Under Section 35 of the Specific Relief Act, 1877 (the “Act, 1877”) though the suit filed by the plaintiff for specific performance of an agreement to sell may stand................

 2023 MLD 404

Under Section 35 of the Specific Relief Act, 1877 (the “Act, 1877”) though the suit filed by the plaintiff for specific performance of an agreement to sell may stand decreed yet the contract may be rescinded through adjudication by the Court of competent jurisdiction.

As per the mandate contained in Section 35 CPC there are three occasions when the rescission may be adjudged. Two cases have been enumerated in subsections (a) and (b) of Section 35 of the Act, 1877, which are not relevant as far as the controversy in hand is concerned. The third situation is envisaged in subsection (c) of Section 35 of the Act, 1877, whereunder the Court may by order in the suit in which the decree has been made and not complied with, rescind the contract, either so far as regards the parties in default, or altogether as the justice of the case may require.

The learned Trail Court while decreeing the suit for specific performance of the agreement to sell unequivocally imposed a condition on the Petitioner to pay (i) remaining sale consideration in the amount of Rs.30,000/-; (ii) the period stipulated for deposit of said amount was two months from the date of Judgment and Decree; and (iii) the consequence of non-payment was held as „the suit of the plaintiff shall be deemed to be dismissed‟.

While applying the test laid down in the preceding paragraph it is held that till the time stipulated therein the subject matter Decree was preliminary in its effect and scope, but as soon as the said period lapsed the Decree which entailed a penal clause became final and conclusive as no further steps are contemplated to be taken by the learned Trial Court and at the time of filing of subject matter Application more than three and half months had lapsed and the Court had become functus officio.