MUHAMMAD ISHTIAQ HUSSAIN Versus ZULFIOAR ALI

A suit for possession through specific performance was filed by Muhammad Ishtiaq and others, the appellants herein, against Zulfiqar Ali respondent in the Civil Court at Faisalabad. Alongwith the plaint an application for temporary injunction under Order 39, rules 1 and 2, C.P.C. was also made. The suit as well as the application under Order 39, rules 1 and 2 were contested by the respondent on various pleas. The trial Court vide its order dated 26th January, 1992 accepted the application for temporary injunction subject to the condition that the appellants/plaintiffs shall deposit Rs.16,00,000 in the Government Treasury till 16th February, 1992 failing which their suit shall stand dismissed.

2. Aggrieved by this order the appellants have come in appeal.

3. The learned counsel for the appellant has contended that the trial Court acted without jurisdiction in observing that in case the appellants fail to deposit Rs.16,00,000, the suit of the appellants shall stand dismissed. According to the learned counsel such a condition could not be imposed under any law. The learned counsel for the appellants has however, supported the impugned order.

4. Having heard the learned counsel for the parties, it is quite apparent that the impugned order to the extent it directs that in case of failure of the appellants to deposit Rs.16,00,000 till 16th February, 1992, the suit of the appellants would stand dismissed is clearly in excess of jurisdiction vesting in the trial Court. The appellants had filed the suit averring that there was an agreement to sell between the parties which may be specifically enforced. The defendant/respondent had inter alia denied the execution of that agreement. In the circumstances the suit filed by the appellants could only be decided after framing the relevant issues.

5. It cannot be denied that the trial Court while hearing the application for temporary injunction could in terms of the Order 39, rules 1 and 2, C.P.C. impose a condition and as such the direction to deposit the money as a condition to the grant of temporary injunction was justified but the trial Court could not certainly direct that in the event of non‑compliance of that order the suit shall stand dismissed. The only penal consequences which could beg provided for non‑compliance of the order could be the dismissal of the application for temporary injunction.

For the reasons aforesaid this appeal is accepted and the order of the trial Court is modified to the extent that in the event of failure of the appellants to deposit the amount of Rs.16,00,000 as directed by the trial Court, their application for temporary injunction shall stand dismissed.

A.A./M‑316/L Appeal accepted.