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Suit No.351 of 1982, decided on 6th March, 1983.

---O.XXXIX, Rr.l & 2--Specific Relief Act (I of 1877), S.12 Specific performance of contract--Suit for adequate relief--Grant of injunction--Where in a suit for specific performance of agreement for sale of immovable property, agreement between parties was once established prima facie, breach of such contract for transfer of agreed immovable property, held, could not be relieved by compensation in money--Contention that as vendee has also prayed for compensation in his suit for specific performance of contract, therefore, compensation being adequate relief for loss having been sustained by vendee, no injunction could be granted to vendee, was repelled on ground that firstly such prayer was an alternative prayer and secondly same was only in compliance with statutory requirement in such cases.

Anjum Rehmat and others v. Retd. Sq. Leader late Sheikh Ghulam Sadiq 1981 C L C 276 ref.

---O.XXXIX, Rr.l & 2--Interim injunction, grant of--All three basic ingredients viz. prima facie case, balance of convenience and irreparable injury necessary for grant of interim injunction having been fully proved by applicant, interim injunction as prayed for was granted to him in circumstances.

Iqbal Bawani for Plaintiff.

Ismail Padiar for Defendant.

Date of hearing: 6th March, 1983.

The plaintiff has filed this suit for specific performance of agreement for sale of a flat and permanent injunction against the defendant. Alongwith the suit an application under Order XXXIX Rule 1 & 2, C.P.C. has been filed praying that the defendants may be restrained from selling, transferring, alienating, mortgaging or otherwise dealing with the peaceful possession of the flat in dispute. The plaintiff entered into a agreement, dated 9th September, 1975 with the defendant for purchase of Flat No.6 on the second floor in building No. D constructed on a sub divided portion of plot No.180 situated at street No.6, in Block 'A' Adamji Nagar, Karachi. The agreed price was Rs.1,65,000 out of which Rs.15,000 was paid 3s part payment towards the sale consideration at the time of executing the agreement for the balance the agreement provided that the defendant shall arrange on behalf of the plaintiff a loan of Rs.1,00,000 from House Building Finance Corporation or Bank repayable by the plaintiff. Under the arrangement the defendant was to draw the amount of loan against the power of attorney of the plaintiff and after the loan was arranged the plaintiff was to pay Rs.50,000 in equal instalments commencing from November, 1979 and the last instalment was to be paid at the time of delivery of possession of the flat.

2. It is alleged that the defendant failed to obtain loan and pressurised the plaintiff to pay Rs.15,000 on 20-1-1980. The defendant is alleged to have failed to fulfil the contract, deliver the flat and has refused to accept Rs.1,35,000 offered by the plaintiff. On 28-2-1980 the plaintiff wrote to the defendant to arrange for the loan or supply necessary documents but the defendant did not reply. Again on 3-3-1980 the plaintiff offered to pay the balance in lumpsum but without any response. By his. letter, dated 16-11-1980 the plaintiff again offered to pay the balance amounting to Rs.1,35,000 and demanded possession but the defendant refused to accept the letter. The plaintiff then approached the defendant personally who promised to deliver possession of the flat. As the defendant did not fulfil the agreement the plaintiff served legal notice which was replied by the defendant. While denying the allegations of the plaintiff, it was alleged that the plaintiff was not ready and willing to pay and has committed breach of agreement.

3. The agreement and the payment made by the plaintiff have not been denied. Therefore, the admitted position is that there exists a valid agreement between the parties for sale of a flat in respect of which the plaintiff has paid to be defendant Rs.30,000. Mr. Iqbal Bawany the learned counsel for the plaintiff has contended that the plaintiff has made out a prima facie case and unless the application is granted the plaintiff will suffer irreparable loss. Mr. Ismail Padiar the learned counsel for the defendant has contended that the plaintiff has claimed compensation and, therefore, as compensation is an adequate relief for the loss that may be sustained by the plaintiff no injunction can be granted. The plaintiff has filed a suit for specific performance of the agreement for sale of immovable property. Once such an agreement is established prima facie the breach of such contract for transfer of immovable property cannot be relieved by compensation in money. In this regard reference, can be made to Anjum Rehmat and others v. Retd. Sq. Leader late Sheikh Ghulam Sadiq 1981 C L C 276. So far the prayer for compensation in the plaint is concerned firstly, it is an alternative prayer and secondly as alleged in the plaint it is only in compliance with the statutory requirement in such cases, and the amount of damages claimed will not be adequate compensation for the damages the plaintiff will suffer due to breach of agreement. In these circumstances the defendant's contention has no force.

Mr. Ismail Padiar the learned counsel for. the defendant then contended that the balance of convenience is in favour of the defendant as the house cannot be allowed to remain vacant till the final disposal of the suit. In case for sale of immovable properties particularly where the transaction is in respect of flat and houses as held in Anjum Rehmat's case quoted above, the balance of convenience is in keeping the property available rather than to allow it to be disposed of to third parties which may not only frustrate the decree that may be passed but will introduce third party interest which may lead to multiplicity of proceeding. In these circumstances if the injunction is not granted the plaintiff will suffer irreparable injury, as he will not be able to obtain any relief for specific performance of the contract.

Mr. Iqbal Bawany the learned counsel for the plaintiff has contended that the plaintiff was ready and willing to perform his part of contract as he was prepared to pay the balance and also to execute power of attorney in favour of the defendant. Be that as it may as the plaintiff has satisfied all the three ingredients for grant of injunction the defendant is restrained from transferring selling, mortgaging or in any manner creating any charge on the flat in dispute provided the plaintiff deposits in Court Rs.1,35,000 within two months.

After the amount has been deposited by the plaintiff it shall be invested by the Nazir in a fixed deposit with Habib Bank Ltd. Court Road Branch, Karachi.

H.B.T./J-11/K. Interim injunction granted.

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