2007 PLP 2721 (YLR)

MUHAMMAD AKHTAR SHABBIR; J.

The plaintiff Sohail Hameed Butt plaintiff-appellant herein had instituted a suit for possession through specific performance of the agreement dated -1-2004 with respect to the property in dispute for a consideration of Rs.1,3S,00,000 out of which the plaintiff-appellant paid Rs.10,00,000 as earnest money: The remaining price v; as to be paid on 20-2-2004. Along with the suit the plaintiff-appellant also filed an application for temporary injunction. The defendant/respondent No.1 contested the suit as well as the application and filed written statement denying the averments of the plaint.

2. The learned trial Court after hearing the arguments of the learned counsel for the parties dismissed the application filed by the plaintiff-appellant under Order XXXIX, rules 1 and 2, C.P.C. vide. order dated 31-5-2004. The said order has been assailed through the instant F.A.O.

3. Learned counsel for the plaintiff ?appellant contended that the date of performance of the agreement to sell has been extended by the defendant-respondent No.1 and he made an endorsement on the backside of the agreement. Further contended that the plaintiff-appellant was ready to perform his part of the contract and he arranged the balance amount for payment to the defendant-respondent No.1. He further contended that during the issuance of status quo order, the defendant-respondent No.1 Naeem Ahmad Rana has .transferred the property to some other person. He lastly argued that the plaintiff-appellant has successfully established prima facie case.

4. On the other hand, learned counsel for defendant-respondent No.1 vehemently opposed the arguments of the learned counsel for the appellant contending that respondent No.1 has categorically denied they extension of the date for the performance of the agreement in his written statement. Further contended than to perform an agreement, the defendant-respondent No.1 has got vacated the premises from the tenants and along with the written statement he annexed the proof of the same.

5. I have heard the learned counsel for the parties and perused the record.

6. It is admitted position that the agreement to sell had been executed between the plaintiff-appellant and defendant-respondent No.1 and the date for completion of the sale was fixed in the agreement to sell as 20-2-2004. The extension of the time for performance of the contract has been denied by respondent No.1. The plaintiff-appellant claimed that he was ready to perform the contract and he obtained call deposit receipts of Rs. 1,20,00,000 and Rs.5,00,000 respectively for payment of the remaining consideration on 25-2-2004. As the extension of time is disputed by respondent No.1 and it is to be determined by the trial Court whether the time was the essence of the contract and the period for performance of the contract was extended by respondent No.1 or not. The plaintiff-appellant has not been able to establish that he approached the Secretary Defence Housing Authority for performance of his part of the contract nor he issued any notice to respondent No.1 that he is ready and willing to do the needful.

7. Any agreement to sell unless established or adjudicated upon by a Court of competent jurisdiction in favour of the plaintiff, gives no title or right to the plaintiff. Respondent No. 1 who is owner of the property has every right to dispose of his property, if the plaintiff failed to perform the agreement to sell executed between him and the plaintiff-appellant. Out of the total consideration amount Rs.1,35,00,000 the plaintiff-appellant has only paid Rs.10,00,000 and on the basis of this meagre amount he is not entitled for the grant of injunction.

8. A litigant entitled for the grant of injunction has to establish three requirements of law:- (i) Prima facie case; (ii) Balance of convenience; (iii) Irreparable loss. It is settled proposition of law that if any of the three requirements is missing the litigant/plaintiff is not entitled for grant of temporary injunction. While granting the injunction the Court would have to consider as to .who will suffer irreparable loss, if the injunction is granted in favour of the plaintiff. The possession of the property has not been delivered by defendant-respondent No.1 in favour of the plaintiff-appellant and the law leans in favour of the person, who is in possession of the property in dispute thus, no balance of convenience leans in favour of the plaintiff-appellant. If the defendant-respondent No.1 has transferred the property in favour of a subsequent vendee during the pendency of the lis the doctrine of lis pendens will come into play to safeguard the rights of the plaintiff-appellant and the defendant-respondent No.1 if has alienated the property in favour of a third person, he did it at his own cost and risk. Learned counsel for the appellant has not been able to point out any illegality in the impugned order.

9. For the foregoing reasons, this First Appeal against order being devoid of force is dismissed. F.B./5-70/L????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.