PLJ 2022 Lahore (Note) 17
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Civil Procedure Code, (V of 1908), O.XXXIX Rr. 1 & 2--Agreement to sell--Payment of earnest money--Delivery of possession--Application for temporary injunction was dismissed--Non-existence of ingredients of temporary injunction--Principle of lis-pendense--Challenge to--It is yet to be determined that petitioner had made payment to respondent in presence of witnesses and those witnesses have to appear in witness-box where-after recording of evidence Court has to see that payment has been made or not--Ingredients to allow temporary injunction i.e. prima facie case, irreparable loss and balance of convenience do not exist in favour of petitioner at this time--Both Courts below are justified in refusing to grant interim relief claimed by petitioner--No illegality, perversity or erroneous exercise of jurisdiction has been pointed out in orders passed by Courts below--Besides principle of lis pendens also applicable in this case; at this stage there is no ground to set-aside orders of Courts below--Revision petition dismissed. [Para 5] A, B & C
M/s. Muhammad Ayyub Buzdar, Advocate and Samar Iqbal Shahani, Advocate for Petitioners.
Date of hearing: 2.6.2017.
PLJ 2022 Lahore (Note) 17
[Multan Bench, Multan]
Present: Muzamil Akhtar Shabir, J.
MEHMOOD KHAN--Petitioner
versus
RASOOL BUX--Respondent
C.R No. 846 of 2017, decided on 2.6.2017.
Order
This civil revision is directed against order dated 01.04.2017 passed by Additional District Judge, Rajanpur whereby the appeal filed by the petitioner was dismissed with the result that order dated 05.01.2017 passed by the Civil Judge 1st Class, Rajanpur was upheld and consequence of the same is that the application for interim relief filed by petitioner was concurrently dismissed by both the Courts.
2. The brief facts of the case are that the petitioner filed a suit for specific performance of contract against the respondent with the contention that the respondent agreed to sell the suit land for sale consideration of Rs. 200,000/-to petitioner in presence of the witnesses and received Rs. 50,000/-as earnest money and delivered the possession, for which an agreement to sell dated 12.03.2014 was executed between the parties. The remaining sale consideration was to be paid on 1st May, 2014. The matter was settled between the parties on 01.08.2014 whereby the petitioner paid an amount of Rs. 150,000/-to the respondent but the respondent remained adamant not to execute the sale deed in favour of the petitioner; resultantly the petitioner filed the afore-referred suit for specific performance along with the same an application for the grant of temporary injunction was also filed. The suit was resisted by the respondent who also contested the application for the grant of interim relief. The said application was dismissed on 05.01.2017 against which the petitioner filed an appeal which was also dismissed on 01.04.2017. The petitioner has challenged the both the afore referred orders of the Courts below by filing the titled civil revision.
3. The learned counsel for petitioner has argued that the petitioner has already paid sale consideration to the respondent but the respondent even after receipt of the consideration has not executed the sale deed in favour of the petitioner and the petitioner is, therefore, entitled to get specific performance of the agreement. The learned counsel claims that the petitioner is in possession of the suit land in consequence of the agreement entered into between the parties; therefore, interim relief be allowed to the petitioner and the respondent be restrained from alienating the suit land till the final decision of this case.
4. Heard. The petitioner has based his claim on an agreement to sell, according to which the petitioner was required to pay the remaining amount to the respondent by 1st May 2014 for which purpose the petitioner claims to have issued a cheque for an amount of Rs. 150,000/-in favour of the respondent. On the other hand, the respondent while contesting the suit had relied on dishonor slip relating to the cheque to state that the petitioner was not ready and willing to perform his part of agreement and the cheque given to him was dishonored; therefore, the claim of the petitioner was not bonafide. This has been explained by the petitioner by referring to para 4 of his plaint wherein the petitioner claimed that he issued a notice to the respondent on 30.04.2014 where-after the matter was patched up between the parties in presence of the witnesses and the petitioner had paid an amount of Rs. 150,000/-in presence of Syed Kazim Hussain Shah, Shahid Mahmood, Mulazim Hussain, the marginal witnesses, therefore, the claim of respondent about cheque having bounced is incorrect.
5. It is yet to be determined that the petitioner had made payment to respondent in presence of the witnesses and those witnesses have to appear in the witness-box where-after recording of evidence the Court has to see that the payment has been made or not. However, the earlier cheque given by the petitioner has been dishonored. Specific performance is based on equity, one who comes to the Court to seek equity, he must do equity. The petitioner has to first establish his claim that although the cheque has bounced but the petitioner has made payment to petitioner in presence of the witnesses which can only be determined after recording of evidence. The petitioner claims to be already in possession of the suit land. The land of the respondent is in possession of the petitioner and on the other hand, there is a dishonored cheque; therefore, the ingredients to allow temporary injunction i.e. prima facie case, irreparable loss and balance of convenience do not exist in favour of the petitioner at this time. It is also to be determined that the possession was handed over to petitioner by respondent as a result of agreement between the parties which can also be established after recording of evidence. Therefore, both the Courts below are justified in refusing to grant interim relief claimed by the petitioner. No illegality, perversity or erroneous exercise of jurisdiction has been pointed out in the orders passed by the Courts below. Besides the principle of lis pendens also applicable in this case; therefore, at this stage there is no ground to set-aside the orders of the Courts below.
6. For what has been discussed above, there is no merit in this petition; resultantly, the same is dismissed.
(Y.A.) Petition dismissed
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