Differences between “Review” and “Revision” are given below:

Review

1. Section 114 Order 47 deals with Review.
2. Any court, which passed the decree or made order, can review the case.
3. The review can be made only on an application by an aggrieved party.
4. The order granting the review is appealable.
5. Review can be made even when an appeal lies to the High Court.
6. The grounds for review are: (a) discovery of new and important matter or evidence; (b) mistake or error apparent on the face of the record; (c) any other sufficient reason.

Revision

1. Section 115 deals with the Revision.
2. The High Court can only do revision of any case which has been decided by any court subordinate to it.
3. Revisional powers can be exercised by the High Court on an application or even suo motu (of its own motion).
4. An order passed in the exercise of revisional jurisdiction is not appealable.
5. Revisional power can be exercised by the High Court only in a case where no appeal lies to the High Court.
6. The Conditions: (a) A case must have been decided; (b) the Court which has decided the case must be a Court subordinate to the High Court; (c) The order should not be an appeaiable one; (d) The subordinate court must have – (i) exercised jurisdiction not vested in it by law; or (ii) failed to exercise jurisdiction vested in it, or (iii) acted in the exercise of its jurisdiction illegally or with material Irregularity.

Reading of order XXIII, rule 1 of the Code, 1908 contemplates withdrawal of suit, which is optional to the plaintiff and can tender request to that effect at any stage of the proceedings,

2021 LHC 668 

The plain reading of order XXIII, rule 1 of the Code, 1908 contemplates withdrawal of suit, which is optional to the plaintiff and can tender request to that effect at any stage of the proceedings, however, per sub-rule (2) the plaintiff while showing formal/inherent defect in the plaint or asserting some other sufficient reasons may withdraw his suit with liberty to institute fresh one. Where he does not intend to institute a fresh suit or he simply withdraws a suit without seeking permission to file new one, then according to sub-rule (3), the plaintiff is precluded to institute second suit qua subject matter of the earlier lis. The object of last principle is to prevent a plaintiff from re-opening of another round of litigation, which he already has dropped, otherwise, there would be no end to the litigation. Thus clear that though plaintiff has a right to withdraw his suit whenever he desires, but he cannot bring fresh one qua same subject matter, unless permission is sought/accorded in this behalf. Moreover, section 12 of the said Code provides that where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to bring a suit in respect thereof in any Court to which this enactment applies. The main object of these provision is to prevent endless litigations and to save the precious time of the Courts. 4. Although, no cross objection(s) in written form was filed, but learned counsel for respondent/beneficiary orally challenged findings on issue No.5, which he could do while supporting the impugned judgment on other issues, even if formal objections were not moved. The learned counsel for petitioner was apprised to said situation and inquired that when earlier suit with regard to subject matter involved herein was withdrawn, how second was competent, he felt handicapped to respond satisfactorily, however, after going through Ex:D3 confirmed that subject matter of both suits was similar, but no permission was sought or granted for filing of fresh suit, therefore, under the above provisions as well as law on the subject, the petitioner was precluded to institute new one.

Civil Revision: 105-10
MUHAMMAD INAYAT VS ZAIGHAM NAWAZ ETC
23-02-2021
2021 LHC 668






DIFFERENCE BETWEEN FIRST AND SECOND APPEAL

 An appeal is hearing of the matter already heard and decided by the court of competent Jurisdiction by higher judiciary. When any party to the suit is satisfied that the verdict passed by the court is unjustified or where the party is of the opinion that no proper remedy is given due to any mistake of the court; it can file an appeal with the superior judiciary. However appeal cannot be claimed as a matter of substantive right because it is a statutory right and can be claimed only when statute expressly provide it.

RELEVANT PROVISIONS:
Section 96 through 103 and Section 107 of the Code of Civil Procedure, 1908
Cross Reference:
Section 17 and 18 of the West Pakistan Civil Courts Ordinance 1962;
Order XLI and Order XLII of the Code of Civil Procedure 1908
INTERPRETATION OF THE TERM “APPEAL”:
Court held under PLD 1981 SC 790 that an appeal is a complaint made to a superior court against the decision of a subordinate court with the object of getting such order set aside or revised.
The term Appeal is defined under Black’s Law Dictionary, 7th edn in following words, “To seek review (from a lower court’s decision) by a higher court”
AIM OF RIGHT OF APPEAL:
The object of the right of appeal is to give forum of relief to the party aggrieved of the decision of the court of law if it is suffered from any illegality, irregularity or misreading or non-reading of evidence and also for correction of error of judgment. Appeal gives the party right to put forward its point with more lucidity and comprehension.
RIGHT OF APPEAL AS PROVIDED UNDER CODE OF CIVIL PROCEDURE, 1908:
The Code of Civil Procedure, 1908 recognizes the right of appeal of the litigants against orders and decrees. Under this Code a party can file appeal in thrice; the appeals are named as;
First appeal;
Second appeal; and
Third appeal.
FIRST APPEAL AS PROVIDED UNDER THE CODE OF CIVIL PROCEDURE, 1908:
Section 96 through 99 deals with the right of first appeal.
Section 96:
Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any court exercising original jurisdiction to the court authorized to hear appeals from the decision of such Court.
An appeal may lie from an original decree passed ex parte.
No appeal shall lie from a decree passed by the court with consent of the parties.
IMPORTANT FACTS RELATING TO FIRST APPEAL:
Appeals can only e filed against a decree passed by the court of original jurisdiction;
The court expressly given power to hear the appeal from the decision of such subordinate court;
Forum of appeal is to be determined accordance to the value of the suit as mentioned in the plaint.
RULE OF FILING OF FIRST APPEAL ON PRELIMINARY DECREE:
Section 97 of the Code provides that failure to appeal from a preliminary decree within the prescribed period of the limitation precludes a party from challenging it in an appeal against the decree.
RULE OF MAKING DECISION IN APPEAL:
Section 98 laid down the rule of decision making in appeal;
Where the court is presided over by two or more judges; majority opinion shall form as decision of the court.
Where appeal is heard by two Judges only and the decision of both of them is in contrast to each other; it means; they have not taken a unanimous decision; the matter in question shall be referred to other Judges of the same court than the majority decision shall prevail.
SECOND APPEAL AS PROVIDED UNDER THE CODE OF CIVIL PROCEDURE, 1908:
Section 100 ordains power to hear appeal from appellate forum to the High Court. But second appeal cannot be filed on every decision. It is only when the verdict of the lower court falls within any of the following ground, the appeal may lie;
Decision is contrary of law;
Decision is contrary to usage having force of law;
Decision has failed to determine some material issue of law or usage having the force of law;
There is substantial error or defect in proceedings.
Decision is contrary to law:
Where the court acts in contrary to law, it acts without Jurisdiction and the order to that extent is nullity. Following are guiding principles to determine legality of order;
The case is decided on the basis of evidence;
Discretion is exercised judiciously;
Court has not failed in inferring from the fact on the record;
Court has act within Jurisdiction.
CIRCUMSTANCES WHERE SECOND APPEAL IS BARRED:
Section 102 barred second appeal in following cases;
Where the suit is cognizable by the court of small causes; and
Where the value of the suit does not exceed to 250000 rupees.
DIFFERENCE BETWEEN THE FIRST AND SECOND APPEAL:
First appeal shall lie with the court authorized to hear appeal from the court of original jurisdiction whereas second appeal lies to the High Court against the order of the appellate court.
In order to file first appeal the litigants don’t have to find out any specific ground where second appeal lies where case falls any of the ground mentioned in the Section 100 of the code.
On filing first appeal case is considered to be re-opened whereas in second appeal question of fact can’t be re determined.

اگر مدعا علیہ/بائع اقرار نامہ سے ھی انکاری ھو یا اقرار نامہ کو جعلی قرار دے تو اس صورت میں مدعی/مشتری کو بقیہ زر بیع جمع کرانے کا حکم نہ دیا جاسکتا ھے۔

 دعوی تکمیل معاہدہ میں اگر مدعا علیہ/بائع اقرار نامہ تحریر کیا جانا تسلیم کرے تو اس صورت میں عدالت مدعی/مشتری کو بقیہ زر بیع جمع کرانے کا حکم دے گی۔

اگر مدعا علیہ/بائع اقرار نامہ سے ھی انکاری ھو یا اقرار نامہ کو جعلی قرار دے تو اس صورت میں مدعی/مشتری کو بقیہ زر بیع جمع کرانے کا حکم نہ دیا جاسکتا ھے۔
In suit for specific performance of agreement to sell, keeping in view the dicta laid down in "Messrs Kuwait National Real Estate Company (Pvt) Ltd and others vs. Messrs Educational Excellence Ltd. And another" (2020 SCMR 171) the plaintiff/vendee was directed to deposit balance sale consideration in the Court. In the case (supra), it has been observed that party seeking specific performance of agreement to sell is required to deposit balance sale consideration in the Court so as to prove readiness & willingness at its part, but this Court having minutely gone through cited esteemed judgment humbly focused that the Hon'ble Supreme Court held so because subject matter involving that lis was not the immovable property, whereas vendor therein straightaway admitted the transaction as well as execution of sale agreement, besides to propose that if remaining sale price would be paid, then suit might be decreed. After having such fair attitude on the part of vendor, the apex Court required the vendee to make good the balance sale consideration. Thus, the rule so laid down might be for the cases where execution of contract was admitted and in its due compliance the vendor consented to transfer subject property as well. The said canon cannot be applied where the transaction as well as execution of document entailing terms/conditions of alleged deal is questioned from its inception. In the current case subject property is immovable one, possession of which never delivered to the plaintiff and the vendor also specifically asserted sale agreement to be fabricated, deceptive & concocted one, besides has already created third party?s charge by transferring title & possession of subject area to him. The alleged agreement to sell is bilateral document and its genuineness or otherwise as well as ascertainment who is at fault to perform his part besides to search readiness & willingness of either party is, indeed, a fact, which could only be determined after collecting evidence. The three honorable Judges of the august Supreme Court while deciding a lis qua specific performance of contract in case reported as Maksud Ali and others vs Eskandar Ali (PLD 1964 SC 381) held that though invariable for the vendee to expressly plead his readiness & willingness in the plaint, but omission thereto would not be enough to non-suit him. The apex Court, indeed, focused in said judgment that sine qua non for the vendee to prove his readiness from the date of contract to that of hearing. The relevant part of this judgment being advantageous is reproduced as under:- The petitioner not only still to prove his case, but also to rebut stance of his vendor, besides to shatter the claim of the third party. For these reasons, deposit of the balance amount, in fact, will not be in aid of justice to either promote the case of the plaintiff or even beneficial to the other party, who till this time is disputing the settlement of sale, thus there will be no fun to force the vendee in this behalf.

Writ 56759/20
Muhammad Jahanzaib Khan Vs Muhammad Rafique Khan etc
18-02-2021
 2021 LHC 630







Order_7_Rule_11 C.P.C Case Law --Where plaint is rejected, plaintiff would be allowed to bring a second on same cause of action-

 PLJ 2016 Peshawar 253

[Mingora Bench (Dar-Ul-Qaza), Swat]

Present: Lal Jan Khattak, J.

UMARA KHAN--Petitioner

versus

Mst. REKHAM ZARINA through LRs & others--Respondents

C.R No. 83-M/2014, decided on 12.5.2016.

Civil Procedure Code, 1908 (V of 1908)--

----O. VII, R. 11--Rejection of plaint--Cause of action--Second suit--Legacy of predecessor--Validity--Where plaint is rejected, plaintiff would be allowed to bring a second on same cause of action--When plaint is rejected for non-affixation of proper Court fee or for any other technical reason then of course a plaintiff would be entitled to bring a second suit on same cause of action subject to law of limitation but if plaint is rejected on merit after proper adjudication of core issue e.g as to non-existence of cause of action then same will legally operate as res-judicata and consequently a plaintiff would not be allowed to file a second suit on same cause of action.

                                                                                              [P. 256] A

Mr. Amjid Hussain, Advocate for Petitioner.

Mr. Ahmad Shah Khan, Advocate for Respondents.

Date of hearing: 12.05.2016

Judgment

This revision petition under Section 115, CPC is directed against the judgment and decree dated 18.01.2014 of the learned Additional District Judge/Izafi Zilla Qazi-I, Swat whereby the petitioner’s appeal against the order dated 26.09.2013 of the learned Civil Judge/Illaqa Qazi-V, Swat has been dismissed.

2.  Brief facts of the case are that the petitioner filed a suit against the respondents for declaration, permanent injunction and cancellation of mutation. It was the petitioner’s case that the entire suit land, fully described in the plaint, was his ancestral property and the respondents had no concern with it. He has further prayed that Mutation No. 594 attested in favour of the respondents on 14.07.2011 be declared as illegal and ineffective upon his rights. Respondents refuted the petitioner’s claim and opted to file an application under Order VII Rule 11, CPC for rejection of the plaint. The learned trial Court vide order dated 26.09.2013 accepted the application and rejected the plaint whereagainst the petitioner went in appeal but the learned appellate Court vide judgment and decree dated 18.01.2014 concurred with the trial Court and dismissed the appeal, hence, the instant revision petition.

3.  Learned counsel for the petitioner contended that on no count the plaint was liable for rejection as quite different issue had been raised therein which ought to have been decided on merit instead of disposing it through invoking the provisions of Order VII Rule 11, CPC. The learned counsel argued that the earlier suit though was between same parties but had no nexus with the issue which is subject matter of the instant plaint.

4.  As against the above, learned counsel for the respondents defended the order/judgments impugned by the petitioner.

5.  Arguments heard and record gone through.

6.  Perusal of the case record would show that admittedly the petitioner had earlier filed a declaratory suit against the respondents on 26.10.2011 and the learned trial Court vide order dated 08.02.2012 had rejected his plaint while invoking the provisions of Order VII Rule 11, CPC. As the ibid order of rejection has not been challenged in appeal therefore, same has attained finality. Record reflects that on same facts and cause of action petitioner brought second suit. Though learned counsel for the petitioner argued with vehemence that there was no commonality in both the causes of action but when perused it appeared to this Court that substantially both the suits were on same cause of action. For the purpose of convenience prayers as contained in both the plaints are reproduced as under:

PLAINT OF THE EARLIER SUIT:

"دعوی استقرار حق بدیں مراد کہ جائیداد مندرجہ کھاتہ کھتونی نمبر 268/324-325 خسرہ نمبرات (1-10)486، (17-17)488، (0-7)499، (0-6)500، (16-2)516، (2-15)724، (76-10)725، (29-4)727، (4-13)731 اور (6-17)1335 واقع موضع روڑیا تحصیل چار باغ ضلع سوات سالم من مدعی جدی و موروثی ملکیت با قبضہ ہے اور مدعا علیہم کا اس میں کوئی حق و حصہ نہ ہے۔ اسی وجہ سے مدعا علیہم مجاز نہیں کہ مدعا علیہم ملکیت من مدعی سے انکار کر کے اس میں دخل مداخلت کرے۔ اس کے نسبت کوئی لین دین بشکل بیع، ابدال رہن وغیرہ کرے اگر مدعا علیہم نے اجائیداد کے نسبت کسی قسم کی لین دین کی ہو۔ کلیاجزوی طور پر کاغذات مال میں اپنے نام درج کی ہو یا اس کے نسبت کسی قسم کی دستاویزات تیار کی ہو اور اسی طرح جو انتقال نمبر 594 مورخہ 14/7/2011 درج و تکمیل کرا کر اپنے نام حصہ جات درج کروائے ہیں وہ فرضی، جعلی، سازشی اور کاغذات مال والوں کے ساتھ ساز باز کا نیتجہ ہے جو کہ حقوق مدعی پر کا لعدم اور غیر موثر ہے اور قابل منسوخی ہے۔

ب۔        و صدور حکم امتناعی دوامی بدیں طور کہ مدعا علیہم جائیداد متدعویہ میں ہر قسم غیر قانونی دخل مداخلت کرنے سے بازو ممنوع رہیں۔"

PLAINT OF THE SECOND SUIT:

"الف: دعویٰ بمراد صدور ڈگری استقرار حق بدیں مضمون کہ جائیداد مندرجہ کھاتہ کھتونی نمبر 325-324/268 خسرہ نمبرات 486 ﴿1 کنال 10مرلے﴾، خسرہ نمبر 488 ﴿17 کنال 17 مرلے﴾، خسرہ نمبر 499 ﴿0 کنال 7 مرلے﴾، خسرہ نمبر 500 ﴿0 کنال 6 مرلے﴾، خسرہ نمبر 516 ﴿16 کنال 2 مرلے﴾، خسرہ نمبر 724 ﴿2 کنال 15 مرلے﴾، خسرہ نمبر 725 ﴿76 کنال 10 مرلے﴾، خسرہ نمبر 727 ﴿29 کنال 4 مرلے﴾، خسرہ نمبر 731 ﴿4 کنال 13 مرلے﴾، خسرہ نمبر 1335 ﴿6 کنال 17 مرلے﴾ واقع موضع روڑیا، تحصیل چار باغ ضلع سوات سالم من مدعی کاجدی و موروثی ملکیتی باقبضہ ہے اور مدعا علیہم کا اس میں کوئی حق و حصہ نہ ہے۔ اس وجہ سے مدعا علیہم مجاز نہ ہے کہ مدعا علیہم ملکیتی من مدعی سے انکار کر کے اس میں دخل مداخلت کرے، اس کے نسبت کوئی لین دین بشکل بیع، ابدال، رہین وغیرہ کرے اگر مدعا علیہم جائیداد کے نسبت کسی قسم کی لین دین کی ہو کہ اس کے نسبت کسی قسم کے دستاویزات تیار کی ہو اور اسی طرح جو انتقال نمبر 594 مورخہ 14.7.2011 درج و تکمیل کر کے اپنے نام حصہ جات درج کروائے ہیں وہ فرضی، جعلی، سازشی اور کاغذات مال والوں کے ساتھ ساز باز کا نتیجہ ہے جو کہ حقوق مدعی پر کا لعدم اور غیر موثر اور قابل منسوخی ہے۔

ب:       وصدوری حکم امتناعی دوامی بدیں طور کہ مدعا علیہم جائیاد متدعویہ میں ہر قسم غیر قانونی، غیر شرعی دخل مداخلت کرنے سے بازو ممنوع رہے۔"

7.  Record reflects that in the earlier suit respondents had filed application on 16.1.2012 for rejection of the plaint on the ground that they were legal heirs of late Gul Khan and the suit property had rightly come to them. It was also averred in the application that the petitioner had admitted before the Deputy District Officer (Judicial) that the suit property was legacy of late Gul Khan. Accepting the ibid application, the learned trial Court held on 8.2.2012 that the questioned mutation was not liable for cancellation and that the petitioner had no cause of action to file the suit in order to deprive the respondents of the legacy of their predecessor. By holding so the learned trial Court had non-suited the petitioner forever whereafter it was not legal for him to take refuge under Order VII Rule 13, CPC. No doubt ibid Order authorizes a person to file a fresh plaint when his plaint is rejected on the grounds mentioned under Order VII Rule 11, CPC but it cannot be contemplated that in all cases where plaint is rejected, plaintiff would be allowed to bring a second on the same cause of action. True that when plaint is rejected for non-affixation of proper Court fee or for any other technical reason then of course a plaintiff would be entitled to bring a second suit on the same cause of action subject to law of limitation but if the plaint is rejected on merit after proper adjudication of the core issue e.g as to non-existence of the cause of action then same will legally operate as res-judicata and consequently a plaintiff would not be allowed to file a second suit on the same cause of action. Wisdom is derived from 2009 SCMR 1079.

8.  Learned counsel for the petitioner contended that second plaint was about a different cause of action as disclosed in Para No. 5 of the plaint. Ibid contention has no force in it as substantially this fact was subject matter of the earlier suit. If not, even then petitioner is debarred to raise the same in second suit as per provision of Order II Rule 2, CPC.

9.  Both the Courts below have properly attended to the facts of the case and law on the subject and committed no illegality while passing the orders/judgments impugned by the petitioner. Therefore, the instant revision petition, being bereft of any merit, is hereby dismissed.

(R.A.)  Petition dismissed

Agreement to sell--Partially payment of consideration amount--

تعمیل مختص کے دعوی میں رقم جمع کرانا لازم ھے۔

PLJ 2021 Lahore 229
Present: Ch. Muhammad Iqbal, J.
Rana TAHIR HUSSAIN--Petitioner
versus
ADDITIONAL DISTRICT JUDGE, FAISALABAD etc.--Respondents
W.P. No. 240061 of 2018, decided on 17.11.2020.

Specific Relief Act, 1877 (I of 1877)--
----Ss. 9 & 12--Constitution of Pakistan, 1973, Art. 199--Civil Procedure Code, (V of 1908), O.XXIX, Rr. 1 & 2--Suit for possession through specific performance--Application for grant of temporary injunction--Accepted--Appeal--Dismissed--Agreement to sell--Partially payment of consideration amount--Pendency of remaining amount--Concurrent findings--Challenge to--Petitioner was duty bound to deposit remaining consideration amount in compliance of order aforesaid but instead of complying with order, challenged same before appellate Court which also dismissed appeal of petitioner--This conduct of petitioner/plaintiff constitutes a deliberate default on his part and non-compliance of Court’s order dismantles his assertion of readiness and willingness to perform his part of contract/agreement--It is settled law that readiness and willingness of a party for performance of its part of contract is sine qua non and a defaulting party is disentitled to have any equitable or discretionary relief--Petitioner/plaintiff has alleged in his plaint regarding payment of partial payment of consideration i.e. Rs. 10,00,000/- which has also been admitted by respondent/defendant whereas controversy is regarding remaining consideration of Rs. 10,00,000/- as such, trial Court rightly passed impugned order directing petitioner/plaintiff to deposit remaining consideration amount in Court--Counsel for petitioner has not been able to point out any illegality or material irregularity in impugned orders passed by Courts below and has also not identified any jurisdictional defect--Concurrent findings of facts are against petitioner which are not called for any interference by this Court in absence of any illegality or any other error of jurisdiction--Petition was dismissed. [Pp. 231 & 232] A, B & C
PLD 2014 SC 506, 2017 SCMR 2022, 2020 SCMR 171 &
2007 MLD 1710 ref.
Mr. Muhammad Amir Javed Bhatti, Advocate for Petitioner.
Ch. Amin Rehmat, Advocate for Respondents.
Date of hearing: 17.11.2020.
Order
Through this writ petition, the petitioner has challenged the order dated 04.07.2018, passed by the learned Civil Judge, Faisalabad whereby the petitioner was directed to deposit the remaining consideration amount of Rs. 10,00,000/- within one month and the judgment dated 24.09.2018, passed by the learned Additional District Judge, Faisalabad dismissing the appeal of the petitioner.
2. Brief facts of the case are that the petitioner/plaintiff filed a suit for possession through specific performance on the basis of an agreement to sell dated 06.06.2017, alleging therein that he purchased the suit land, paid consideration and received possession of the suit land. The respondents/defendants refused to transfer the suit land in the name of the petitioner/plaintiff, upon which he filed instant suit. Alongwith the suit, the petitioner/plaintiff also filed an application under Order XXXIX Rule 1 and 2 C.P.C which was accepted by the learned trial Court’ with the condition to deposit the remaining consideration amount of Rs. 10,00,000/- within one month, vide order dated 04.07.2018. Against the said order, the petitioner filed an appeal which was dismissed by the learned appellate Court vide judgment dated 24.09.2018. Hence, this petition.
3. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.
Description: A4. The learned trial Court, vide order dated 04.07.2018, allowed the application under Order XXXIX Rule 1 and 2 C.P.C of the petitioner directing him to deposit the remaining consideration amount of Rs. 10,00,000/- in the Court. The petitioner was duty bound to deposit the remaining consideration amount in compliance of the order aforesaid but instead of complying with the order, challenged the same before the learned appellate Court which also dismissed the appeal of the petitioner. This conduct of the petitioner/plaintiff constitutes a deliberate default on his part and non-compliance of the Court’s order dismantles his assertion of readiness and willingness to perform his part of the contract/agreement. It is settled law that the readiness and willingness of a party for the performance of its part of the contract is sine qua non and a defaulting party is disentitled to have any equitable or discretionary relief as held by the Hon’ble Supreme Court of Pakistan in a case cited as Bootay Khan vs. Muhammad Rafiq (PLD 2003 SC 518) as under:
“18. It may be so but it did not absolve the respondents-plaintiffs from their legal obligation to prove that they were ready and willing to perform their part of the contract at relevant time. Their oral evidence was not coupled with any substantive steps to prove their intention to perform their part of the agreement coupled with the findings that they did not have sufficient money to pay the sale price. They did not lead any evidence as to why did they keep quiet for about five years for the suit was filed on 16.2.1985. The suit though was filed within period of limitation but inaction on-the part of the plaintiffs for a period of about five years before filing of the suit furnishes strong evidence of their conduct that they were not ready and willing to perform their part of the agreement at the relevant time, therefore, were not entitled to any relief in exercise of discretion vested in the Court in the matter, for relief of specific performance of agreement is equitable and discretionary which had been rightly refused on the facts established on the record”.
Reliance is also placed on Liaqat Ali Khan & others vs. Falak Sher & others (PLD 2014 SC 506) and Hamood Mehmood vs. Mst. Shabana Ishaque & others (2017 SCMR 2022). The August Apex Court in its
recent pronouncement cited as Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. ‘Messrs Educational Excellence Ltd. and another (2020 SCMR 171) has held as under:
“6 It is now well settled that a party seeking specific performance of an agreement to sell is essentially required to deposit the sale consideration amount in Court. In fact, by making such deposit the plaintiff demonstrates its capability, readiness and willingness to perform its part of the contract, which is an essential pre-requisite to seek specific performance of a contract.”
Description: B5. The petitioner/plaintiff has alleged in his plaint regarding payment of partial payment of consideration i.e. Rs. 10,00,000/- which has also been admitted by the respondent/defendant whereas the controversy is regarding the remaining consideration of Rs. 10,00,000/- as such, the learned trial Court rightly passed the impugned order directing the petitioner/plaintiff to deposit remaining consideration amount in the Court.
6. So far as the stance of the petitioner/plaintiff that he had paid the said amount in cash to the respondent/defendant, this fact requires to be proved through evidence which is yet to be recorded.
Description: C7. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned orders passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of facts are against the petitioner which are not called for any interference by this Court in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case of Zulfiqar Ali v. Judge, Family Court & 7 others (2007 MLD 1710).
8. Resultantly, this writ petition, being devoid of any force, is hereby dismissed.
(Y.A.) Petition dismissed

Scope of the second proviso to Order XXI Rule 90 CPC - Matter referred to the HCJ for constitution of a Larger Bench.

It is now a well-established principle of practice and procedure of this Court that the earlier judgment of a Bench of this Court is binding not only upon the Benches of smaller numeric strength but also upon the Benches of co-equal strength; a Bench of co-equal strength cannot deviate from the view held by an earlier Bench, and if a contrary view has to be taken, then the proper course is to request the Hon’ble Chief Justice for constitution of a larger Bench to reconsider the earlier view. For, the law declared by this Court should be clear, certain and consistent, as it is binding on all other courts of the country, under Article 189 of the Constitution of Pakistan, 1973. The doctrine of binding precedent promotes certainty and consistency in judicial decisions, and ensures an organic and systematic development of the law.

C.A.17-L/2019
Mst. Samrana Nawaz, etc v. MCB Bank Ltd., etc
Mr. Justice Syed Mansoor Ali Shah
16-03-2021













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