P L D 1990 Lahore 82 (PLP)

This first appeal under Order XLIII, rule 1 (r) Civil Procedure Code is filed by the plaintiff. It is against order of learned trial Court dated 25‑7‑1989 passed in a suit for specific performance declining interim relief prohibiting the defendants from making pendente lite alienation of their property. 96 kanals, 17 marlas of land situate at mauza Chungh Panjgrain, Tebsil Lahore was owned by Muhammad Hanif Nasim and Faqir Mohammad also of Lahore who by a deed in writing on 22‑12‑1988 agreed to sell the above piece of land to Fateh Mohammad at the sale price of Rs. 45,51,

950. Out of the agreed sale price, Rs,5,00,000 were paid to the owner of the land at the time of the sale agreement and balance sale price was to be paid at the time of completion of the sale on 15‑1‑1989. As terms of agreement were not fulfilled and sale‑deed was not executed, Fateh Mohammad as plaintiff brought a civil suit on 24‑4‑1989 for enforcing terms of sale agreement and completion of the sale upon paying the balance sale price. Alongwith the plaint in the civil suit, plaintiff also put in an application under Order XY‑XIX, Rules 1 and 2, Civil Procedure Code restraining the defendants from making any alienation of the property in, suit so as to adversely affect his rights. Defendants resisted the application. Amongst other defence pleas, it was submitted that as the time agreed upon to complete the sale had already run out, agreement was rescinded by the defendants and advance payment was forfeited. Written statement, however, was not yet riled. Upon review of the respective pleas advanced by the rival parties, trial Court found that plaintiff was not entitled to interim injunction and dismissed his application. At the hearing, learned counsel for the appellant submitted that the discretion was not correctly exercised and the same was regulated by considerations not much relevant to the point in issue. It was also submitted that facts requiring determination were misunderstood and law was incorrectly applied. Learned counsel further argued that though the time limit laid down in the agreement for completion of sale had expired yet in the circumstances of the case, time was not of the essence of the contract and mere delay in lodging the suit for specific performance was not a hurdle for exercise of discretion in favour of the plaintiff. in support, learned counsel referred to cases of Mrs.Parveen Begum v. Raja Muhammad Sarwar Khan P L D 1956 (W.P) Karachi 521, Mst. Muhammad Bibi v. Additional Settlement Commissioner, Khairpur and 2 others P L D 1976 Karachi 181, Anjum Rehmat and another v. (Rtd.) Sqn/Ldr. Shaikh Ghulam Sadiq 1981 CLC 270, Sheikh Muhammad Rafiq Akhtar v. Sqn./Ldr (Rtd.) Sheikh Ghulam Sadiq 1981 C L C 453, Muhammad Hussain v. Mst Saeeda Begum etc. 1987 M L D 397, Rustam Ali v. Chaudhary Mukhtar Ahmad Anwar 1987 M L D 394, Molasses Export Co. Ltd.v. Consolidated Sugar Mills Ltd. N L R 1986 C L J 346, Haji Gul Muhammad Haji Ismail and others v. Niunawar Ali Khan and others 1987 M L D 2828 (Karachi),. Mehraj Din v. Karam Din and others P L D 1988 Lahore 166 (2), Muhammad Safdar Ansari and another v. Abdul Majeed P 1, D 1988 Lahore

216. In reply, learned counsel for the respondents defended the impugned order and also raised preliminary objection to maintainability of the appeal stating that required notice under Order XLIII, rule 3 Civil Procedure Code was not served before filing of the appeal in the High Court. Mrs.Dino Manekji Chinoy and 8 others v. Muhammad Matin P L D 1983 S C 693, Muhammad Shari v. Sh.Muhammad Amin and others 1984 C L C 1528, Muhammad Siddique etc. v. Boota P L D 1985 Lah.243 were pressed in aid. It was further submitted that plaintiff did not take timely steps to complete the sale within the agreed stipulated period and was guilty of deliberately delaying the action so as to cause monetary loss to the defendants. It was also submitted that despite notice from the defendants, plaintiff failed to pay the sale price and complete the sale. In this view, so it was argued, defendants had justifiably rescinded the agreement and forfeited the earnest money and plaintiff was not entitled to exercise of discretionary relief in his favour. Lastly, it was contended that in case the Court is of the view that 'injunction should issue, its grant must be subjected to terms so as to safeguard the interests of the defendants. In support, learned counsel referred to Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan P L D 1956 (W P) Karachi 521, Ferozuddin and another v. Tien Ying Lee and others 1987 M L D 2035 (1), Shama Enterprises, (Private) Limited v. Malik Ghulam Sarwar, Etc. 1989 MLD

21. As for service of notice before appeal, learned counsel for the appellant submitted that requisite notice was despatched to the defendants as is evident from the copy of notice annexed alongwith the postal receipt. It was also agrued that as the appeal was already admitted to hearing for decision on merits, alleged absence of notice shall cause no prejudice to the respondents if the appeal was adjudicated upon by the Court on its merits. Reliance was placed upon the decisions in Muhammad Ranizan and another v. Haji Karim Bakhsh and 5 others 1988 C L C 448, Muhammad Sarwar etc. v. Fateh Muhammad etc. P L D 1988 Lah 308. ] Having regard to the facts and the true legal principles applicable thereto, appeal is bound to succeed because impugned order could not be upheld. Execution of agreement and its terms are admitted.. Receipt of advance payment is not denied. Despite express mention of 15th January, 1989 as the date fixed to complete the sale and providing consequences in the event of any default on' either side, it is yet to be seen whether time fixed in the agreement to complete sale was really of the essence of the contract and specific performance could not be had after the stipulated period had expired. At this stage of litigation, it cannot be said with certainty that delay of few months in seeking assistance of the Court in the suit for specific performance was an adverse circumstance disentitling the plaintiff to the equitable discretionary relief. It is agreed that civil suit was riled in time. Muhammad Safdar Ansari and another v. Abdul Majeed P L D 1988 Lahore 216 is in point. As said above, a substantial amount of Rs.5,00,000. was paid to the defendants as earnest money. There is no material to hold that plaintiff was not earnest to go on with the sale agreement and pay the balance price for the land in dispute to receive its title from the defendants. Upon the existing records, plaintiff is shown to have a clear prima facie case to present to the Court for its examination. Balance of convenience also lay in his favour. As for the third ingredient i.e. irreparable loss, though rule of lis pendens applied to the suit for specific ‑ performance and amply protected the plaintiff against apprehended pendente lite alienations, yet in order to prohibit and avoid introduction of strangers into the lis which is likely to enlarge the scope of dispute between the parties, injunction ought to issue to prohibit the defendants from transferring the land in suit. See Mrs. Parveen Begum v. Raja Muhammad Sarwar Khan P L D 1956 ((W.P) Karachi 521., Mst. Muhammad Bibi v. Additional Settlement Commissioner, Khairpur and 2 others P L D 1976 Karachi 181, Anjum Rehmat and another v. (Rtd.) Sqn/Ldr. Shaikh Ghulam Sadiq 1981 C L C 276 (Karachi), Sheikh Muhammad Rafiq Akhtar versus Sqn./Ldr.(Retd.) Shaikh Ghulam Sadiq 1981 CLC 453 (Karachi),Muhammad Hussain v. Mst. Saceda Begum etc. N L R 1984 A C 21, Molasses Export Co.Ltd. v. Consolidated Sugar Mills Ltd. N L R 1986 C L J 346, Haji Gul Muhammad Haji Ismail and others v. Munawar Ali Khan and others 1987 M L D 2828 (Karachi). Therefore, plaintiff had a good prima facie case on merits for issuance of temporary injunction which appears to have been refused on wholly insufficient B grounds. This brings me to another limb of the case, whether injunction should be subjected to terms and if so, what kind of terms. Dispute relates to substantial quantity of valuable land situated on periphery of Lahore. Its sale was agreed for Rs.45,51,

950. Approximately, 1/9th of the sale price was paid in advance. 8/9th share of the sale consideration is yet to be paid. There is no gain saying that suit for specific performance shall take its own time to reach its final goal. Meanwhile, prices of real estate are not likely to remain static. They constantly show upward trend. Sharp fall in the money value during recent past and corresponding rise . in prices of real estate is a relevant factor for the Court to consider when issuing an injunction, order of the type under consideration. In this view, it shall not be just to bind the defendants from dealing with their own property without any solid security from their adversary to show his real bona fides in the proposed transaction of sale. In Mrs. Parveen Begum's case, grant of temporary injunction was subjected to prior deposit of Rs.1,00,000 whereas agreed sale price was Rs. 1, 38,000 out of which Rs. 15, 000 were already paid. In case of Farozuddin and another, a Division Bench of Karachi High Court observed, "in a suit for specific performance, generally the injunction is granted subject to the condition that the plaintiff shall deposit the balance of the agreed sale consideration". In case of Shama Enterprises (Private) Limited, it was again observed by the Division Bench that "in a suit for specific performance, when appellant seeks an injunction in respect of the suit property, the Court normally orders the deposit of the balance of the sale consideration in the Court in order to see whether factually the plaintiff was ready and willing to perform his part of the sale agreement in respect of which the specific performance is sought". To me, it appears to be a just and fair rule of law with which I respectfully agree and hold that ordinarily, in a suit for specific performance of the sale agreement, when the plaintiff asks for a prohibitory order for restraining the defendant from alienating the property C agreed upon to be sold, grant of injunction must be subjected to terms as to deposit of the sale price in Court. Above course shall not only show something about bona rides of the plaintiff seeking specific enforcement of the agreement of sale but shall also relieve the defendant from an unnecessary loss which he is likely to suffer. I shall now advert to the objection to the maintainability of appeal on the ground of non‑service of notice as required by Order XLIII, Rule 3, C.P.C.. In regard to it, it is sufficient to observe that in adjudicating the appeal on merits after it was admitted to formal hearing, respondents are not shown to suffer any material prejudice. They raised no objection to the confirmation of stay order on 19‑9‑1989 and requested for early hearing of the appeal on merits. Also, there is material to indicate that notice about filing of the appeal was despatched to the respondents. Copy of the notice and postal receipt showing the despatch are annexed. In this view, I am not prepared to uphold the preliminary objection and dismiss the appeal purely on a technical view of the matter. Dismissal of the appeal in this fashion shall be no justice. In taking the above view, I am firmly supported by cases of Muhammad Ramzan and another' versus Haji Karim Bakhsh and 5 others 1988 C L C 448, Muhammad Sarwar etc. v. Fateh Mohammad etc. 1987 M L D

394. Decisions relied upon by the learned. counsel for the respondents have 'some distinguishable features. In view of the aforesaid, appeal is allowed, impugned order of learned Judge below is set aside and defendants are restrained from transferring the land in dispute till final 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 of the Government and final disbursement of the amount plus the accrued benefits shall be regulated by the order of the Court in accordance with the decision in the civil suit. Costs to be borne as incurred. Records be returned AA./F‑161/L Appeal allowed.