دعوی تکمیل معاہدہ میں بقیہ زر بیع جمع کرائے جانے کے حوالے سے سپریم کورٹ کا انتہائی معلوماتی فیصلہ

 2024 SCMR 1496

Section 24(b), Specific Relief Act, r/w Appx. "A", Form-47 of the 1st Sched., CPC

There is no provision under the Specific Relief Act to deposit balance sale consideration in Court unless so ordered

No doubt, the relief of specific performance of a contract is discretionary which cannot be exercised arbitrarily or unreasonably. There is also no skepticism that the person 03006762054seeking specific performance should demonstrate that he is all set and passionate to perform his part of obligation but the other side is avoiding the performance. Appendix "A" of the First Schedule of the C.P.C. focuses on the specimen and modules of pleadings in which Form-47 relates to the "Suit for Specific Performance". According to paragraph (3), a specific condition required to be incorporated in the plaint is that "The plaintiff has been and still is ready and willing specifically to03006762054 perform the agreement on his part of which the defendant has had notice". Initial burden lies on the plaintiff to show his willingness and readiness unequivocally and while asserting for any injunctive relief or otherwise, during the pending adjudication, the plaintiff may offer to deposit the balance amount in Court and at the same, the Court has to consider bona fide of the plaintiff i.e., whether he is ready and willing to perform his part of the contract and if the plaintiff does 03006762054not offer to deposit the balance sale consideration in Court, even then, the Court in order to determine and find out the seriousness or unseriousness or bona fide or mala fide of the plaintiff who lodged the claim of specific performance of contract, may pass the Order for depositing the amount in Court to protect the interest of the defendant as check and balance with a certain timeline for compliance of such order with adverse consequence on account of noncompliance within the stipulated time

The primary wisdom of the courts in 03006762054directing the plaintiff in a suit for specific performance to deposit the sale consideration in Court in fact conveys that the plaintiff/vendee has the capacity to pay the sale consideration or balance sale consideration and is ready and willing to perform his obligations arising from the contract which is a condition precedent for claiming relief of specific performance but there is no mandatory provision under the Specific Relief Act wherein, come what may, the plaintiff has to tender the outstanding sale consideration in Court at the time of instituting or presenting the plaint or even at the time of admission of the suit by the Court before03006762054 issuing summons to the defendant or defendants. So for all intent and practical purposes, the deposit of the sale consideration or balance sale consideration in the Court is not an automatic or precondition by fiction of law but there must be an order of the Court for deposit with certain timeline with repercussions of noncompliance, and in case of genuine and satisfactory grounds pleaded for noncompliance within the stipulated time, the Court, in exercise of powers conferred under Section 148, C.P.C., may extend and accord some reasonable time for compliance, 03006762054with or without cost, if a justifiable and satisfactory case for extension is made out.

At one fell swoop, a ground reality cannot be lost sight of that much debate is made on the effect and outcome of non-depositing the balance sale consideration in the Court with or without order of the Court or noncompliance of the order of the Court, but we cannot ignore that despite depositing the amount in Court, it is a matter of fact that several number of years are consumed to decide civil suits for specific performance of contract by the Civil Courts, specially relating to immovable properties (residential, commercial and industrial) at original side, and after decision, the remedies of appeals and revision are inaugurated and ultimately the litigation is concluded in this Court, and by that time, much water seems to have been flown under the bridge which creates serious frustration for both sides and, not only the amount deposited in Court but also the property, both03006762054 remain blocked for a considerable time. In the intervening period, if the performance of contract relates to the immovable property, the value of contractual price increases manifold which may not be found commensurate to the price deposited in Court despite adding to the profit on it if the amount ordered to be invested by the Court envisages some profitable scheme. So, in order to overcome such eventualities, what may the Court do? The first provision which may be invoked is provided under Order X, Rule 1, C.P.C., in which, at the first hearing of the suit, the Court can ascertain from each party 03006762054or his pleader whether he admits or denies such allegations of fact as are made in the plaint or written statement and can also record such admissions and denials and the substance of the examination shall be reduced to writing by the Judge, and shall form part of the record. Perhaps better sense will prevail upon the parties to resolve and settle the dispute at an early stage but if this provision is not worked out, then the Court may also persuade the parties to adopt the method of alternate dispute resolution and maybe, after proper mediation, they will patch up the dispute or issues cropped up between them which result in such time consuming litigation in the courts. At last, if no progress is made or the dispute is not mediated or resolved, then obviously the matter will revert back to the Court and for an early decision, the Court may expedite the settlement of issues and recording of evidence either in the Court or on an application of the plaintiff or defendant, or by consent of the parties, may 03006762054appoint a Commission with strict directions to complete the task of recording evidence religiously within the stipulated time frame which will ease and facilitate an early disposal of such matters. Some cases are related to the high stakes of commercial and industrial ventures and consortiums, where the public interest is also involved, therefore, the Courts ought to make some positive efforts with a dynamic and proactive approach to decide such category of cases on priority.

C.A.51-K/2021

Mr. Meer Gul v. Mr. Raja Zafar Mehmood & others