2007 PLP 1027 (YLR)

GULZAR AHMED, J.

An interim order dated 17-1-2005 was passed on this application wherein the defendants were directed not to create any third party interest subject to deposit of the balance sale consideration with the Nazir of this Court within 15 days. Defendants were also directed to deposit the original title documents with the Nazir of this Court. It seems that the plaintiff did not comply with the order dated 17-1-2005 inasmuch as no deposit made by him. On -29-1-2005 an application under Order XXXIX, rule 4, C.P.C. (C.M.A. 527 of 2005) was filed by plaintiff praying for the modification of the order dated 17-1-2005 that he may be allowed to deposit documents of any property of the equivalent value of the balance sale consideration in place of cash deposit. The matter .came up on 5-12-2005 when the plaintiff counsel submitted that the plaintiff will deposit the balance sale consideration on condition of handing over vacant possession of the property. The counsel for the defendant has relied upon certain case-law on the basis of which the application under Order XXXIX, rule 4, C.P.C. was apparently found to be not maintainable on which the plaintiff counsel requested for adjournment to seek instructions as to whether the plaintiff is interested in further pursuing the matter or not. Today the plaintiff counsel insisted that the defendant be directed to hand over the possession and the plaintiff will make deposit of the balance sale consideration. After some discussion, the plaintiff counsel stated that plaintiff will deposit the balance sale consideration provided ten days are allowed. It seems from the record that the conduct of the plaintiff does not appear to be bona fide inasmuch as in the first place he did not comply with the order dated 17-1-2005, and while the time for depositing the amount was about to end, he conveniently made application C.M.A. 527 of 2005 that he may be allowed to submit property documents in place of cash deposit but during the hearing on 5-12-2005 took altogether different stand that the deposit will be made on the condition of delivery of possession of the property. Today also similar submission was made by the plaintiff counsel but ultimately retracted from it and requested that ten days time may be allowed to the plaintiff to deposit the balance sale consideration, to me, it appears that the plaintiff has made application C.M.A. 527 of 2005 only to gain time on an untenable basis. The order dated 17-1-2005 was equitable one and plaintiff who has approached for such relief was also required to do equity rather the plaintiff has stretched the matter for whole one year without making deposit. This conduct of the plaintiff does not entitle him to discretionary relief. Therefore, application C.M.A. 216 of 2005 is dismissed. As the plaintiff counsel has requested for depositing of cash amount. The application C.M.A. 257 of 2005 has become infructuous and dismissed. H.B.T./M-29/K Application dismissed.