PLJ 2025 Lahore 1016
Present: Anwaar Hussain, J.
Ch. JANG SHER--Petitioner
versus
AMANAT ALI--Respondent
C.R. No. 17850 of 2019, decided on 23.1.2025.
Specific Relief Act, 1877 (I of 1877)--
مقدمہ برائے تعمیل مختص معاہدہ بیع--زرِ بیع کی جمعگی--مشروط ڈگری--بقیہ زرِ بیع--اپیل، عدالت کا اختیار--تنسیخ یا توسیعِ میعاد، تعلیقِ شرط-- درخواست گزار نے مدعا علیہان کے خلاف مقدمات دائر کیے تھے، جن کی ڈگری مشروط طور پر بقیہ زرِ بیع جمع کرانے سے مشروط تھی کیونکہ وہ یہ ثابت کرنے میں ناکام رہے کہ مدعا علیہان نے بقیہ زرِ بیع کی پوری رقم وصول کر لی ہے۔ ٹرائل کورٹ کے فیصلوں کے خلاف مدعا علیہان نے کوئی اپیل دائر نہیں کی--درخواست گزار کا موقف تھا کہ دفعہ 35 (c) قانون تعمیل مختص کے تحت، جس معاہدہ بیع کی بنیاد پر درخواست گزار نے مقدمہ دائر کیا اور ڈگری پاس ہوئی، اس میں فیصلہ کنندہ مقروض معاہدہ کی تنسیخ کے لیے درخواست دینے کا پابند تھا۔ عدالت کی رائے تھی کہ محض مشروط ڈگری کے خلاف اپیل دائر کرنا، بذات خود اس کے ساتھ منسلک شرط کی معطلی کے مترادف نہیں ہے اور ڈگری ہولڈر بقیہ زرِ بیع جمع کرانے سے بری الذمہ نہیں تھا جب اس شرط کی تعمیل میں ناکامی کے نتائج خود ڈگری میں بیان کیے گئے تھے جس سے مذکورہ ڈگری حتمی ہو گئی۔--معاملے پر آخر میں بحث کی گئی، جس سے ظاہر ہوا کہ درخواست گزار فریق کبھی بھی فریقین کے مابین معاہدہ (جات) بیع کے تحت اپنے حصے کی شرائط پوری کرنے کے لیے تیار اور راغب نہیں تھا اور کسی نہ کسی بہانے معاملے کو طول دیتا رہا-- نظرِ ثانی برائے دیوانی خارج کر دی گئی۔
----S. 35(c)--Suit for Specific Performance of agreement to sell--Deposit of Sale Consideration--Conditional Decree--Balance Sale Consideration--Appeal Power of Court--Rescission or Extension of Time Suspension of Condition--Petitioner had instituted suits against respondents, which were decreed subject to deposit of balance sale consideration as he failed to establish that respondents had received entire amount of balance sale consideration. Against judgments of Trial Court, respondents did not prefer any appeal--It was case of petitioner that in terms of Section 35(c) of the Specific Relief Act, where agreement to sell on basis of which petitioner had instituted suit and decree had been passed, judgment debtor was obligated to apply for rescission of contract--Court was of opinion that mere filing of appeal against a conditional decree, by decree holder, in itself did not amount to suspension of condition attached thereto and decree holder was not absolved from depositing balance sale consideration when consequences of his failure to comply with condition were specified in decree itself making said decree final.-matter was finally argued, which depicted that petitioner side was never ready and willing to perform his part of contract under agreement(s) to sell between parties and kept on lingering matter on one pretext or the other--Civil revision dismissed.
[Pp. 1019, 1020 & 1023] A, B, C & D
2007 SCMR 1464; PLD 2004 SC 790 & PLD 1966 SC 983 ref.
Mr. Muhammad Yaqoob Sidhu, Advocate for Petitioner.
Ch. Muhammad Akbar Warraich, Advocate for Respondent.
Date of hearing: 23.1.2025.
Judgment
Through this single judgment, the present as well as connected Civil Revision bearing No. 17857/2019 are being simultaneously decided. Although both the petitions emanate from separate proceedings conducted in two different suits, instituted by the petitioner, against two different individuals, however, common question of law is involved therein. The present petition emanates from the suit instituted by the petitioner, against Amanat Ali son of Ghulam Sarwar (deceased), for specific performance of agreement to sell, whereas in connected civil revision, a similar suit was instituted by the petitioner against deceased Ghulam Sarwar, who expired during the pendency of the proceedings.
2. By way of factual background, it has been noted that the petitioner instituted suit for specific performance based on an agreement to sell dated 26.03.2009, with the averment that the respondent entered into said agreement with the petitioner in respect of plot measuring 03 marla, fully described in para 1 of the plaint of the suit against present respondent, for total consideration of
Rs. 100,000/-, out of which a sum of Rs. 50,000/-was paid as earnest money and the remaining amount was agreed to be paid on or before 08.05.2009; that on 12.05.2009, the respondent received the balance sale consideration of Rs. 50,000/-in presence of Ghulam Sabir, however, when the petitioner asked to execute registered sale deed in his favour, the respondent refused. The suit was contested. After framing of issues and recording of evidence pro and contra, the suit of the petitioner was decreed, vide judgment and decree dated 23.02.2015, with direction to the petitioner to deposit remaining sale consideration of Rs. 50,000/-, within thirty days.
3. The connected civil revision arises out of the suit for specific performance, instituted by the petitioner with the averment that the deceased predecessor of the respondents therein, namely, Ghulam Sarwar agreed to sell a plot measuring 07 marla, fully described in para 1 of the plaint, to the petitioner through agreement to sell dated 26.03.2009 for total consideration of Rs. 350,000/-, out of which a sum of Rs. 50,000/-was paid as earnest money and remaining amount was agreed to be paid on or before 08.05.2009; that on 12.05.2009, deceased Ghulam Sarwar received the balance sale consideration of Rs. 300,000/-in presence of Ghulam Sabir, however, when the petitioner asked to execute registered sale deed in his favour, the deceased Ghulam Sarwar refused. This suit was also contested. After framing of issues and recording of evidence of the parties, the suit of the petitioner was decreed, vide judgment and decree dated 23.02.2015, with direction to deposit remaining sale consideration of Rs. 300,000/-, within thirty days.
4. The respondents’ side did not lay challenge to the findings of the Trial Court rendered in the suits. The petitioner preferred appeals in which he also filed an application, on 30.01.2019, for extension in time for deposit of the balance sale consideration. However, both the appeals, preferred by the petitioner, were dismissed, vide separate judgments and decrees dated 13.02.2019, on the ground that he failed to pay the balance sale consideration. Hence, these civil revisions.
5. Learned counsel for the petitioner, inter alia, contends that both the Courts below erred in deciding the point of payment of balance consideration as the petitioner proved that he paid the balance sale consideration. Adds that even otherwise, once appeals were preferred, the decree(s) were under challenge and the petitioner was not obligated to deposit the balance sale consideration. Additionally, it has been contended that the petitioner had established bona fides by offering to deposit the same and also moved applications for extension of time before the Appellate Court below, which have been erroneously dealt with and law on the subject has neither been properly appreciated nor applied, and in this regard, reference has been made to Section 35 (c) of the Specific Relief Act, 1877 (“the Act”). Further contends that once the appeals were preferred by the petitioner, the conditional decree(s), being preliminary in nature, were in fact the contract(s) between the parties and the Appellate Court below had the power to extend the time for payment of balance consideration as the respondents did not apply for rescission of the same, which power has not been exercised erroneously.
6. Conversely, learned counsel for the respondents has supported the impugned judgments and decrees of the Appellate Court below.
7. Arguments heard. Record perused.
8. The petitioner instituted the suits against the respondents, which were decreed subject to deposit of balance sale consideration as he failed to establish that the respondents received the entire amount of balance sale consideration. Against the said judgments of the Trial Court, the respondents did not prefer any appeal. No misreading or non-reading of evidence could be pointed out by learned counsel for the petitioner to substantiate that the petitioner paid the entire sale consideration to the present respondent or the deceased Ghulam Sarwar, before instituting the suits against them. Hence, in the light of arguments advanced before me, only following legal question requires opinion of this Court:
“Whether filing of appeal against a conditional decree, by the decree holder, in itself amounts to suspension of the condition attached thereto and the decree holder is absolved from depositing the balance sale consideration?”
Before addressing the legal question formulated hereinabove while reappraising the record, it will be appropriate to examine the nature of the decree(s) passed in favour of the petitioner in suits against the respondents and scope of Section 35(c) of the Act.
9. Learned counsel for the petitioner has pleaded that unless the respondents apply for rescission of the agreements to sell on the basis of the which the petitioner instituted the suits and decrees were passed and/or cancellation of the decrees, the petitioner has right to seek enlargement of the time to deposit the sale consideration and the Appellate Court below was empowered to grant the same, keeping in view Section 35 of the Act, which reads under:
“35. When rescission may be adjudged. Any person interested in a contract in writing may sue to have it rescinded and such rescission may be adjudged by the Court in any of the following cases, namely:
(a) …. ;
(b) …..;
(c) where a decree for specific performance of a contract of sale, or of a contract to take a lease, has been made and the purchaser or lessee makes default in payment of the purchase-money or sums which the Court has ordered him to pay.”
It is the case of the petitioner that in terms of above quoted provision of law, where the agreement to sell on the basis of which the petitioner institutes the suit and the decree has been passed, the judgment debtor is obligated to apply for rescission of contract on the basis of which the decree is passed. Scope of Section 35(c) came under discussion in case of Tasneem Ismail and others v. M/s. Wafi Associates and others (2007 SCMR 1464), and while examining catena of judgments, the Supreme Court of Pakistan has held as under:
“11. … If, however, the decree directs that in the event of default of deposit within the time fixed the suit shall stand dismissed, the Court would be incompetent to extend the time. In such a case it will be deemed that the Court has also, in substance, passed an order of rescission of contract as contemplated by the concluding portion of section 28(1)’. With regard to the nature of a decree in a suit for specific performance and the scope of Section 35 of the said Act, this Court took a similar view in Shabbir Ahmed and another Zahoor Bibi and others PLD 2004 SC 790. While accepting the appeals the Court extended time for deposit of sale consideration holding that the decree in a suit for specific performance is a preliminary decree partaking the nature of a contract that the Court is still seized of the lis and could extend time for deposit of sale consideration or rescind the contract in terms of Section 35(c) of the Specific Relief Act, this Court observed as follows:
Perusal of Section 35(c) clearly indicates that even after passing of decree, the Court possesses the power to rescind the contract and consequently set aside the decree, which it had passed earlier. Irresistible conclusion, therefore, would be that a suit, which was once decreed, could be dismissed again if the case falls within the scope of Section 35(c). The main characteristic of Section 35 is that the Court has been empowered to rescind or not to rescind the contract, despite the fact that decree has already been passed. If still the Court permits the decree to remain operative, certainly the time could be extended. Normally in a civil suit after passing of decree, the proceedings come to an end. In a suit for specific performance, the situation is different and if the case falls under clause (c) of Section 35, still the order of rescission can be passed. This brings it within the scope of preliminary decree, as further proceedings, as a rule, are to be taken before a suit could be completely disposed of. Besides, such decree itself assumes the characteristics of a contract, whereby certain acts are yet to be performed, including depositing of the purchase price, cost of purchase price of necessary stamps for execution of conveyance deed, the seller has also to put his appearance for signing conveyance deed, to receive the purchase price, etc.”
(Emphasis supplied)
From the ratio laid down in case of Tasneem Ismail supra, it is well-evident that generally, a decree in a suit for specific performance of agreement to sell is to be treated as preliminary decree and scope of the same is in the nature and character of a contract where the vendor has to deposit the balance sale price, cost of purchase of necessary stamp papers for the execution of the conveyance deed while seller remains under the obligation to appear before the Court to sign the conveyance deed and receive purchase money, hence, in such an eventuality, the decree is not final. However, in cases where the decree is passed by the Court concerned, subject to imposition of a condition, inter alia, by stipulating time for deposit of balance sale consideration and also specifying the consequences of any default in respect thereof, in such an eventuality, the decree is final and if the decree holder fails to comply with the condition, the time stipulated for fulfillment of the condition expires, the penal consequences contemplated through the said decree become self-operative and the decree is to be treated as final. Case reported as “Shah Wali v. Ghulam Din alias Gaman and another” (PLD 1966 SC 983) is referred in this regard. The Supreme Court held as under:
“The real test, in my view, is whether the decree has been made in such terms as to indicate that operate automatically or whether the Court has still retained some control over the litigation. An examination, therefore, has, to be made of the precise terms used in the decree. In the present case, the decree of the trial Court used the words that in the event of default the suit “will be dismissed”. These are not words of automatic operation, for, they contemplate a further order dismissing the suit. But the District Judge in the appellate decree made good this defect by stating that in the event of default the suit “will be treated as dismissed”. These words were capable, in my view, of operating automatically without any further order by the Court.”
In view of the dicta laid down in case of Shah Wali, supra, it is well evident that if consequence of non-fulfillment of the condition contained in the decree passed in a suit for specific performance has been provided for an automatic dismissal or rescission of the contract, nothing is left to be performed by the Court, whether it is the Trial Court or the Appellate Court. Putting it otherwise, the judgment debtor is not obligated to seek rescission.
10. Having above legal position in sight, the decree(s) passed in the present cases as also the proceedings before the Appellate Court below need to be examined. Following relief was granted to the petitioner and decree sheets, in both cases, were accordingly chalked out:
“12. In view of my finding on above issues, instant suit is hereby decreed in favour of the plaintiff, plaintiff is directed to deposit remaining consideration amount
Rs. 50,000/-within thirty days before the Court otherwise agreement shall deem to be rescinded.”
(Emphasis supplied)
A period of 30 days was given by the Trial Court, in both the cases, with clear warning that in case the needful is not done, the agreement(s) shall be deemed to be rescinded. A lot of emphasis has been laid on the point that the appeal is continuation of suit and it was obligatory on part of the Appellate Court below to extend time for deposit of the balance sale consideration. There is no cavil to said legal position, however, the argument is misconceived keeping in view the peculiar facts and circumstances of the case. It is also admitted feature of the case that the petitioner preferred appeals in both the cases on 21.03.2015 and did not fulfill the condition by depositing the balance sale consideration in both the cases. Along with the appeals, separate applications seeking suspension of the impugned judgments and decrees to the extent of payment of balance amount were also filed. Through order dated 17.04.2015, the appeals were admitted for regular hearing, however, no injunctive order was passed with respect to suspension of the impugned judgments and decrees of even date, i.e., 23.02.2015. The petitioner never agitated implicit refusal of the Appellate Court below to pass any injunctive order before the Appellate Court below or approached any higher forum. This Court is of the opinion that mere filing of appeal against a conditional decree, by the decree holder, in itself does not amount to suspension of the condition attached thereto and the decree holder is not absolved from depositing the balance sale consideration when the consequences of his failure to comply with condition is specified in the decree itself making the said decree final.
11. There is another angle from which the present and the connected civil revision can be examined. Record depicts that during the pendency of the appeals before the Appellate Court below, approximately, 31 opportunities were granted to the petitioner side to advance arguments between 17.04.2015 till 13.05.2017 but the needful was not done. On 13.05.2017, the petitioner filed applications before the Appellate Court below, in his appeals, while taking a somersault that he filed separate applications before the Trial Court for the purpose of payment of balance amount but the said applications have been misplaced, which may be traced. The said applications were dismissed, vide orders dated 02.06.2017 (in both cases), operative part whereof read as under:
“4. No any photo copy or attested photo copy of the order of the learned trial Court is attached with the petition, so how it can be said that appellant filed any application or Learned Trial Court passed any order? Whole contention of the appellant is oral, which has no force in the eye of law. Petition being merits less is dismissed.”
Orders dated 02.06.2017 were not assailed by the petitioner before any higher forum. Thereafter, again, the petitioner was granted number of opportunities to advance arguments on the appeals and after availing about 64 adjournments, the matter was finally argued, which depicts that the petitioner side was never ready and willing to perform his part of the contract under agreement(s) to sell between the parties and kept on lingering the matter on one pretext or the other. Hence, he is not entitled to any equitable relief and the Appellate Court below has correctly passed the impugned judgment and decree.
12. In view of the above, the present as well as connected Civil Revision No. 17857/2019 have no merits. Hence, the same are dismissed.
(J.K.) Civil revision dismissed
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