-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--

 P L D 2022 Lahore 372

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.

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.

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.