2024 C L C 1279
[Sindh]
Before Muhammad Iqbal Kalhoro and Adnan-ul-Karim Memon, JJ
USUF PAKISTAN (PVT.) LTD.----Appellant
Versus
MUHAMMAD SABIR CHIPPA and another----Respondents
High Court Appeal No.317 of 2022, decided on 21st February, 2023.
(a) Transfer of Property Act (IV of 1882)---
----S.54---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of an agreement to sell---Balance consideration amount, non-payment / depositing of---Appellant (plaintiff / vendee) assailed order passed by the Civil Court whereby stay having been granted in favor of the appellant/ plaintiff had been vacated by dismissing the application under O. XXXIX of the Civil Procedure Code, 1908---Validity---Record revealed that the sale agreement was made between parties on 03.01.2016 who agreed on the sale consideration of Rs.22,500,000/- and at the time of signing the agreement, the vendor had received 10% part payment of the total sale consideration---As per relevant clause of the said agreement, the remaining amount of Rs.20,250,000/- was required to be paid by the vendee to the vendor on or before 13.01.2016 with the grace period of 30 days, and as per the record, the appellant failed to pay the balance sale consideration to the respondent within time as required in the sale agreement---Primarily, the issue involved in the proceedings was simple for the reason that agreement to sell comprises of reciprocal promises and corresponding obligations to be performed in the manner provided for---Vendee cannot seek enforcement of reciprocal obligation on the part of the vendor to execute the sale deed unless he demonstrates that he not only has the financial capacity but he was and is also always willing and ready to meet the same---Promisor/vendor need not perform his part of the promise or obligation to execute conveyance, unless the promisor/respondent (the vendee) is ready and willing to perform his reciprocal promise---It is mandatory for such party that on first appearance before the court or on the date of institution of the suit, it shall apply to the Court for permission to deposit the balance amount---Any omission in such regard would entail the dismissal of the suit or decretal of the suit if it was filed by the other side---In the present case, obligation was not fulfilled by the appellant / plaintiff---If a buyer does not fulfill his primary obligation to secure/tender the sale consideration and files suit and does so without depositing the sale consideration in court at the first opportunity, the buyer is placed in an advantageous position---Without prejudice to the rights of parties in pending litigation, High/Appellate Court did not find any illegality in the impugned order of dismissal of stay application---Appeal filed by the plaintiff was dismissed, in circumstances.
Space Telecommunication (Pvt.) Ltd. v. Pakistan Telecommunication Authority 2019 SCMR 101 and Mst. Samina Riffat and others v. Rohail Asghar and others 2021 SCMR 7 ref.
(b) Contract Act (IX of 1872)---
----S. 55---Specific Relief Act (I of 1877), S. 12---Civil Procedure Code (V of 1908), O. XXXIX, Rr. 1 & 2---Suit for specific performance of an agreement to sell---Time as essence of the contract---Scope---Appellant ( plaintiff / vendee) assailed order passed by the Civil Court whereby stay having been granted in favor of the appellant/ plaintiff had been vacated by dismissing the application under O. XXXIX of the Civil Procedure Code, 1908---Validity---Often it is misconstrued that time is not the essence of the contract in cases of specific performance, in respect of the immovable property, and generally, reliance is placed on S. 55 of the Contract Act, 1872---Archaic rule that, generally, time is not of the essence in contracts involving the sale/purchase of immoveable property, could not be used as a ground to grant or otherwise refuse specific performance unless the circumstances that prove otherwise are highlighted and proved by the vendor and or vendee as the case may be---In the present case, obligation was not fulfilled by the appellant / plaintiff---If a buyer does not fulfill his primary obligation to secure/tender the sale consideration and files suit and does so without depositing the sale consideration in court at the first opportunity, the buyer is placed in an advantageous position---Without prejudice to the rights of parties in pending litigation, High/Appellate Court did not find any illegality in the impugned order of dismissal of stay application---Appeal filed by the plaintiff was dismissed, in circumstances.
Muhammad Jamil and others v. Muhammad Arif 2021 SCMR 1108; Malik Bahadur Sher Khan v. Haji Shah Alam 2017 SCMR 902 and Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad 2017 SCMR 1696 ref.
(c) Specific Relief Act (I of 1877)---
----S. 12---Suit for specific performance---Specific performance, grant or refusal of---Discretion of the Court ---Scope---Jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; however the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.
Liaqat Khan v. Falak Sher PLD 2014 SC 506 ref.
Muhammad Kamran Mirza for Appellant.
Merajuddin for Respondent No.1.
Ms. Lubna for Respondent No.2.
