The ratio, deducible from the preceding examination, is

 14. The aforesaid question after discussing the earlier judgments rendered by superior Courts in pros and cons on the proposition in hand has already been authoritatively clinched by this Court in the judgment reported as Muhammad Ismail Vs. Muhammad Akbar Bhatti (PLD 1997 Lahore 177) and the relevant para No. 7 thereof is reproduced hereunder:- 

“The ratio, deducible from the preceding examination, is:

 Firstly, that decree passed by court, in an action for specific performance of agreement of sale, is in the nature of preliminary decree. It actually partakes the character of a contract; vendee has to deposit the purchase price, cost for purchase of necessary stamps for the execution of conveyance deed and so on so forth; while the seller had to appear in the Court, sign the conveyance deed and receive purchase price. In these state of affairs, it clearly follows that decree, passed in such an action, is not final but preliminary in nature and the court passing the decree retain seisin over the lis and has power to enlarge/extend the time for payment of purchase price fixed therein. The court, however, had to pass such orders after objectively assessing the merits of such applications. 

Secondly, Specific Relief Act is an adjective law and substantive law is to be looked for elsewhere. It presents a codification of principles derived from long series of precedents and practices of English Courts of Equity. Specific Relief Act so is based upon principle of Equity, reason and good conscience. The most leading principle is that ‘who comes to get the equity, must do equity to others’. 

Thirdly section 35 of the Specific Relief Act lays down a procedure for rescission of the written contract. It applies to both vendor and vendee. Any one of such party may move the Court by motion in the action for an order for putting an end to contract. This mechanism is, however, subject to following limitation/namely where the trial court has decreed the suit for specific performance of contract subject to condition that purchase price shall be deposited in court within a specific time and also ordered that if that money is not put in within that time, the suit shall stand dismissed, the court has no power to extend the time as in such a case; that the decree by court is final and self-operative and in case of default of payment of purchase price; the mandate of court tantamounts to rescission of the contract. In such a case recourse to section 148 of C.P.C or section 151, C.P.C will not be permissible. 

Fourthly, the court will not allow the plea for extension of time if it finds that it will occasion a wrong to the other side. Furthermore, in order to succeed in an action for specific performance, the plaintiff had to show that he had been willing and ready to perform his part of contract.” 

This view has also been followed by this Court in case reported as Muhammad Iqbal through Legal Heirs Vs. Bashir Ahmad and 19 others (PLD 2002 Lahore. 88).

Part of Judgment

IN THE LAHORE HIGH COURT, MULTAN BENCH, MULTAN. 

Civil Rev. Against Decree

419-12

2017 LHC 4490