PLJ 2008
[
Present: Kh. Farooq Saeed, J.
Raja SHAMSHER MEHDI--Petitioner
versus
MALIK MUHAMMAD RIAZ and another--Respondents
C.R. No. 70 of 2005, heard on 17.3.2008.
Specific Relief Act, 1877 (I of 1877)—
----S. 12--Civil Procedure Code, (V of 1908), S. 115--Suit on basis of agreement to sell--Amount fixed by Court on basis of agreement of parties--Plaintiff was to pay such fixed amount within specified days--Plaintiffs suit was dismissed on his failure to pay fixed amount within target date--Plaintiffs having given consent to pay specified amount within target date, his failure to pay the same against agreement between parties and judgment and decree of trial Court on basis of such agreement agitated in revision was thus not proper. [P. 644] A
Civil Procedure Code, 1908 (V of 1908)—
----S. 115--Preliminary judgment--Time fixed for payment of specified amount--Judgment/decree would become final after expiry of fixed time by default of plaintiff for non-payment of specified amount within fixed period. [P. 635] B
----S. 13--Specific Relief Act, (I of 1877), S. 12--Eviction of tenant--Pendency of suit for specific performance of agreement would be no ground to avoid eviction of tenant by Rent Controller, if other requirements of law have been fulfilled--Mere agreement to sell would not confer any right of ownership or right to possess property without fulfilling other requirements like payment of rent etc. as per agreed relationship prior to such agreement. [P. 636] C
Specific Relief Act, 1877 (I of 1877)—
----S. 12--Suit on basis of agreement to sell--Time fixed by Court on basis of agreement of parties for payment of specified amount--Plaintiff failed to pay agreed amount within agreed time--Application by plaintiff for extension of time after expiry of the same was not warranted, as trial Court had become functus officio after expiry of fixed date. [P. 636] D
1974 SCMR 74; PLD 1965
M/s. Malik Qamar Afzal, Malik Nasrullah Awan & Malik Jawwad Khalid, Advocates for Petitioner.
Malik Saadat Hussain, Advocate for Respondents.
Date of hearing: 17.3.2008.
Judgment
By this single judgment, I would like to dispose of Civil Revision No. 70/2005, as well as Writ Petitions Bearing Nos. 785/2005 and 2155/2005.
2. In Civil Revision No. 70/2005 filed by the petitioner, judgments and decrees of Senior Civil Judge, Chakwal, dated 2.12.2004 and of Additional District Judge, Chakwal, dated 3.2.2005 are assailed.
3. Brief facts are
that the petitioner filed a suit for specific performance of the oral agreement
of the sale of House Bearing No. 794-B/MCB situated at Mohallah Shaheen Abad,
4. Before me, the petitioner's prayer is that the order dated 2.12.2004 was arbitrary. He has argued that the trial Court should have decreed the original agreement and should not have entered into new controversy with regard to valuation once again. Moreover, while announcing the judgment and passing decree, the mode of payment and place of payment was not mentioned, hence the order passed by the Senior Civil Judge, Chakwal, dated 2.12.2004 may be cancelled and the agreement dated 9.7.2003 may kindly be declared as valid.
5. Supporting the claim of the petitioner, it was inter-alia also argued that since no mode was decided for payment of the amount, the petitioner was not in a position to deposit the same. The presumption that the right of the petitioner to make the payment no more existed after 17.12.2004, therefore, is not correct. The petitioner referred 1985 CLC 1429 in the case of Abdul Haq and another vs. Syed Basharat Ali, which holds that:
"No agreement existing between the parties about mode of payment of rent and ejectment application filed before expiry of sixty days from date when rent became due, ejectment application was held premature."
Reference of the judgment is quite surprising. In the present case not only there was an agreement between the parties for payment of the agreed amount, yet period for payment had also expired.
6. The other judgment was in the case of Ashfaq-ur-Rehman Khan vs. Ch. Muhammad Afzal, wherein the term "due in law" has been decided. In this case, Rent Controller had held:
"that a Rent Controller acting under Section 13(6) of the West Pakistan Rent Restriction Ordinance, 1959, cannot direct the tenant to deposit rent in respect of which the legal remedy to recover has become barred under the statute of limitation. Further when rent is sought to be recovered by a legal process be it before a Court or a tribunal the word `due' would carry the connotation of "due in law" or recoverable in an action at law."
6. The claim was that since for the reason of another agreement, which was subsequently modified, the amount was not lawful, hence its non-payment does not become a mistake as the same was not lawful.
7. The judgment is distinguishable. The petitioner had given consent for a figure. His failure to pay the same subsequently is against the contract agreed between the two parties and the judgment and decree of the trial Court on the basis of such contract agitated in this civil revision under Section 115 C.P.C, therefore, is not proper. Moreover, the petitioner having failed before the Additional District Judge cannot now challenge the same through this civil revision. Similarly, the other judgments in terms of 1974 SCMR 75 re: Barkat Ali vs. Messrs Pakistan Sanitary & Drainage Works; PLD 1965 (W.P.) Lahore 59 in the case of Ashfaq-ur-Rehman Khan vs. Ch. Muhammad Afzal, Mutwalli, Waqf Property, being in respect of time barred rent also does not apply on the facts of this case. The other judgments also are not direct on the issue, hence I ignore the same.
8. Respondent No.
1, on his turn, said that it is a case of contract between the two parties,
which was finally agreed after visit of the trial Court of the premises under
discussion. The contract and judgment and decree is dated 2.12.2004, which has
been violated. The petitioner now cannot challenge the same having failed to
comply with the same. The enlargement of time even otherwise cannot be done as
it is a case in which consent of the parties was involved, whereas in PLD 1988
"that once a time for deposit of sale was fixed by Court on consent of parties, the Court is not entitled to extend time for deposit of sale price where same had been fixed with consent of the parties."
Another judgment produced by the respondent says that a consent decree in pre-emption suit effected through compromise requiring pre-emptor to deposit decretal amount within specified time became operative on failure of the pre-emptor. Pre-emptor did not comply with the decree, but prayed for extension of time in a time barred appeal. The High Court in revision non-suited pre-emptor on the ground that a valuable right had accrued in favour of vendee by non deposit of decretal amount within time and filing of belated appeal, the judgment of the High Court was found to be as legal and without infirmity warranting interference by the Hon'ble Supreme Court and the petition was dismissed by refusing leave to appeal. This was held in the judgment reported 2005 SCMR 1664 in the case of Riaz Hussain vs. Nazar Muhammad and others. Similarly in 2004 YLR 985, in the case of Haji Abdul Latif and 4 others vs. Ateeq Ahmad and 3 others, similar observations have been given by this Court. This Court in categorical terms held--
"that in the case of specific performance, if the decretal amount has not been paid within fixed time, refusal to extension does not amount to any irregularity or illegality."
The judgment under discussion was though preliminary in nature saying that the amount shall be paid within fifteen(15) days became final on default on the last date. Such decree obviously, therefore, is final in all respect unless it was reversed by any superior authority.
9. The upshot of the above discussion, therefore, is obvious. In fact the case law produced by the respondent counsel are direct on the issue and by virtue of the principle of stare decisis are binding on this Court. There is, therefore, no need of going into much detail. This civil revision petition has been filed against the order of the Additional District Judge, who had refused to entertain the appeal against the judgment and decree passed by the trial Court by holding that no appeal lies against the same. The petitioner has not challenged the same. Even otherwise, there was no question of any interference for the reason of a very clear judgment and decree passed on 2.12.2004. The agreement was after making all concerned a party and in fact it was on the basis of the visit of the Senior Civil Judge, Chakwal, of the premises by himself. This Civil Revision as such is liable to rejection factually and legally on both counts.
10. The other two writ petitions, which are also on the basis of same set of circumstances, therefore, are of no help to the petitioner. In fact, since no relief was allowed to the petitioner by the Additional District Judge in the first appeal, in the case of specific performance and there was no stay order by this Court, the subsequent proceedings conducted are fully lawful. Even on fact there is nothing on record to convince this Court that the jurisdiction has not lawfully been exercised by the subordinate Courts.
11. On facts the reason is that the chapter with regard to specific performance stood closed after 17.12.2004. In another application before the Rent Controller on 21.12.2004 for restoration of the ejectment petition was also rejected by the learned trial Court. Since this petitioner had defaulted in payment of the rent and there was no doubt as to the relationship of landlord and tenant, obvious proceedings for ejectment were to continue. The petitioner's counsels reliance upon Khan Muhammad vs. Additional District Judge, etc. re: NLR 1987 Civil 160 is also of no help. Obviously, pendency of suit for specific performance of an agreement would be no ground to avoid eviction of tenant by the Rent Controller, if the other requirements of law have been fulfilled. Mere agreement to sell does not confer any right of ownership or right to possess a property without fulfilling requirements like payment of rent etc. as per agreed relationship prior to the said agreement. Moreover, in this case agreement had already been declared as rescinded and obviously after its confirmation by this Court, no further benefit can be allowed to the petitioner through such flimsy petitions. The reliance of the learned trial Court of the judgments at page 5 of its order, in Writ Petition No. 2155/2005 is also fully justified.
12. Similarly, request for extension of time refused by the trial Court was well within its discretion. Had the petition been filed before the expiry of time, it could have been entertained. After the expiry of the period mentioned in the order dated 2.12.2004, which was fifteen(15) days, the trial Court became functus ofificio, hence there was no question of any interference at that stage. Its confirmation by the Additional District Judge vide order dated 7.3.2005 also is unexceptional.
13. Since, circumstances do not warrant interference by this Court under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, two writ petitions also are dismissed.
(A.A.) Petitions dismissed.