PLJ 2004 Lahore 96

[Rawalpindi Bench Rawalpindi]

Present: MAULVI ANWAR-UL-HAQ, J. Mst. SULTANA BEGUM-Petitioner

versus

Mst. SADIQA BEGUM-Respondent C.R. No. 148 of 2002, heard on 16.5.2003.

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

—-S. 12-Civil Procedure Code (V of 1908), S. 148-Application for extension of time was granted by merely referring to "certain difficulties", details of which were neither available in application for extension of time nor in the impugned order of CoMit-Sine-qua-non for grant of discretionary relief of specific performance is that party must always be ready and willing to perform its part of contract-Part to be performed by plaintiff

was payment of balance amount-Prayer made in application seeking extension of time was negation of condition precedent for grant of such relief-Impugned orders of Courts below in extending time for deposit of balance amount was set aside and plaintiffs suit was dismissed.

[P. 100 & 101] A

PLD 1967 Dacca 557; 1999 MLD 1466; PLD 1994 Lahore 280; 1984 Law Notes (Lah.) 1339, 1987 CLC 1682; 1992 MLD 31 and PLD 1997 Lahore 177 ref,

Raja Imran Aziz, Advocate for Petitioner.

Mr. Sanaullah Zahid, Advocate for Respondent.

Date of hearing : 16.5.2003.

judgment

On 22.10.1997 the respondent filed a suit for specific performance of an agreement to sell the suit house executed in her favour by the petitioner on 14.4.1996. The consideration amount was Rs. 6,40,000/-. A sum of Rs. 50,000/- was paid as earnest money while balance amount of Rs. 5,90,000/- was to be paid within six months. It was also stated that on 14.10.1996 a further sum of Rs. 50.000/- was paid, leaving balance of Rs. 5,40,000/-. The petitioner took plea that she was always ready and willing to perform her part of contract but the respondent did not pay her balance of consideration amount. The parties went to trial and issues were framed. The suit was decreed vide judgment and decree dated 15.9.2001, in the following terms :--

"The suit of the plaintiff is decreed. The plaintiff is under obligation to deposit rest of consideration of amount i.e. Rs. 5,40,000/- within 30 days, failing which her suit will be dismissed automatically."

On 13.10.2001 the respondent filed an application before the learned trial Court seeking extention of time for deposit of balance amount for 3 months on following grounds :--

"Due to certain difficulties she is not in position to deposit the said amount as per order dated 15.9.2001."

The petitioner resisted the said. application and filed a written reply. Vide order dated 9.2.2002 "the learned trial Court proceeded to extend time upto 16.2.2002 for the said deposit.

1. , Learned counsel for the petitioner contends that the learned trial Court after passing the said decree had become functus officio and as such could not have extended time. Further contends that the time has been extended without any reason stated either by the respondent or by the learned trial Court. He refers to some judgments which pertain to preemption decree. Learned counsel for the respondent, on the other hand, with

98 Lah. Mst. sultana begum v. mst. sadiqa begum PLJ

(Maulvi Anwar-ul-Haq, J.)

reference to the cases of Asraf All alias Asrafuddin Mondal and another u. Bayla Hasda and others (PLD 1967 Dacca 557), Asim Hussain Qadri u. Muhammad Umar (1999 MLD 1466), Nasir Ahmad v. Muhammad Yousaf (PLD 1994 Lahore 280), Muhammad Riaz Qamar u. Umar Din etc. (1984 Law Notes (Lah.) 1339) and Nizam-ud-Din and 13 others v. Ch. Muhammad Saeed (1987 CLC 1682) contends that a decree in a specific performance suit notwithstanding the default clause still remains a preliminary decree and Court passing it does not lose seizen over the matter and can extend time.

3. I have given some thoughts to the respective contentions of the
learned counsel for the parties. No douht ratio of the said judgments being
relied upon by the learned counsel for the respondent is that a Court passing
the specific decree with condition that the suit shall be dismissed in case the
amount is not deposited within stipulated time, remains seized of the matter
and can extend time. I may further note here that in the said case of "Asim
Hussain Qadri" the case was remanded back by this Court for of the decision
of application on merits. In the said case of "Nazim-ud-Din & 13 others" the
said direction contained in the decree was suspended on the application of
the defendant himself while applying for setting aside of the said decree and
while dismissing the application the time was extended which was upheld by
this Court. In the said case of "Muhammad Riaz Qamar" a writ petition was
filed in the circumstances that initially the time for deposit was not stated in
the decree. An application was filed by the defendant that the plaintiff had
not deposited price. It was noted by the Court a date for deposit has not been
given and thereafter by consent a date was fixed. Against this order a review
was filed which was dismissed. A revision was dismissed by the learned
District Judge. Thereafter the learned Civil Judge recorded a formal order of
dismissing the suit for non-compliance of the said condition. The writ
petition was dismissed by this Court on the ground that an appeal is
competent and let an appeal be filed. In the said Dacca ca^e the facts of the
fiase are not available. However, the proposition affirmed was that the time
can be extended.

4. Now coming to the said case of "Nasir Ahmad" (PLD 1994 Lahore
280). It may be noted that this is the case that has been relied upon by the
learned trial Court while passing the impugned order. In this case a decree
was passed subject to deposit of the balance consideration by or before
20.7.1993 failing which the suit was to stand dismissed. The application filed
by the decree-holder on 29.7.1993 (i.e. when the date for deposit had gone
by) for extension or time was dismissed by the learned trial Court holding
that it has become functus officio. A revision petition then ultimately came
up before this Court. His lordship allowed the revision petition following the
said proposition of law stated by me above and extended the time.

5. Now I have been able to dig out two judgments. The case of
Amjad Malik v. Muhammad Saleem and 5 others (1992 MLD 31) was
decided by this Court on 16.1.1991. Now Mr. Justice ^vr 'al Karim (as his

lordship then was) while agreeing that in case of decree for specific performance, a Court passing the same does not become functus officio and retain control over the action even after the decree, proceeded to observe as follows in para-10 of the judgment appearing at pages 26 and 37 of the report:--

"10. Here, the Court had, while passing the decree, made a formal order that the suit would stand dismissed in case the condition of the payment of the purchase money by the appointed date was not performed. That order in the decree was also a formal rescission of the contract effective from the date specified in the decree. It seems to be inexorable logic, therefore, that the order in the decree that the suit shall stand dismissed produced the result that after the appointed date, the Court had become functus officio and also that after that date, the contract was no more in existence. It is equally plain that the power under Section 35 of the Specific Relief Act, 1877, being the power to rescind the contract,, the contract must be in existence for that power to operate upon. To rescind means to annul, to abrogate, to put an end to. The power to rescind, therefore, presupposes the existence of what is to be rescinded; for just as you cannot build anything on nothing, you cannot rescind something that does not exist."

Now the said judgment was also considered by Mr. Justice Gul Zarin Kiani (as his lordship then was) in the said case of "Nasir Ahmad". However, while observing that .the controversy may not arise for examination and deeper appreciation in said case it was held that the contract in the said case remained alive.

6. Now both the said judgments i.e. in the case of "Amjad Malik" and "Nasir Ahmad" came to be considered by Mr. Justice Mian Allah Nawaz (as his lordship then was) in the case of Muhammad Ismail v. Muhammad Akbar Bhatti and 5 others (PLD 1997 Lahore 177). This case was decided on 13.11.1996. The facts of the said case as narrated in para-2 of the judgment are that a suit for specific performance was decreed on 23.6.1986. The learned Court of appeal while allowing the prayer for withdrawal of appeal enlarged the time specified in the decree and directed the decree-holder to deposit the balance purchase price upto 2.8.1986. In application was filed for extention of time and was rejected by the learned trial Court on 2.9.1986. I may note here that learned trial Court found that the .reasons forwarded by the said decree-holder for extention of time have not been substantiated. However, it was also observed that the Court had become functus officio. It was a revision against the said order which was decided by his lordship. The said earlier judgments were examined by his lordship and the ratio deduced upon the said examination was stated in para-7 of the judgment appearing at page 183 and 184 of the report as follows :--

"7. The ratio, deducible from the preceding examination, is: Firstly, that decree passed by Court, in an action for specific performance of agreement of sale, is in the nature of preliminary decree. It actually partakes the character of a contract; vendee has to deposit the purchase price, cost of purchase of necessary stamps for the execution of conveyance deed and so on so forth; while the seller had to appear in the Court, sign the conveyance deed and receive purchase price. In these state of affairs, it clearly follows that decree, passed in such an action, is not final but preliminary in nature and the Court passing the decree retain seisin over the Us and has power to enlarge/extend the time for payment of purchase price fixed therein. The Court, however, had to pass such orders after objectively assessing the merits of such applications. Secondly, Specific Relief Act is an adjective law and substantive law is to be looked for elsewhere. It presents a codification of principles derived from long series of precedents and practices of English Courts of Equity. Specific Relief Act so is based upon principles of equity, reason and good conscience. The most leading principle is that 'who comes to get the equity, must do equity to others'. Thirdly, Section 35 of the Specific Relief Act lays down a procedure for rescission of the written contract. It applies to both vendor and vendee. Any one of such party may move the Court by motion in the action for an order for putting an end to contract. This mechanism is, however, subject to following limitations/namely where the trial Court has decreed the suit for specific performance of contract subject to condition that purchase price shall be deoosited in Court within a specific time and also ordered that if that money is not put in within that time, the suit shall stand dismissed, the Court has no power to extend the time as in such a case; that the decree by the Court is final and self-operative and in case of default of payment of purchase price; the mandate of Court tantamouhts to rescission- of the contract. In such a case recourse to Section 148 of C.P.C. or Section 151, CPC will not be permissible. Fourthly, the Court will not allow the plea for extention of time if it finds that it will occasion a wrong to the other side. Furthermore, in order to succeed in an action for specific performance, the plaintiff had to show that he had been willing and ready to perform his part of contract." 7. In respectful agreement with the said observations of his lordship particularly the one mandating that the Court has to pass an order for enlargement of time after objectively assessing merits of the application. I have already stated above that not a single reason was stated in the said application for extention of time except reference to "certain difficulties". I find that no particulars or details of such difficulties are available in the application and the impugned order is also without any reason whatsoever. I may further add here that sine qua non for grant of discretionary relief of. specific performance is that the party must always be ready and willing to perform its part of the contract. In the present case the part to be performed by a respondent was the payment of balance price. To my mind, the said prayer made in the application was the negation of the condition precedent for grant of said relief.

8. I, therefore, do find that the learned trial Court has acted without jurisdiction in proceeding to allow the application when no grounds were either stated or otherwise made out for the said extention. This civil revision is accordingly allowed and the impugned order dated 9.2.2002 of the learned trial Court is set aside and consequently the application for extention of time stands dismissed.

(A.A.) Revision accepted.