P L D 1956 (W (PLP)

(2) Raja Mahboob Asghar son of the defendant had no authority from the defendant to enter into an agreement to sell the property in question. (3) The doctrine of "holding out" Raja Mahboob Asghar as agent so as to raise an estoppel against the defendant is not made out in the circumstances of the present case. (4) There was no ratification. (5) There was no enforceable contract, as the parties were ad idem. (6) The balance of convenience is in favour of the defendant. I would consider these contentions one by one: I consider it will be useful to reproduce paragraphs 1155 and 1156 from "Pry on Specific Performance", 6th Edn. at page 538, for the consideration of the contentions raised by Mr. Khalid M. Ishaque :‑ "1155. The jurisdiction of the Court in injunction is often ancillary to that in specific performance, for the purpose of preventing the defendant making a use of some legal interest or right vested in him in a way inconsistent with' the equity claimed by the plaintiff, or embarrassing the plaintiff by dealing with the property during the pendency of the action, or obstructing the performance of some act incidental to the execution of the contract. 'The Court will in many cases interfere and preserve property in statu quo during the pendency of a suit, in which the rights to it are to be decided, and that without expressing, and often without having the means of forming, any opinion as to such rights'. (Per Lord Cottenham in Great Western Railway Co. v. Birmingham and Oxford Junction Railway Co. (2 Ph. 602). "1156. In the class of cases now to be considered the injunction is therefore granted, upon interlocutory applica tion and until the trial, on the plaintiff showing a prima facie case for specific performance. It is not necessary that it should be clear that the plaintiff will succeed at the trial; it is sufficient if there is ground for supposing that relief may be given. For on this application the Court will no decide delicate points, nor allow it to be resisted on points, such as delay, which can only be decided at the trial". To the same effect are the observations of Sir Asutosh Mookerjee, J. in the case of Promotha Nath Roy v. Jagannath Kisore Lal Singh Deo (17 Cal. L J 427). In that case the injunction was granted by the Court on certain terms as to security and undertaking given by the plaintiff. It was contended for the defendant that the document dated the 14th November 1955 was not an agreement or a contract to sell. This document, to my mind, is a very im portant document. It admittedly was written by the son of the defendant. It would be necessary to reproduce this document in order to fully appreciate the contention of Mr. Khalid M, Ishaque. The document reads as under : "Received Rs. 15,000 (Rupees fifteen thousand only) by cheque number G 658919 dated 14th November 1955 on National Bank of India Ltd. Karachi on behalf of my father Raja Muhammad Sarwar Khan as advance money from Mst. Parveen Begum wife of Malik Muhammad Ishaq of Karachi towards the sale of plot No. 194/1 Britto Road Garden East measuring 2924.5 square yards along with its existing superstructure which has been agreed to be sold to her for lump sum price of Rs. 1,52,500 (Rupees one lac fifty two thousand and five hundred only) excluding the cost of registration. An agreement of sale will be executed within one month from to‑day. (Sd.) Raja Mahboob Asghar for Raja Muhammad Sarwar Khan". Mr. Khalid M. Ishaque contended that this document pur ported only to be a receipt for the amount of Rs. 15,000 received by Raja Mahboob Asghar, the son of the defendant Mr. Khalid M. Ishaque also relied on the last line in para. 1 of the plaint, which reads "The original receipt for the amount paid by the plaintiff is filed herewith and marked 'A'". It was urged by him that the plaintiff herself has treated this document of 14th November 1955 as only a receipt. I have perused the document, reproduced above, and I have no doubt considering the words that I have italicized,. that this was not only a document evidencing the receipt of Rs. 15,000 mentioned therein but also an agreement to convey the plot of land in question to the plaintiff. At this stage it would also be necessary to give an interpretation to the last line of the document dated the 14th November 1955, which reads as under :‑ "An agreement of sale will be executed within one month from today". It was urged on the basis of this sentence that the document was only a receipt, as the parties contemplated that an agreement for sale would be executed later on. Mr. Sharifud din, the learned Advocate for the plaintiff, contended that a distinction has to be drawn between the words "for sale" and "of sale". He contended that where the words used were "an agreement of sale", it would mean the sale‑deed itself, in contrast to "an agreement for sale". In support of this contention, he relied on a passage from the Commentary of Chitaley on "The Transfer of Property Act" Vol. 2, Edn. III, page 863, which reads as under :‑ "Every sale must necessarily be preceded by a contract for sale. In other words every sale implies a contract for sale. The sale itself is very often referred to as a contract of sale, which must therefore be distinguished from a contract for sale. As pointed out by Mahmood, J., in Shib Lal v. Bhagwan Das (I L R 11 All. 244 (250)) a contract of sale is an executed contract and a contract for sale is an executory one". Keeping in view the above statement of law as given by Mahmood, J., it would appear from the last sentence of the document dated the 14th November 1955 that the parties had agreed that the sale‑deed was to be executed after a month. Under the Contract Act, a 'contract' means 'an agreement enforceable by law'. Without going into the niceties of C the difference between the words "agreement" and "contract" the parties considering the tenor of the whole document may have used the word "agreement" especially when it preceded the words "of sale" to mean the contract. So far as the mention of this document in para. 1 of the plaint as receipt is concerned. There is no doubt that this document is also a receipt for the amount of Rs. 15,

000. The next contention of Mr. Khalid M. Ishaque was that Raja Mahboob Asghar had no authority from his father to enter into any agreement to sell the property in question. The plaintiff has not produced any power of attorney in favour of Raja Mahboob Asghar executed by the defendant. The plaintiff relies upon the statement of fact as disclosed in the document dated 14th November 1955. She has also filed an order confirming the sale of the plot in question in favour of the defendant by the Deputy Custodian. It would appear from this order that Raja Mahboob Asghar had examined himself to prove the adequacy of the sale consideration. On behalf of the defendant reliance was placed on the affidavit; filed by the defendant and his two sons, Raja Mahboob Asghar and Raja Ghulam Hyder denying that any authority to enter into an agreement to sell the property in question was conferred by the defendant on Raja Mahboob Asghar. It would, however, appear from a perusal of the affidavits of these persons that it has not been alleged that Raja Mahboob Asghar had no authority even to negotiate for the sale of the property in question. In fact, it would appear from a perusal of these affidavits that the part played by Raja Mahboob Asghar in negotiating for the sale of the property is not disowned by the defendant. In other words, on the case made out by the defendant it would appear that Raja Mahboob Asghar had only a limited authority in respect of the convey ance of the plot of land in dispute. Under these circumstances, for the purposes of the present application it is difficult for me to draw a line between the scope of authority conferred on Raja Mahboob Asghar. However, on a perusal of the document dated the 14th November 1955 I am satisfied that for the purposes of the present application, the plaintiff has been able to make out a prima facie case that Raja Mahboob Asghar had authority on behalf of his father, the defendant. It was further contended by Mr. Khalid M. Ishaq the learned Advocate for the defendant that the doctrine of "holding out" so as to raise an estoppel against the defendant did not apply in the present case. It was contended that a person relying on agency by estoppel must show that he was led into the belief of agency in good faith from the previous dealings or representations. In the present case, no agency by estoppel has been urged by Mr. Sharifuddin, the question therefore does not arise. It was neat urged on behalf of the defendant that even if there was an agreement between Raja Mahboob Asghar and the plaintiff, the same was never ratified by the defendant. Reliance was placed on section 198 of the Contract Act to show that there could not be any valid ratification, as the defendant's knowledge of what had transpired between Raja Mahboob Asghar and the plaintiff was defective. Mr. Sharif uddin relied on the admission of the defendant that on 22nd November 1955 Raja Mahboob Asghar had handed over the cheque of Rs. 15,000 to the defendant and the same had been cashed by the defendant. It was also urged by Mr. Sharifuddin relying on the affidavit of Malik Ishaque that the circumstances under which the cheque had been passed on to the defendant must have come to the knowledge of the defendant. I consider, for the purpose of this applica tion, without going into the niceties of the question, that the contention of the learned Advocate for the plaintiff that the agreement between Raja Mahboob Asghar and the plaintiff was ratified is not without force. It was, further, very strenuously contended by Mr. Khalid M. Ishaque that there was no enforceable contract, as the parties were ad idem. He contended that even if it were assumed that the document dated the 14th November 1955 was an agreement, it was silent on many of the usual terms which are generally embodied in an agreement to sell. He submitted that the agreement was silent as regards the time within which the sale‑deed was to be executed; it was also silent as to the time within which the income tax certificate was to be obtained by the vendor. So far as the question of time within which the execution of the sale‑deed was to take place is concerned, if the interpretation sought to be put on the last line of the document dated the 14th November 1955 is correct, the sale‑deed was to be executed within one month from the date of the execution of the document. So far as the question that the document is silent as regards the time within which the income tax certificate was to be obtained by the vendor is concerned, it is not necessary to mention. In my opinion, the document in question is very clear: it specifies the amount for which the property in question was to be sold, the property which was to be sold and the time within which the deed was to be executed. Much of the difficulty relating t9 this document of the 14th November 1955 has arisen because it was mentioned therein that an agreement of sale would be executed later on, within a month. As observed by the Privy Council in the case of Harichand Manchara v. Govind Luxman Gokhale (A I R 1923 P C 47) "whether an agreement is a completed bargain or merely a provisional agreement depends on the intention of the parties as deducible F from the language used by the parties on the occasion when the negotiations take a concrete shape". I am of the view that the parties knew as to what they were about. It was lastly urged by Mr. Khalid M. Ishaque that the balance of convenience was in favour of the defendant. I do not think so. In this connection, the observation of Lord Justice Turner in the case of Hadley v. The London Bank of Scotland (12 L T R 747 at p. 748) is very elucidating and runs thus :‑ "I have always understood the rule of the Court to be that, in a case where there is a clear and undoubted contract as to the validity of which no dispute arises for the sale of the property, the Court will not after that contract has been entered into permit the vendor to transfer the legal estate to a third person notwithstanding the lis pendens will operate against that third person, and I think that as well founded in principle, because the effect of the G contract is to pass the whole equitable interest out of the vendor. So long as the contract is an undisputed contract the whole of the property is in equity transferred from the vendor to the purchaser ; the vendor then becomes a trustee for the purchaser and the trustee cannot be permitted to deal with the legal estate so as to inconvenience the purchaser". I respectfully accept this statement of law. Mr. Khalid Ishaque, however, contended that in order to apply this dictum, the contract must be an undisputed contract. He contended that the contract must be one which is admitted by the defendant. I do not think this meaning can be given to an undisputed contract. The defendant cannot be allowed to nullify the object of a suit for specific performance by denying the contract, however, clear that contract may be. It is always left to the Court to find out whether the contract is one which would prima facie entitle the plaintiff to the relief he has sought for. I find that the balance of convenience is in favour of the plaintiff. In the present case I consider that I should not grant the injunction without putting the plaintiff to terms. Mr. Sharifuddin for the plaintiff agreed to deposit the whole sale consideration in Court, but on my suggestion that the same may be allowed to be withdrawn by the defendant on condition of his furnishing security, he stated that if the defendant were so allowed to withdraw, he would be conceding the case of the plaintiff. I do not see how the plaintiff would suffer if the defendant by his own act were to concede the case of the plaintiff. If the defendant withdraws the money after the order of the Court, he will do so after considering his position in law. The defendant has already received Rs. 15,000 as sale consideration ; the balance is about Rs. 1,38,

000. So long as the case remains pending the defend ant would remain out of pocket to the tune of about Rs. 1,38,

000. In equity, therefore, the defendant must be allowed to withdraw the amount on furnishing security if he so desire. On the other hand, the plaintiff will be out of pocket of the whole sale consideration if he was asked to deposit the amount. I consider, in the interest of justice, the plaintiff should not be called upon to deposit the whole amount of the sale consideration. I would order him to deposit only Rs. 1,00,000 (Rupees one hundred thousand) H within two weeks. The defendant would be entitled to with draw the same on furnishing security of the plot in dispute. The interim order on condition of the deposit of money is made absolute. The defendant or any person claiming through him is further restrained from putting any construc tion on the plot or doing anything which may affect the value of the land in question. The interim order to continue for two weeks. On deposit of the amount the interim order will become absolute. On the failure to deposit the money within two weeks the interim order will stand withdrawn. A. H. Application allowed.