1985 PLP 2733 (CLC)

This is an appeal from an order, dated 24-10-1978 made by Mian F.M. Khalid, Civil Judge, Lahore, whereby he accepted the appellant's application for grant of interim relief, but imposed the condition of depositing a sum of Rs.1,70,000 in Court before a particular date.

2. The relevant facts, in brief, are that respondent No. 2 herein is the owner of House No. 117-P-Gulberg-111, Lahore. Respondent No.1 in his capacity as the general Attorney of respondent No. 2, agreed to sell the house to the appellant for a consideration of Rs.2,15,

000. The agreement to sell was executed on 19-10-1977 and a sum of Rs.45,000 was paid in advance. On the allegation that the respondents had refused to fulfil the contract, the appellant filed a suit for specific performance, which is still pending before the trial Court. Alongwith the suit, the appellant also filed an application for interim injunction praying to the effect that the respondents be restrained from alienating the property in dispute in the meanwhile. By his order, dated 24-10-1978. The learned Civil Judge granted the interim relief, but made it conditional upon the appellant depositing a sum of Rs.1,70,000 in Court before 31-10-1978. It was also observed in the order that if the appellant failed to deposit the amount by the due date, his application for interim injunction would be deemed to have been rejected, and "the respondents shall be at liberty to deal with the property in any manner suiting their convenience and choice".

3. It is contended on behalf of the appellant that while granting interim relief under Order XXXIX, rule 1, C.P.C. no condition could be imposed by the learned Civil Judge. It is also submitted in the alternative that in any case the order passed by the trial Court is illegal inasmuch as in the event of the appellant failing to deposit Rs.1,70,000, the respondents were given liberty to deal with the property in any manner suiting their convenience and choice. It is urged that in view of the doctrine of lis pendens such liberty could not be allowed to them. Any sale made by them during the pendency of the litigation, must remain subject to the decree to be passed in the suit.

4. Since the appellant had failed to deposit the sum by the specified date, according to the impugned order, the application for interim relief stands rejected.

5. Learned counsel for the respondent relies on Karachi Flour Mills Union and others v. Province of West Pakistan and others P L D 1968 Kar. 910 to submit that it is discretionary for the Court to impose the condition of furnishing bank guarantee while granting temporary injunction under the provisions of Order XXXIX, rule 2(2), C.P.C. Order XXXIX, rule 2(2). C.P.C. prescribes that "the Court may by order grant such injunction, on such terms, as to the duration of the injunction, keeping an account, giving security or otherwise, as the Court thinks fit". It is true, therefore, that while granting interim relief, under rule 2 of Order XXXIX, the Court may impose conditions. However, I find that the rule which was attracted in the present case is rule 1 of Order XXXIX which prescribes as follows: "

1. Where in any suit it is proved by affidavit or otherwise-- (a) that any property in dispute in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or wrongfully sold in execution of a decree, or (b) the Court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal or disposition of the property as the Court thinks fit, or until further orders." Obviously the interim order was passed because the property in dispute was in danager of being alienated by a party. This rule does not provide for the imposition of any condition. 6.? In any case keeping in view the facts and circumstances of this case, I find it was not necessary for the trial Court to ask the appellant to deposit the entire balance amount of the sale consideration as the condition precedent to the grant of interim relief. It may also be pointed out that even if the stay order was not granted, the respondents could not be granted the liberty to deal with the property in any manner they liked, because if they made any sale during the pendency of the suit according to the law the same would be subject to the final decision of the case. In view of the above discussion, this appeal is accepted and the impugned order is set aside and the respondents are restrained from alienating the property in dispute during the pendency of the suit. There shall, however, be no order as to costs. 7.???????? Let the file of the case be returned to the trial Court immediately for deciding the case on merits expeditiously. H.B.T.????????????????????????????????????????????????????????????????????????????????????????????????? Appeal accepted.