the mutual consent of the parties. He further submits that Malik Bashir Ahmad, appellant is ready to deposit the amount mentioned' by the learned trial Court amounting to Rs.l,70,00,000 before the Executing Court, in case same shall be invested in some national profit bearing scheme and the learned trial Court be directed to decide the case as early as possible. He further submits that the property in question is not in possession of the appellant, therefore, the impugned order of the learned trial Court is very harsh. In support of his contention, he relied upon Friends Association v. Bunni Bank PLP 2003 Lahore 17.

5. The learned counsel of the appellant in F.A.O. No.88 of 2004 submits and respondents in F.A.O. No.65 of 2004, submit that the agreement was modified by the parties, therefore, the original terms and conditions of the agreement are changed. In support of his contention, he relied upon side note written in the end of the agreement to sell which is to the following effect:- urdu 1698 (underline is mine, which is crossed in the contents of side-note of the aforesaid agreement). He further submits that the learned trial Court erred in law to grant restraining order in favour of the appellant, which is not consonance with section 31 of the Contract Act and section 92 of Evidence Act, as per law laid ,down by the Superior Courts. In support of his contention, he relied upon "Mohsin A. Rehman v. Messrs Premier Insurance Co. of Pakistan" PLD 1967 Karachi 204 and T.V. Kochuvareed and another v. P. Mariapps Gounder and others AIR 1954 TRA-CO. 10 Vo1.41. CN.5

6. The learned counsel of respondents Nos.4 to 7 and appellant in F.A.O; No.94 of 2004 submits that respondents Nos.4 to 7 ,are not party to the agreement executed between the appellant and Mian Muhammad Ibrahim through his attorney Naveed Aamar Raja on 10-3-2002, therefore, agreement to sell executed between them is not binding upon respondents Nos.4 to

7. He further submits that original owner has executed agreement with respondents Nos.4 to 7 through his attorney Naveed Aamar Raja, therefore, the learned trial Court was not justified to grant restraining order against them, which is not consonance with section 53-A of the Transfer of Property Act.

7. The learned, counsel of the' appellant in F.A.O. No.65 of 2004 in rebuttal submits that the learned counsel of" the respondents did not read with whole note which is also part of said note, which is as follow:- urdu 1698

8. I have given my, anxious consideration to the contentions of learned counsel of the parties and perused 'the record.

9. It is better and appropriate to reproduce the side note of the agreement to sell and operative part of order of the learned trial Court to resolve the controversy between the parties:- Side Note of agreement. Operative part of impugned order dated 9-2-2004 of learned trial Court. "In order to test the bona fide of the plaintiff, he is directed to furnish, the bank guarantee to the tune of Rs.1,70,00,000 within 15 days of passing of this order. Resultantly this application for the grant of temporary injunction is ,accepted and respondents Nos.1 to 2 and 4 to 7 are restrained for selling changing the nature of the suit property. If the plaintiff fails to furnish the bank guarantee within 15 days, then this petition for the grant of temporary injunction shall be deemed to have been dismissed.'' The aforesaid note does not allow the parties to sell the property in-question to any third party therefore, status of the said note cannot be decided without recording the evidence of the parties. The appellant is ready to deposit Rs.1,70,00,000 before the learned trial Court to show his bona fide instead of providing bank guarantee for the said amount. Although, this offer is not accepted by the learned counsel of respondents, which is. based on equity which will protect the interest of the parties to avoid multiplicity of litigation, therefore, Appeal No.65 of 2004 is partly accepted and order of the learned trial Court is modified, as per law laid down by this Court in "Fateh Muhammad v. Muhammad Hanif and another" PLD 1990 Lahore 82, which is also upheld by the Honourable Supreme Court. The relevant observations are as follow:- "In view of the aforesaid circumstances, the appeal is allowed, the impugned order of the learned Judge below is set aside, and defendants are restrained from transferring the land in dispute till the finals adjudication is made in the civil suit subject to their depositing the balance sale consideration in the Court within two months from today. In default, injunction shall not operate. However, during the period of two months allowed for the deposit of balance sale price, defendants shall not alienate the land in dispute. It may be observed that sale price if deposited shall be invested in some profit bearing approved scheme to the Government and final disbursement of the amount plus the accrued benefits shall be regulated by the order of the Court in accordance with decision in the civil suit. " The impugned, order of the learned trial Court is modified in view of aforesaid principle laid down by this Court in the aforesaid case to this extent that instead of furnishing of bank guarantee by the appellant (Malik Bashir Ahmad) qua the amount Rs.1,70,00,000, appellant is directed to deposit the said amount before the learned trial Court within 15-days from today. The learned trial Court shall deposit the same in some national profit bearing scheme immediately and final disbursement of the amount plus accrued benefits shall be regulated by the order of the Court in accordance with decision in main suit. The party, who succeeds shall be entitled for the said amount along with profit. In case, the appellant fails to deposit the said amount within prescribed period before the learned trial Court, then the restraining order shall be vacated automatically. The judgments cited by the learned counsel of the parties are distinguished on facts and law. It is also settled principle of law that each and every case is to be decided on, its own peculiar Circumstances and facts, as per principle laid down by the Honourable Supreme Court in "Trustees of Port of Karachi v. Muhammad Saleem" 1994 SCMR 2213.

10. Keeping in view the aforesaid circumstances, the learned trial Court is directed to decide the case 'within four months from next date already fixed, even at the costs of day-to-day proceedings. The parties and their counsel are directed to co operate with the learned trial Court so that the matter may be decided within prescribed period. In case, any of the parties fails to co-operate with the first appellate Court, then the learned Court shall invoke penal provisions against the said party. With these observations, Appeal No.65 of 2004 is partly accepted, while other two appeals i.e. F.A.Os. Nos.88 and 94 of 2004 are dismissed. Copy Dasti on payment of usual charges. H.B.T./B-82/L Order accordingly.