P L D 2022 Lahore 372
Specific Relief Act (I of 1877)---
----S. 24---Balance sale consideration---High Court laid down guidelines for the lower courts to follow in all matters relating to suit for specific performance.
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, it is felt 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.
P L D 2022 Lahore 372
Before Shahid Karim and Rasaal Hasan Syed, JJ
IRFAN RASHEED---Petitioner
Versus
MUHAMMAD MUAZIM and others---Respondents
R.F.A. No. 9641 of 2020, decided on 16th September, 2021.
(a) Specific Relief Act (I of 1877)---
----S. 24---Balance sale consideration, deposit of---Suit for possession through specific
performance---Appellant/plaintiff had allegedly paid earnest money at the time of execution
of agreement---Specific notice was assertedly issued to respondents/defendants notifying
that balance sale consideration had been arranged---Civil Court granted status quo which
was ordered to be maintained subject to payment of remaining sale
consideration---Appellant was also directed to affix proper court fee---Appellant failed to
deposit remaining sale consideration----To meet the ends of justice one "absolute" "last
opportunity" was being provided to the appellant---Direction to deposit the balance sale
consideration, failing which no further opportunity shall be given and "order shall be passed
in accordance with law"---Appellant had not deposited the remaining sale consideration nor
any plausible reason was brought on record---Suit was consequently
dismissed---Validity---[Per Rasaal Hasan Syed J.; Shahid Karim J. dissenting]---Repeated
caution and last opportunity given by the Civil Judge to the appellant on non-deposit of the
balance sale consideration, were couched in general terms of reiterating that in case of
failure to deposit, "an order would be passed in accordance with law"---Such expression
could be interpreted to entail the vacation of the status quo order qua alienation granted in
favour of appellant----No explicit/ unequivocal warning of dismissal of suit as specific penal
consequence of non-deposit of balance sale consideration was recorded by putting appellant
on notice nor could anything to that effect be shown by respondents---Dismissing the suit
itself on non-deposit of the balance sale consideration did not appear to be readily covered
by the phrase "order shall be passed in accordance with law" repeatedly used by the Civil
Judge---Suit could not be dismissed on non-deposit unless the Trial Court had specifically
directed deposit of remaining sale consideration and put the plaintiff on explicit notice to
such effect bearing clear warning that non-deposit of balance sale price should be deemed
to be his inability of performing his part of contract---No such clear/unambiguous and pointed
warning was ever issued to the appellant in the case as to explicitly notify the appellant of
the penal effect of dismissal of suit---Appeal was allowed; undertaking was taken that
appellant should deposit the balance sale consideration within 7 days; and appellant was put
on notice that in case of failure to deposit the said amount within seven days of the date of
appearance immediately, his suit would be deemed to be automatically dismissed.
Muhammad Asif Awan v. Dawood Khan and others 2021 SCMR 1270 rel.
Hamood Mehmood v. Mst. Shabana Ishaque and others 2017 SCMR 2022 distinguished.
Per Shahid Karim, J.---
(b) Specific Relief Act (I of 1877)---
----S. 24---Balance sale consideration---High Court laid down guidelines for the lower courts
to follow in all matters relating to suit for specific performance.
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, it is felt 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.
Per Rassal Hasan Syed, J.
(c) Constitution of Pakistan---
----Art. 189---Leave to appeal---Scope---Order granting and/or refusing leave was not a
judgement that would decide a question of law and it should not be followed
necessarily/imperatively.
(d) Specific Relief Act (I of 1877)---
----S. 24---Relief of specific performance could be extended only on equitable grounds; it
could be declined if the court arrived at the conclusion that it was unjust to do so or where
the circumstances showed that performance of contract could be given 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 such context the rule consistently observed
was that the party seeking specific performance of the sale agreement needed not only
allege but also prove readiness/willingness to perform his part of obligation under agreement
from the date of agreement till the passing of decree and that with a view to demonstrate his
readiness, willingness, capacity to pay and intentions to pay needed 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 would follow while determining the main suit and the
entitlement of the plaintiff to seek decree in equitable/discretionary jurisdiction.
Messrs Kuwait Nation Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational
Excellence Ltd. and another 2020 SCMR 171; Mst. Samina Riffat and others v. Rohail
Asghar and others 2021 SCMR 7; Inayatullah Khan and others v. Shabir Ahmad Khan 2021
SCMR 686; Muhammad Shafiqullah and others v. Allah Bakhsh (deceased) through L.Rs.
and others 2021 SCMR 763; Muhammad Jamil and others v. Muhammad Arif 2021 SCMR
1108 and Muhammad Yousaf v. Allah Ditta and others 2021 SCMR 1241 rel.
Mian Tariq Ahmad for Appellant.
Kashif Ali Chaudhry for Respondents Nos. 1, 3 and 4.
Kamran Ali Khan for Respondent No. 5.
Date of hearing: 16th September, 2021.
JUDGMENT
RASAAL HASAN SYED, J.---The instant appeal calls into question order dated 14.1.2020 of
the learned Civil Judge, Lahore whereby the suit of the appellant was dismissed for
non-deposit of balance sale consideration.
2. The appellant filed a suit for possession through specific enforcement of agreement dated
23.7.2018 against respondents Nos.1 to 4 for sale of suit property for consideration of
Rs.7,80,00,000/- out of which an amount of Rs.1,00,00,000/- was claimed to have been paid
through pay orders to the respondents as earnest money in the presence of witnesses at the
time of execution of the agreement, the cut-off date for balance payment and execution of
sale deed was 17.11.2018 which was assertedly extended on 28.11.2018 in writing up to
17.2.2019 at the request of the respondents as their paperwork was incomplete. The
petitioner allegedly arranged the sale consideration and approached the respondents to
furnish necessary NOC for execution of sale deed within extended period, after receiving
balance sale consideration, but met with dilatory response whereupon specific notice dated
12.2.2019 was assertedly issued to them notifying that balance sale consideration had been
arranged and all necessary documentation for execution of the sale deed by the cut-off date
i.e., 17.2.2019 be arranged. On being greeted by respondents' silence the appellant
instituted the suit for specific enforcement of the agreement on 25.2.2019.
3. While issuing notice on the application for interim relief in the fresh suit the learned Civil
Judge granted status quo as to alienation of the suit property which was ordered to be
maintained subject to payment of remaining sale consideration and appellant was also
directed to affix proper court fee of Rs.15,000/-. The case came up on 13.3.2019 for the
attendance of the defendants when the appellant was reminded to affix court fee and deposit
balance sale consideration and observing last opportunity, the case was adjourned to
24.4.2019 with the warning that in case of failure to comply, appropriate further proceedings
will be taken. On 24.4.2019 the appellant filed an application seeking adjournment on the
ground that an earlier suit with respect to the suit property, was pending in the court of Mr.
Aqeel Ahmad Janjua, Civil Judge, Lahore, and that to avoid conflicting judgments both cases
were required to be tried in the same court and that appellant needed some time to place
copy of the plaint of the other suit on the file. The request was acceded to, and the case was
adjourned to 14.5.2019. Copy of a suit titled "Mst. Samina Shaheen and others v.
Muhammad Moazam and others" was produced on the next date which the court found to be
in respect of the same property that was the subject-matter of the instant litigation and
involved the same defendants. The learned Civil Judge referred the matter to the District
Judge, Lahore for further orders.
4. The case, thereafter, came on 20.5.2019 for hearing but no one was in attendance, and it
was adjourned to 25.5.2019 on which date too no proceedings took place, and the matter
was fixed for 10.6.2019. On 10.6.2019 the learned counsel for the respondents reminded the
court that the appellant was required to deposit the balance sale consideration in court, on
which the learned Civil Judge observing "last opportunity", adjourned the case to 26.6.2019
in the interest of justice, for payment of balance sale consideration. The case kept getting
adjourned thereafter uneventfully until 06.1.2020 when it was observed that the appellant
was directed to deposit remaining sale consideration of Rs.6,80,00,000/- vide order dated
25.2.2019 and on 10.6.2019 the plaintiff was provided a last opportunity to deposit, in which
the appellant had miserably failed and that to meet the ends of justice one "absolute" "last
opportunity" was being provided to the appellant till 14.1.2020 with the direction to deposit
the balance sale consideration, failing which no further opportunity shall be given; and "order
shall be passed in accordance with law". On 14.1.2020 as the deposit of balance sale
consideration had still not come forth, the learned Civil Judge observed that the appellant
had been given absolute last opportunity on the preceding date with the warning that an
order shall be passed in accordance with law on his failure to deposit the balance sale
consideration and that despite this appellant had not deposited the said amount nor was any
plausible reason was brought on record for it; therefore, applying the rule in "Hamood
Mehmood v. Mst.Shabana Ishaque and others" (2017 SCMR 2022) dismissed the suit.
5. Learned counsel for the appellant submits that the order of dismissing the suit was
unjustified as no prior specific warning of dismissal of suit was made, the order of deposit
was linked with the issuance of temporary injunction and that in the circumstances, the
repeated caution of consequences on non-deposit of balance sale consideration legally
denoted that an order would entail in the context of the conditional injunctive relief issued on
25.2.2019 which could be vacated and that it was never specifically warned by the court that
the suit itself, in case of non-deposit of the balance sale consideration, shall be dismissed. It
is further submitted that there was connected litigation against the suit property pending
which was creating complications and that the matter therein was in fact resolved by the
hectic efforts of the appellant and further that the appellant always had the amount ready in
the bank, the suit for specific enforcement was filed promptly within a few days of the cut-off
date given in the extension and that the appellant was never informed of the consequences
of non-deposit and that if one opportunity of shortest possible time is given by this Court, the
appellant shall ensure deposit of the balance sale consideration amount of Rs.6,80,00,000/-.
6. Learned counsel for the respondents, controverted this stance and supported the
dismissal of suit by arguing that in a suit for specific performance, the intending buyer is
expected to voluntarily deposit the balance sale consideration with a view to show his
readiness and willingness to perform the contract and even if there was no order yet he
could not be exonerated of his obligations and any failure in this regard shall result in
automatic dismissal of suit, as the discretionary jurisdiction could not be exercised in favour
of an unwilling purchaser. It was added that even if there was no specific mention of
dismissal of suit as consequence of non-compliance in the order requiring deposit of balance
sale price yet the observation that "order shall be passed in accordance with law", was a
sufficient indicator that the suit will stand dismissed ipso facto if the order of deposit is not
complied.
7. 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. In Messrs Kuwait Nation Real
Estate Company (Pvt.) Ltd and others v. Messrs Educational Excellence Ltd and another"
(2020 SCMR 171) it was observed to the effect that it is now well-settled that it was essential
for party seeking specific performance of an agreement to sell to deposit the sale
consideration amount in court and that in fact, by making such deposit the plaintiff
demonstrates the capacity, readiness and willingness to perform his part of the contract, as
integral pre-condition to seeking specific performance and that failure to do so disentitles him
to relief in discretionary jurisdiction. In the case of "Mst. Samina Riffat and others v. Rohail
Asghar and others" (2021 SCMR 7) it was observed to the effect that in terms of section 51
of the Contract Act, 1872, where a contract is dependent on discharge or performance of
reciprocal promise or obligations to be performed or discharged, the promisor need not
perform his part of promise or obligation unless the promisee/vendee, is ready and willing to
perform his reciprocal promise and that in cases emanating from sale of immovable property,
a vendee seeking specific performance has to demonstrate his readiness and willingness to
perform his part of reciprocal obligation as to payment of balance sale consideration and the
question as to what is readiness and willingness to perform a contract in respect of purchase
of immovable property implies the capacity to pay the requisite sale consideration within
reasonable time and, even if he has the capacity to pay the sale consideration, the question
still remains whether he has the intention to purchase the property and willingness to have
the sale deed completed. In "Inayatullah Khan and others v. Shabbir Ahmad Khan" (2021
SCMR 686) it was observed to the effect that another factor that militates against the
issuance of a decree of specific performance is failure of the seeker to perform his own part
of the contract i.e. tender amount of sale consideration to the vendor and, if there is refusal
to receive it, to tender it in court; and that non-deposit of balance sale consideration by
vendee after the decree constituted failure to show that he was ready, able and willing to
perform his obligation under the contract and that although the law did not require that the
balance sale consideration must be tendered or deposited in court such tender/deposit helps
establish that vendee was not at fault and that, therefore, the contention that only after the
court directs the deposit of the sale consideration is it to be deposited, is misplaced. It was
further observed to the effect that invariably the value of the money depreciates over time
and that of land appreciates; courts adjudicating such cases should not be unmindful of this
reality as such and should endeavor to secure the interest of both parties and, therefore, in
suit for specific performance of land, if the vendor had refused to receive the sale
consideration, or any part thereof, it should be deposited in court and invested in some
government protected security so that in case suit is decreed the seller would receive the
value of money prevalent at the time of contract and in case the buyer loses he can similarly
retrieve the deposited amount. In "Muhammad Shafiqullah and others v. Allah Bakhsh
(Deceased) through L.Rs. and others" (2021 SCMR 763) it was observed to the effect when
vendee nor his legal heirs tendered the balance sale consideration to the sellers nor
deposited the same in court if the latter had refused to receive it, and that non-payment of
balance sale consideration violated an essential term of the contract outstanding against the
vendee pursuant to section 24(b) of the Specific Relief Act, 1877, and for this reason too
purported contract could not be specifically enforced and that in such circumstances the
vendee and legal heirs had failed to demonstrate their readiness, ability and willingness to
perform their obligations and that the oft repeated contention that a buyer is only required to
tender sale consideration or the balance thereof, if so ordered by the Court, must be
disabused. In "Muhammad Jamil and others v. Muhammad Arif" (2021 SCMR 1108) it was
observed to the effect that foremost requirement for the vendee while seeking specific
performance is to demonstrate his readiness and willingness to perform the agreement and
that the promisor/vendor need not perform his part of promise or obligation, unless the
promisee/vendee is ready and willing to perform his reciprocal promise that legally entails
that a vendee, to demonstrate his readiness and willingness to perform his part of obligation
by pleading that he has offered to pay, was and is already prepared to pay the consideration
and had every intention to purchase the property and that it is well-settled law that the party
seeking performance of the agreement to sell is essentially required to deposit the sale
consideration in court and by making such deposit, he demonstrates his capacity, readiness
and willing to perform his part of the contract which is necessary to seek specific
performance of the contract. Similar views were expressed in the case of "Muhammad
Yousaf v. Allah Ditta and others" (2021 SCMR 1241).
8. From the enunciation of law in the cases referred supra it is manifest that 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.
9. In the instant case the situation is a little different as the appellant was ordered to deposit
remaining sale consideration of Rs.6,80,00,000/- on 25.2.2019 by the learned Civil Judge as
a condition for grant of status quo order. The repeated caution and last opportunities given
by the learned Civil Judge to the appellant on non-deposit of the balance sale consideration,
were couched in general terms of reiterating that in case of failure to deposit, "an order
would be passed in accordance with law". In the context that the order of deposit was made
as an attendant condition to the stay order, prospective passage of such an order under
caution and in accordance with law, it appears, could be interpreted to entail the vacation of
the status quo order qua alienation granted in favour of appellant. No explicit and
unequivocal warning of dismissal of suit as specific penal consequence of non-deposit of
balance sale consideration was recorded by putting appellant on notice nor could anything to
this effect be shown to us by the learned counsel for the respondents. In the circumstances
the measure of dismissing the suit itself on non-deposit of the balance sale consideration
does not appear to be readily covered by the phase "order shall be passed in accordance
with law" repeatedly used by the learned Civil Judge.
10. This aspect was considered by Supreme Court of Pakistan in "Muhammad Asif Awan v.
Dawood Khan and others" (2021 SCMR 1270). In the said case the suit for specific
performance was instituted, the existence and execution of an agreement was disputed by
the defendant in the suit. On an application of the defendant seeking an order for directing
deposit of entire sale consideration which was positively responded by the plaintiff/vendee
by showing his willingness to deposit balance sale consideration, the Trial Court ordered
deposit of balance sale consideration; the order was challenged in Revision which though
was eventually dismissed, yet the time for deposit of balance sale price was extended. In the
Constitutional jurisdiction, a learned Single Judge of this Court set aside the order of
extension and non-suited the vendee while taking the view that the Order could be passed
under Order XVII, Rule 3, C.P.C. Leave was granted by the Supreme Court of Pakistan to
consider as to whether a party could be non-suited on the ground that the amount was not
deposited within the time specified in the order and whether the amount was deposited
within extended time and further as to whether in view of the denial of agreement to sell the
order for deposit of amount was harsh. In the said case while considering the scope and
exercise of jurisdiction under section 22 of the Specific Relief Act, 1877 it was observed that
there was no provision in the said Act which on the filing of the suit caste a duty on the court
or required the vendee to deposit the balance sale consideration, however, since the relief of
specific performance was discretionary and could not be claimed as a matter of right,
therefore, the court in order to ensure the bona fide of the vendee at any stage of the
proceedings may put him to terms. It was held has under:
"8. Additionally, section 24(b) of the Specific Relief Act, 1877 details the contracts which
cannot be specifically enforced provides that specific performance of a contract cannot be
enforced in favour of a person who has become incapable of performing or violates, any
essential term of the contract that on his part remains to be performed. Therefore, the
vendee while seeking specific performance/ enforcement of a condition to be performed by
the vendor must state that either he has performed all the conditions which under the
contract he was bound to perform and/or that at all times right from the date of the
agreement down to the date of filing the suit he has been ready and willing to perform/fulfill
his part of the deal. He is not only supposed to narrate in the plaint his readiness and
willingness at all material time to fulfill his part of the agreement but also is bound to
demonstrate through supporting evidence such as pay orders, Bank statement or other
material, his ability to fulfill his part of the deal leaving no doubt in the mind of the Court that
the proceedings seeking specific performances have been initiated to cover up his default or
to gain time to generate resources or create ability to fulfill his part of the deal. It is in that
pursuit that the Court to weigh his capacity to perform and intention to purchase may direct
the vendee to deposit the balance sale consideration. The readiness and willingness on the
part of the vendee to perform his part of obligation also prima facie demonstrates that the
non-completion of the contract was not the fault of the vendee, and the contract would have
been completed if it has not been renounced by the vendor. Reference can be made to the
case of Abdul Hamid v. Abbas Bhai-Abdul Hussain (PLD 1959 (W.P.) Karachi 629)".
While considering the order of dismissal of suit in the said case it was observed that the
case of Hamood Mehmood supra was a leave refusing order which could not be held to be
an enunciation of law by the Supreme Court of Pakistan as it had been settled by the
Supreme Court in number of cases that an order granting and/or refusing leave is not a
judgment that decides a question of law and, therefore, it should not be followed necessarily
and imperatively. As to the order of dismissal of suit in the said case, it was observed that
the order impugned therein did not provide for any penal consequences in the event of
non-deposit and, therefore, the suit could not be dismissed. Relevant portion of the judgment
is as follows:
"12. Coming to the second limb of submission, the record reflects that the order dated
15.7.2018 of the trial Court whereby the appellant in the light of Hamood Mehmood case
(supra) was directed to deposit the remaining consideration did not provide any penal
consequences, on the contrary the suit was fixed for the evidence of the plaintiff, therefore,
in our opinion, the suit in the circumstances could not have been dismissed on account of
non-deposit "
It is manifest from the judgment referred supra, that as per observations therein 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.
11. No such clear, unambiguous and pointed warning was ever issued to the appellant in this
case as to explicitly notify the appellant of the penal effect of dismissal of suit. In the
circumstances we find that the order of dismissal passed by the learned Civil Judge in the
peculiar circumstances is not sustainable.
12. The instant appeal is, therefore, allowed. The impugned order of the Trial Court is set
aside. The case shall be deemed to be pending before the Civil Judge concerned where the
parties shall appear on 18.10.2021 for further proceedings. Learned counsel for the
appellant has undertaken that appellant shall deposit the balance sale consideration of
Rs.6,80,00,000/- within seven days. He is allowed to do so. The appellant is hereby put on
notice that in case of failure to deposit the said amount within seven days of the date of
appearance immediately hereinabove specified, his suit shall be deemed to be automatically
dismissed.
Sd/- Sd/-
(SHAHID KARIM) (RASAAL HASAN SYED)
JUDGE JUDGE
I have seen in draft the judgment of my learned brother, Rasaal Hasan Syed, J. and concur
in the conclusion drawn on the facts of the present appeal. In my opinion, however, a lot of
uncertainty surrounds the making of any order for deposit of balance sale consideration by
the plaintiff/vendee. The cluster of precedents relied upon by my learned brother brings forth
ineluctably that the deposit has to be made in all suits seeking specific performance of a
contract and the singular reason is to establish the good faith of the vendee to perform his
part of the obligation and to rule out frivolity and contumacy. This is, inter alia, culled out of
section 24(b) of The Specific Relief Act, 1877. 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):
2. 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.
3. 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.
ZH/I-24/L Appeal allowed
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