PLJ 2004 Lahore 372

Present: muhammad muzammal khan, J. Haji ABDUL LATIF and 4 others-Petitioners

versus

ATEEQ AHMAD and 3 others-Respondents C.R. No. 554 of 2003, decided on 13.10.2003. (i)

Civil Procedure Code, 1908 (V of 1908)--

—- S. 2-Specific Relief Act, 1877 (I of 1877), S. 12-Preliminary decree in suit
for specific performance when becomes final-Preliminary decree for
specific performance would become final when same mandates that suit
of plaintiff would stand dismissed, in case, amount required to be
deposited was not deposited within time specified by such decree, on the
date when time so specified expires-Till such time preliminary decree
becomes final, Court passing same would keep seizin over lis and can
extend time but not thereafter. [P. 375] A

(ii) Specific Relief Act, 1877 (I of 1877)--

—S. 35-Object, Scope and import of S. 35, Specific Relief Act 1877-Party
Committing default under decree would have to face rescission of
contract on which specific performance had been granted or for
cancellation of decree itseSi-Trial Court while specifying date for deposit
of outstanding amount had placed rider of dismissal of suit in case of non
payment of decretal amount-Plaintiff having failed to make deposit on
specified date, his suit stood dismissed and, thereafter, nothing remained,
pending before trial Court to exercise jurisdiction under S. 148 C.P.C. for
extending time for deposit of amount in question-Extension of time in
terms of S. 148 C.P.C. for depositing amount in question, one year after
decree had become final was unlawful, without jurisdiction and void and
same was set aside. [P. 375, 376 & 377] B, C, D & E

AIR 1958 Allahabad 488; 1992 MLD 31; PLD 2002 Lahore 176; 2000 CLC 1633; 2002 MLD 1010 and PLD 1997 Lahore 177, ref.

Mr. Iftikhar Ahmad Dar, Advocate for Petitioners. Mr. Jehangir A. Jhoja, Advocate for Respondents. Date of hearing : 13.10.2003.

order

This revision petition assails an order dated 25.3.2003, passed by the learned trial Court, extending time for deposit of decretal amount of Rs. 1,55,00,000/- till 24.4.2003, on application of the respondents.

2. A short factual background of the case is that the petitioners were
the owner of Property No. 120-A, Peoples Colony, Faisalabad, land
underneath measuring 4 kanals 1 marlas 130 Sq. Ft. He entered into an
agreement to sell this property to respondent for an amount of
Rs. l,85,00,000/_:, through an agreement to sell dated 5.1.2000 and received
an amount of Rs. 30,00,000/- as earnest money. Time for execution of the
sale-deed was fixed by the agreement as 31.7.2000, at which time; the
remaining amount was to be paid by the Respondent No. 1. The petitioners
issued a telegraphic notice to the respondent, requiring him to perform his
part of the contract under the agreement dated 5.1.2000 and instead of
responding to the notice, he, on 12.8.2000, filed a suit for specific
performance of the agreement before the learned Civil Judge, Faisalabad!
The petitioners, being defendants in the suit, on 9.9.2000 filed an application
before the learned Civil Judge that the respondent be required to make
remaining payment under the above referred agreement and on such
payment his suit may be decreed. The Respondent No. 1 appear to have been
delaying the payment, as he did not accept the offer of the petitioners,
immediately and requested for time to file a reply to the application moved
by the petitioner. On the adjourned date, the respondent moved some
application seeking amendment of the paint but ultimately, his -suit was
decreed on 28.2.2001, in view of the concessional written statement filed by
the petitioners. The learned trial Court, viewing that a huge amount is to be
paid by the Respondent No. 1, granted him two months time and fixed the
date as 30.4.2001 for the deposit of an amount of Rs. 1,55,00,000/- and also
observed that if the Respondent No. 1 fails to pay the remaining sale price
till the above mentioned date, his suit will be considered as dismissed.

3. One Muhammad Anwar Respondent No. 4 filed an application
under Order I, Rule 10 CPC, seeking his impleadment to the suit, inspite of
the fact that he was a stranger to the agreement to sell between the
petitioners and Respondent No. 1. This Muhammad Anwar based his claim
of impalement on some- agreement, allegedly executed between him and
Respondent No. 1. This application was dismissed by the learned trial Court
and his revision petition (C.R. No. 898 of 2001) was also dismissed by this
Court vide judgment dated 27.4.2001.

4. The respondent Attiq Ahmad did not comply with the decree
dated 28.2.2001 and did not deposit the decretal amount within the time
specified by the decree and after a lapse of more than a year, opted to file an
application under Section 148 CPC seeking extension of time fixed by the
decree passed by the learned trial Court. This application was moved on
29.3.2002 before the learned District judge, as the learned Civil Judge, who

had passed the decree, had transferred. The application of the respondent for extension for time was taken up by the learned Civil Judge, to whom it was marked by the learned District Judge, who after obtaining written reply from the petitioners, accepted the same, granted the Respondent No. 1, one month's time for the deposit of the decretal amount in the following words:--

"The time is finally extended for 30 days i.e the applicant shall deposit the balance decretal amount of 1,55,00,000/- by 24.4.2003, failing which his suit shall stand dismissed with costs."

5. The learned counsel for the petitioners submits that due to
failure of the Respondent No. 1 to deposit the decretal amount in terms of
decree dated 28.2.2001 within the specified period,*his suit had already been
dismissed and there was no Us pending before the learned trial Court and
thus neither provision of Section 148 CPC could be invoked nor any such
jurisdiction could have been exercised by the learned Civil Judge, as it had
become functus officio. He further submits that the Respondent No. 1 was
not ready to pay the money and thus was not in a position to perform his
part of contract under the agreement to sell dated 5.1.2000 and that is why
he instead of making the payment in response to the telegraphic notice by
the petitioner, filed a suit for specific performance and then on an
application, filed by the petitioner, he kept on delaying the matter of
payment on one pretext or the other and ultimately, his suit was decreed on
petitioner's concession. He did not comply with it and thus was not entitled
to any indulgence by the Courts. The learned counsel for the petitioners
elaborated his submissions by saying that the application seeking extension
of time was filed after a lapse of a period of more than a.year and that too on
the basis of false averments, which do not make out a case for extension of
time under Section 148 CPC. He summarized his arguments by saying that
order passed by the learned Civil Judge is absolutely without jurisdiction-
and thus is not sustainable at law.

6. The learned counsel for the respondent controverting the
submissions of the learned counsel for the petitioners, submitted that decree
in suit for specific performance is always preliminary in nature and the
Court passing it retains power to extend time fixed by such decree. He
referred to Section 35 of the Specific Relief Act to contend that the decree in
a suit for specific performance is always preliminary in nature. The learned
counsel for the respondent also relied on judgments in cases of Someshwar
Dayal and others Vs. Widow of Lalman Shah and others (AIR 1958
Allahabad 488) and Amjad Malik Vs. Muhammad Saleem and 5 others (1992
MLD 31) in support of his contentions.

7. I have given an anxious thought to the arguments of the learned
counsel for the parties and examined the record appended with this petition.
Controversy regrading nature of decree passed in a suit for specific
performance has been put to rest by chain of judgments and by this time
there is no controversy regarding the fact that such decree is preliminary in

nature. Reference can be made to the cases of Dr. Iftikhar Ahmad Zahid Vs. Mrs. Neelofar Akhtar & another (PLD 2002 Lahore 176), Nisar Ahmad Vs. Muhammad Yousuf (PLD 1994 Lahore 280), Maj (Rtd.) Hamid All Khan Vs. Main Muhammad Anwar (2000 CLC 1633) and Ahmad Yar Vs. Abdul Razzaq and 2 others (2002 MLD 1010).

8. A preliminary decree in a suit for specific performance becomes
final when it mandates that suit of the plaintiff will stand dismissed, in case
the amount required to be deposited, is not deposited within the time
spfecified by it, on the date when such time expires. Till the time such decree
becomes final, Court passing it, keeps seizin over the lis and can extend time
but not thereafter.

9. Relevant part of the judgment and decree dated 28.2.2001 passed
by the learned trial judge reads as follows:—

"I hereby decree the suit of the plaintiff by accepting the application of the defendants and he is directed to pay the remaining sale price of Rs. 15.5 million (Rs. 1,55,00,000/-) within a period of two months i.e. till 30.4.2001. If the plaintiff fails to pay the remaining sale price till the above mentioned date, his suit will be considered as dismissed."

.10. Section 35 of Specific Relief Act shows that party committing default under the decree will have to face rescission of the contract on which specific performance had been granted or for cancellation of the decree itself. In our countiy it is usual that Courts, at the time of passing of decree in suit for specific performance, fix time for deposit of the amount payable under the agreement and also attached a rider to the effect that in case of failure of the plaintiff to deposit the decretal amount, his suit will be deemed to have been dismissed. A similar situation arose in the case in hand and the learned trial Court while required Respondent No. 1 to deposit the amount 'payable under the agreement and ordered that in case of failure, his suit will be deemed to have been dismissed. This condition though was according to the provisions of Section 35 of the Specific Relief Act, I will deal with it in the latter part of this judgment, yet it was a part of the decree passed and had its effect in the nature of the dismissal of the suit of the Respondent No. 1. It remains a fact that Respondent No. 1 did not appeal against the decree dated 28.2.2001 fqr annulment of its' this part and has become final inter parties. On Court's query as to how this part of the decree can be avoided, set aside or ignored, the learned counsel for the Respondent No. 1 only referred to provisions of Section 35 of the Specific Relief Act and contended that inspite of this direction, the learned trial Court had the jurisdiction to extend the time. I am not in a position to see an eye to eye with him, because I am clear in my mind that the suit of the Respondent No. 1 stood dismissed by the force of decree dated 28.2.2001 itself, and unless and until this decree was set aside by any Court of competent jurisdiction it will have its course. Now under this decree suit of the respondent stood dismissed on 30.4.2001, the last date till which he could make the depooit but failed and thereafter there was nothing pending before the learned trial Court to exercise jurisdiction under Section 148 CPC, which provision of law is only available in the pending matters. Looking the case from another, angle, I am of the view that interpretation offered by the learned counsel for the respondents, would lead to uncertainty, as these unbridled powers of extension, inspite of dismissed of suit, would put the defendants in a ditch whereas law treats both the parties at equal pedestals. Extension of time after long time, also creates hardships, as in the instant case it has been extended after a year.

10-A. Determining this case on the touchstone of Section 35 of the Specific Relief Act 1877, it is clear that this provision of law does not preclude the Court from fixing date for payment of the price payable under the agreement and simultaneously ordering that the suit, in case of default in payment, would stand dismissed. As a matter of fact by attaching rider of dismissal of the suit in case of non-payment of decretal amount, the Court, before hand, indicates in terms of Section 35 of the Act ibid, its intention to rescind agreement on the failure of the plaintiff and would entail rescission of the contract, in form of dismissal of suit. My this view is supported by two judgments in the cases of Muhammad Ismail Vs. Muhammad Akbar Bhatti and 5 others (PLD 1997 Lahore 177) and Amjad Malik Vs. Muhammad Saleem and 5 others (1992 MLD 31).

11. Adverting to the application, filed by the Respondent No. 1 under Section 148 CPC, I must observe that, it does not at all furnish sufficient cause for extension of time. In Para 4 of this application,' Respondent No. 1 asserts that he contacted the petitioners with a request to accept the decretal amount of Rs. 1,55,00,000/- but they after promising to ' receive the amount, refused to receive the same, a day before filing of this petition. This assertion of the Respondent No. 1 is negated by the conduct of the parties apparent on the face of the record. The petitioners had given a telegraphic notice to the Respondent No. 1 requiring him to make the balance payment in terms of agreement dated 5.1.2000, but he did not respond and instead thereof filed a suit for specific performance, wherein again, they, on 9.9.2000, filed an application showing their willingness to accept the payment under the agreement but Respondent No. 1 kept on delaying the matter of payment by requesting the Court to give him time for filing the reply to the application and then moved another application for amendment of the plaint and lastly could not make the payment under the decree dated 28.2.2001 inspite of a sufficient time of two months fixed by the decree and still awaited for another year after passing of the decree, to move application for extension of time. If at all the jurisdiction under Section 148 CPC vested in the trial Court that was to be exercised judicially by comprehending the entire dispute between the parties and could not have been invoked arbitrarily or fancifully, taking away the valuable rights, which had accrued to the petitioner by lapse of time (almost a year). On this score, as well, I am of the considered view that order extending time, which otherwise is without jurisdiction, as observed above, is not sustainable at law.

12. From what has been discussed above, I conclude that the j learned Civil Judge was not equipped with any jurisdiction to extend the time for deposit of money under a decree, on the force of which, suit of the respondent has already been dismissed and there was nothing pending before the learned Civil Judge to invoke the provisions of Section 148 CPC. Order dated 25.3.2003 passed by the learned Civil Judge, extending time for deposit of money under the decree dated 28.2.2001 is unlawful, without jurisdiction and void, thus, the same is set aside. This Civil revision succeeds and application, filed by the respondent on 29.3.2002, praying extension of time for deposit of remaining sale price is dismissed with costs.

(A.A) Revision accepted.