MUHAMMAD NAZIR vs YAQOOB KHAN And OTHER

ORDER

1. This first appeal under Order XLIII, rule 1 (r) of Civil P.C. was against an order of the trial Court passed on 13-6-1993 by which it issued a temporary injunction for restraining the respondents from further alienating the land in dispute and subjected the restraint to a prior deposit of balance -- consideration in the sum of Rs.801,425 by him till 29-6-1993 and in default, observed that the application for temporary injunction shall be considered to have been rejected.

2. Yaqub Khan and Ismail Khan owned 82 Kanals, 16 Marlas of land at Mauza Pipliwala in Tehsil and District Gujranwala. They agreed for its sale to the appellant for a sum of Rs3,208,500 Rs.40,000 were received in advance. A date was fixed for finalization of the sale upon receipt of balance consideration. An agreement to sell was reduced in writing. Part of the land a greed to be sold had already been transferred to the appellant or his nominees upon payment of its proportionate price.

3. Sale-deeds were executed and registered in favour of the transferees. Learned counsel submitted that only 39 Kanals 18 Marlas of land was yet to be transferred against payment of balance consideration of Rs.801.425. Since the respondents were unwilline to finalize the sale of the remaining land upon agreed terms, a suit for specific performance was filed against them.

4. Respondents resisted the suit and submitted that by acts of default of the appellant, agreement to sell was rescinded and was no more capable of spec performance. Alongwith the plaint, and application for temporary injunction was filed by the appellant for restraining the respondents from further alienating the land in dispute. The application was also resisted by the respondents. By the impugned order, the application was decided and temporary injunction was issued in the manner indicated above.

5. It was urged that the restraint could not be subjected to term for deposit of balance consideration.

6. I do not agree. In Fateh Muhammad v. Muhammad Hanif and another, PLD 1990 Lahore 82, I had observed that in a suit for specific performance of an agreement to sell immovable property, equitable relief of temporary injunction must be subjected to deposit of outstanding sale consideration for adequately safeguarding the interests of the owner of the property and also to judge the earnestness of the would-be vendee of his claim in the suit. This view was reiterated in Waqar Avais v. Raja Muhammad Shafi Janjua etc. 1992 CLC 8. The trial Court followed this view and in my opinion, it was a correct approach to adopt by it. There was no scope for a different course.

7. Lastly, learned counsel contended that since the time for deposit of balance consideration had run out, the Court may extend it to infuse life in the temporary injunction. As observed in earlier part of the order, issuance of temporary injunction was conditional upon deposit of balance consideration by 29-6-1993. The order has already taken effect. In default of the appellant, his application for temporary injunction was deemed to have been dismissed. If advised, the appellant can either move a fresh application in the trial Court for temporary injunction or an application for extension of time to deposit the balance sale price for revival of temporary injunction in his favour. If an application of the kind is filed by the appellant, it shall be attended to on its merits in accordance with law. So far as this appeal is concerned, it has little force. Consequently, it fails and must be dismissed in limine.