Specific performance conditional decree.
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| Specific Specific performance conditional decree. |
یہ عدالتی فیصلہ چوہدری جنگ شیر بنام امانت علی (سول رویژن نمبر 17850/2019) اور اس سے منسلک سول رویژن نمبر 17857/2019 سے متعلق ہے، جس میں عدالت نے مخصوص کارکردگی (Specific Performance) کے مقدمے کے حوالے سے چند اہم قانونی نکات پر فیصلہ دیا۔
اہم نکات:
مقدمے کا پس منظر:
درخواست گزار (پٹیشنر) نے مدعا علیہان کے خلاف مخصوص کارکردگی کے دعوے دائر کیے، جو جائیداد کی فروخت کے معاہدے (Agreement to Sell) پر مبنی تھے۔
پہلے مقدمے میں، امانت علی نے 3 مرلہ پلاٹ فروخت کرنے کا معاہدہ کیا تھا، جبکہ دوسرے مقدمے میں، غلام سرور (مرحوم) نے 7 مرلہ پلاٹ فروخت کرنے کا معاہدہ کیا تھا۔
ابتدائی عدالتی کارروائی:
دونوں مقدمات میں ٹرائل کورٹ نے فیصلے جاری کیے اور درخواست گزار کو بقایا رقم مقررہ وقت میں جمع کرانے کی ہدایت دی، بصورت دیگر معاہدہ ازخود منسوخ ہو جائے گا۔
درخواست گزار نے بقایا رقم جمع نہیں کرائی اور اپیلیں دائر کر دیں۔
عدالت کی قانونی تشریح:
عدالت نے یہ سوال اٹھایا کہ کیا اپیل دائر کرنے سے مشروط ڈگری کی شرائط خود بخود معطل ہو جاتی ہیں؟
عدالت نے فیصلہ دیا کہ محض اپیل دائر کرنے سے ڈگری کی شرائط معطل نہیں ہوتیں، خاص طور پر جب ڈگری میں واضح طور پر یہ شرط موجود ہو کہ اگر مقررہ مدت میں رقم جمع نہ کرائی گئی تو معاہدہ ازخود منسوخ ہو جائے گا۔
درخواست گزار کی اپیل کا جائزہ:
اپیل کے دوران، درخواست گزار نے 31 مرتبہ مہلت لی اور تاخیری حربے استعمال کیے۔
بعد میں 2017 میں ایک نئی درخواست دائر کی گئی کہ ٹرائل کورٹ میں رقم جمع کرانے کی درخواست دی تھی، لیکن عدالت نے اسے مسترد کر دیا کیونکہ اس کا کوئی ثبوت پیش نہیں کیا گیا۔
اپیل میں 64 بار مہلت لینے کے باوجود درخواست گزار نے اصل ادائیگی کے ثبوت فراہم نہیں کیے۔
قانونی نظائر:
عدالت نے PLD 1966 SC 983 (شاہ ولی بنام غلام دین) اور 2007 SCMR 1464 (تسنیم اسماعیل بنام وافی ایسوسی ایٹس) جیسے فیصلوں کا حوالہ دیا، جن میں کہا گیا کہ جب ڈگری میں کوئی شرط واضح طور پر لکھی ہو اور اس کی خلاف ورزی ہو، تو عدالت کے پاس مزید کوئی اختیار نہیں ہوتا کہ وہ اس شرط کو ختم کرے۔
فیصلہ:
عدالت نے قرار دیا کہ درخواست گزار نے بقایا رقم ادا نہیں کی، اور نہ ہی وہ اپنے معاہدے پر عمل درآمد کرنے میں سنجیدہ تھا۔
عدالت نے دونوں سول رویژن درخواستیں مسترد کر دیں اور ٹرائل کورٹ کے فیصلے کو برقرار رکھا۔
نتیجہ:
یہ فیصلہ اس اصول کو واضح کرتا ہے کہ اگر کسی مشروط ڈگری میں ادائیگی کی مخصوص مدت دی گئی ہو، تو اپیل دائر کرنے سے وہ شرط خود بخود معطل نہیں ہو جاتی۔ اگر مدعی رقم جمع نہ کرائے تو معاہدہ از خود ختم ہو جاتا ہے، اور عدالت کے پاس اسے بحال کرنے کا اختیار نہیں رہتا
Must read judgement
Stereo. H C J D A 38.
Judgment Sheet
LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
Civil Revision No.
17850/2019
Ch. Jang Sher Versus Amanat Ali
J U D G M E N T
Date of Hearing:
23.01.2025
Petitioner by:
Mr. Muhammad Yaqoob Sidhu, Advocate.
Respondent by:
Ch. Muhammad Akbar Warraich, Advocate.
Anwaar Hussain, J. 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
Civil Revision No.17850/2019
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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.
Civil Revision No.17850/2019
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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
Civil Revision No.17850/2019
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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
Civil Revision No.17850/2019
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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
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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 wellevident 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,
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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
Civil Revision No.17850/2019
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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
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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.
(ANWAAR HUSSAIN)
Judge
Approved for reporting.
Judge
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