1986 PLP 2785 (MLD)

‑‑‑O.IX, R.8, O.XI, R.12 & O.XXXIX Rr .l & 2‑‑Dismissal of suit for non‑appearance of plaintiff‑‑Requirements‑‑Date when plaintiff remained absent was not fixed for hearing of suit, but was fixed for arguments of application for interim stay, and for submission of reply by plaintiff to application of defendant filed under O.XI, r.12, C.P.C.‑‑Suit, held, could not have been dismissed under O. IX, R.8, C. P. C. in circumstances. (b) Civil Procedure Code (V of 1908)‑‑ ‑‑‑O.XXXIX, Rr.l, 2 & O.XLIII, R.1(r)‑‑Temporary injunction, grant of‑‑Appeal against‑ Where temporary injunction was granted by Court applying its conscious mind to relevant facts and by giving sound and cogent reasons in support thereof guidelines given by superior Courts, order of Trial Court neither suffered from any legal infirmity nor material irregularity‑‑Discretion exercised by Trial Court in granting temporary injunction, held, could not be interfered with by High Court in exercise of appellate jurisdiction. Muhammad Yawar Ali Khan for Appellants. On 23‑10‑1985 International Estate Developers Ltd. the respondent filed suit against Mirza Muhammad Iqbal Beg and others the defendants‑appellants for specific performance of contract in the Court of the Senior Civil Judge, Lahore which was entrusted to the learned Civil Judge. Alongwith the suit, an application for temporary injunction was filed by the respondent/ plaintiff. The learned trial Court granted interim injunction on the same day. The learned trial Court confirmed the interim relief vide impugned order, dated 7‑6‑1986, hence this appeal.

2. The learned counsel for the appellants submitted that on 4‑5‑1986 the learned trial Court gave the last opportunity to the respondent to argue his application under Order XXXIV, Rules 1 and 2, C.P.C. read with section 151, C.P.C. Since the appellants /defendants had moved application under Order XI, Rule 12, C.P.C. for the discovery of document, therefore, the learned trial Court required the respondent/ plaintiff to file reply to that application so the case was adjourned to 1‑6‑1986. On 1‑6‑1986 the respondent/ plaintiff as well as his counsel did not appear before the learned trial Court and the case was adjourned to 5‑6‑1986. On 5‑6‑1986 the respondent /plaintiff filed reply to the application under Order XI, Rule 12, C.P.C. of the defendants/appellants and adjourned the case to..7‑6‑1986 for orders. On 7‑6‑1986, the learned trial Court confirmed the stay order granted by it. The learned counsel maintained that. since the plaintiff‑respondent and his counsel were absent on 1‑6986, therefore, the learned trial Court should have dismissed the suit in default; that under clause (vii) of the agreement, the time was the essence of contract and the period of 18 months specified therein could. in no case be extended and the agreement stood rescinded if the full price was not paid within that time but the learned trial Court has not properly considered this aspect of the case; that the learned trial Court has by holding that a sum of Rs.2,00 000 earnest money was paid in good faith and not referring to the sum of Rs.2,00,000 which was not paid and which formed part of the earnest money, has caused grave miscarriage of justice; that the respondent plaintiff was never prepared to perform his part of contract and that there was no sufficient cause for the extension of time for the payment of money.

3. I have considered the submissions made by the learned counsel for the appellants with care. I have not been, able to persuade myself to agree with him. I find that on 1‑6‑1986, the suit was not fixed for hearing and that the application under Order XXXIX, Rules 1 and 2, C.P.C. filed by the plaintiff /respondent was to be argued by the parties and reply to application under Order XI, Rule 12, C . P. C . was to be submitted, therefore. the suit could not have been dismissed under Order IX, Rule 8, C.P.C. The learned trial Court has considered the question of the grant of temporary injunction in accordance wit the guidelines given by the superior Courts. The learned trial Court has applied its conscious mind to the relevant facts and has given sound and cogent reasons in support of its decision. I do not see any legal infirmity in the impugned order which does not suffer from any illegality or material irregularity. The submissions made by the learned counsel do not make out a case for interference with the discretion exercised by the learned trial Court.

4. For what has been said above, there being no merit, the appeal is dismissed in limine. H.B.T. Appeal dismissed.