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