1989 PLP 2125 (CLC)

On 5‑6‑88, an application (C.M.A.3348/88) was submitted by Mr. Anwar Mohammad, Advocate, for the Plaintiff, alongwith a fresh Vakalatnama in his name and in such application, invoking the provisions of Order 9, Rule 9 read with Section 151 C.P.C., it was prayed that the above order dated 31‑5‑88, be recalled and C.M.A. 6783/86, be restored to the position prevailing prior to 31‑5‑88. 1n support of this application, Hussain Nasir, Plaintiff in this Suit, maintained that he never knew of the fixation of the case on 31‑5‑88, or on any other date. He further maintained that he had never been informed "verbally or in writing by my counsel or Mr. Afsar Abidi, Advocate" that he intended to withdraw his/their Vakalatnama nor did he (plaintiff) ever inform them to withdraw their power in the Suit. The reference to counsel probably was to M/s A.K.Brohi, Khalid Anwar, A.S.Waswani and Afsar Abidi, out of whom, apparently, M/s Afsar Abidi and A.S.Waswani had endorsed their acceptance on the Vakalatnama on 8‑4‑1987. Plaintiff further stated that the file of the case "was given to one of my junior office employee without any reason and intimation or any other advice or instruction whatsoever without any forwarding letter". It was maintained that "due to some bona fide mistake and misunderstanding I could not manage to engage any other lawyer or alternatively 1 could not appear personally on 31‑5‑1988, before the Hon'b(e Court. At least, I should have been informed about the date i.e. 31st May, 1988, or any other date of hearing when the interim application was fixed before the Hon'ble High Court." 4 This application has been vehemently opposed in the Counter‑Affidavit filed by Syed Shamim Yakoob, the Defendant in the suit. On the factual plane, it is maintained that the Plaintiff was willfully delaying the disposal of the Injunction application and that when the matter came up "on 25‑5‑88" learned counsel for the Plaintiff made a statement that the file had been taken away by the Plaintiffs brother under instructions to engage some other counsel, that the Plaintiff's Counsel on such date sought time that he wanted to inform the Plaintiff about the date of hearing, that such request was opposed, that, however, towards the end of the day, the case was adjourned on the ground that Plaintiff's Counsel could not prepare the case "for want of briefing" and that such adjournment was made. for 31‑5‑

88. On 31‑5‑88, it is averred, that Plaintiff's Counsel "made a statement at bar that he had never informed the Plaintiff about the hearing having been fixed on 31‑5‑88, and that he was no more appearing in the matter since the file had also been taken away by the Plaintiff". In these circumstances, it is urged that the application was dismissed having remained pending for about 18 months. It is stated that the Plaintiff had full knowledge about the date of hearing and deliberately chose to remain absent. It is deposed that after the closing hours of the Court some person, claiming to be Plaintiffs respresentative, visited the Court to find out about the matter. The defendant denies that the file was given by the Plaintiffs Counsel to a junior office employee, as alleged. Reference in this behalf is made to the physical production in Court of the relevant Receipt of the File by Mr. Afsar Abidi on 9‑10‑

88. It is maintained that there is no reason to disbelieve the learned counsel or the firm of M/s. A. K. Brohi & Co, Advocates. It is pointed out that Mr. Afsar Abidi had categorically stated (in Court) that he had informed about the date of hearing to the Plaintiff and his brother. If the Plaintiff did not want to disassociate (himself) with M/s. A.K.Brohi & Co., it is contended, there was no reason for him to engage another learned counsel.

5. While no Affidavit‑in‑Rejoinder was filed in respect of the above‑said counter‑affidavit of the Defendant, in response to the application for restoration, an application under Order 6 Rule 17, C.P.C. read with Section 151 thereof (C.MA.7405/88) was filed by the Defendant seeking amendment in the Counter Affidavit aforesaid in which application for "25‑5‑88", "29‑5‑88" and for "briefing", "brief' have been sought to be substituted in the relevant portions of the Counter affidavit and the word "never" in para. 5 thereof is sought to be deleted. (Such portions have been underlined here in view of the application). Re‑numbering of some paras is also sought as a new para. 7 in such counter‑affidavit is requested to be added, maintaining that the Plaintiff is not likely to suffer any irreparable loss if the application for Injunction is dismissed since he had already measured his loss in terms of money and, therefore, is not entitled to interim Injunction. In support of this application, it is said that the mistakes sought to be corrected in the Counter‑Affidavit are typographical and unintentional and, therefore, may be allowed to be rectified. In reply to the application for amendment, in the form of Counter‑Affidavit of Mr. Anwar Mohammad, learned counsel for Plaintiff, personally, it is said that this application was moved on 10‑11‑88, when the application for restoration was already fixed for hearing and that the object of filing of such application was to delay and defeat the matter. The record of the case shows that the said application had in fact been heard partly on 19‑10‑88, and the case was fixed on 10‑11‑88, for further hearing. However. with a view to allay the apprehensions on this score, Mr. Mushtaq Memon of M/s. Khalid Ishaque & Co., on 10‑11‑88 undertook that no further steps in relation to an agreed sale, which, according to him had already taken place, would be taken, if a short date was given. 6.. In so far as the application for amendment moved by the Plaintiff in the context of the Counter‑affidavit is concerned, I find that the overall defence in such counter‑affidavit cannot be harmonised unless the same is read in the context of the amendments sought. Amendment for "25‑5‑88" to be read as "29‑5 88", would be in consonance with the order of this Court of that date. Likewise, for the word "briefing" the word "brief' must have been intended, as it was such "brier' that no longer remained with the plaintiff's counsel. The word "never" occurring in the relative part is certainly extraneous and cannot, in isolation, stand with the rest of the pleas in the Counter‑Affidavit and the statement of Mr.Afsar Abidi made in Court on 31‑5-88, surprising, though, it is, as stenographers and typists are known, out of incompetence or hurry, to alter words but rarely, if ever, do they insert new words of their own, which would be the position if deletion of the word "never" be in contemplation. Be that as it may, the overall factual situation of the record and the tenor of the counter‑affidavit, as a whole, would impell this Court to take a manifestly just view of the situation. As regards insertion of new para 7 and resulting re‑numbering of paragraphs, that would be dependant on whether or not, such proposed Para. 7, claiming that no irreparable loss would be caused to the plaintiff m case of refusal of Injunction as he has already opted for damages, would meet the ends of justice. This, obviously, is a legal plea, arising directly from the documents on record, and, apparently, has not been omitted merely on account of inadvertance. However additional legal pleas can be permitted to be taken in respect of interlocutory applications, if the justice of the case so requires. In any case, such plea, based on documents, is already on record and it may amount to make fetish of technicalities in disallowing it. A rule regarding amendments similar to that as incorporated in Order 6 Rule 17 C.P.C. is also invocable in respect of applications. A corollary of such rule is that an amendment sought is not to be disallowed if the same fairly arises in the case and following this principle amendments have been allowed in pleadings even at the stage of Supreme Court proceedings. This, however, is no licence for permitting a party to delay or defeat justice by seeking to introduce unnecessary or extraneous material in the garb of seeking amendments. The instant case, however, falls within the rule rather than in the exception and I would be inclined to allow the amendments sought. In fact 1 have already heard the parties on the premises that this application could be allowed. Accordingly, the application for amendment (C.M.A.7405/88) stands allowed and the defendant may submit the amended Counter‑Affidavit within one week of the date of this order. Normally, if the amendments were factually controversial time would be allowable for reply but this does not arise here.

7. Taking up the main controversy again, it may be recalled here that on 21 8‑88, when this case was listed before my learned brother Ma7har Ali, J., for consideration of the application for restoration above said, and a question, in the relevant context, having been involved concerning the statement of no instructions by Mr. Afsar Abidi, Advocate, a notice was ordered to the said learned Advocate to make appearance in the case and the application was adjourned to a date in office. On 15‑11‑88, while I recorded a summary of the statement of Mr. Afsar Abidi in my notes, the said Advocate was requested to make such statement in writing and to submit a photostat copy of the receipt of the file returned by him in confirmation of the oral statement made in Court. Such statement and copy were submitted by Mr. Afsar Abidi on 23‑11‑88 and, on supply of copies to both the learned counsel were taken on record. The case itself was adjourned to 29 11‑88 for further hearing on which date, arguments having concluded, orders were reserved. Mr. Abidi, in the referred statement, had maintained that on 23‑5 88, the file pertaining to the Suit was taken away by one Nasir S. Siddiqi, an authorised representative of the Plaintiff, who had been acting as the latter's perokar. Advocates' clerk had, however, obtained a receipt from him, copy whereof shows receipt of case tile Suit No.888/8<, from M/s A.K.Brohi & Co, through Mr. Abidi, Advocate. Mr. Abidi further states that on 28‑5‑88, the case was found listed in the Cause List for 29‑5‑88; after it had been earlier argued on 28‑10‑87, and reserved for orders. Thereupon, Mr. Abidi says that he tried to reach the Plaintiff on telephone but could not establish contact. As regards the hearing on 29‑5‑88, Mr. Abidi maintains that he informed the Court that the matter had also earlier been argued and reserved for orders but as (in the meantime) "the case tile had been taken away by the Plaintiff' the case was got adjourned to 31‑5‑88, the Court directing him to contact the plaintiff as the matter would proceed on that date. Mr. Abidi further states that on the evening of 29‑5‑88, he contacted the Plaintiff telephonically and informed him that the case was fixed on 29‑5‑88 and was adjourned to 31‑5‑88, and since the file had been taken away by Mr. Nasir Siddiqui, the authorised representative of the Plaintiff, he could not proceed with the case on 29‑5‑88, whereupon the Plaintiff informed Mr. Abidi that he had engaged Mr. Anwar Siddiqui, Advocate (Mr. Anwar Mohammad) an associate of Mr. Iqbal Haider, Advocate, the latter being the younger brother of the Plaintiff'. Next morning i.e. on 30‑5‑88, Mr. Iqbal Haider, Advocate, according to Mr. Abidi, met him in the precincts of this Court and Mr. Abidi informed him that the case was fixed for hearing on 31‑5‑88, and that he should make it a point that Mr. Anwar Siddiqui, Advocate, appears in Court on that date whereupon Mr. Iqbal Haider told Mr. Abidi that Mr. Anwar Siddiqui would, definitely, appear in Court on such date. On 31‑5‑88, while Mr. Abidi was sitting in some other cases in the Court of Mr. Justice Mazhar Ali, this Suit was called and he was asked by the Court as to whether he had informed the Plaintiff and whether he was appearing in the case, whereupon Mr. Abidi says that he made the statement that he did contact the Plaintiff on telephone on the evening of 29‑5‑88, and that he was informed by the Plaintiff that some other Advocate had been engaged by the Plaintiff in place of Mr. Abidi. Since, however, neither the Plaintiff nor his (other) Counsel was present in Court at the time Mr. Abidi's statement was recorded, the application for injunction was dismissed.

8. I have heard the learned counsel at length. I find, that the Plaintiff has neither filed an affidavit‑in‑rejoinder in reply to the counter‑affidavit of the Defendant nor has the statement of Mr. Afsar Abidi; Advocate submitted in Court on 23‑11‑88, been controverted in any manner even though copy of the same was provided to the learned counsel for the Plaintiff on 23‑11‑1988, where after the matter of the restoration application was finally heard and orders were reserved on 29‑11‑

88. It is also significant that no affidavit of Mr. Iqbal Haider, Advocate, said to be the younger brother of the Plaintiff, has been submitted though at least one reference is directly related to him. I am conscious of some minor discrepancies in the respective positions taken on behalf of the parties but the basic factual situation, which emerges, remains unaltered namely that the plaintiff received back the file, the Plaintiff was informed of the date of hearing for 31‑5‑88, Plaintiff stated that he had engaged another Advocate, I Plaintiff neither appeared on 31‑5‑88 nor effectively arranged for his representation and that somebody, after the close of the day on 31‑5‑88, appeared from the side of the Plaintiff to verify the position, all of which facts indicate elements of gross negligence which have remained totally uncontroverted.

9. It would thus appear that Plaintiff's non‑appearance in Court on 31‑5‑88, was an act of his own choosing. However, notice has to be taken of the principle that under Order 3 Rules 3 and 4 and the rules of this Court, relevantly reflected in Rules 49 and 50 of the Original .Side Rules it is necessary for an Advocate, who wishes to disengage himself from a case to intimate his intention to the party he is representing through service of due notice and, likewise, it is a requirement for parties to litigation to inform the Advocate concerned of their intention to revoke or terminate his power through a similar notice sent in a similar manner and by due intimation to the Court. This procedure, obviously, has not been followed and accordingly, it cannot be said that either Mr. Afsar Abidi had effectively disassociated himself from the plaintiff or the Plaintiff had effectively withdrawn the Power of Mr. Afsar Abidi, and technically, therefore, it must be found that the relationship of Counsel and Client still subsisted between them. On this premises, ordinarily, I would have been inclined to hold that the statement of no instructions on the part of the counsel was bad, resulting in the restoration of the application and its hearing on merits. It can hardly be disputed that the practice which had lately found favour of intimating no instructions by Counsel, frequently, without complying with the requirements of rules, does not have any sanction of law. A mere statement of no instructions means nothing either way as the relationship of Counsel and Client cannot come to an end, except on compliance of necessary provisions of law. Reference in this connection may be made to the cases of Alico Civil Engineers and Contractors Lahore v. Sayeda Mushtri Rafique Ahmed and another 1980 CLC 466; Mst. Qamar Sultana v, Abdul Hussain and another 1982 CLC 767 and Shamsuddin v. Nisar Ahmed 1988 CLC 1016 in which the consistent view taken is that under Order III Rules 3 and 4, C.P.C.and, where relevant, in the rules of the Civil Courts there are specific provisions for termination or withdrawal of Vakalatnamas and that unless the mandatory provisions involved are followed a Vakalatnama continues to be operative.

10. However even though the learned counsel may have continued to represent the plaintiff a Court of Law is not entirely powerless in relieving the person exposed to prejudice on account of conduct, which, to say the least is questionable. Thus, speaking technically, while the relationship of Counsel and client did continue it seems that, inasmuch as, the case file was taken away against due receipt, necessary intimation was given of the date of hearing, and learned Advocate was informed that he was not required to appear any longer, what in' these circumstances transpired, had all the essential elements involved in the rules and the learned counsel was left with no option but to step aside. The plaintiff, therefore, has in such circumstances to explain his own absence. Learned counsel for the defendant has relied on the cases reported as Zulfiquar Ali v. Lal Din and another 1974 SCMR 167, Chirag Din and 4 others v. Mst. Jannat Bibi and 6 others 1976 SCMR 399, Abdul Rashid and another v. Shaikh Azim Bux PLD 1981 SC 200 and Rafique Ahmed Khawaja v. Abdul Halim 1982 SCMR 1229, all of which decisions, are authority for the proposition that it is not just for counsel but also the litigant himself to be under duty to see that due representation is made at the time when the case is called up for hearing. On the other hand, learned counsel for the plaintiff relies on Satya Pal and other v. Sant Ram and others AIR 1934 Lahore 91, a case where on refusal of notice by counsel the party was not noticed and the case was held to be erroneously dismissed, Abdul Rehman Khan v. Allah Dita and others PLD 1957 Lahore 619, where Kaikaus, J. held that in cases where there be sufficient cause for personal non‑appearance of the plaintiff, the same may be a good ground for restoration since no party is under an obligation to engage counsel, Fareed Sons Limited v. Abdulali Moosa Bhoy and Sons PLD 1963 Kar 424, where Feroz Nana Ghulam Ally, J, held that belated communication by counsel, due to differences, may be sufficient cause for non‑appearance of the party and Muhammad Haleem and another v. H.H. Muhammad Naim and others PLD 1909 SC 270, in which Hamoodur Rehman, C.J., who delivered the judgment of the Court, observed that the consensus of judicial opinion appeared to be in favour of the view that if it was possible for a Court to base a decision on merits, upon the material already brought on the record, it should do so, for every party, which has instituted a cause or matter in a court, has a right to have his case decided on merits and thus a dismissal for non‑prosecution should rather be an exception than a rule. Inter alia, some of these authorities have been noticed by a Division Bench of this Court, comprising Nasir Aslam Zahid and Syed Haider Ali Pirzada, JJ., in the case of M/s. Eastern Steels v. National Shipping Corporation 1984 CLC 2778 and the rule deduced by Nasir Aslam Zahid, J., who spoke for the Court, is that while as a general principle it may be stated that a party normally, must suffer for the negligence of his Advocate, such is not an absolute rule and where the party is not at fault or is not found guilty of any negligence or carelessness and where gross injustice or great hardship will take place, if the party is penalized for the negligence of the Advocate, courts are not powerless to grant relief to the aggrieved party.

11. The principle emerging, therefore, is that in cases where a party is represented by counsel one of either has to be present and where a cause is taken up for absence of both the Court is still to endeavour to decide on merits on the basis of existing record, if it lawfully can do so, but where ex parte orders have yet been resorted to and there is something amiss in the counsel's conduct of the case, the party may still be relieved provided always that its own conduct is without fault and justice of the case so warrants. Applying these principles to the facts and circumstances of the case, I find that while there was justification for the plaintiff's counsel to stand aside in the proceedings of the case the file having been taken away from him and he having been informed that another will represent in his place, there was no justification for the plaintiff to have remained absent, all the more so as the material on record clearly shows that he was aware of the date of hearing and could have pursued the matter personally or through another Advocate had he not been grossly negligent. The very fact that he applied for restoration so soon after dismissal would go to establish due knowledge of the proceedings undertaken in his absence. It, accordingly, follows that the application for Injunction is not fit to be restored.

12. Nonetheless, Courts of Law, under all circumstances, arc expected to do complete justice and it was for this reason that even though I was not satisfied that a case for restoration had been made out that I heard the learned counsel on the merits of the Injunction application itself namely, C.MA.6783/86, and while, I am not inclined to restore this application, yet, would consider it proper that something may be said about merits and if any relief, which meets the ends of justice, is required to be accorded, the same is duly and adequately accorded. Accordingly, the facts relevant to the application for injunction emerge for examination, which I propose to do hereunder.

13. This Suit for specific performance is based on a Contract dated 8‑3‑1986, where under the Plaintiff agreed to purchase four sub‑divided plots out of Plot No.F‑173, Block 5, Scheme 5, Clifton, admeasuring 1,978.6 Sq. Yds., in aggregate. The contracted price was Rs.24,00,000 out of which a sum of Rs.2,00,000 was paid to the defendant through Receipt dated 13‑3‑1986. The contract stipulated that the sale shall be completed within 65 days from the date of the agreement and that time would be of the essence of the contract. On 21‑4‑1980, the Plaintiff addressed a letter to the defendant asking him to supply copies of all the original documents to him maintaining that the same were required for inspection of KDA. record and the defendant "suspecting deceit endorsed the copies that he handed over to the Plaintiff with the words for inspection and not for transfer." It is maintained by the Plaintiff but denied by the defendant that the defendant requested that time be extended for completing the sale and that in place of.65 days, the period so extended be 100 days. This came about per amendment signed on 21‑4‑1986. Vide a letter of the same date viz. 21‑4‑1986, the Plaintiff addressed the Defendant saying that it was too late for the defendant "to get myself cleared and get you additional Rs.6 lacs because of my preoccupation "and suggested that all the balance payment would be made on completion of K.D.A. formalities. It was hoped that the Defendant would "not have any sign of complaint whatsoever" as the Plaintiff was ready to complete the transaction as soon as the defendant was ready. In the meantime, "photostat copies of all the original documents viz. Allotment Order, Transfer Letters, Physical Possession, Acknowledgment of Possession, All Paid Challans and any N.O.C.," were sought from the Defendant. Such copies were either to be delivered to the Plaintiff at his office or to one Asif, Plaintiff's Property Consultant, as explained to the defendnat "so that he expedites the matter urgently for your satisfaction". This letter would imply that extension of time, apparently brought about on the same date, was allowed not on defendant's seeking but at the instance of the Plaintiff. Defendant contends that even the extended time expired on 16‑6‑1986. However, the plaintiff sent a telex to the defendant dated 22‑7‑1980, demanding "original documents" which, according to the defendant, were not necessary. Through a reply telegram it was said the originals were handed over for inspection in April, that time was extended on plaintiff's request, that defendant had visited plaintiff's Office more than 15 times and that delay had been, on plaintiff's part. It is maintained in the Plaint that on 30‑7‑1986, Plaintiff received a set of photostat copies of a Certificate issued by the KDA. Paid Challan and Site Plan, which documents were rejected by his Advocate as insufficient, whereupon the Plaintiff, contacting the Defendant, was informed that the requisite original Allotment Order, Possession Order, and acknowledgement of Possession, were misplaced by the Defendant and were not traceable. Plaintiff was so informed on telephone. The Defendant however, in reply asserts that the File containing the original K.D.A. documents had earlier been misplaced by the Defendant and the K.D.A. had, an application of the Defendant, provided a Certificate, in lieu, and that such Certificate was an adequate document of title. This, according to the defendant, was known to the Plaintiff at the time of agreement. Such originals according to the Defendant were ready and on presentation of the Pay Order for the balance, the Defandant and the Plaintiff, could jointly, complete the requisite transfer application provided by the K.DA. Such position, prima facie, is supported by letters of 2‑4‑88 and 28‑5‑88 appended with an Additional Affidavit of the Defendant. Next in the chain of events is a letter dated 3‑8‑86 from the plaintiff wherein receipt of photostat copies of the Allotment Order and Site Plan on 30‑7 86 is acknowledged, telephonic information of loss of the originals is confirmed but insistence is made for securing duplicates from KDA. This was followed the very next day by letter dated 4‑8‑86 through which the plaintiff recorded as under:‑ "I very much regret to state it is impossible for me to purchase the subject plot without such important documents and now I cannot wait for an indefinite period." "The way you are expressing your inability for timely completion of K.DA. formalities and you are offering me to refund my advance money for which you have now covered me. Since I also cannot afford to wait for an indefinite period, therefore, I have now no choice left except to ask you to refund my total advance amount ...." Through a subsequent communication dated 13‑8‑86 the plaintiff, apparently, closed the chapter as under:‑ "However, to settle this matter amicably please immediately refund my total amount as you promised to settle with friendly harmony." The defendant per letter dated 24‑8‑86 seems to put all the blame on the plaintiff which, in turn, occasioned plaintiff's clarification of 2‑9‑86 in which he claimed refund, interest of Rs.10,000 P.M. on deposit and damages of Rs.2,00,

000. Vide letter of 29‑9‑86 the plaintiff again started claiming the referred documents and sought completion of the deal. After an interval legal notice dated 20‑11‑86 was got addressed by the plaintiff in which, this time, Specific Performance was claimed. Defendant in his like reply dated 9‑12‑86 offered to pay back the earnest money and denied Specific Performance. The present suit was filed on 27‑12‑86.

14. It is now well settled that for the grant of relief by way of an interim Injunction the applicant .must show a prima facie case, establish that balance of convenience lies m his favour and further that he would be exposed to irreparable loss if the injunction, as prayed for, is refused. Reference in this connection may be made to the case of Shahzada Muhammad Umer Baig v. Sultan Mehmood Khan and another PLD 1970 SC 139.

15. In the context of prima facie case the first question is whether time was of the essence of the contract in this case. The general principle is that in respect of contracts involving immovable property time is not of essence. However, under section 55 of the Contract Act, 1872, even in respect of such contracts time may be of essence if the parties intended it to be so and such intention may be gathered from a number of factors, including express words to that effect in the stipulations, nature of the transaction, purpose to which the property is put, concommitment obligations of the parties, object of the agreement or circumstances of the case generally. Even where time is not of essence it may be made so by giving a notice for fixation of reasonable time. While there arc a large number of authorities on this point, reference in connection has only been made to the cases of Suri Chetty Ranganathan Chetty and others v. G. Partha Sarathy Chetti AIR 1921 Mad.141 and Ebrahim Saley Mayet v. Ghulam Hussain Pakseema PLD 1960 Kar.297.

16. On the question of extension of time Mr Mushlaq Memon has also referred to Corbin on Contract, Volume III‑A, Para 722, Page 380, where it is said that in cases where time is stipulated to be of essence such condition may be waived by extension but then, it is added, saying that if the extension is a definite one, fixing a new time limit, it is question of interpretation of the new expression whether performance by the new, limit is of the essence and it should be held to be so in the absence of anything to indicate the contrary intention, where the waiver is a mere extension of time without consideration. It would appear from the correspondence in the case, adverted to above, that both sides recognized the essentiality of time even though extended. Besides, the extension was for a definite period and for no consideration. It may, therefore, well have been that they intended time to be of the essence.

17. There is another aspect of the case which also may be referred to while dealing with the element of prima facie case. This comprises of the plaintiff, in the first instance, claiming refund of the earnest money and be quits with the transaction and, on the other hand, specifically claiming, at a later date, such refund plus damages and interest thereby clearly opting out of specific performance. On this point reference may be made to the judgment of Noorul Arfin, J., in the case of Anwar Ali Khan v. Abdul Sattar Abu Bakar PLD 1968 Kar.l54, where the learned Judge held that the purchaser's addressing letters, claiming only damages and refund of earnest money, established waiver of specific performance on his part thus rendered him disentitled to such relief. Zafar Hussain Mirza, J., while in this court, in the case of M/s. Karachi Gas Company Limited v. M/s. Fancy Foundation PLD 1977 Kar.191 came to the conclusion that it was well within the bounds of exercise of jurisdiction of a Court, in order to determine prima facie case, to consider admitted documents placed before it but that such assessment had to be tentative in nature and not binding at the hearing of suit. In that case, at the interim stage, on plaintiff's own showing that monetary compensation was adequate relief, they were found to be disentitled to the discretionary relief of Specific Performance and, as such, interim injunction was declined. Learned counsel for the plaintiff has sought to distinguish these judgments by making reference to the cases of Seth Essabhoy V. Saboor Ahmad PLD 1973 SC 39, and Abdul Karim v. Muhammad Shar 1973 SCMR 225 in the first of which cases it was held that in matters involving breach on the part of the defendant it would not be obligatory for the plaintiff to prove his willingness to perform the contract upto the date of filing of suit, whereas the dictum in the second case is that even where the contract provided for payment (as penalty) of a specific amount on vendor's failure to fulfill his part of the contract, the court still had power, to decree specific performance. These cases, obviously, are distinguishable, inasmuch as, it is not shown that the defendant was in breach nor any sum certain is described in the contract as a result of breach. The precise question involved here pertains to election on the part of the plaintiff, after the parties had come to the stage where they had to decide to embark upon one or the other options open, and the plaintiff did not opt for Specific Performance.

18. On the question of balance of convenience the normal rule in suits for specific performance is that such balance lies in favour of one who seeks specific performance but, then, that is only one of the considerations for grant of interim injunctions whereas all the three ingredients aforementioned are to be satisfied.

19. Taking up the question of irreparable loss since the plaintiff himself has chosen, and that too before the institution of the suit, the alternative remedy for refund of earnest money and damages etc. no element of irreparable loss has come to subsist.

20. In view of the above findings, which, of course, are of a tentative nature and would not bind the plaintiff on trial of the action, I do not consider it to be a fit case for grant or confirmation of injunction. But while vacating the earlier adinterim orders it would be, in the interest of justice, to direct that the defendant, as a condition of this order, shall deposit the referred sum of Rs.2,00,000 (Rupees two lacs) in Court within 15 days from the date hereof and that such amount, on being deposited, shall be invested in Khas Deposit Certificates, to be disbursed, in such manner as be necessary, on the determination of the suit or, if the plaintiff desires to compound the claim, on his doing so by making requisite application in that behalf, in which subsequent event, if any, it will be the obligation of the defendant to concede payment to the plaintiff, as the defendant has already advanced pleas of refund before the suit was instituted. A.A./H‑172/K Order accordingly.