2001 PLP 1695 (CLC)

Ch. Nasrullah Warraich for Appellant. Ch. Safdar H. Tarar and Ch. Asif Bhindar for Respondents Nos.1 and

2. Date of hearing: 8th March, 2001. Briefly, the facts of present appeal are that respondent No.1 owned land measuring 75 Kanals, 12 Marlas situated in Revenue Estate of Lorehiki, Tehsil Daska, District Sialkot. Respondent No.1 executed agreement qua the said land with appellant for consideration of Rs.9,30,000; out of which respondent No.1 received Rs.8,50,000 from appellant. The balance consideration Rs.80,000 is to be paid by the appellant to respondent No.1 at the time of execution of registration of sale‑deed. Respondent No.1 refused to honour the agreement and denied the execution and registration of sale deed. The appellant being aggrieved filed suit for possession through specific performance of agreement in question alongwith application under Order 39, Rules 1 and 2, C.P.C. before the Civil Judge, 1st Class, Daksa. Respondent No.1 filed written reply, controverted the allegations levelled in the application. The trial Court dismissed the application vide impugned order, dated 8‑11‑1999.

2. The appellant's counsel submits that trial Court has erred in law to dismiss the application of appellant and accepted the averments made by the respondents in their reply: that respondent No.2 alleged that an agreement to sell was also executed between respondents Nos.1 and 2 qua the land in question on 12‑1‑1999, for consideration of Rs.9,26,000 out of which respondent No.1 had received Rs.5,50,000 as earnest money; that respondent No.2 filed an application to implead him as party in the suit which was accepted by the trial Court and respondent No.2 was impleaded as defendant No.2 in the suit; that trial Court granted total relief to respondent No.2 in the garb of interim relief which is not permissible in the eyes of law; that trial Court dismissed the application merely on the ground that the appellant did not challenge the vires of agreement to sell dated 12‑1‑1998 executed between respondent No.1 and respondent No.2; that appellant has filed application before the trial Court under Order 6, Rule 17, C.P.C. for amendment the plaint which is still pending adjudication.

3. Learned counsel for respondent No.2 submits that impugned order is valid as all the basic ingredients are in favour of respondent No.2, that appellant has no prima facie good case and balance of convenience does not lie in favour of grant of injunction and appellant/plaintiff would not suffer irreparable loss in view of the impugned order; that appellant has not even arguable case, therefore, impugned order is valid in the eyes of law; that appellant filed appeal before this Court on 17‑11‑1999 and also filed application for amendment of plaint before the trial Court on the same date i.e. 17‑11‑1999.

4. Learned counsel for respondent No.1 adopted the arguments of learned counsel for respondent No.2; he further submits that respondent No.1 is old man whose age is 75 years and is also suffering from ailment.

5. I have given my anxious consideration to the contentions of learned counsel for the parties and perused the record. It is settled principle of law that grant of an injunction order is certainly a discretionary relief, but in passing such an order, a Court of law is not expected to go by its whims familiarly known and generally accepted principle, governing exercise of such discretion, have to be abided by, for if it as not done, miscarriage of justice is occasioned on having weight and considered all attendant facts and circumstances of the case, the learned trial Court has to pass rational, judicious, equitable order. It is pertinent to mention here that appellant and respondent No.2 did not bring on record any receipt for the huge amount which had been allegedly received by respondent No.1 from appellant and respondent No.2. It is better and appropriate to reproduce the operative part of impugned order to resolve the controversy between the parties:‑‑ "The agreement of the plaintiff is alleged to be written on 1‑7‑1998 and the agreement dated 12‑1‑1998 ante‑dates that agreement and he has cast no aspersions on the validity of that agreement, therefore, the agreement, dated 12‑1‑1989 so far seems valid and legal and the balance of inconvenience lies in favour of defendant No.2 and not in favour of the plaintiff. That being the situation, the application for temporary injunction is dismissed." The aforesaid operative part reveals that trial Court virtually decided the case of appellant against him without recording the evidence and without framing the issues. It is settled proposition of law that total relief cannot be granted in the garb of interim relief as the law laid down in Farid Ahmed's case 1968 SCMR 88 and Muhammad Zaman's case 1997 SCMR 1508. The aforesaid operative part of impugned order further reveals that trial Court did not apply the mind and decided the application in mechanical manner which is not in accordance with law laid down in Mollah Ejahar Ali's case PLD 1970 SC 173. 1t is settled proposition of law that this Court has ample powers to look into the subsequent events. In arriving to this conclusion I am fortified by Nasir Jamal's case 1990 CLC 1069. In view of what has been discussed above, the impugned order is set aside meaning thereby the application filed by appellant/plaintiff shall be deemed to be, pending adjudication before the trial Court. The trial Court is directed to decide this application alongwith application filed by appellant under Order 6, Rule 17, C.P.C. as expeditiously as possible without being influenced by the aforesaid observation. The parties are directed to appear before the trial Court on 28‑3‑2001. Disposed of. H.B.T./S‑206/L Appeal accepted.