GUL HAIDER vs Dr. MUHAMMAD ASAD ZIA

EJAZ AFZAL KHAN, J.---The plaintiff, respondent herein, instituted a suit in the Court of learned Civil Judge 1st Class, Mardan for the specific performance of contract mainly on the ground that the defendant, appellant herein, has by virtue of an oral agreement promised to sell the property in dispute. The respondent also asked for the issuance of a temporary injunction restraining the appellant from alienating the property pending decision of the case. The application for the temporary injunction was allowed by the learned trial Court vide order, dated 12-5-2001. The appellant filed an appeal against the said order in the Court of District Judge, Mardan but as the valuation of the suit exceeded Rs. Five lacs, it was returned vide order, dated 13-10-2001. In the mean time when the impugned order ceased to have effect after the expiration of six months, the respondent moved another application for temporary injunction which was allowed by the learned Civil Judge vide his order, dated 17-7-2000, hence this appeal.

2. The learned counsel appearing on behalf of the appellant mainly contended that there is no evidence worth the name to show that the appellant ever entered into any oral agreement with the respondent or received sale consideration, as such, the well recognized essentials for the grant of temporary injunction have not been fulfilled, therefore, the impugned order is liable to be set aside.

3. The learned counsel appearing on behalf of the respondent by placing reliance on the case of Mrs. Mussarat Shaukat Ali Khan v. Mrs. Safia Khatoon (1994 SCM R 2189) contended that the agreement-need not be in black and white and, therefore, specific performance of contract cannot be declined to a party merely because the agreement to sell was oral. He next contended that as many as five cheques mentioned with details in the plaint show that the amount of consideration has since Been paid to the appellant.

4. We have gone through the record and carefully considered the submission of the learend counsel for the parties.

5. A persual of the data so far available on the record would indicate that the respondent has brought nothing on the record in black and white which could prove that the agreement to sell was ever entered into or sale consideration pursuant thereto was paid to the appellant. The fact that there is a good number of cheques with the respondent to prove the passing of consideration, we are afraid, will be of no consequence unless it is proved that the amount mentioned in the cheques was paid to the appellant. When seen in this context, we do not think that the essential ingredients for the grant of a temporary injunction are fulfilled.

As a sequel to what is discussed above, this appeal is allowed, the impugned order of the learned trial Court is set aside. However, if some evidence during the trial comes forth which makes out a case for grant of an injunction, the respondent may, if so advised, move another petition in this behalf which shall be considered by the learned trial Judge without being influenced by this order.

In the circumstances of the case, we would also direct the learned trial Court to conclude this case within a period of six months.

Q.M.H./648/P