1990 CLC 1127 (PLP)

Owner of Bungalow 163/E/A Block‑3, P.E.C.H.S., Karachi‑29 Witnesses:

1. Sd/‑ Sabir A. Muhammad

2. Sd/‑ owner of Central Model School."

3. Thereafter, the plaintiff approached the defendant to finalise the sale transaction against payment of the balance of the aforesaid consideration, but to no avail, and hence the suit.

4. The contention of Mr. Syed Sami Ahmad, learned counsel for the defendants is that, the present suit is not maintainable as there is no concluded contract between the parties, consequently the aforesaid issue should be tried as preliminary issue.

5. Although it has not been denied by Mr. K.A. Wahab learned counsel for the plaintiff, that apart from the said "receipt" no other document was executed by the parties in respect of the said transaction, but according to the learned counsel, it also embodies terms of sale. The learned counsel has further contended that the issue raised by the defendant No.1 is a mixed issue of law and fact and therefore, the same cannot be determined without recording of evidence, and the recording of evidence piecemeal would unnecessarily result in the waste of time.

6. Prima facie, Mr. A.K. Wahab appears to be correct and Mr. Sami Ahmad has not advanced any forceful argument to dislodge Mr. Wahab's contention, therefore, I am not inclined to accede to the defendants' request and dismiss this application. However, it is open to the defendants to file another application for early hearing of the case, which, when it is filed, would be considered on its own merits. C.M.A. No.1838J1989:

7. As far as C.M.A. No.1838/89 is concerned, the defendants seek the modification of the order passed by this Court, dated 28‑2‑1998, by directing the plaintiff to deposit in the Court a sum of Rs.26,00,000 being the balance of the aforesaid consideration and in case of his failure to comply with the said directions, the defendants have further requested for discharge of the said order.

8. It is pertinent to point out that on 10‑2‑1988, the counsel then appearing on behalf of the defendants, sought time from the Court to file counter‑affidavit, but on 22‑8‑1988, which was the next date of hearing of the case fixed by the Court, neither the counsel for the defendants appeared before the Court nor did he tile any counter‑affidavit on their behalf, wish the result that interim injunction was issued against the defendants, restraining them from disposing of or alienating the property in question.

9. While referring to Rule 4 of Order 39, C.P.C., under which the present application has been filed, Mr. Syed Sami Ahmed has pointed out that interim injunctions granted by the Court can be discharged, varied or set aside by it in the discharge of its judicial discretion. The reasons for the exercise of such discretion in favour of the defendants, according to them, are, firstly, that the value of the property in the suit is escalating on account of inflation whereas value of the rupee is depreciating. Consequently it is expedient in the interest of justice that the balance of the consideration is deposited in the Court so that it can be invested in the shape of Defence Saving Certificates. In this way no party would be put to disadvantage when the matter is finally adjudicated upon. Secondly, according to the defendants, when the order was passed, both the defendants and their counsel were not present before the Court. Consequently, the order, which in fact had been passed ex parte, can be set aside under Rule 4.‑Mr. KA. Wahab B has resisted the application, as according to him, rule 4 of Order 39, C.P.C. has been erroneously invoked by the defendants. Rule 3 of Order 39, which precedes Rule 4, provides that:‑‑ "

3. Before granting injunction, Court to direct notice to opposite part:‑The Court shall in all cases, before granting an injunction, direct notice of the application for the same to be given to the opposite‑party:‑‑ Provided ..the Court may, where it appears that the object of granting injunction would be defeated by the delay, dispense with such notice " Rule 4 then provides as follows:‑‑ "

4. Order for injunction may be discharged, varied or set aside:‑An order for an injunction may be discharged, or varied, or set aside by the Court, on application made thereto by any party dissatisfied with such order." In Govinda Ramanuja Das Goswami v. Vijiaramaraju and another A I R 1929 Mad. 803, upon which Mr. K.A. Wahab has mainly relied, an order staying the delivery of property in execution was passed under Order 39 Rule 1, C.P.C. after notice to the opponent. The opponent without filing an appeal applied for dissolution of the order under Order 39 Rule 4, C.P.C. and the Court appointed a Receiver. On an appeal filed before the High Court, it was held that:‑‑ "When an urgent order ex parte has been passed under R.3; R.4 will allow the party against whom it has been passed to apply to have it discharged or varied or set aside, and (2) when an injunction order already in force has, owing to fresh circumstances, become unduly harsh or unnecessary or unworkable, it would be open to either party to apply under R.4 to the Court to discharge, vary or set it aside. We are clear that R.4 cannot give a Court jurisdiction to interfere with an injunction already passed when each side has had an oppotunity of being heard, and no grounds other than those available at the original hearing appear or, are urged. When therefore a party has by his own fault neglected to put his case forward at the original hearing, he cannot come forward under R.4 later and plead that he has a legal right under that rule to have the case re‑opened and re‑heard. R.4 cannot be read so as to allow a party e.g., to let the appeal time slip by or to wait until his appeal has been dismissed and then to re‑open his original case. We are satisfied that R.4 is not intended to set at nought the ordinary cursus curiaie that, once a Court had decided a matter after giving each side an opportunity of being heard, its order is final and binding on itself as much as on the parties, and cannot be re‑opened except on the presentation of some new matter not available when the original order was passed:' The rule laid down in this case was followed by Dorab Patel, J. (as he then was), in Sindh Mad ressah‑Tul‑lslamia Board Society v. Shahim P L D 1974 Note 54'at p.93 and it was held by him that power under rule 4 is not exercisable where the respondent was served with notice of application for interim injunction but he refused to take such notice. As in the instant case, the order granting interim injunction was passed after service of notice of the application for injunction on the defendants, the ratio of the two cases, according to Mr. KA. Wahab, is clearly attracted to the present case.

10. Although, I find myself in respectful agreement with the views expressed in the two cases just referred to by me, but it may be pointed out at the same time that nothing can be spelt out from rule 4 to indicate that it can be invoked only in case of ex parte orders passed before issuance of notice to the opposite party, notwithstanding the fact that Rule 4 immediately follows Rule

3. However, even in the said cases it has been held that Rule 4 can be invoked in presence of fresh circumstances, making the order unduly harsh or unworkable. I would like to point out here that, rules have been framed under the C.P. Code not to place any insurmountable obstacles before the Court but to advance the ends of justice Law Reports can be found full of cases where rules were stretched to provide proper relief to the parties. Turning back to the merits of the case, the Court cannot shut its eyes to the fact that the value of the money is depreciating on account of inflation and considering the time that is normally taken for disposal of such cases, the loss that the defendant No.l may have to sustain on account of the aforesaid reasons is hard to 1imagine, particularly if ultimately the decision of the case is in favour of the plaintiff and a decree is passed against the defendants for specific performance of the contract. The mere fact that an appeal could be filed by the defendants against the order of injunction but such appeal was not filed, or that it has become time‑barred, cannot prevent the Court from invoking rule 4 of Order 39 if the same could otherwise be invoked. In fact, the circumstances call for modification of the injunction order rather than its reversal.

11. I am, therefore, of the considered view that the order dated 28‑2‑1988 can be modified.

12. In the result, I allow this application and modify the order in terms of the prayer made in the application. The amount of Rs.26,00,000 shall be deposited by the plaintiff in the Court within two weeks of the passing of this order and when the same has been deposited, it shall forthwith be invested in purchase of defence savings certificates. H.B.T./M‑1044/K Order accordingly.