BALQUEES ZAMAN KHAN and others vs TAHIR MAHMOOD BUTT

' This is an appeal against the order dated 18-2-1990, whereby Syed Shafqat Ahmed, learned Civil Judge 1st Class Lahore, accepted the respondent's application for temporary injunction in a suit for specific performance and had restrained the appellants from alienating the property in dispute till the disposal of the said suit.

2. The relevant facts which gave rise to the present appeal are that on 17-9-1989, Tahir Mehmood, respondent herein, instituted a suit for specific performance against Mst. Bilqees Zaman Khan and Muhammad Saeed, appellants. He alleged that on 19-4-1989, the appellants had executed an agreement in his favour to sell the suit land measuring 2 kanals for a price of Rs,16,00,000 and received Rs,4,00,000 from him as earnest money. The sale-deed, according to him, was to be executed and registered by 30th August, 1989 and the remaining sale price was to be paid at that time. It was alleged that the respondent had asked the appellants on a number of times to perform the said - contract, but they failed to do so, in so far as they could not get the necessary papers such as No Objection Certificate etc. Prior to the target date. As a result of the failure of the appellants to perform their part of the agreement, the respondent was constrained to lodge a suit against them. Along with the suit, he moved an application for the issuance of a temporary injunction to restrain them from alienating the land in dispute till the disposal of the suit.

3. The suit as well as the said application were resisted.

4. After hearing the parties' counsel, the learned lower Court vide impugned order accepted the said application and issued the temporary injunction prayed for.

5. Feeling aggrieved, the appellants have come up in appeal.

6. The respondent was duly served and Mr. Shoib Saeed, Advocate filed power of attorney on his behalf. However, neither he nor his counsel appeared on the dates fixed for the hearing of the appeal i,e. On 24-4-1991 and 5-5-1991 and, therefore, the appeal was heard ex parte.

7. Learned counsel for the appellants has contended that the appellants in their written statement had categorically denied the execution of the alleged agreement of sale dated 19-4-1989 and had maintained that the same was fake and fictitious, but the learned trial Court had proceeded on the assumption that the execution of the said agreement was admitted. He submitted that ordinarily in such cases .Where the execution of the agreement is denied, the Courts are reluctant to issue prohibitory orders restraining the defendant from alienating the Name of the Bank To ' The Civil Judge/ Senior Civil Judge.

In pursuance of your order dated to A B (pre-emptor) to furnish Bank Guarantee in the pre- emption suit No,----brought by him against C D (vendee), we, the undersigned, being the Manager & Officer of the Bank----hereby guarantee to the Court the payment of Rs,----representing the guaranteed amount as and when required by the Court and we hereby undertake as follows:--

(1) that this guarantee shall be in force and subsisting till intimation by the Court of its determination/revocation; and that we hereby covenant that we shall be liable to the Court on this guarantee to the extent of Rs,----- Dated Bank Branch Officer Manager.

13. Considering all the factual and legal aspects of the case, we are of the opinion that the certificate furnished by the National Bank of Pakistan, Lakki, to the Court in the suit for pre-emption in the instant case did not fulfil the requirement of Bank Guarantee within the contemplation of subsection (1) of section 24 of the Act. As a result, this petition is allowed, the impugned orders of C the learned Civil Judge and the learned Additional District Judge are so aside as illegal and without legal authority. Resultantly, the pre-emption suit brought by the answering-respondent stands dismissed under subsection (2) of section 24 of the Act. The parties are, however, left to bear their own costs.