Balance amount not paid in court , court dismissed specific performance suit.
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| Balance amount not paid in court , court dismissed specific performance suit. |
عدالت نے اس مقدمے میں درج ذیل اہم نکات پر تبصرہ کیا:
1. **مقدمے کی تفصیلات**: عدالت نے بتایا کہ اپیل کنندہ نے ایک زمین کی خریداری کے معاہدے کے تحت 10,13,25,000 روپے کی قیمت میں سے 2,00,00,000 روپے بطور پیشگی رقم جمع کروائے تھے۔ باقی رقم کی ادائیگی کی آخری تاریخ 26 مئی 2023 تھی۔
2. **عدالتی احکام**: مقدمے کی کارروائی کے دوران، عدالت نے اپیل کنندہ کو بار بار باقی رقم جمع کروانے کی ہدایت دی۔ تاہم، اپیل کنندہ نے ان احکام پر عمل نہیں کیا اور آخر کار مقدمہ عدم ادائیگی کی بنیاد پر خارج کر دیا گیا۔
3. **قانونی نکتہ نظر**: عدالت نے مختلف سپریم کورٹ کے فیصلوں کا حوالہ دیا جن میں کہا گیا کہ معاہدے پر عملدرآمد کے لئے باقی رقم جمع کروانا ضروری ہے۔ اپیل کنندہ کی جانب سے عدم ادائیگی کو معاہدے کی خلاف ورزی سمجھا گیا اور اس وجہ سے مقدمہ خارج کیا گیا۔
4. **فیصلہ**: عدالت نے قرار دیا کہ اپیل کنندہ کی جانب سے بار بار کی گئی ہدایات کے باوجود باقی رقم کی عدم ادائیگی کی وجہ سے مقدمہ قانون کے مطابق خارج کیا گیا۔ عدالت نے اپیل کو بے بنیاد قرار دیتے ہوئے مسترد کر دیا۔
یہ تبصرہ عدالت کے اس موقف کی تصدیق کرتا ہے کہ معاہدے کی تکمیل کے لئے ضروری ہے کہ باقی رقم عدالت میں جمع کروائی جائے تاکہ خریداری کی نیت اور صلاحیت ظاہر ہو سکے۔
Stereo H C J D A 38.
Judgment Sheet
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Case No:RFA No.45873/2023.
Humayon Sajjad
Vs.
Aslam Khan
JUDGMENT
Date of hearing
15.05.2024
Appellant by
Mr. Muhammad Akram Khan, Advocate
Respondent by:
Mr. Haider Zaman Khan, Advocate
ABID AZIZ SHEIKH, J. This regular first appeal
is directed against the order and decree dated 03.07.2023
(impugned order), whereby the suit for possession through
specific performance instituted by the appellant against the
respondent has been dismissed due to non-deposit of
remaining sale consideration.
2.
Relevant facts are that respondent is owner of land
measuring 77-Kanal 04-Marla according to Register Haqdaran
Zamin for the year 2019-2020 situated within the revenue
limits of Mauza Goil, Tehsil Ferozewala, District Sheikhupura
(suit property). It is averred in the suit that appellant and
respondent entered into agreement to sell dated 12.10.2022 for
total
sale consideration of Rs.10,13,25,000/-
@
Rs.1,05,00,000/- per acre and out of total aforesaid sale
RFA No.45873/2023
-2-
consideration, the appellant paid Rs.2,00,00,000/- as earnest
money and the remaining amount was to be paid by
26.05.2023. Due to failure on part of the respondent to perform
his part of agreement, the suit was filed. During course of
proceedings, the order dated 17.03.2023 was passed to deposit
the remaining sale consideration and after various
opportunities, the suit was dismissed for non-deposit of the
remaining sale amount on 03.07.2023, hence this appeal.
3.
Learned counsel for the appellant submits that the
respondent denied the execution of agreement to sell and
claimed it to be a forged and fictitious document, therefore, the
appellant was not required to deposit the remaining sale
consideration in view of law settled by the Supreme Court in
Muhammad Asif Awan vs. Dawood Khan and others (2021
SCMR 1270). Further submits that the appellant had already
filed application under Order XXIII Rule 1 of the Code of
Civil Procedure, 1908 (CPC) to withdraw the suit due to
formal defect but instead of allowing said application, the suit
was dismissed.
4.
The learned counsel for the respondent on the other
hand supported the impugned order. Further submits that after
dismissal of the suit on 03.07.2023, another suit through Irfan
Ali (witness of agreement to sell) has been filed in respect of
the same suit property and interim relief has been obtained. He
RFA No.45873/2023
-3-
submits that in said suit, the appellant is respondent No.1 but
astonishingly neither any role is attributed to the appellant nor
any relief has been claimed against him. He submits that
appellant is abusing the process of this Court by filing
different frivolous suits and harassing the respondent.
5.
Arguments heard. The record shows that appellant filed
suit for specific performance on the basis of agreement to sell
dated 12.10.2022 in respect of suit property and claimed that
out of total sale consideration Rs.10,13,25,000/-, he paid
Rs.2,00,00,000/-
and therefore, balance amount is
Rs.8,13,25,000/-. The Trial Court passed restraining order
against alienation of the suit property on 18.01.2023 and
before filing of the written statement on 17.03.2023 directed
the appellant to deposit remaining sale consideration before
the next date of hearing. Thereafter the appellant was granted
repeated last opportunities on 17.04.2023, 10.05.2023 and
25.05.2023 but the remaining sale consideration was not
deposited. Finally on 10.06.2023, the counsel for the appellant
gave undertaking to deposit remaining sale consideration
before the next date of hearing without fail and on said
undertaking, a specific direction was issued to deposit the
remaining consideration otherwise suit will be dismissed. On
03.07.2023, the appellant did not deposit the remaining sale
consideration but filed application for withdrawal of the suit,
RFA No.45873/2023
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however the Trial Court declined withdrawal of suit
application and also dismissed the suit for non-deposit of the
sale consideration.
6.
The legal question requires determination in this case is
that whether in such circumstances, the Court could dismiss
the suit for non-deposit of the remaining sale consideration.
This moot question remained subject matter of discussion
before Supreme Court in following case law:-
(i) The Supreme Court of Pakistan in judgment
reported as Hamood Mehmood vs. Mst. Shababa
Ishaque and others (2017 SCMR 2022) has held as
follows:-
“It is mandatory for the person whether
plaintiff or defendant who seeks
enforcement of the agreement under the
Specific Relief Act, 1877, that on first
appearance before the Court or on the
date of institution of the suit, it shall apply
to the Court getting 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.”
(ii). The aforenoted judgment was followed by the apex
Court in judgment reported as Messrs Kuwait National
Real Estate Company (Pvt.) Ltd. and others vs. Messrs
Educational Excellence Ltd. and another (2020 SCMR
171) and held as under:-
“It is now well settled that a party seeking
specific performance of an agreement to
sell is essentially required to deposit the
RFA No.45873/2023
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sale consideration amount in Court. In
fact, by making such deposit the plaintiff
demonstrates its capability, readiness and
willingness to perform its part of the
contract, which is an essential prerequisite to seek specific performance of a
contract. Failure of a plaintiff to meet the
said essential requirement disentitles him
to the relief of specific performance, which
undoubtedly is a discretionary relief.”
(iii). The Supreme Court of Pakistan in a case reported
as Muhammad Shafiq Ullah and others vs. Allah
Bakhsh (deceased) through L.Rs. and others (2021
SCMR 763) has held as under:-
“6. Admittedly, neither Matiullah nor
his legal heirs (the petitioners herein)
tendered the balance sale consideration to
the sellers (respondent Nos.4 to 10) nor
deposited the same in court, if they had
refused to receive it. Not paying the
balance of the sale consideration
constituted violation of an “essential term
of the contract that on his (buyer’s part
remains to be performed’ (clause (b) of
section 24 of the Specific Relief Act).
Therefore, for this reason too the specific
performance of the purported contract
could not be enforced. Matiullah and the
petitioners also did not demonstrate that
they were ready, able and willing to
perform their obligation to make payment
of the balance sale consideration.”
(iv). The Supreme Court in case reported as
Inayatullah Khan and others vs. Shabbir Ahmad Khan
(2021 SCMR 686) has also examined the aforenoted
question and in paragraph No.15 has observed as
under
RFA No.45873/2023
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“A person seeking the specific
performance of a contract must first show
that he is ready, able and willing to
perform his obligations under the contract,
but this the respondent had failed to do.
The law does not require that the balance
sale consideration must be tendered or
deposited in court, but such tender/deposit
helps establish that the buyer was not at
fault. The respondent’s learned counsel’s
contention that only after the court directs
the deposit of the sale consideration, is it
to be deposited, is misplaced. We may also
take judicial notice of the fact that
invariably the value of money depreciates
over time and that of land appreciates.
Courts adjudicating such cases should not
be unmindful of this reality and should
endeavour to secure the interest of both
parties. In a suit for specific performance
of land, if the seller/vendor has refused to
receive the sale consideration, or any part
thereof, it should be deposited in court and
invested in some government protected
security (such as Defence or National
Savings Certificates); in case the suit is
decreed the seller would receive the value
of money which prevailed at the time of the
contract and in case the buyer loses he can
similarly retrieve the deposited amount”.
(v). The apex Court in case reported as Mst. Samina
Riffat and others vs. Rohail Asghar and others (2021
SCMR 7) has also endorsed the aforenoted view in
paragraph No.13 as under:-
“In cases arising out of sale of immovable
property a vendee seeking specific
performance has to demonstrate his
readiness and willingness to perform his
part of reciprocal obligation as to payment
of balance sale consideration. The
question what is readiness and willingness
to perform a contract was attended to by a
RFA No.45873/2023
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learned Division Bench of the West
Pakistan High Court (Karachi) in the case
of “Abdul Hamid vs. Abbas Bhai-Abdul
Hussain” It was held that “In the first
place, willingness to perform ones contract
in respect of purchase of property implies
the capacity to pay the requisite sale
consideration within the reasonable time.
In the second place, even if he has the
capacity to pay the sale consideration, the
question still remains whether he has the
intention to purchase the property. On
consideration of all the facts it appears
that the appellant was not in a position to
pay the balance sale consideration. At any
rate, the appellant was not willing even if
he had the capacity to pay the money, to
have the sale deed completed.”
7.
The same view was also expressed in Muhammad
Yousaf vs. Allah Ditta and others (2021 SCMR 1241) and
Mst. Rehmat and others vs. Mst. Zubaida Begum and others
(2021 SCMR 1534). From above case law it is manifest that
the purpose of directing the vendee to deposit remaining sale
consideration is on one hand to enable him to demonstrate his
readiness, ableness and willingness to perform his contractual
obligation and on the other hand also to safeguard the rights of
the vendor. Therefore in ordinary circumstances, order by
Court to deposit remaining sale consideration, cannot be
termed as harsh, oppressive or unlawful.
8.
The argument of the appellant counsel that merely
because respondent denied the execution of the agreement to
sell, therefore, the appellant could not be required by Court to
RFA No.45873/2023
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deposit the balance sale consideration in view of Muhammad
Asif Awan case supra, is also misconceived. In the case of
Muhammad Asif Awan supra, the execution of agreement to
sell was denied being forged and fictitious but notwithstanding
the above fact, the Trial Court directed the vendee/plaintiff to
deposit the remaining sale consideration which was finally
deposited but during the time extended by the Trial Court as
well as Appellate Court. In said case, the High Court set aside
the order for extension of time and consequently dismissed the
suit, however the Supreme Court allowed the appeal mainly on
the ground that when direction to deposit remaining
consideration has been issued to establish bonafide of the
vendee/plaintiff and not at the instance of the vendor/
defendant, the Trial Court had power to extend the time,
whereas in case the remaining amount deposit is at the
instance of the vendor/defendant, the Court will become
functus officio. In the present case, no doubt the direction to
deposit the remaining sale consideration was not at the
instance of the vendor but as per direction of the Court to
prove the readiness and bonafide of the appellant but not only
the appellant failed to deposit the remaining sale consideration
despite several opportunities including last warning on
10.06.2023 but the appellant otherwise never challenged the
RFA No.45873/2023
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said order for deposit of the balance sale consideration or
sought extension of time to deposit the sale consideration.
9.
The Supreme Court in para 12 of the Judgment of
Muhammad Asif Awan case supra, further held that suit can be
dismissed for non-deposit of balance amount provided that the
plaintiff has put to notice that non-deposit would deem to be
his incapability of performance of his part of contract as
envisaged under section 24(b) of the Specific Relief Act, 1877
(Act). Relevant para 12 is reproduced hereunder:-
“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) rendering the contract non-enforceable,
the suit could not have been dismissed. Even
otherwise, the language employed in Order
XVII, Rule 3 by using word, “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 few days in the face of denial of deal by
the vendor was not perverse entitling High
Court to interfere in its writ jurisdiction.”
In the present case, the appellant was specifically directed as last
opportunity to deposit the remaining consideration on
17.03.2023, 17.04.2023, 10.05.2023, 25.05.2023 and thereafter
finally on 10.06.2023, he was put to notice that for non-deposit
of the balance sale price, his suit will be dismissed. Therefore,
RFA No.45873/2023
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the petitioner’s case does not fall under the exception of para 12
of Muhammad Asif Awan case supra.
10.
The next argument of the appellant that his application
under Order XXIII Rule 1 CPC for withdrawal of the suit could
not be dismissed has also no basis. Bare reading of said
application shows that neither any formal defect nor sufficient
ground for allowing the appellant to institute fresh suit for the
subject matter of his suit or part of the claim has been specified.
Therefore, the Trial Court has lawfully dismissed the said
application being merely an attempt to circumvent the repeated
directions of the Court to deposit the balance consideration.
11.
In view of above case law and the facts in this case as
discussed above, it is manifest that the conduct of the appellant
was not only contemptuous but also dilatory for the reason that
he despite availing various opportunities including last and final
opportunity dated 10.06.2023 failed to deposit the balance sale
consideration, hence his suit was lawfully dismissed.
12.
In view of above discussion, this appeal being devoid
of any merit is dismissed.
(Anwaar Hussain)
(Abid Aziz Sheikh)
Judge
Judge
Approved for reporting.
Judge
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