Balance amount case law in specific performance .
سپریم کورٹ کے اس فیصلے میں درج ذیل اہم نکات قابلِ ذکر ہیں:
1. **غلط ٹیکنیکی بنیادوں پر فیصلہ:** سندھ ہائی کورٹ نے مقدمے کو صرف اس بنیاد پر مسترد کر دیا کہ مدعی نے بیلنس رقم عدالت میں جمع نہیں کروائی، جبکہ بنیادی انصاف پر توجہ نہیں دی گئی۔ سپریم کورٹ نے یہ واضح کیا کہ تکنیکی نقصوں کی بجائے مدعی کی سنجیدگی اور آمادگی پر غور کرنا ضروری تھا۔
2. **ثبوت کی اہمیت:** سپریم کورٹ نے اس بات کا بھی ذکر کیا کہ اگرچہ بیلنس رقم جمع کروانے کی شرط معاہدے میں شامل نہیں تھی، لیکن مدعی کو یہ ثابت کرنا ضروری تھا کہ وہ اپنے حصے کی ذمہ داری پوری کرنے کے لیے تیار ہے۔ عدالت نے اس بات پر زور دیا کہ ثبوتوں کی عدم موجودگی کیس کے مسترد ہونے کی وجہ بنی۔
3. **اختیاری دائرہ اختیار:** سپریم کورٹ نے یہ بھی قرار دیا کہ کسی مقدمے میں بیلنس رقم کی جمع کروانے کا حکم ایک اختیاری اور غیر خودکار عمل ہے، جس کا اطلاق عدالت کی ہدایت اور حالات کی بنا پر ہوتا ہے۔ اس کے نتیجے میں، مقدمے کی سماعت کو تکنیکی بنیادوں پر مسترد کرنے کی بجائے، معاملے کی حقیقت پر توجہ دینا چاہیے۔
4. **مقدمے کی دوبارہ سماعت:** سپریم کورٹ نے ہائی کورٹ کے فیصلے کو کالعدم قرار دیتے ہوئے مقدمے کو دوبارہ سماعت کے لیے واپس بھیج دیا تاکہ تمام فریقین کو مناسب موقع فراہم کیا جا سکے۔ اس فیصلے نے اس بات کو یقینی بنایا کہ تمام قانونی پہلوؤں پر غور کیا جائے اور مقدمے کی منصفانہ سماعت ممکن ہو۔
مدعی کی غلطیاں درج ذیل تھیں:
1. **بیلنس رقم کی جمع کروانے میں ناکامی:** مدعی نے عدالت میں مقدمہ دائر کرتے وقت یا پہلی پیشی پر بیلنس رقم جمع کروانے کی درخواست نہیں کی۔ اس کے نتیجے میں ہائی کورٹ نے مقدمہ مسترد کر دیا۔
2. **گواہی کی عدم دستیابی:** مدعی کی جانب سے پیش کی گئی گواہی کا کراس امتحان نہیں کیا گیا کیونکہ مدعا علیہ پیش نہیں ہوئے۔
3. **عدالت کی ہدایات پر عمل نہ کرنا:** اپیلٹ کورٹ کی جانب سے دی گئی ہدایت کے باوجود، مدعی نے بیلنس رقم جمع کرنے کی تصدیق نہیں کی تھی جس کی وجہ سے ہائی کورٹ نے اپیل کو مسترد کر دیا۔
4. **ثبوتوں کی عدم موجودگی:** مدعی نے کوئی رسید یا ثبوت فراہم نہیں کیا کہ اس نے کسی قسط کی ادائیگی کی تھی، جس سے عدالت کو اس کی سنجیدگی پر شک ہوا۔
یہ غلطیاں کیس کی سماعت اور فیصلے پر براہ راست اثرانداز ہوئیں، جس کے باعث مقدمے کو مسترد کر دیا گیا۔
**سپریم کورٹ آف پاکستان**
(اپیلیٹ دائرہ اختیار)
**موجودہ:**
جناب جسٹس محمد علی مظہر
جناب جسٹس عرفان صادق خان
**سیول اپیل نمبر 51-K/2021**
**برائے:**
پانچویں عدلیہ کی جانب سے 22.02.2021 کو سندھ ہائی کورٹ، سرکٹ بینچ، حیدرآباد کی جانب سے دی گئی فیصلہ کیخلاف
**مدعی:**
میر گل
**مددگار:**
جناب نعیم سلیمان، ASC
**مدعا علیہ:**
راجا ظفر محمود کے قانونی ورثاء اور دیگر
**مددگار:**
جناب محمد سلیمان انار، ASC
جناب غلام رسول منگی، AOR
**سماعت کی تاریخ:**
04.04.2024
**فیصلہ:**
جناب محمد علی مظہر، ج.
یہ سیول اپیل سندھ ہائی کورٹ، سرکٹ بینچ، حیدرآباد کی 22.02.2021 کی فیصلہ کے خلاف ہے جس میں دوسرا اپیل نمبر 07/2020 منظور ہو گیا اور مدعی کی درخواست برائے مخصوص کارکردگی اور حکم امتناع مسترد کر دی گئی۔
**کیس کی مختصر تفصیلات:**
مدعی نے 160 ایکڑ زرعی اراضی میں سے 129-08 ایکڑ اراضی پر مخصوص کارکردگی اور حکم امتناع کے لیے سول کیس دائر کیا تھا۔ مدعی کا کہنا تھا کہ فروخت کی قیمت معاہدے کے مطابق ادا کی گئی تھی، لیکن مدعا علیہ نے فروخت نامہ پر دستخط نہیں کیے۔ چناں چہ مدعی نے عدالت سے فروخت نامہ پر دستخط کے لیے ہدایت کی درخواست کی تھی۔
سماعت کے دوران، مدعی کی جانب سے گواہی دی گئی، لیکن مدعا علیہ کی طرف سے کوئی پیش نہیں ہوا اور نہ ہی کوئی کراس امتحان کیا گیا۔ مقدمے کی سماعت کے بعد ٹرائل کورٹ نے کیس مسترد کر دیا۔ اپیل دائر کرنے پر اپیلٹ کورٹ نے فیصلہ کو قبول کر لیا اور مدعی کو بیلنس فروخت کی رقم جمع کرنے کی ہدایت دی۔ مدعا علیہ نے سندھ ہائی کورٹ میں دوسری اپیل دائر کی جسے منظور کر لیا گیا اور مدعی کی درخواست مسترد کر دی گئی۔
**سپریم کورٹ کا تجزیہ:**
سپریم کورٹ نے ہائی کورٹ کی طرف سے دی گئی فیصلہ کا جائزہ لیتے ہوئے یہ بات واضح کی کہ اگرچہ معاہدے کے تحت بیلنس رقم کی جمع کروانے کی شرط موجود نہیں تھی، لیکن مدعی کو یہ دکھانا ضروری تھا کہ وہ اپنی ذمہ داری پوری کرنے کے لیے تیار ہے۔ سپریم کورٹ نے فیصلہ دیا کہ ہائی کورٹ نے غیر ضروری تکنیکی بنیادوں پر فیصلہ سنایا اور اس معاملے میں بنیادی انصاف پر توجہ نہیں دی۔
**نتیجہ:**
سپریم کورٹ نے سندھ ہائی کورٹ کا فیصلہ کالعدم قرار دے دیا اور مقدمے کو دوبارہ سماعت کے لیے واپس بھیج دیا تاکہ تمام فریقین کو مناسب موقع فراہم کیا جا سکے۔
IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
Present:
Mr. Justice Muhammad Ali Mazhar
Mr. Justice Irfan Saadat Khan
Civil Appeal No.51-K/2021
Against the judgment dated
22.02.2021 passed by High Court
of Sindh, Circuit Bench,
Hyderabad, in Second Appeal
No.07/2020
Meer Gul
…Appellant
Versus
Raja Zafar Mehmood through legal heirs & others
…Respondents
For the Appellant:
Mr. Naeem Suleman, ASC
For LRs of
Respondent No.1:
Mr. Muhammad Suleman Unar, ASC
Mr. Ghulam Rasool Mangi, AOR
Respondents No.2 to 6:
Ex-parte.
Date of Hearing:
04.04.2024
JUDGMENT
Muhammad Ali Mazhar, J.- This Civil Appeal is directed against the
Judgment dated 22.02.2021 passed by the High Court of Sindh, Circuit
Bench, Hyderabad, in Second Appeal No.07/2020, whereby the appeal
was allowed and F.C. Suit No. 92 of 2011 filed by the appellant was
dismissed.
2. The short-lived facts of the case are that the appellant filed a civil suit
against the respondents for specific performance and injunction in
respect of 129-08 acres out of 160-00 acres in agricultural land bearing
Survey Nos. 18, 19, 21, 22, 23, 24, 25, 26, 27, 28 and 29, situated in
Deh Lib, Taluka and District Sanghar (“suit land”). According to the
appellant, the sale consideration was paid in terms of agreement to sell
but since the respondent (owners) failed to execute the sale deed, hence
the appellant sought directions through the aforesaid civil suit for
execution of the sale deed in his favour with consequential relief of
injunction. The respondents filed the written statement. The appellant
side adduced evidence but nobody appeared on behalf of the
respondents to lead the evidence nor the appellant and his witnesses
were cross examined. The Trial Court, after hearing the arguments,
C.A.51-K/2021 -2-
dismissed the suit vide Judgment and Decree dated 16.02.2016. Being
aggrieved, the appellant preferred Civil Appeal No.28 of 2016 which was
allowed vide Judgment and Decree dated 19.12.2019 with the directions
to the appellant to deposit the balance sale consideration of Rupees Two
Million only through cross cheque in favour of the respondents Nos. 1 to
3 in the office of Accountant, District Court, Sanghar, who was directed
to execute the sale deed in favour of the appellant if the respondent
failed to execute the sale deed. The respondents No.1 to 3 challenged
the judgment of the Appellate Court vide Second Appeal in the High
Court of Sindh, Circuit Bench, Hyderabad, which was allowed and as a
consequence thereof, the appellate judgment was set aside and the suit
of the appellant was dismissed.
3. The learned counsel for the appellant argued that in the absence of
any direction by the Trial Court to deposit the balance sale
consideration, no penal consequences can be pressed into service. He
further argued that the High Court failed to consider the dictum laid
down in the case of Muhammad Asif Awan vs. Dawood Khan (2021
SCMR 1270) but relied on the case of leave refusing order rendered in
the case of Hamood Mehmood vs. Mst. Shabana Ishaq (2017 SCMR
2022) wherein the order to deposit the balance sale consideration was
passed by consent. It was further contended that even if the direction, if
any, given by the court for deposit of balance sale consideration is not
complied with, the law does not stipulate penal consequences and at
best, an injunctive order may be vacated, but not the dismissal of suit.
It was further averred that the appellant had complied with the
directions to deposit the balance sale consideration in view of the
directions given by the Appellate Court. It was further contended that
neither the evidence adduced by the appellant was challenged during
cross-examination nor the respondents led any evidence. He further
argued that after the receipt of the substantial sale consideration,
physical peaceful vacant possession was handed over to the appellant
who, throughout the proceedings, was ready and willing to pay the
balance sale consideration, which is evident from the judgment passed
by the Appellate Court. He concluded that the impugned judgment
suffers from serious legal infirmities, misreading, and non-reading of
the material on record.
4. The learned counsel for the legal heirs of respondent No.1 fully
supported the impugned judgment of the High Court and argued that
C.A.51-K/2021 -3-
the findings recorded by the Appellate Court were not in consonance
with the evidence and the conclusion drawn in the appellate judgment
was misconceived as it failed to take into consideration various
important aspects involved in the case. He further argued that the suit
was not maintainable under Section 7 of the Transfer of Property Act,
1882. It was further contended that the appellant failed to produce a
single receipt showing any part payment. It was further averred that the
suit of the appellant was barred under Section 21 of the Specific Relief
Act, 1877, and the agreement dated 31.10.2009 was not enforceable
under the law, and this crucial aspect was ignored by the appellate
Court and its errors were rectified by the High Court in the impugned
judgment.
5. Heard the arguments. The main ground for dismissing the suit of the
appellant by the High Court was that he did not deposit the balance
sale consideration in Court at the time of institution of the Suit or on
the date of first appearances, nor did he file any application before the
Trial Court for seeking permission to deposit the balance amount in
Court. The High Court, while dismissing the suit, relied upon the
judgment rendered by this Court in the case of Hamood Mehmood vs.
Mst. Shabana Ishaq (2017 SCMR 2022), wherein it was held that it is
mandatory for the person, who seeks enforcement of an agreement
under the Specific Relief Act, that on the first appearance before the
Court or on the date of Institution of the Suit, he shall apply to the
Court for permission to deposit the balance amount, and any
contumacious/omission in this regard would entail in dismissal of the
Suit. Reliance was also placed on the judgments of this Court in the
case of Allah Ditta vs. Beshir Ahmad (1997 SCMR 181), Messrs. Kuwait
National Real Estate Company (Pvt.) Ltd. vs. Messrs. Educational
Excellence Ltd. (2020 SCMR 171) and Haji Abdul Hameed Khan vs.
Ghulam Rabbani (2003 SCMR 953).
6. To get hold of meticulous empathy and receptiveness, it is somewhat
well-timed to thrash out and delve into the facts and ratio of the
judgments of this Court, fortifying the dismissal of the suit for nondepositing the sale consideration in Court at the time of institution of
the Suit or for non-applying the permission of the Court for such
deposit immediately. The survey of the aforementioned judgments is
unambiguously deduced as unde
C.A.51-K/2021 -4-
I. Hamood Mehmood vs. Shabana Ishaq (2017 SCMR 2022):
In this case, it was found mandatory for the person, whether plaintiff
or defendant, seeking specific performance that he should on first
appearance before the Court or on the day of institution of the suit,
apply to the Court for permission to deposit the balance amount and
any contumacious omission in this regard would entail in dismissal
of the suit or decretal of the suit, if it is filed by the other side. If we
look into the facts of this case, there was no issue raised for nondeposit of the balance sale consideration at the time of institution of
suit but the counsel for the plaintiff undertook to deposit the balance
sale consideration within seven days from the date of the order. The
counsel for the defendant No.1 had no objection so the Court directed
to deposit balance sale consideration within seven days with the
caution that no further time will be granted and if the said is not
accomplished within seven days the status quo order granted on
07.03.2017 will automatically be vacated and the defendant No.1 will
be free to sell the said property to any third person, if he chooses to
do so.
II. Allah Ditta vs. Beshir Ahmad (1997 SCMR 181):
In this case too, there was no issue of deposit of the balance sale
consideration at the time of institution of the suit but the appellant
accepted the condition that he would deposit the balance of the sale
price by 25.06.1994 and in case of failure his suit may be dismissed.
Both parties to the case were benefited by the consent order in one form
or the other. As for the advantage accruing to the petitioner, he got
extension in time for deposit of amount which, as fixed by the Trial
Court, had expired and the stay order granted to him by the learned
Trial Court had come to an end but in pursuance of consent order, the
stay order again became available to him and it was to continue till the
disposal of suit.
III. M/s. Kuwait National Real Estate Company (Pvt.) Ltd. vs.
M/s. Educational Excellence Ltd. (2020 SCMR 171):
In this case yet again, there was no issue for the non-deposit of the
amount on the first date or at the time of institution of suit but
according to the facts, the petitioners denied that they refused to sell
the shares to the respondent No. 1 and expressed willingness to fully
implement the terms of the MoU subject to the depositing of pay
C.A.51-K/2021 -5-
orders by respondent No. 1 for the entire sale consideration in Court
immediately. Both the applications along with respondent No.1's stay
application were fixed for hearing on 13.11.2018, when the Civil
Judge directed respondent No.1 to deposit the purchase price in
Court within 30 days, with a caution that in case he fails to comply,
the suit shall be dismissed. Respondent No.1 failed to pay/deposit
the purchase price, and in order to further avoid payment, filed a civil
revision against the order dated 13.11.2018 and the Lahore High
Court suspended the order of the Civil Judge subject to the
depositing of the amount with the Deputy Registrar (Jud) of the High
Court within three weeks and such suspension order was challenged
in this Court. Finally, this Court held that there was no justification
for the High Court for interfering with the order dated 13.11.2018 of
the Civil Judge and converted this petition into an appeal and while
setting aside the impugned order, restored the order dated
13.11.2018 passed by the learned Civil Judge and also restored the
suit.
IV. Haji Abdul Hameed Khan vs. Ghulam Rabbani (2003 SCMR 953)
In this case as well, there was no issue of non-depositing the amount on
the first date or at the time of institution but the Court observed that
the conduct of the petitioner unequivocally tends to reflect that he has
been protracting the litigation on one or the other ground and has been
successful so far on untenable grounds. Since the petitioner did not
deposit the sale amount in compliance with the Trial Court judgment as
well as within the extended period, as permitted by the High Court, it
was legitimately justified in presuming that the petitioner was not
serious in the prosecution of his remedy and appeared to be rather
unwilling to perform his part of contract. This ground alone was found
sufficient by this Court to disentitle him to a decree for specific
performance.
7. The case of Hamood Mehmood (supra) came into discussion and
consideration in the case of Muhammad Asif Awan vs Dawood Khan
and others (2021 SCMR 1270) in Civil Appeal decided on 27.04.2021
by a three-member bench of this Court in which, first of all, it was
held that the case of Hamood Mehmood (supra) was a leave refusing
order and cannot be held to be an enunciation of law by this Court.
6-
In addition thereto, this Court in the above case, further held that the
approach of the High Court that the non-compliance of the order
directing the deposit would amount to failure on the part of the
appellant to perform an act necessary to the further progress of the
suit and therefore, would result in dismissal of the suit under Order
XVII, Rule 3 of the Code of Civil Procedure, 1908 (“C.P.C.”) appears
to be totally misconceived. This Court further noted that the Order
dated 15.07.2018 reflects that the matter was fixed for evidence of the
plaintiff and the record did not show that further progress was not
possible on account of non-production of plaintiff evidence. In the
given circumstances, unless the appellant would have been put to
notice that the non-deposit of the balance sale price would be deemed
to be his incapability of performing his part of the contract as
envisaged under section 24(b) of the Specific Relief Act rendering the
contract non-enforceable, the suit could not have been dismissed. It
was further held that the language employed in Order XVII, Rule 3,
C.P.C. i.e., "the Court may, notwithstanding such default, proceed to
decide the suit forthwith" is permissive and discretionary and does
not in all circumstances entail penal consequences and the discretion
exercised by the Trial Court by extending time for deposit of balance
sale price pendente lite just for a few days in the face of denial of deal
by the vendor was not perverse, entitling the High Court to interfere
in its writ jurisdiction. It was also held that the order directing
deposit of balance sale price did not stipulate the consequences for
non-deposit which normally are the vacation of injunctive order or the
dismissal of the suit, consequently, the order of the High Court nonsuiting the appellant was set aside by this Court.
8. No doubt, the relief of specific performance of a contract is
discretionary which cannot be exercised arbitrarily or unreasonably.
There is also no skepticism that the person seeking specific
performance should demonstrate that he is all set and passionate to
perform his part of obligation but the other side is avoiding the
performance. Appendix "A" of the First Schedule of the C.P.C. focuses
on the specimen and modules of pleadings in which Form-47 relates
to the "Suit for Specific Performance". According to paragraph (3), a
specific condition required to be incorporated in the plaint is that
"The plaintiff has been and still is ready and willing specifically to
perform the agreement on his part of which the defendant has had
notice". Initial burden lies on the plaintiff to show his willingness and
7-
readiness unequivocally and while asserting for any injunctive relief
or otherwise, during the pending adjudication, the plaintiff may offer
to deposit the balance amount in Court and at the same, the Court
has to consider bona fide of the plaintiff i.e., whether he is ready and
willing to perform his part of the contract and if the plaintiff does not
offer to deposit the balance sale consideration in Court, even then,
the Court in order to determine and find out the seriousness or
unseriousness or bona fide or mala fide of the plaintiff who lodged the
claim of specific performance of contract, may pass the Order for
depositing the amount in Court to protect the interest of the
defendant as check and balance with a certain timeline for
compliance of such order with adverse consequence on account of
noncompliance within the stipulated time [Ref: M/s. DW Pakistan
(Private) Limited versus Begum Anisa Fazl-i-Mahmood (2023 SCMR
555)]
9. The primary wisdom of the courts in directing the plaintiff in a suit
for specific performance to deposit the sale consideration in Court in
fact conveys that the plaintiff/vendee has the capacity to pay the sale
consideration or balance sale consideration and is ready and willing
to perform his obligations arising from the contract which is a
condition precedent for claiming relief of specific performance but
there is no mandatory provision under the Specific Relief Act wherein,
come what may, the plaintiff has to tender the outstanding sale
consideration in Court at the time of instituting or presenting the
plaint or even at the time of admission of the suit by the Court before
issuing summons to the defendant or defendants. So for all intent
and practical purposes, the deposit of the sale consideration or
balance sale consideration in the Court is not an automatic or
precondition by fiction of law but there must be an order of the Court
for
deposit
with
certain
timeline
with
repercussions
of
noncompliance, and in case of genuine and satisfactory grounds
pleaded for noncompliance within the stipulated time, the Court, in
exercise of powers conferred under Section 148, C.P.C., may extend
and accord some reasonable time for compliance, with or without
cost, if a justifiable and satisfactory case for extension is made out.
10. At one fell swoop, a ground reality cannot be lost sight of that
much debate is made on the effect and outcome of non-depositing the
balance sale consideration in the Court with or without order of the
8-
Court or noncompliance of the order of the Court, but we cannot
ignore that despite depositing the amount in Court, it is a matter of
fact that several number of years are consumed to decide civil suits
for specific performance of contract by the Civil Courts, specially
relating to immovable properties (residential, commercial and
industrial) at original side, and after decision, the remedies of appeals
and revision are inaugurated and ultimately the litigation is
concluded in this Court, and by that time, much water seems to have
been flown under the bridge which creates serious frustration for
both sides and, not only the amount deposited in Court but also the
property, both remain blocked for a considerable time. In the
intervening period, if the performance of contract relates to the
immovable property, the value of contractual price increases manifold
which may not be found commensurate to the price deposited in
Court despite adding to the profit on it if the amount ordered to be
invested by the Court envisages some profitable scheme. So, in order
to overcome such eventualities, what may the Court do? The first
provision which may be invoked is provided under Order X, Rule 1,
C.P.C., in which, at the first hearing of the suit, the Court can
ascertain from each party or his pleader whether he admits or denies
such allegations of fact as are made in the plaint or written statement
and can also record such admissions and denials and the substance
of the examination shall be reduced to writing by the Judge, and shall
form part of the record. Perhaps better sense will prevail upon the
parties to resolve and settle the dispute at an early stage but if this
provision is not worked out, then the Court may also persuade the
parties to adopt the method of alternate dispute resolution and
maybe, after proper mediation, they will patch up the dispute or
issues cropped up between them which result in such time
consuming litigation in the courts. At last, if no progress is made or
the dispute is not mediated or resolved, then obviously the matter will
revert back to the Court and for an early decision, the Court may
expedite the settlement of issues and recording of evidence either in
the Court or on an application of the plaintiff or defendant, or by
consent of the parties, may appoint a Commission with strict
directions to complete the task of recording evidence religiously
within the stipulated time frame which will ease and facilitate an
early disposal of such matters. Some cases are related to the high
stakes of commercial and industrial ventures and consortiums, where
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the public interest is also involved, therefore, the Courts ought to
make some positive efforts with a dynamic and proactive approach to
decide such category of cases on priority. In the case of Imtiaz Ahmad
vs. Ghulam Ali (PLD 1963 S.C.382), this Court held that the proper
place of procedure in any system of administration of justice is to help
and not to thwart the grant to the people of their rights. All
technicalities have to be avoided unless it be essential to comply with
them on grounds of public policy. Any system which, by giving effect to
the form and not to the substance, defeats substantive rights, is
defective to that extent. The ideal must always be a system that gives to
every person what is his. According to annotation from the book,
Judicial Reflections of Justice Bhagwati (2008 Edition), the judiciary
has to devise new methods, forge new tools and innovate new strategies
for the purpose of reaching social justice to the common man. It must
abjure reactive approach and adopt a proactive role. It must respond to
the demands and urges of the large masses of people for social justice,
and by adopting a creative and activist approach, it must mould and
develop the law and bring it closer to the people so that the rule of law
becomes meaningful and social justice a reality for them. Today, a vast
revolution is taking place in the judicial process; the theatre of law is
fast-changing and the problems of the poor are coming to the forefront.
The Court has to innovate new methods and devise new strategies for
the purpose of providing access to justice to large masses of people who
are denied their basic human rights and to whom freedom and liberty
have no meaning.
11. Reverting back to the present issue, the learned High Court in
Second Appeal, without adverting to the other grounds raised by the
contesting respondents to challenge the judgment and decree of the
first Appellate Court, nonsuited the appellant on the sole ground that
he failed to deposit the outstanding sale consideration at the time of
institution of the suit and/or failed to apply the Court for seeking
directions for deposit of such amount, but by doing so, the Court
ignored a crucial aspect of the case that while allowing the appeal
and decreeing the suit by the first Appellate Court, directions were
also issued to the appellant to deposit the amount within a stipulated
timeframe and according to the appellant such amount was already
deposited in terms of directions contained in the appellate judgment
with consequence of non-compliance.
10-
12. The function of the courts is to do substantial justice between the
parties after providing ample opportunity of hearing, which is one of the
significant components and virtue of fair trial. What we have perceived
is that the learned High Court neither converged any substantial
question of law, nor appreciated the evidence and findings recorded by
the first Appellate Court which decreed the suit, nor pointed out any
defect in the judgment within the parameters and confines of the right
of Second Appeal provided under Section 100, C.P.C., which can only be
preferred against a decree passed in appeal on the grounds such as (a)
the decision being contrary to law or to some usage having the force of
law; (b) the decision having failed to determine some material issue of
law or usage having the force of law, or (c) a substantial error or defect
in the procedure provided by the C.P.C., or by any other law for the time
being in force, which may possibly have produced an error or defect in
the decision of the case upon merits; and according to Section 101,
C.P.C., no second appeal shall lie except on the grounds mentioned in
Section 100. The High Court under the sphere of Section 100, C.P.C.,
can take cognizance of a substantial question of law rather than
triggering interference on a pure question of fact. The Court should also
formulate the question of law to meet the requirements of Order XLI,
Rule 31, C.P.C. The right of appeal accentuates twofold and threefold
checks and balances to prevent injustice, and ensures that justice has
been done with a noticeable differentiation between the two appellate
jurisdictions; one is conferred by Section 96, C.P.C., in which the
Appellate Court may embark upon the questions of fact, while in the
second appeal provided under Section 100, the High Court cannot
interfere with the findings of fact recorded by the first Appellate Court,
rather the jurisdiction is relatively delineated to the questions of law
which is sine qua non for exercising the jurisdiction under Section 100,
C.P.C., but in this case, the learned High Court only adverted to a nonissue in a hyper-technical manner without realizing that the amount
was already deposited in view of the directions contained in the
appellate judgment and instead of considering the actual grounds of
appeal raised by the contesting respondents which may have a colossal
weightiness and significance for challenging the appellate judgment, the
High Court only embarked upon the controversy which had little value
and no consequence at a much belated stage of proceedings; in fact, no
such ground was even raised in the memo of second appeal filed under
Section 100, C.P.C., by the appellant.
C.A.51-K/2021 -11-
13. This Civil Appeal was fixed for hearing on 04.04.2024 when it was
allowed vide our short order, and as a consequence whereof, the
impugned judgment of the Sindh High Court dated 22.02.2021 was set
aside and the matter was remanded for deciding the second appeal
afresh after providing an opportunity of hearing to the parties. Above
are the reasons assigned in support of our short order.
Judge
Judge
| 12 | Suit for specific performance/Others | C.A.51-K/2021 | Mr. Meer Gul v. Mr. Raja Zafar Mehmood & others | Mr. Justice Muhammad Ali Mazhar | 26-06-2024 | 04-04-2024 | N/A | 2024 SCP 217 |
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