Form No.

HCJD/C-121

ORDER SHEET
IN THE LAHORE HIGH COURT, MULTAN BENCH,
MULTAN
JUDICIAL DEPARTMENT

Civil Revision No.1472 of 2018

Muhammad Zafar Iqbal
Versus
Hameeda Naz alias Hameeda Khanum and others

Sr. No. of order/ Date of order/ Order with signatures of Judge, and that of
proceedings Proceedings parties of counsel, where necessary

15.11.2018 Chaudhry Abdul Razzaq, Advocate for the petitioner

The petitioner/plaintiffs instituted a suit for specific

performance of agreement to sell dated 02.10.2013 alongwith
perpetual injunction with regard to the suit property fully mentioned
in the paragraphs No.1 and 2 of the plaint, against the respondents.
Initially, the respondents/defendants were proceeded against ex-
parte vide order dated 09.09.2014, but the respondents/defendants
No.2 to 5 filed application for setting aside of the ex-parte
proceedings on 10.02.2015, which was accepted on 27.05.2016.
The suit was duly contested by the respondents No.2 to 5 while
submitting written statement and written reply. Again on
08.03.2017, the respondents No.2 to 5 were proceeded against ex-
parte, who submitted application for setting aside of the same on
21.03.2017, which was duly resisted by the present petitioner;
however, the same was allowed on the statement of the learned
counsel for the petitioner subject to cost of Rs.1000/- on
16.01.2018. Vide impugned order dated 06.06.2018, the learned
trial Court while dismissing application for grant of temporary
injunction directed the petitioner/plaintiff to deposit the remaining
consideration of Rs.33,00,000/- within 30 days, otherwise suit
would be dismissed. Feeling aggrieved of the said order, the present
C.R.No.1472 of 2018 2

petitioner preferred an appeal, but remained unsuccessful vide

impugned judgment dated 25.10.2018, which has culminated in
filing of the civil revision in hand.
2. Avows that learned subordinate Courts while passing
the impugned orders have failed to appraise the facts and
circumstances of the case with independent judicious mind and the
same are not speaking orders, against the mandate of section 24-A
of the General Clauses Act, 1897; that the learned trial Court while
deciding application for grant of temporary injunction has illegally
imposed condition for depositing the remaining consideration of
Rs.33,00,000/- within 30 days otherwise suit will be dismissed,
such condition cannot be imposed because if the petitioner/plaintiff
fails to deposit the amount, only the fate of application for grant of
temporary injunction will be decided, hence, the impugned order
has been passed in excess of jurisdiction. Adds that when the
possession of the suit property is not with the petitioner, order for
depositing the remaining sale consideration is uncalled for.
Contends that the impugned order and judgment are result of wrong
application of law on the subject. Maintains that learned appellate
Court has also failed to play the role of custodian of the rights of
the parties by stating in para No.8 of the impugned judgment that
petitioner/plaintiff should have complied with the order passed by
the learned trial Court for payment of remaining sale consideration
to discharge his obligation, by completely ignoring the non-
fulfillment of the obligation by respondent/defendant No.1, who
with mala fide intention, violating the terms of agreement,
transferred the property in the name of defendants/respondents No.2
to 5. All the ingredients for grant of temporary injunction lean in
favour of the petitioner; hence, the application ought to have been
graced with acceptance instead of dismissing the same. As such,
material illegalities and irregularities have been committed by the
learned subordinate Courts, which has resulted in miscarriage of
C.R.No.1472 of 2018 3

justice; thus, by allowing the civil revision in hand, the impugned

order and judgment may be set aside, consequent whereof
application for grant of temporary injunction may be accepted and
direction for deposit of the remaining sale consideration may also
be declared null and void. Relies on M/s. BIN BAK INDUSTRIES
(PVT.) LTD. and another v. FRIENDS ASSOCIATES (REGD.) and
others (PLJ 2003 SC 24) and ALTAF HUSSAIN QAMAR and 2
others v. IMRAN RASOOL and 5 others (2011 CLC 1891-Lahore).
3. Heard.
4. Considering the arguments and perusing the record
made available, it is observed that in such like suits, under the
enlightened principles of justice, it is bounden duty of the learned
trial Court to consider the agreement to sell at the inception and if
any amount is found outstanding against the plaintiff, it must order
for its deposit in the Court within the time period so granted. In this
regard reliance is placed on Malik Imam Bukhsh v. Mohammad
Boota (Deceased) through L.Rs. (2017 SCMR 516). In the present
case, the cutoff date was 05.12.2013 but the petitioner at the time of
filing the suit on 18.12.2013 did not, in order to show his bona fide
and willingness to perform his part of agreement, deposit the
alleged remaining sale consideration in the learned trial Court but
he did not pose his such gesture and even when the learned trial
Court ordered as such, he, on 09.07.2018, firstly filed written
application for extension of time to submit the remaining
consideration amount, and 15 days extension was granted to him,
but instead of complying with the order of the learned trial Court,
he assailed the order dated 06.06.2018 in appeal. When such a case
was brought before the Hon’ble Supreme Court reported as Adil
Tiwana and others v. Shaukat Ullah Khan Bangash (2015 SCMR
828), it was invariably held that:-
‘The fact remains that the respondent, who was
obliged to make payment of the balance sum of
C.R.No.1472 of 2018 4

Rs.90,00,000/- by 31-12.1995, had failed to fulfil this

material obligation until after the judgment of the High
Court rendered on 4.4.2013. It would, in our opinion,
be highly unfair and inequitable if the respondent is to
be granted discretionary relief in the foregoing
circumstances, which show failure on his part to make
payment or comply with Court orders in spite of the
extreme indulgence shown to him by the Court.’
Even in the said celebrated judgment it has been held that:-
‘We may also add at this stage that the remedy by way
of specific performance is equitable and it is not
obligatory on the Court to grant such a relief merely
because it is lawful to do so. Section 22 of the Specific
Relief Act expressly stipulates so. It is axiomatic that
one who seeks equity must do equity. In the present
case all equities are squarely in favour of the
appellants/defendants and stacked high against the
respondent/ plaintiff. This evident from his conduct
and is a significant additional reason why the suit filed
by the respondent/plaintiff seeking discretionary
equitable relief must be dismissed.’
In addition to the above, in the present case, the petitioner failed to
satisfy the learned trial Court regarding grant of temporary
injunction in his favour, so the same was dismissed, because the
possession of the suit property is not with the petitioner/plaintiff
and he has allegedly paid a tweak of sale consideration and a huge
amount of the same is yet to be paid, which has been ordered to be
deposited in the learned trial Court but he did not comply with the
same. Usually, in such like cases temporary injunction is granted so
that the subject matter (disputed property) remain intact and
ultimately could be transferred to a successful party in a litigation
and one of the main objects for giving directions to deposit the
C.R.No.1472 of 2018 5

balance sale consideration in the Court is to see the bona fide of the
purchaser, who knocks the door of Court for obtaining a decree for
Specific Performance of agreement against the vendor(s); the
balance amount so deposited is usually invested in some profit
bearing schemes, enabling the vendor/defendant to get an increased
amount as sale consideration, having an element of compensation
for the time consumed in litigation, inter alia, considering the
inflationary trends and in case a purchaser or plaintiff remains
unsuccessful, the deposited amount, keeping in view the
facts/record of the case, can be returned back to him with accruals
in order to safeguard his interest. Thus, non-deposit of balance sale
consideration raises a legitimate adverse presumption against the
petitioner/plaintiff that he is not serious in performing his part of
the agreement or in pursuing his remedy of specific performance,
consequently, disentitling him to a decree for specific performance
of agreement.
Apart from the above, the petitioner/plaintiff, before the
cutoff date, did not issue notice to the respondent/defendant No.1
regarding fulfillment of her part of agreement and his willingness to
perform his part of agreement, which shows that he was and is not
serious in performing his part of agreement. For a part seeking a
remedy of specific performance, it is mandatory that he should
apply to the Court for depositing the balance amount and any
contumacious/omission in this regard entails in dismissal of the suit
or decretal of the suit, if it is filed by the other side. In the present
case, no such exertion was made by the petitioner/plaintiff, rather
when the Court ordered him to deposit the balance consideration, he
firstly lingered on the matter and requested for extension of time,
which was granted, but later on he agitated the order through appeal
and when failed to get favourable decision, filed the instant civil
revision and contumaciously kept on disobeying all such orders.
C.R.No.1472 of 2018 6

5. Another factor in this case is that in plaint the

petitioner has pleaded that after entering into alleged agreement to
sell and its attestation by the Notary Public on 02.10.2013, the
possession of the disputed property was handed over to him, but
while agitating the order dated 06.06.2018 passed by the learned
trial Court in appeal, he averred that possession of the disputed
property was with the respondents/defendants No.2 to 5 and same is
the situation in the present civil revision; in such a scenario, there
remains no justifiable reason with the present petitioner for defying
the Court’s orders by not depositing the balance sale consideration.
6. The case law relied upon by the learned counsel for the
petitioner, with utmost respect to the same, has no relevance to the
peculiar facts and circumstances of the case in hand, because in
Altaf Hussain Qamar and 2 others’ case the temporary injunction
was granted with a condition to deposit balance consideration
amount and failure to deposit the same would result into dismissal
of the suit, which ought not have been ordered, but in the present
case the application for grant of temporary injunction has been
dismissed, issues were framed and thereafter the learned trial Court
ordered, in second part of the impugned order, to deposit the sale
consideration amount within 30 days otherwise suit will be
dismissed; thus, the said part would be considered as an
independent order, which was mandatory in the light of supra
mentioned judgment reported as Malik Imam Bukhsh v. Mohammad
Boota (Deceased) through L.Rs. (2017 SCMR 516); same was the
situation in M/s. BIN BAK INDUSTRIES (PVT.) LTD. and another
v. FRIENDS ASSOCIATES (REGD.) and others (PLJ 2003 SC 24);
thus, both being on distinguished premises are not helpful to the
petitioner’s case.
7. The above portrayal and discussion lead me to the
conclusion that one who seeks equity must also do equity, which is
not depicting on the part of the petitioner/plaintiff; thus, by placing
 C.R.No.1472 of 2018 7

reliance on the judgments supra and Rabnawaz and 13 others v.

Mustaqeem Khan and 14 others (1999 SCMR 1362), the civil
revision in hand as well as the suit instituted by the present
petitioner/plaintiff alongwith all pending application(s), stands
dismissed. Copy of the judgment be transmitted to the learned trial
Court for further proceedings.

(Shahid Bilal Hassan)

Judge
M A. Hassan

Approved for reporting.

Judge