PLJ 2021 Lahore 370 (DB)
Specific Relief Act, 1877 (I of 1877)--
----S. 12--Civil Procedure Code, (V of 1908), S. 96--Suit for specific performance--Dismissed--Non-payment of outstanding amount--Agreement to sell--Direction of trial Court to appellant for deposit of balance amount and affixation of Court fee--Non-depositing of balance amount and Court fee--Conduct of appellant--Disentitlement of appellant for equitable relief--Challenge to--There is no dispute that in suit for specific performance filed by appellant/ plaintiff, it was her own claim that total consideration amount under agreement to sell was Rs. 7,50,00,000/- out of which, only
Rs. 1,50,00,000/- was paid and balance outstanding amount was
Rs. 6,00,00,000/--When time fixed in agreement to sell approaches plaintiff/appellant should be ready, and show his bonafide by depositing total sale consideration in Court to demonstrate his readiness and willingness for performance of sale agreement and any contumacious omission in this regard would entail dismissal of suit for specific performance being an equitable relief--Trial Court specifically directed appellant to deposit balance consideration amount of Rs. 6,00,00,000/- alongwith proper Court fee as per valuation of suit within a period of two months, but neither balance amount was paid nor Court fee was affixed by appellant. Conduct of appellant shows that he was not serious in performing his agreed part of contract or in pursuing his remedy of specific performance--When this conduct of appellant adjudged on law settled and touch stone of equitable principle on subject, same disentitle appellant of equitable relief of specific performance--Argument of counsel for appellant that some of share-holders were abroad (who were not even party to lis) or her legal counsel did not affix Court fee will not absolve appellant from complying with law settled by Hon’ble Supreme Court and specific direction of learned trial Court to deposit balance consideration amount or affix Court fee within stipulated time period--Conduct of appellant was contumacious in not depositing balance consideration amount, hence he was lawfully denied equitable relief of specific performance--Appeal was dismissed. [Pp. 372, 375 & 376] A, B, C, D & E
2017 SCMR 2022, 2020 SCMR 171, 2020 MLD 1969, 2020 YLR 2024, 2019 CLC 1866 and 2020 CLC 300.
Mr. Muhammad Tariq Bashir Awan, Advocate for Appellant.
Ch. Muhammad Sarwar, Advocate for Respondents.
Date of hearing: 13.1.2021.
PLJ 2021 Lahore 370 (DB)
Present: Abid Aziz Sheikh and Mirza Viqas Rauf, JJ.
versus
AHMAD ZIA CH. etc.--Respondents
RFA No. 58154 of 2019, decided on 12.1.2021.
Judgment
Abid Aziz Sheikh, J.--This appeal is directed against order and decree dated 03.9.2019 passed by learned Civil Judge, Lahore, whereby suit for specific performance filed by appellant against respondents was dismissed.
2. Relevant facts are that appellant filed suit for specific performance against respondents on the basis of agreement to sell dated 15.4.2019. As per averment of the plaint, in the agreement to sell, the total consideration amount was of Rs. 7,50,00,000/- out of which, Rs. 1,50,00,000/- was paid and remaining balance amount was of Rs. 6,00,00,000/-. The learned trail Court vide order dated 03.7.2019 directed the appellant/plaintiff to deposit remaining balance amount of Rs. 6,00,00,000/- within a period of two months along with Court fee of Rs. 15000/-. Despite this direction, neither balance amount was deposited nor Court fee was submitted, hence suit of the appellant was dismissed through impugned order/decree. The appellant being aggrieved has filed this appeal.
3. Learned counsel for the appellant submits that there were five share-holders who agreed to buy the suit property and some of those share-holders being abroad, the balance consideration amount could not be arranged. He further submits that amount of Court fee was already handed over to learned counsel for the appellant who did not submit the same in Court.
4. Learned counsel for the respondents on the other hand submits that despite direction of learned trial Court, neither balance consideration was paid nor Court fee was affixed, therefore, suit was lawfully dismissed.
Rs. 1,50,00,000/- was paid and balance outstanding amount was
Rs. 6,00,00,000/. The Hon’ble Supreme Court in Hamood Mehmood vs. Mst. Shabana Ishaque etc (2017 SCMR 2022) held that where plaintiff or defendant seeks enforcement of agreement under the Specific Relief Act, 1877 (Act), it is mandatory that the balance amount be deposited in the Court on the first appearance or the date of institution of the suit after permission of Court and any omission in this regard would entail dismissal of suit.
6. The similar view was also expressed in following case law:
(i) In case of Messrs Kuwait National Real Estate etc vs. Messrs Education Excellence etc, (2020 SCMR 171), it is held as under:-
“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. Failure of a plaintiff to meet the said essential requirement disentitles him to the relief of specific performance, which undoubtedly is a discretionary relief”.
(ii) In case of Aqeel Feroz vs. Shahid Jamil Sethi etc, (2020 MLD 1669), it is held as under:
“The Hon’ble apex Court has repeatedly held that for a suit in respect of specific performance of agreement to sell, the plaintiff has to show his bona fide by depositing full sale consideration in the Court and if he fails in showing said bonafide, his suit is liable to be dismissed straightforward”.
(iii) In case of Muhammad Kashif Vohra vs. Muhammad Ismail etc, (2020 YLR 2024), it is held as under:
“In this case, an order for depositing the sale consideration in Court had been made which order was never challenged by the plaintiff. The plaintiff’s argument that he had made ready the pay-orders of the sale consideration on 18.11.2014, is of no help to him when he never deposited those pay-orders in Court. In other words, even if the plaintiff was able to perform the contract, he was never ‘ready’ and ‘willing’ to do so, and therefore, he disentitled himself from exercise of discretion in his favour. In such circumstances, and especially when it is not the case of the plaintiff that a part-payment was made by him under Annexure-B, the question of granting compensation under Section 19 of the Specific Relief Act, 1877 too does not arise”.
(iv) In case of Muhammad Zafar Iqbal vs. Hameeda Naz etc, (2019 CLC 1866), learned Court while dismissing the revision petition held that:
“In the present case, no such exertion was made by the petitioner/plaintiff, rather when the Court ordered him to deposit the balance consideration, he firstly lingered on the matter and requested for extension of time, which was granted, but later on he agitated the order through appeal and when failed to get favourable decision, filed the instant civil revision and contumaciously kept on disobeying all such orders”.
(v) In case of Ghulam Nabi Shaikh vs. Firdous Matri etc, (2019 YLR 223), the learned Court observed that:
“However, in instant case, when the learned Single Judge vide order dated 24.3.2004, directed the Appellant to deposit the remaining sale consideration before the Nazir of this Court, he failed to deposit the amount in the Court even though the suit remained pending up till 14.12.2017. It is also important to note that during the period when the suit was dismissed for non- prosecution, the subject property was sold out to a new purchaser by way of a registered document, which was further made the Appellant disentitled for grant of such discretionary relief of specific performance in his favour”.
(vi) In case of Hamood Mehmood vs. Mst. Shabana Ishaque etc, (2018 YLR 713), while dismissing the suit, learned Sindh High Court held as under:
“If the present proceeding is analyzed, an undisputed position that emerges is that on the one hand, the plaintiff for quite some time enjoyed the ad-interim injunctive relief in his favour, but despite giving ample opportunities and chances to comply with the Court orders, on the other hand, he contumaciously kept on defying all such directions/orders. After a statement of defendant No. 3-D.H.A., with regard to the ownership of present defendant/vendor, which has been made part of the order dated 05.10.2017, no justifiable reason remained with present plaintiff for defying/violating the Court orders by not depositing the balance sale consideration”.
(vii) In case of Shaikh Muhammad Asghar vs. Muhammad Abdullah etc, (2018 CLC 1409), it is held that:
“The plaintiff in view of the foregoing circumstances, since, deliberately and intentionally has avoided/omitted to perform his agreed part of contract which act alone, in my view, has disentitled the plaintiff to have a decree in his favour for specific performance. Consequently, plaintiff’s suit for specific performance filed on 17.5.2013 is dismissed but with no order as to costs”.
(viii) In case of Shahzad Nabi vs. Naseer Turabi etc. (2020 CLC 300), while dismissing the suit for specific performance, it is held that:
“The above act on the part of plaintiff is also adversely affected by another judgment of Apex Court handed down in Hamood Mehmood case-2017 SCMR Page 2022, wherein, it is held, that now it is mandatory in a suit for specific performance, that balance amount be deposited in Court, otherwise it would result in dismissal of the suit. The overall conduct of present plaintiff as discussed hereinabove does fall within the contumacious/omission as mentioned in the above reported case, entailing an adverse consequence for plaintiff. Hence, Issue No. 3 is answered accordingly”.
10. In view of above discussion, no illegality and infirmity is found in the impugned order/decree, therefore, this appeal is dismissed with no order as to cost.
(Y.A.) Appeal dismissed
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