2003 PLP 1017 (YLR)

1994 CLC 12; Manzoor Ahmad and 6 others v. Hamid Shah Gilani and another 1997 SCMR 1443; Fateh Muhammad v. Muhammad Hanif and another PLD 1990 Lah. 82 and Khizar Hayat Khan v. Mussarat Rabbani PLD 1995 Lah. 438 ref. Malik Noor Muhammad Awan for Appellant. This appeal impugns the order, dated 31‑7‑2002 passed by the Civil Judge, Faisalabad, whereby he accepted the application under Order 39, rules 1 and 2, C.P.C. read with section 151 of the Code filed by the appellant‑plaintiff in a suit for specific performance of an agreement, by placing reliance on the judgment reported as 1994 CLC Lah. 12 and directed the appellant to deposit the balance amount of Rs.14,74,000 in the Court within 30 days and the defendants were restrained from alienating the suit property as well as from interfering into the possession of the plaintiff‑appellant till the final adjudication of the suit. If the plaintiff fails to deposit the remaining amount in the Court within stipulated period, the stay order was to be vacated automatically.

2. On the strength of the case reported as Manzoor Ahmad and 6 others v. Hamid Shah Gilani and another (1997 SCMR 1443), the learned counsel for the appellant contends that discretion has been illegally exercised by the learned Civil Judge while granting interim injunction in favour of the respondent subject to the deposit of the balance amount in the Court.

3. The above contention of the learned counsel for the appellant is not sustainable. The Court has ample power to impose the condition for deposit of money while exercising the jurisdiction for granting the interim injunction. It has been held in the case reported as Fateh Muhammad v. Muhammad Hanif and another (PLD 1990 Lahore 82) that the Court can impose the condition while granting temporary injunction. In case reported as Khizar. Hayat Khan v. Mussarat Rabbani (PLD 1995 Lah. 438) it has been observed that the Court has to see the facts and circumstances of each case while imposing the condition before granting interim injunction. The case of Manzoor Ahamd etc. (1997 SCMR 1443) is an authority which advances the case of the respondent rather than the appellant, because in that case the Civil Judge had accepted the application for grant of ad interim injunction as prayed for, subject to the condition that the plaintiff shall deposit the remaining sale consideration, i.e., Rs.22,00,000 in the Court by 30‑11‑1994, otherwise the injunction would not operate. In appeal the High Court modified the order of the learned Civil Judge to the extent that the plaintiff‑respondent No.1 was directed to tender surety bond in the sum of Rs.22,00,000 to the satisfaction of the trial Court, within a period of 15 days. The Hon'ble Supreme Court accepted the appeal and set aside the order passed by the High Court in appeal and restored the order of the Civil Judge by observing that:‑‑ "‑‑‑Discretion exercised by trial Court while granting ad interim injunction in favour of plaintiff subject to deposit of balance amount in Court within reasonable time, was neither in excess of jurisdiction vested in it, nor aribtrary in nature so as to warrant interference by High Court. The plaintiff was already in possession of plot in question, and sale had been protected by interim injunction issued in his favour pending decision of suit filed by him." In the present case also it is an admitted fact that the appellant has purchased the disputed property from the respondent for consideration of Rs.28,00,000, out of which Rs.13,26,000 have been paid. The appellant plaintiff has been delivered the possession in part performance of the agreement. His possession has been protected by the impugned order of the Civil Judge, therefore, the interim injunction granted to the appellant subject to the payment of balance amount is neither fanciful nor illegal. On the contrary, it is fair, just and equitable because the value of the property in possession of the appellant is increasing while the money which is to be deposited by the appellant is being devalued day by day with the passage of time and the vendor is put to unnecessary restriction by way of a restraining order without deposit of money to sell the property even to meet his domestic needs like marriage or to meet the expenses of his children or to meet his own domestic problems, which is not fair. The case of Khizar Hayat Khan (PLD 1995 Lah. 438) is distinguishable. Following the judgment reported as Manzoor Ahmad etc. (1997 SCMR 1443) and relying on the judgment reported in PLD 1990 Lah.82, I see no ground to interfere in the impugned order. Resultantly, this appeal fails and is dismissed in limine. Appeal dismissed. H.B.T./M‑1419/L