2014 M L D 335

[Peshawar]

Before Muhammad Daud Khan, J

ISHAN UL HAQ and 9 others---Petitioners

Versus

BAHRAMAND KHAN and another---Respondents

Civil Revision No.476-M of 2013, decided on 30th September, 2013.

Specific Relief Act (I of 1877)----

----Ss. 12, 42 & 54---Suit for specific performance of contract---Application for grant of
temporary injunction---Suit for specific performance could only proceed when outstanding
amount was directed to be deposited in the court---Relief of temporary injunction must be
subject to deposit of sale consideration---Order of the Appellate Court was modified and
application for temporary injunction was accepted subject to deposit of outstanding amount---
Revision was disposed of in circumstances.

Allah Ditta v. Bashir Ahmed 1997 SCMR 181 rel.

Muhammad Ikram Khan for Petitioners.

Abdul Qayum for Respondents.

Date of hearing: 30th September, 2013.

JUDGMENT
 MUHAMMAD DAUD KHAN, J.---Through this revision petition, the petitioners
assailed the judgment and decree of learned District Judge, Dir Lower at Timergara, dated 13-7-
2013, through which appeal of the respondents/plaintiffs against the order of Civil Judge-
V/Illaqa Qazi, Dir dated 27-6-2013, was allowed, order of trial Court was set aside and
consequently, temporary injunction was granted to the respondents/plaintiffs.

2. Briefly stated facts giving rise to the instant revision petition are that respondents-
plaintiffs filed a suit for declaration-cum-specific performance and permanent injunction against
the petitioners, which is pending before learned Civil Judge/Illaqa Qazi, in respect of the land
mentioned in plaint, allegedly on the basis of agreement dated 6-11-2012 in consideration of
Rs.58,70,000. According to the respondents/plaintiff, Rs.500,000 have been paid at the time of
agreement and outstanding amount of Rs.53,70,000 was agreed to be paid in equal instalments
i.e. on 6-12-2012 and 6-12-2013 respectively. It is further averred in the plaint that on 6-12-
2012, when petitioners contacted the respondents for payment of due amount of instalment, they
refused, rather filed the instant suit. Along with the plaint, the respondents/plaintiffs filed an
application for grant of temporary injunction to restrain the petitioners-defendants not to alienate
the suit property to anyone else. The petitioners contested the application through submission of
written reply. The learned trial Court after hearing both the sides dismissed the application vide
order dated 27-6-2013. Aggrieved by the order of trial Court, the respondents/plaintiffs preferred
an appeal before the appellate Court, which was allowed, the order of trial Court dated 27-6-
2013 was set aside and temporary injunction was granted in favour of respondents-plaintiffs vide
impugned order dated 13/15-7-2013.

4. Aggrieved by the appellate order, the petitioners/defendants invoked the revisional

jurisdiction of this Court by way of present revision petition.

5. I have heard the learned counsel for the parties and have perused the record with their
valuable assistance.

6. Without going into the merit and intricate question involved in the dispute between the
parties, I have simply to scrutinize the legality, irregularity, wrong exercise of jurisdiction by the
Courts below while passing the impugned orders.

7. It is an established principle of law that suit for specific performance can only proceed
when the outstanding amount against the plaintiff is directed to be deposited in the Court so that
both the parties may be adequately compensated. Equitable relief of temporary injunction must
be subject to deposit of sale consideration for adequately, safeguarding interest of owner of
property and also to judge the earnestness of would be vendee in his claim in suit. Reliance can
be placed on 1997 SCMR 181 Allah Ditta v. Bashir Ahmed.

8. Both the learned counsel are agreed before the Court keeping in view the above
proposition. The learned counsel for the respondents/plaintiffs is prepared to deposit the
outstanding amount i.e. Rs.53,70,000 within one month i.e. till 30-10-2013 and offered that in
case he failed to do so, failing which the suit would be deemed to have been dismissed. The
opposite counsel accepted the offer.
9. In the light of above observation, the impugned order of learned appellate Court is
modified in a manner that application of the respondents/plaintiffs for temporary injunction is
accepted, as prayed for subject to deposit of Rs.53,70,000 on or before 30-10-2013 in the learned
trial Court, failing which the suit of respondents/plaintiffs shall be deemed to have been
dismissed. The learned trial court is directed to decide the case strictly within the prescribed
period under the law provided in Nizam-e-Adl Regulation, 2009.

The revision petition is disposed of in the above terms, while a copy of this
judgment/order be sent to the trial Court forthwith for compliance.

AG/626/P Order accordingly.