2011 C L C 1787
[Peshawar High Court]
Before Syed Sajjad Hassan Shah, J
SARDAR ALI SHAH and others----Petitioners
GHUFRAN ULLAH and others----Respondents
Civil Revision No.93 of 2008, decided on 1st December, 2010.
(a) Specific Relief Act (I of 1877)---
----Ss. 12 & 35---Suit for specific performance of agreement to sell---Plaintiff filed suit with regard to area measuring 16 Kanals, 10 Marlas, but Trial Court decreed suit to the extent of 5 Kanals and 8 Marlas---Appellate Court modified the decree and added 9 Kanals and 4 Marlas to the area as was decreed by the Trial Court and the plaintiff was directed to deposit a sum of Rs.75,000 in the court within a period of one month---Predecessors of the plaintiff filed revision petition against said modified judgment wherein they sought the deduction in the sale consideration of the suit property---Said revision petition having been dismissed, decree-holder filed application seeking the permission of the Appellate Court to deposit said amount of Rs.75,000, which application was dismissed by Appellate Court---Validity---Section 35 of the Specific Relief Act, 1877, had not provided any consequence for non-deposit of the balance amount of sale consideration, therefore, Appellate Court did not mention any such condition in the impugned order---Law did not provide dismissal of suit for non-deposit of the balance sale consideration---Parties could proceed further in the matter for seeking extension in the time for deposit of the balance amount---Decree in the suit for specific performance of agreement was a preliminary decree in nature and not final decree and the court passing the decree, would not stand functus officio---Court had seisin over the decree passed by it and could entertain application on behalf of the plaintiff/decree-holder for extension of time to deposit the balance amount---Plaintiffs put all efforts to comply with the order of deposit of balance amount---At the time when application for deposit of balance amount was filed, the contract between the parties was subsisting and was not rescinded---Appellate Court had ample power to pass the order of deposit, but court refused without legal and plausible justification---Appellate Court, in circumstances had committed gross illegality amounting to miscarriage of justice to the plaintiffs/decree-holders---Impugned order passed by Appellate Court was set aside and application filed by the decree-holders for deposit of the balance amount of sale-consideration was accepted---Decree-holders were directed to deposit the amount in question within a period of 30 days, in circumstances.
PLD 1994 Lah. 380 and Tasneem Ismail and others v. Messrs Wafi Associates and others 2007 SCMR 1464 ref.
Israf Ali alias Israfudin Modal PLD 1967 Dacca 557 and Abdul Shakir Sahib v. Abdul Rahiman Sahib ILR 46 MAD. 148; Tasneem Ismail and others v. Messrs Wafi Associates and others 2007 SCMR 1464; Manicka Gounder v. Samikannu Gounder AIR 1967 Mad. 397; 1973 Calcutta 439; Amjad Malik v. Muhammad Saleem 1992 MLD 31; Bhujangrao Ganpati v. Sheshrao Rajaram AIR 1974 Bom. 104 and Shmt. Sarpi and others v. Har Gian and others AIR 1975 Punjab and Haryana 231 rel.
Muhammad Iqbal v. Bashir Ahmed and 19 others PLD 2002 Lah. 88; Abdul Hameed and another v. Islam Din and another 2000 CLC 290; Farmaish Ali Bhatti v. Mst. Sajida Amjad Khan and others 2005 YLR 2357; Muhammad Ismail v. Muhammad Akbar Bhatti and 5 others PLD 1997 Lah. 177; Amjad Malik v. Muhammad Saleem 1992 MLD 31; Muhammad Riaz v. Umer Din and 3 others 1985 CLC 474; Bashir Ahmed and another v. Hussain Industries (Pvt.) Ltd. 2003 YLR 55; Tasneem Ismail and others v. Messrs Wafi Associates and others 2007 SCMR 1464 and Amjad Malik v. Muhammad Saleem 1992 MLD 31 distinguished.
(b) Specific Relief Act (I of 1877)---
----S. 35---Recession of contract---Court could pass an order for recession of a contact, if purchaser would fail to pay the purchase money or other sums, which the court had ordered him to pay.
Mian Muhibullah Kakakhel for Petitioners.
Asif Ali Shah for Respondents.
Date of hearing: 1st December, 2010.
SYED SAJJAD HASSAN SHAH, J.--- Sher Ali Shah and others, the petitioners assailed the judgment and order dated 27-10-2007 passed by the Additional District Judge-II, Charsadda vide which decree dated 2-12-2006 passed by the said court in Civil Appeal No.4/13 of 2005 was declared as ineffective and inoperative as due to non-deposit of amount valuable right accrued to the respondents.
2. Precisely stated facts leading to the instant petition are that the predecessor-in-interest of the petitioners namely Mian Sher Ali Shah had instituted the suit seeking the decree for specific performance of an agreement to sell dated 12-4-1993, against predecessor-in-interest of respondents Nos.1 to 11. After completion of trial, the learned trial Court granted a decree to the extent of 5 Kanals, 8 Marlas in favour of predecessor in interest of petitioners out of the disputed area measuring 16 Kanals, 10 Marlas. The predecessor-in-interest of petitioners feeling aggrieved and dissatisfied filed the appeal against the judgment and decree of the learned trial Court dated 30-11-2004, same was accepted by modifying the decree, to the extent of entitlement of late Hidayatullah, as was devolved upon him, being the legacy of his mother namely Mst. Rehmata and his brother namely Faizullah, total area 9 Kanals and 4 Marlas had also been added to the area as was decreed by the learned trial Court, as such the appellants/plaintiffs were directed to deposit a sum of Rs.75,000 in the court within a period of one month after modifying the judgment and decree.
The petitioners have challenged by way of the revision-petition the modified judgment and decree passed by learned appellate Court vide C.R.No.322 of 2007 filed on 8-3-2007, wherein sought the deduction in sale consideration of the suit property. However, their petition was dismissed in limine on 2-4-2007. After the dismissal of the revision petition, Arshad Ali Shah and others, the legal heirs of Sher Ali Shah decree-holder moved an application on 19-4-2007 seeking the permission of the learned appellate court to deposit Rs.75,000, likewise, the respondents have also moved an application dated 21-3-2007 for the dismissal of decree dated 2-12-2006 passed by the learned appellate Court on the ground that the petitioners have failed to comply with the order of the Court to deposit Rs.75,000 within the prescribed period of one month. Both the applications contested by the parties. The learned appellate Court after hearing the arguments of the learned counsel for the parties rejected the application.
3. The learned counsel appearing on behalf of the petitioners, contended that the learned appellate Court while rejecting the application, failed to advert the provision enshrined in section 35 of the Specific Relief Act. He further contended that the order was challenged by filing revision petition and for the first time, the petition was taken up for hearing in motion and was dismissed on the same day, as the petitioners paid to the respondents more than the sale consideration of the suit property, therefore the learned appellate court was to attend the submissions of the petitioners in order to resolve the controversy relating to the actual sale consideration of the suit-land. But the learned appellate Court failed to advert the said facet of the matter. The learned appellate Court did not peruse the record of the case as evident from the contents of the impugned order, the findings return as "that no application for the enlargement of time is moved along with present petition, therefore, the findings recorded it is held that the conditional decree passed in favour of petitioners/decree-holder has become ineffective and inoperative for the reason that due to non-deposit of amount, a valuable right had accrued to the judgment-debtor." The learned counsel further contended that the learned appellate court while passing the order travelled beyond the prescribed parameters of law, thus, rejected the application. The learned counsel for the petitioners placed reliance upon PLD 1994 Lahore 380 and 2007 SCMR 1464.
4. The learned counsel appearing on behalf of the respondents strenuously rebutted the arguments of the learned counsel for the petitioners and supported the judgment and order passed by the learned appellate court, in support, whereof contended that the petitioners have failed to deposit the remaining sale consideration, thus, disregarded the order of learned appellate court, the disputed decree, automatically ceased to have effect and was non-existing. He further contended that after passing the decree in favour of the petitioners in a suit of specific performance of an agreement, the court had become functus officio and could not pass the order of deposit of balance sale consideration, therefore, the application being without merit, rightly was dismissed. In support of his arguments reliance placed upon the judgment reported as Muhammad Iqbal v. Bashir Ahmed and 19 others PLD 2002 Lahore 88, Abdul Hameed and another v. Islam Din and another 2000 CLC 290, Farmaish Ali Bhatti v. Mst. Sajida Amjad Khan and others 2005 YLR 2357, Muhammad Ismail v. Muhammad Akbar Bhatti and 5 others PLD 1997 Lahore 177, Amjad Malik v. Muhammad Saleem 1992 MLD 31, Muhammad Riaz v. Umer Din and 3 others 1985 CLC 474, Bashir Ahmed and another v. Hussain Industries (Pvt.) Ltd. 2003 YLR 55, Tasneem Ismail and others v. Messrs Wafi Associates and others 2007 SCMR 1464.
5. The arguments of the learned counsel for the parties considered, record carefully perused.
6. Having penned down the facts, circumstances of the case, submissions made by the learned counsel for the parties and question for consideration, to adjudge the present controversy the provision of section 35 of the Specific Relief Act to be examined first. The same reproduced as follows:---
"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) Where the contract is voidable or terminable by the plaintiff;
(b) Where the contract is unlawful for causes not apparent on its face, and the defendant is more to blame than the plaintiff;
(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 purchaser-money or sums which the Courts has ordered him to pay.
When the purchaser or lessee is in possession of the subject-matter, and the Court finds that such possession is wrongful, the Court may also order him to pay to the vendor or lessor the rents and profits, if any received by him as such possessor.
In the same case, the Court may by order in the suit in which the decree has been made and not complied with, rescind the contract, either so far as regards the party in default, or altogether as the justice of the case may require."
7. A perusal of above referred section, manifestly provides that the Court can pass an order for recession of a contract, if purchaser failed to pay the purchase money or other sums, which the court had ordered him to pay.
8. Now the question for determination is that the impugned order as passed by the learned appellate Court, whereby, a sum of Rs.75,000 was ordered to be deposited within a period of one month and failure to deposit within the specified period, necessarily involve the termination of contract between the parties. Another related facet of the case cannot be ignored that after the passing of the order of deposit, whether, the learned appellate Court had become functus officio or still have seisin over the decree and legally competent to pass the order of deposit of the balance amount, as sought to deposit, by the petitioners, as such, the nature of the decree would also to be considered as the preliminary or final. In such circumstances, what was the lawful order to have been passed by the learned appellate Court?
9. In order to emphasize, the afore-stated aspects of the case, it would not be out of place to say that, the learned appellate Court, while passing the order, directed the petitioner to deposit certain sum of money within the specified period, but, without specifying the consequences for non-deposit of the same.
10. A little bit different provision of law laid down in Order XX, Rule 14 of C.P.C. relating to the decree passed in the Pre-emption suit, the Court, while passing the decree bound by the provision of law to fix the time for the deposit of balance pre-emption amount and in case the decree-holder failed to deposit the amount as ordered by the court, the suit shall stand dismissed.
11. However, in the provision of section 35 of Act ibid, no consequences provided for the non-deposit of the balance amount of sale consideration, therefore, the appellate Court has not mentioned any such condition in the impugned order, it is also noteworthy, that no form specified any where in C.P.C. that how the decree for specific performance of the agreement is to be drawn. This is done more for purposes of convenience rather than, in compliance with any provision of the Civil Procedure Code. Therefore, if law does not provide dismissal of suit for non-deposit of the balance sale consideration while interpreting the law, the provision of law cannot be stretched to dismiss the suit. In this regard, it is apt to say that the parties can proceed further in matter for seeking the extension in time for deposit of the balance amount and the vendor can also apply for the recession of the written contract. Therefore, it can be safely said that the decree in the suit for specific performance of the agreement is a preliminary decree in nature, not the final one, cannot be equated to the decree in the pre-emption suit, where the court passing the decree under the legal obligation to lay down the consequences of non-deposit of balance pre-emption amount, failure to deposit the same the suit stands dismissed, rather such decree would be final as self-operative, no further proceedings required to be carried out, as the default in payment of pre-emption amount rendered the decree nullity in the eyes of law. The provisions of Order XX, rule 14 of the C.P.C., reproduced as under:---
O.XX, R.14. Decree, in Pre-emption Suit:--
(1) Where the Court decrees a claim to pre-emption in respect of a particular sale of property and the purchase money has not been paid into Court, the decree shall--
(a) specify a day on or before which the purchase money shall be so paid; and
(b) direct that on payment into Court of such purchase money together with the costs (if any) decreed against the plaintiff, on or before the day referred to in clause (a), the defendant shall deliver possession of the property to the plaintiff, whose title thereto shall be deemed to have accrued from the date of such payment, but that, if the purchase money and the costs (if any) are not so paid, the suit shall be dismissed with costs.
(2) Where the court has adjudicated upon rival claims to pre-emption, the decree shall direct:--
(a) if and insofar as the claims decreed are equal in degree, that the claim of each pre-emptor complying with the provisions of sub-rule (1) shall take effect in respect of a proportionate share of the property including any proportionate share in respect of which the claim of any pre-emptor failing to comply with the said provisions would, but for such default, have taken effect; and
(b) if and in so far as the claims decreed are different in degree, that the claim of the inferior pre-emptor shall not take effect unless and until the superior pre-emptor has failed to comply with the said provisions.
12. But unlike the pre-emption decree passed in suit for specific performance of the contract, however, when the condition of dismissal of suit would be added to the decree, then, it would be considered as self operative and final in nature. In this background of the matter, the decree passed by the appellate court neither to be a final nor the court passing the decree stood functus officio, the Court has even now seisin over the decree and can entertain the application on behalf of the plaintiff/decree-holder for extension of time to deposit the balance amount, likewise, the vendor can also move the application for rescission of the contract in case the vendee plaintiff/decree-holder failed to deposit the balance amount as per direction of the Court. In this regard, reliance placed upon a case titled Israf Ali alias Israfudin Modal, reported as PLD 1967 Dacca 557, 561 delivered while reliance upon a case titled Abdul Shakir Sahib v. Abdul Rahiman Sahib ILR 46 MAD. 148.
13. After reproducing the provision of section 35 of Act ibid, the honourable Judge of the Dacca High Court while deciding the similar question extensively and elaborately discussed and expounded the true import, spirit lying behind the above referred law and also the intention of law maker while deriving guidance of the rule laid in the above referred celebrated judgment titled Abdul Shakir Sahib v. Abdul Rahiman Sahib ILR (Supra), reproduced as follows:---
"As to the import of this provision, I think I can do no better than quote the relevant observations of Wallac, J. In his separate judgment in Abdul Shaker Sahib v. Abdul Rahiman Sahib (I). These appearing on pages 159-161 of the report are as follows:---
"The form of decree drawn up in the trying Court is the general form adopted in this Presidency for such decree. But that it is in the nature of a preliminary and not a final decree, is, I think, placed beyond doubt by section 35 of the Specific Relief Act. As I read that section, it lays down that when a decree for specific performance of a contract of sale has been passed and the purchaser makes default in payment of the sum which the Court has ordered him to pay, the vendor may either file a fresh suit for rescission of the contract or may, in the specific performance suit itself, apply to the Court to rescind the contract. It is perfectly clear that the contract is not determinable or determined by the mere failure to comply with the terms of the decree. It is not determined until the Court orders that it is determined".
I take it then that where specific performance of sale has not been effected within the period laid down by the decree, it is open, (a) to the purchaser to apply to the Court for an extension of time for payment of the purchase money and (b) to the vendor to apply either for a final and peremptory order for specific performance or for an order rescinding the contract either immediately or to follow automatically on the expiry of the period peremptorily granted. The original action is thus open until a final decree or order of such a nature and scope is passed, and the original Court has until then ample power to extend the time for specific performance.
In the same case Schwabe, C.J., having referred to the various remedies open to the vendor in default of payment of the purchase money by the purchaser has observed:---
"It would be seen to be absurd to hold that the mere fact that a date of completion is fixed in the original decree puts an end to the action and that the control of the Original Court expires on the expiration of that date and thus substitute in effect for all the known remedies stated above the simple expedient of treating the action and the decree as dead for all purposes and leaving the vendor in undisturbed possession of property which is not his and may, as in the present case, be of a greater value than the contract purchase money, which perhaps by some accident the purchaser has failed to produce on the date fixed.
In my judgment, it was not intended by this decrees that the payment of the Rs.4,000 by the date named should be a condition, failing to comply with which would deprive the successful plaintiff of all his rights under the decree. In my judgment, this decree is in the nature of a preliminary decree, the Original Court keeping control over the action and having full power to make any just and necessary order therein, including in appropriate cases the extension of the time. If I am wrong in this and the proper interpretation of this decree is as contended for by the appellant, then, in my judgment, this decree is wrong and I should, if necessary, order that it be set right by eliminating the condition which ought not to have been imposed upon the successful plaintiffs, except at a much later date and upon definite refusal by him to complete. Even in that case such condition could only be imposed at the request of the defendant who, as I pointed out, has another various remedies. As long as this form of decree is understood to be of a preliminary nature and the Court still retains full power over the action. I do not see any particular harm in the continuance of its use. Some words such as "further consideration reserved" should be added; but, personally, I should be prepared to say that the appropriate forms are those set out in Setor (sic)".
It is thus clear that the decree in an action for specific performance of contract, no matter whatever may be the form in which it may be drawn up, is, in the eye of law, a preliminary decree, and as such, even where a default clause is attached thereto, is not dead but pending, though in a comatose condition. Necessarily the Court retains control over the action and has therefore, jurisdiction to enlarge time regardless of the said default clause.
13. It was observed at page 564 while arriving to the above conclusion, the passage from the judgment is reproduced as under:---
"Ordinarily the Court should avoid passing a decree in the form of a final decree, but leave it to the vendor to move the Court for an order rescinding the contract. The lower Court apparently saw its mistake at later stage and correct it by extending time."
I may also refer back to the case of Abdul Shaker Sahib v. Abdul Rahiman Sahib and another already noticed above, in which, too; the relevant proposition has been laid down in these terms:--
"that the appellate Court had power to extend the time limited by the original decree, and that the original Court had still jurisdiction in the matter and had full powers to deal with any point that might arise, including, if necessary, an application for further time."
In view of the law, as embodied under section 148 of the Code and section 35 of the Specific Relief Act, as well as the authorities discussed above, I am inclined to accept the contention of Mr. K. Hossain that in the case of a decree for specific performance of contract the Court retains the jurisdiction to extend time under section 148 of the Code of Civil Procedure, even though the decree contains a default clause providing that in default of the plaintiff to make the requisite payment within the period fixed by the Court the suit shall stand dismissed. In other words, the present case does not, in my view, come within the mischief of the decision in the case of Shaikh Ayezuddin v. Priya Sankar Chowdhury.
As has also been incidentally made clear above, the aforesaid power of extending the time can be exercised by the appellate Court as much as the original Court: In my opinion therefore, the appeal must succeed.
The appeal is accordingly allowed and the judgment and decree of the learned lower appellate Court as well as the order dated: 16-5-60 passed by the learned Court of first instance are set aside. The plaintiffs/appellants are allowed two months time from date to deposit the amount in question. Upon deposit so made the defendant No.1 shall execute and register the Kabala within one month from the date of deposit failing which the Court shall execute the document which shall be binding on the defendant.
14. In support of above noted proposition of law, reliance placed upon a case titled Amjad Malik case supra, 1992 MLD page 31 at the end of paragraph-4 at page 3 of 5, which reads:---
"The significance of section 35 lies in this that the power that it gives is the power to rescind or not to rescind the contract even though the decree has been passed; and it appears to follow as a nature corollary that if the Court, in its discretion, does not order the rescission of the contract, despite there being a default in the payment of money in accordance with the decree, it may to allow the decree to remain operative, enlarge the time. It seems to be, therefore, that by necessary implication, section 35 clause (c) empowers the Court to enlarge the time specified in the decree."
15. At any rate, there should be no doubt that one clear effect of section 35 is that the court has not, while passing the decree, become functus officio and that is what takes it out of the general rule, stated above.
16. The learned counsel for the respondent cited the cases in support of his contention, but all those judgments delivered on different question of law and facts, as in the following cases namely Muhammad Iqbal, Amjad Malik, Muhammad Ismail, Muhammad Riaz Qamar and Farmaish Ali Butt, supra, the question decided in positive that, when the Court at the time of passing of decree specified certain period for deposit of money by the decree-holder and if the default has been committed, the suit would be liable to be dismissed. But in the instant case, the direction for deposit of the balance amount was passed without mentioning consequences of default. Therefore, those rulings are not applicable to the instant case, because, in afore- stated circumstance, the provision of section 35 would not be attracted as the Court still having control over lis and having ample power to pass the order of extension to deposit the balance amount. It is pertinent to say that in the afore-stated cases, almost the view laid down in the case of Abdul Shakir Sahib (AIR 1923 Mad. 284) has been followed, therein; the proposition involved in the instant case was discussed and answered in positive. The question involved in case of Abdul Hameed 2000 CLC 290 was also related to the rejection of plaint and no nexuses to the instant matter. However, the proposition advanced for determination by the petitioners in the instant case has been considered in Bashir Ahmed's case 2003 YLR 55 in paragraph 10 of the judgment, same reads:---
"Coming to the other question, if on account of section 35 of the Specific Relief Act, the trial Court still retain seisin, ever the list, because of the decree-holder of the case has defaulted in making the payment of purchase money, which the court has ordered him to pay in the decree and the judgment-debtor of the case could seek rescission of the contract, suffice it to say that such provision would only be applicable if no time in the decree has been fixed and the decree-holder within reasonable time, fails to make the payment, the judgment-debtor has a right under section 35 to seek the rescission of the contract on the equitable principles that the vendee being not ready and willing to perform his part of the agreement, without awaiting the lapse of the period provided for the execution. But where it has been commanded in the decree itself, the suit shall automatically stand dismissed, if the payment is not made within the stipulated period; the agreement to sell per se stands rescinded by the Court, without requiring the judgment-debtor to seek the rescission independently. In forming this view, I am fortified by the judgment reported as PLD 1997 Lahore 177 cited by the counsel for the respondent himself."
17. The similar proposition of law came for consideration in a case titled "Naseer Ahmed v. Muhammad Yousuf", PLD 1994 Lahore 280 relevant page 285, while placing reliance upon the case titled "Abdul Shakir Sahib" and "Ashraf alias Ashrafuddin Modal, (Supra), wherein, it was held that:---
"Where, therefore, a decree for specific performance of contract of sale has been passed with a condition that the plaintiff should deposit the purchase amount, within a specified time and the plaintiff makes default in payment of the sum which the Court has ordered him to pay, the Court retained the jurisdiction to extend time under section 148 of the Civil Procedure Code 1908, even though the decree passed contained a default clause providing that in default of the plaintiff to make the requisite payment within the period fixed by the Court, the suit shall stand dismissed. Such power to extend time vests not only in the original Court but can be exercised by the appellate Court as well".
18. The learned counsel for both the parties placed reliance upon the pronouncement made by the august Supreme Court in a judgment titled Tasneem Ismail and others v. Messrs Wafi Associates and others 2007 SCMR 1464, similar proposition was under consideration before their Lordships, as in that case the decree was passed in favour of the respondent/vendee on payment of balance amount and it was directed that the plaintiff/respondent shall deposit a sum of Rs.3,87,34,450 in the Court, failing which the suit shall stand dismissed. This was vide order dated 17-3-1999. On the same day the application dated: 16-3-1999 jointly filed by the respondent-decree-holder and respondent No.2 Abdul Waheed (assignee of the decree) to the effect that since the decree-holder transferred his rights in favour of latter and he being the assignee allowed to deposit the decretal amount, was dismissed by the learned trial Court on the ground that the Court could not vary the decree as it had become functus officio. Order was challenged before the High Court by filing an appeal, Abdul Waheed was impleaded as respondent. During the pendency of the said appeal i.e. on 6-5-1999, respondent No.1, the vendee/decree-holder executed a fresh agreement of sale/assignment in favour of Muhammad Ashraf in which the amount of consideration was fixed afresh, but the Court was not informed about the assignment in favour of Muhammad Ashraf, however, the joint application of the decree-holder and Abdul Waheed respondent was allowed and were granted three days time to deposit the balance amount as mentioned above i.e. upto 13-5-1999. Subsequent assignee Muhammad Ashraf moved an application before the august Supreme Court, seeking to refund of the amount which was deposited by him in the trial Court; however, in this case the petitioner was granted extension in time to deposit the balance amount, as he has failed to deposit in accordance with earlier order of deposit made by the trial Court, however, the petitioner did not deposit the same in compliance of the order of the High Court as well as the trial Court. The conduct of the petitioner was considered and it was observed that the conduct of the petitioner was contumacious as he was not serious in the prosecution of his remedy and he has also violated the principle being observed in a suit for specific performance that plaintiff must be always willing and ready to perform his part of contract, while seeking the acquitable remedy of specific performance, in this background their lordships of the august Supreme Court, while considering the provision of section 35 of Specific Relief Act, the ratio laid down in paragraph 11 reads:---
The extension of time is not an alteration or modification of a decree to be hit by Order XX, rule 3 of the Civil Procedure Code. In Manicka Gounder v. Samikannu Gounder AIR 1967 Mad. 397, it was held that the Court had power to extend time for payment of sale consideration. The afore-referred view was reiterated in 1973 Calcutta 439 and it was observed that, "Although the power of fixing time limit for payment of the purchase money or other sums in the decree for specific performance is not expressly provided in section 35-C of the Act, it must be deemed to have been thereby necessary implication. Where the decree specifically provides for payment of the balance of the purchase money within certain times, it is not open to the decree-holder to come at any time to pay the money and ask for the enforcement of the decree. No question of payment within reasonable time arises in such case. The Court may, however, extend the time taking into consideration the attitude of the decree-holder. Where the decree-holder has not made any application for enlargement of time at any stage of the proceeding for rescission, the order rescinding the contract and decree for specific performance is justified". However, a learned Bench of the Lahore High Court in the case of Amjad Malik v. Muhammad Saleem and others 1992 MLD 31, took a contrary view relying on an Indian judgment in Bhujangrao Ganpati v. Sheshrao Rajaram AIR 1974 Bom. 104. In the said Indian judgment the view taken was that, "A decree which provides that the suit is to stand dismissed if payment is not made within the time fixed is a self-operative final decree. Provisions of section 28 of Specific Relief Act do not apply to such a decree. Failure on the part of the party to carry out the terms of the decree automatically results in dismissal of suit. The Court becomes functus officio and has no power to grant an extension of the time fixed by the decree". But this view was not followed even in India and in Shmt. Sarpi and others v. Har Gian and others AIR 1975 Punjab and Haryana 231 the Court was of the view that, "Usually when Courts pass a decree for specific performance, they fix a time during which the plaintiff is to pay the consideration and thereby get a proper sale in his favour. But this is done more for purposes of convenience rather than in compliance with any provision of the Civil Procedure Code. The decree for specific performance of the contract for sale is not a final decree of the character that completely debars the Court from fixing or extending the time for deposit of the purchase money. Thus, where the Appellate Court dismissed the appeal against the decree but failed to make any direction regarding the redeposit of the purchase money which the respondent-vendee had deposited in trial Court according to its direction but was allowed to be withdrawn during pendency of the appeal by the Appellate Court, it was held that the Appellate Court had discretionary power to fix the time and to extend the same. The fact that the Court fixed the time and was required to be given to the appellant-vendor before passing the order. When a decree is silent as to what is to happen, if the purchase money is not paid within the time fixed, the decree will not lapse automatically on the plaintiff's failure to pay within the prescribed time. The default will, however, entitle the vendor to apply for rescission of the contract under section 28(1). But so long as the vendor does not apply for such relief the decree subsists and the decree-holder can still execute it within the period of limitation by depositing the purchase money within the time allowed or extended. 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."
19. The paragraph 14 also specifies about the dismissal of suit forthwith in the event of default. It had to precede an order of the court in terms of section 35 of the Specific Relief Act and the Court still had the discretion to extend time. The decree-holder which had moved the trial Court for extension of time which was wrongly refused and the learned High Court rightly set aside the judgment of the learned trial Court and allowed the joint application of the buyer and respondent No.6 (assignee Mian Abdul Waheed).
20. The cumulative effect of the above discussion is that, section 35 of the Specific Relief Act specifies that the court has to ascertain as to whether the plaintiff was ready to perform his part of contract. His conduct was not contumacious, it is always of paramount consideration that the plaintiff seeking equitable remedy of specific performance willing and ready to perform his part of contract, or his conduct unequivocally tends to reflect that he has been protracting the litigation on one or other pretext and has been successful on untenable grounds while resolving such an issue the court can proceed in light of circumstances referred to above.
21. Viewing the case of the plaintiff in the light of afore-stated scenario, undoubtedly the plaintiffs/petitioners put all efforts to comply with the order of deposit, soon after the decision of the revision petition, filed the application seeking the permission to deposit the balance amount, however the learned appellate court has not granted the permission to deposit the same, to this effect grounds mentioned in the impugned order, neither convincing nor provided under the law. Moreover by the time when application for deposit was made, the contract was still subsisting, not rescinded so far, the learned appellate court was having ample power to pass the order of deposit but refused without legal and plausible justification. Thus, committed gross illegality amounting miscarriage of justice to the petitioners.
22. In the light of aforesaid discussion, the judgment and order passed by learned appellate Court is hereby set aside, application moved by the petitioners for deposit of the balance amount of sale consideration is accepted. The petitioners are directed to deposit the rest of sale consideration as was directed by the learned appellate Court within a period of 30-days from the date of order. In case of the non-compliance of order the suit of the petitioners deemed to be dismissed.
23. These are the reasons for short order passed on 1-12-2010.
H.B.T./193/P Petition allowed.