Suit for specific Performance
کے مقدمہ میں جب بھی remaining consideration کے لیے کورٹ پارٹی کو کہے گی تو اسکے لیے کورٹ کو specific order کرنا ہوگا۔۔یعنی کہ اگر consideration جمع نہ کرائ گئی تو suit dismissed کردیا جائے گا۔۔۔۔اگر کورٹ ایسے ارڈر نہیں کریگی اور صرف لکھے گی کہ in case of* failure of non deposit action will be taken as per law
اور اگر تاریخ پہ remaining consideration جمع نہیں ہوتی تو کورٹ اس صورت میں کیس ڈسمس نہیں کر سکتی کیونکہ اسکو corresive actions لینے کے لیے ایک specific order کرنا ہوگا، کہ اگر جمع نہیں ہوے تو کیس ڈسمس کر دیاجائے گا۔۔۔ specific order کے نہ ہوتے ہوئے کیس ڈسمس نہیں کیا جاسکتا۔۔۔
No doubt in a suit for specific performance the plaintiff as intending buyer is required in law to claim that he was ready and willing to perform his part of the obligations necessary for the completion of agreement and that he has the financial resources to discharge the obligation and that he took all steps for the completion of the deal and also that from the date of agreement till the filing of suit he acted with evident bona fide to ensure that the transaction is completed as per terms and conditions of the agreement. It has indeed been consistently ruled that to prove his bona fide, the plaintiff as intending buyer shall offer the payment of balance sale consideration on filing of the suit and if the party is not willing to receive it, to make a request for deposit thereof in the court; for investment in profit bearing scheme and ultimate disbursement as per final order/decree.
The relief of specific performance can be extended only on equitable grounds; it can be declined if the court arrives at the conclusion that it was unjust to do so or where the circumstances show that the performance of contract could give an unfair advantage to a plaintiff over the defendant or all necessary particulars entitling the specific performance of the contract could not be established and in this context the rule consistently observed is that the party seeking specific performance of the sale agreement needs not only allege but also to prove readiness and willingness to perform his part of obligation under the agreement from the date of the agreement till the passing of the decree and that with a view to demonstrate his readiness and willingness, capacity to pay and intentions to pay needs to offer the payment of balance consideration to the vendor or on his refusal, to tender the same in the court; failing which adverse consequences will follow while determining the main suit and the entitlement of the plaintiff to seek decree in equitable and discretionary jurisdiction.
A suit cannot be dismissed on non-deposit unless the Trial Court specifically directs deposit of remaining sale consideration and puts the plaintiff on explicit notice to this effect bearing clear warning that non-deposit of balance sale price shall be deemed to be his inability of performing his part of contract as envisaged under section 24(b) of the Specific Relief Act, 1877, that states the specific performance of a contract cannot be enforced in favour of a person who has become incapable of performing or violates an essential term of the contract that on his part remains to be performed and which would render the contract unenforceable.
The modalities for making the deposit and the consequences which flow out of non-performance have resulted in misdirection of law by the lower court which then feeds through the rest of the decision-making process. It has, in turn, generated a mass of disparate judgments by the superior courts and the courts below are left to grapple with the difficult task of finding the right one to rely upon. We, therefore, deem it proper to lay the following guidelines for the lower courts to follow in all matters relating to suits for specific performance (the suits):
At the time of taking cognizance of the suits by the civil courts, while issuing notice to the defendants, an order shall be made for the deposit of the balance sale consideration by the vendee (if he is a plaintiff in the suit) within a stipulated time. In sum, not more than two opportunities for making the deposit shall be given by the court. At the time of granting the second and last opportunity (if requested by the vendee), the civil court shall specifically mention the consequences that will visit the failure to deposit viz. that the suit shall be dismissed on that account. It is made clear that this order shall be passed separately and will not be made part of any other order passed for a different purpose. The amount so deposited as balance sale consideration shall be invested, pendente lite, in a profit bearing scheme with a high rate of return.
Notwithstanding the above, we still feel that a permanent solution to this problematic area lies in the legislature stepping in to clear the muddled subject. The superior courts have merely grafted a condition on to a statute. This condition, however, ought to be part of the statute brought about by making the amendments to the law in such a manner that this pre-condition becomes a statutory requirement to maintain the suit. This judge-made rule ought to be given statutory recognition. For the purpose, we direct the Government of Punjab (through Secretary Law and Parliamentary Affairs Department) to initiate legislative process in this regard keeping in view the precedents of superior courts and to complete the process with all deliberate speed. A report shall be filed within two months to the Additional Registrar (Judicial) of this Court. A copy of this order shall be transmitted for information to all civil courts in Punjab. It shall also be sent to the Government of Punjab for compliance.
R.F.A. No.9641 of 2020
Irfan Rasheed v. Muhammad Muazim, etc.
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