MANZOOR AHMAD And 6 Others vs HAMID SHAH GILANI And Another

ORDER

MANZOOR HUSSAIN SIAL, J.---Leave to appeal is sought by the petitioners against order dated 23- 2-1995 of the Lahore High Court passed in First Appeal from Order No. 86 of 1994 filed by respondent No. l against the petitioners.

2. Muhammad Ahmad, the predecessor-in-interest of the petitioners, was allotted Plot 1-B Poultry and Vegetable Scheme-4, Islamabad. After his demise, the petitioners entered into agreement with Hamid Shah, respondent herein, for sale of their rights in the aforesaid plot for a consideration of Rs.32,00,000. Out of the sale price, the petitioners were paid Rs.10,00,000 as earnest money. The respondent No.1 was to pay Rs.1,40,000 to respondent No.2 towards the instalments payable as per terms of the allotment order. The balance amount of Rs.20,60,000 was agreed to be paid to the petitioners on or before the completion of sale viz. 23-8-1994.

3. The possession of the plot was delivered to the respondent No. 1. He did not comply with the terms of the agreement which led the petitioners to serve him with a notice. The respondent No.1 then on 23-8-1994 instituted the suit for specific performance and permanent injunction against the petitioners before the Civil Judge, Islamabad. On a prayer for interim relief, the learned Civil Judge vide order dated 9-10-1994 granted interim injunction; the operative part whereof is as follows:-- "For the foregoing reasons, the application for grant of ad interim injunction is accepted as prayed for subject to the condition that the plaintiff shall deposit the remaining sale consideration i.e. Rs.22,00,000 in the Court by 30-11-1994, otherwise the injunction would not operate. However, the plaintiff may deposit the abovementioned amount in any profit-bearing scheme of his choice. "

4. Aggrieved by the aforesaid order, the respondent No. l filed an appeal which was disposed of by the Lahore High Court vide impugned order dated 23-2-1995, referred to above.

5. The learned Judge in the High Court modified the order of the learned Civil Judge to the extent that he directed the plaintiff/respondent No. 1 to tender surety bond in the sum of Rs.22,00,000 to the satisfaction of the trial Court, within a period of 15 days. The suit was also directed to be disposed of within a period of three months. Hence this petition.

6. Learned counsel for petitioners contended that the respondent, after obtaining the possession of the suit property, did not comply with the terms of the agreement inasmuch as that neither amount of instalments of Rs.1,40,000 was deposited with respondent No.2 nor the balance amount was paid to the petitioners and obtained stay order to prolong his possession of the plot in question. Learned counsel appearing on behalf of the caveator, on the other hand, contended that the contesting respondent has already paid Rs.10,00,000 as earnest money to the petitioners. He also stated that he has developed the plot by investing considerable amount of capital and labour therein. He, however, could not controvert the fact that in the suit the respondent No.1 categorically expressed his willingness to pay the balance amount to the petitioners, so that the transaction could be completed. He, therefore, cannot raise a valid objection if he has to deposit the balance amount of the sale price in Court.

7. After hearing learned counsel for the parties, we are of the view that the discretion exercised by the learned trial Court while granting ad interim injunction in favour of the respondent subject to deposit of the balance amount in Court within reasonable the, is neither in excess of the jurisdiction vested in it, nor arbitrary in nature so as to warrant interference by the High Court. The respondent is already in possession of the plot and same has been protected by interim injunction issued in his favour pending decision of the suit filed by him.

In these circumstances, we convert this petition into appeal, set aside the impugned order passed by the learned High Court in appeal and restore that of the trial Court granting injunction in favour of the respondent No. 1. In the result, this appeal is allowed, with no order as to costs.