2017 C L C Note 62
Specific Relief Act (I of 1877)---
----S. 12---Civil Procedure Code (V of 1908), O. VII, R. 11---Suit for specific performance of contract---Non-deposit of balance sale consideration---Effect---Plaint, rejection of---Scope---Plaintiff was directed to deposit the balance sale consideration with the Nazir of the Court within two weeks in order to show his bona fide but he did not comply with the said order---Defendants sought rejection of plaint on the ground that plaintiff had failed to fulfil his part of contract---Validity---Plaintiff had not deposited the balance sale consideration as directed by the Court till today which default was sufficient alone to dismiss the suit for non-prosecution---No application was filed by the plaintiff for extension of time for depositing the said balance sale consideration---Plaintiff was not interested in pursuing his remedy for specific performance of the present case---Plaintiff seeking equitable remedy of specific performance must always be willing and ready to perform his part of contract---Conduct of plaintiff had reflected that he had been protracting the litigation on one pretext or the other---Price of property had increased and if an order was passed for depositing the balance sale consideration in terms of earlier order then same would jeopardize the interest of defendants---Vested right had accrued to the defendants to oppose the extension of time for depositing the balance sale consideration in terms of earlier order---Suit was dismissed in circumstances. [Paras. 4 & 5 of the judgment]
Muhammad Iqbal v. Mehboob Alam 2015 SCMR 21 ref.
Syed Muhammad Waqar-ud-Din v. Owais Ahmed Idrees 2015 MLD 49; Allah Ditta v. Bashir Ahmed 1997 SCMR 181 and Abdul Hameed Khan v. Ghulam Rabbani 2003 SCMR 953 rel.
Muhammad Aziz Khan for Plaintiff.
Sarmad Hani for Defendants Nos. 1 to 5.
Date of hearing: 21st November, 2016.
2017 C L C Note 62
[Sindh]
Before Syed Saeeduddin Nasir, J
AFTAB GUL ABRO---Plaintiff
Versus
Mst. BUSHRA SHAKIL and 5 others---Defendants
Civil Suit No. 92 of 2015 and C.M.A. No. 14521 of 2015, decided on 21st November, 2016.
ORDER
SYED SAEEDUDDIN NASIR, J.---C.M.A. No.14521/2015: This is an application under Order VII, Rule 11, read with section 151 of the Code of Civil Procedure, 1908 for rejection of the plaint and dismissal of suit on the ground that no cause of action has accrued to the plaintiff for filing the instant suit, and on account of failure on the part of the plaintiff to comply with the order dated 13.08.2015, whereby the plaintiff was directed to deposit the balance sale consideration with the Nazir of this Court within two weeks in order to show his bona fide, the suit is liable to be dismissed; that the pendency of the instant suit is occasioning in abuse of the process of the Court and is causing great hardships to the defendants Nos.1 to 5, who are the widow and orphans, are facing serious financial constraints due to the pendency of the present suit; that the plaintiff has approached this Court with unclean hands and mala fide intention as the plaintiff has himself failed to fulfill his part of the contract under the terms and conditions of the subject agreement and was unable to pay the balance sale consideration at the time stipulated in the subject sale agreement; that the plaintiff is otherwise not entitled to seek specific performance of the subject sale agreement as the plaintiff did not have sufficient funds to purchase the property of the defendants at the time of entering into the sale agreement, which can be corroborated from the fact that even the token amount was given from the bank account of one Mr. Bashir Ahmed and not from the plaintiff's own account; that in terms of clause-7 of the subject sale agreement the plaintiff had to pay balance sale consideration on or before 07.06.2012, and as per clause-8 of the sale agreement the plaintiff had to provide the photocopies of the Pay Orders of remaining balance sale consideration at-least two working days prior to close of the transaction i.e. 07.06.2012, whereas the plaintiff not only failed to fulfill his part of the contract within the stipulated time but also failed to demonstrate any documentary proof which could show that the plaintiff was ever in a sound financial position to pay the balance sale consideration; that the failure of the plaintiff to deposit the balance sale consideration as ordered by this Court on 13.08.2015 shows that the instant suit has been filed with mala fide intention and ulterior motives to harass and blackmail the defendants Nos.1 to 5, and on account of such default the suit is liable to be dismissed.
2. Controverting the arguments extended by the learned counsel for the defendants Nos.1 to 5, the learned counsel for the plaintiff stated that the wife of the plaintiff expired on 28.06.2015 due to which the plaintiff lost his mobile phone along with its sim and had to stay at his native village owing to some family disputes due to which the plaintiff lost contact with his advocate. When the plaintiff returned to Karachi in the first week of December, 2015 he came to know through his advocate about the order dated 13.08.2015; that the sale agreement could not be performed due to the fact that the defendant No.6, DHA raised legal objection to the transfer of plot in question. At the end of his arguments, he requested the Court to extend time for depositing the balance sale consideration with the Nazir of this Court as directed in order dated 13.08.2015. The learned counsel for the plaintiff has placed reliance upon the case of Muhammad Iqbal v. Mehboob Alam reported in 2015 SCMR 21 wherein it is held that neither from the contents of the agreement nor from the intent and conduct of the parties it was established that the time was of the essence of the contract, and when the plaintiff had deposited the balance sale consideration in Court, the plaintiff had proved his bona fide intention and the suit is not liable to be dismissed. The Supreme Court directed the plaintiff to deposit double the amount of balance sale consideration due to devaluation in currency and increase in price of suit property.
3. I have heard the learned counsel for the parties and perused the record.
4. This Court, vide order dated 13.08.2015, while deciding C.M.A. No.723/2015, an application under Order XXXIX, Rules 1 and 2, C.P.C. read with section 151, C.P.C., directed the plaintiff to deposit the balance sale consideration in respect of the property in question amounting to Rs.13,600,000/- with the Nazir of this Court and it was further observed in the same order that in case of failure on the part of the plaintiff the aforesaid application shall stand dismissed. It is an admitted position that the plaintiff has not deposited the balance sale consideration as directed by this Court in the aforesaid terms till today, which default is sufficient alone to dismiss the suit for non-prosecution. Guidance can be taken from the following cases, wherein it is held that where the plaintiff failed to deposit the balance sale consideration with the Court within stipulated time appointed by the Court the presumption was that the plaintiff was not ready and willing to perform his part of the contract or in pursuing his remedy of specific performance, therefore, the suit was dismissed.
(1) Syed Muhammad Waqar-ud-Din v. Owais Ahmed Idrees 2015 MLD 49
(2) Allah Ditta v. Bashir Ahmed 1997 SCMR 181
(3) Abdul Hameed Khan v. Ghulam Rabbani 2003 SCMR 953
5. In the instant case admittedly the plaintiff was directed to deposit the balance sale consideration about one year and three months ago within a period of two weeks, however, he failed to deposit the same within the stipulated time. No application was filed by the plaintiff for extension of time for depositing the same, I, therefore, am of the considered opinion that the plaintiff is not interested in pursuing his remedy for specific performance of the instant suit for the above reasons. In a Suit for Specific Performance, it is always of paramount consideration that the plaintiff, seeking equitable remedy of specific performance must always be willing and ready to perform his part of the contract. Conduct of the plaintiff unequivocally reflects that he has been protracting the litigation on one pretext or the other. Since the plaintiff has not deposited the balance sale consideration as per the aforesaid Court order it would be justified to presume that the plaintiff is not serious in the prosecution of his remedy. This ground alone, is sufficient to disentitle him to a decree for specific performance. The case law relied upon by the learned counsel for the plaintiff is not relevant to facts and circumstances of the present case and is distinguishable from the fact of the case on account of the fact that in that case plaintiff had shown his willingness to perform his part of the contract by depositing the balance sale consideration with the Court, moreover the time was not the essence of the contract, whereas in the instant case 40 days' time is contemplated for the performance of the contract by making the balance sale consideration, which was neither paid to the seller, nor deposited in the Court as per the aforesaid order. The price of the property has increased manifold, therefore, if an order is passed for depositing the balance sale consideration in terms of the earlier order the same would terribly jeopardize the interest of the defendant, to whom a vested right has accrued to oppose the extension of time for depositing the balance sale consideration in Court in terms of the order referred to above. Consequently, for the reasons noted above, the instant suit is dismissed along with all listed applications.
ZC/A-155/Sindh Suit dismissed.
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