PLJ 2023 Lahore (Note) 31
Civil Procedure Code, 1908 (V of 1908)--
----S. 151--Specific Relief Act, (I of 1877), S. 12--Suit for specific performance--Sale agreement--Direction to deposit remaining sale consideration--Non-compliance of order--Review application--Dismissed--Order was not assailed--Suit was dismissed on next date of hearing--Penal consequences--Conduct of appellant--Challenge to--There was a clear warning by trial Court that in case of non-deposit of remaining sale consideration, no further adjournment shall be granted which means that appellant had to face penal consequences--Consequences of non-compliance of order was in knowledge of appellant--After dismissal of review application appellant did not consider it appropriate to challenge that order--Conduct of appellant with regard to performance on his part is not bonafide otherwise to establish his good intention he was supposed to make compliance of order of trial Court so as to establish further that whatever responsibility for non-enforcement of agreement was there, that was on shoulders of respondents--Appeal dismissed.
[Para 12, 13 & 14] A, B, C & D
Syed Muzamil Hassan Bukhari and Syed Tajammul Hussain Bukhari, Advocates for Appellants.
Pir Syed Muhammad Najam-ul-Husnain, Advocate for Respondents.
Date of hearing: 26.1.2022.
PLJ 2023 Lahore (Note) 31
[Multan Bench, Multan]
Present: Shakil Ahmad and Sohail Nasir, JJ.
Mian ABDUL RAUF QURESHI--Appellant
versus
Mst. NIGHAT NAZIR and 5 others--Respondents
R.F.A. No. 153 of 2021, decided on 26.1.2022.
Judgment
Sohail Nasir, J.--Mian Abdul Rauf Qureshi (appellant) had filed a suit for specific performance against Mst. Nighat Nazir and 5 others/respondents where he maintained that respondents agreed to sell their property to appellant for a consideration of rupees two hundred millions; later on certain payments were made to respondents from time to time and the remaining liability was of Rs. 165000000/- (sixteen crors and fifty lacs). According to him respondents were not ready to perform the obligations on their part so he had prayed for decree for specific performance.
2. On 31.03.2021, a direction was issued by the learned trial Court to appellant to deposit the remaining sale consideration in Court before next date of hearing. When that order was not complied with, appellant was given another opportunity vide an order dated 26.05.2021 with clear warning that no further chance shall be provided. It was then 29.05.2021, when appellant moved an application for recalling of order dated 26.05.2021 which was contested by respondents. The application was dismissed vide an order dated 31.05.2021 with direction to appellant to deposit the remaining sale consideration on or before 04.06.2021.
3. On the crucial date, that was 04.06.2021, when there was non-compliance of order, the learned Civil Judge Multan vide an order and decree dated 04.06.2021, in the light of principles laid down in “Hamood Mehmood vs Mst. Shabana Ishaque and others (2017 SCMR 2022)” dismissed the suit.
4. Being aggrieved from above order, appellant has approached this Court through the instant civil appeal.
5. Learned counsel for appellant contended that there was no justification for the learned trial Court to dismiss the suit because of non-deposit of balance sale amount keeping in view the principles laid down in “Muhammad Asif Awan vs Dawood Khan & others 2021 SCMR 1270”.
6. Appeal has been opposed by learned counsel for respondents.
7. HEARD.
8. The first order for deposit of remaining sale consideration was passed on 31.03.2021 which appellant did not bother to challenge. On 26.05.2021 there was no further direction except a chance given to appellant to make compliance of order dated 31.03.2021. Appellant through the application under Section 151 Cr.P.C instead of making a request for recalling of order dated 31.03.2021, asked for reversal of order dated 26.05.2021 and for that no valid reason has been shown during the course of arguments by learned counsel for appellant. Fact remains that the review application was dismissed on 31.05.2021 and even this order was not assailed independently by appellant who waited for the next date that was 04.06.2021 when his suit was dismissed.
9. We examined the referred case law relied by both the sides. In Hamood Mehmood’s case, the Honourable Supreme Court was pleased to hold as under:
“It is mandatory for the person whether plaintiff or defendant who seeks enforcement of the agreement under the Specific Relief Act 1877, that on first appearance before the Court or on the date of institution of the suit, it shall apply to the Court getting permission to deposit the balance amount and any contumacious/omission in this regard would entail in dismissal of the suit or decretal of the suit, if it is filed by the other side”
10. The study of Muhammad Asif Awan’s case shows that the facts were entirely different. In that case plaintiff, vide an order dated 15.07.2018, was directed to deposit remaining sale consideration. He challenged that order through a civil revision before the District Courts but could not succeed, however, the revisional Court extended the time for deposit of balance sale price till 12.10.2018. Before the trial Court, it appears that further extension was granted to plaintiff for deposit of balance sale price till 31.02.2018 which was made on 29.10.2018. Respondents in that case in fact challenged the order of trial Court granting extension of time through a civil revision which was dismissed. However, before the High Court both the orders were reversed and plaintiff was non-suited who approached the Apex Court and his appeal was allowed on the reasons that the order dated 15.07.2018 of the trial Court whereby the plaintiff was directed to deposit the remaining consideration did not provide any penal consequences, on the contrary the suit was fixed for evidence of plaintiff hence it could not be dismissed on account of non-deposit of remaining sale price. It was further held that unless the plaintiff would have been put to notice that the non-deposit of the balance sale price would be deemed to be his incapability of performing his part of the contract, rendering the contract non-enforceable, the suit could not have been dismissed. It was finally observed that the Court does not lose its jurisdiction to review its order by extending time for depositing the balance sale price.
11. The Apex Court in Muhammad Asif Awan’s case also referred to ‘Hamood Mehmood’s case where certain distinctions were made. However, it was observed that as in the said case it was the leave refusing order so it cannot be held to be enunciation of law by the said Court.
12. Taking guidance from the principles discussed above by the Apex Court, we have noticed that the impugned order and decree was not a surprise to appellant because on 26.05.2021 there was a clear warning by the trial Court that in case of non-deposit of remaining sale consideration, no further adjournment shall be granted which means that appellant had to face the penal consequences Even on 31.05.2021, when the application for review was dismissed, the learned trial Court categorically observed as under:
“The plaintiff’s side is again given absolute last and final opportunity for submission of remaining consideration amount in Court account till next date of hearing that is 04.06.2021. The plaintiff’s side is warned that no further opportunity will be granted in this regard. In case of failure, the suit of plaintiff shall stand dismissed due to non-depositing of remaining consideration amount”
13. The above referred order makes it clear that the consequences of non-compliance of the order dated 31.03.2021 was in the knowledge of appellant.
14. The conduct of appellant also cannot be ignored that he did not feel it necessary to take any exception to the order dated 31.03.2021 when he was first time directed to deposit the remaining sale consideration, by filing a revision. He simply opted to ask for review of that order that too by filing the application after two months that was on 29.05.2021. Ever after dismissal of review application on 31.05.2021, he did not consider it appropriate to challenge that order. All these facts clearly indicate that conduct of appellant with regard to performance on his part is not bonafide otherwise to establish his good intention he was supposed to make the compliance of the order of learned trial Court so as to establish further that whatever the responsibility for non-enforcement of agreement was there, that was on the shoulders of respondents.
15. In view of above circumstances we find no force in this appeal which is hereby dismissed.
(Y.A.) Appeal dismissed
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