NAZIM HUSSAIN SIDDIQUI, C.J.---This judgment will dispose of Civil Appeals Nos. 732 of 1998 and 210 of 2003, as in these matters common questions of law are involved.
2. Civil Appeal No,732 of 1998 is directed against the judgment dated 21-10-1996 passed in Writ Petition No,18866 of 1996, whereby said Writ Petition was dismissed by learned Single Judge in Chambers, Lahore High Court. In Civil Appeal No, 210 of 2003 the impugned judgment is dated 21- 10-2002 delivered by a Full Bench of said Court in Civil Revision No,650 of 2001.
3. In Civil Appeal No,732 of 1998, the relevant facts are that appellant, Shabbir Ahmed, filed a suit for specific performance in respect of 1/5th share in the land in dispute, the details of which are given in the plaint. The suit was decreed ex-parte on 3-10-1994 in his favour. Learned trial Court directed him to deposit the balance amount , of Rs,1,45,000 within a period of one month after passing of decree, failing which the suit stood dismissed. Before expiry of said period, the appellant applied for extension of time for depositing the amount. Learned trial Court, however, dismissed the said application on 22-1-1995 on the ground that the Court had become "functus officio" which means "having fulfilled functions, having discharged the office or accomplished the purpose, no further force or authority". He preferred revision against said order, which was dismissed by learned Additional District Judge, Lahore on 7-11-1995. He then filed a review application, which also met the same fate. Thereafter, he filed a writ petition, which was dismissed in limine on the ground of its non-maintainability.
4. Vide order dated 14-4-1998, leave to appeal was granted to consider if civil Court had become functus officio after passing of decree and was left with no power to grant extension of time on the application made by the decree holder. The respondent was restrained from alienating the land in dispute, till disposal of this appeal.
5. In Civil Appeal No,210 of 2003,,the relevant facts are that the appellant, Hussain Enterprises, had filed a suit for possession of certain landed property through specific performance of an agreement to sell dated 28-2-1991 against ti e respondents, which was decreed on 15-12-2000 subject to payment of the remaining sale consideration within a month. It was held in the judgment that, the suit was to stand dismissed automatically, if the remaining sale amount was not deposited within the stipulated period. It appears that the appellant, instead of depositing the balance amount within a month, moved an application on 1-2-2001 for extension of time, which was allowed vide order dated 3-2-2001 and time was granted till 10-2-2001 and the balance amount was deposited during the extended period. Being aggrieved, the respondents filed a Civil Revision in Lahore high Court, which was allowed.
6. Vide order dated 4-2-2003, leave to appeal was granted to consider that if in view of section 35 of the Specific Relief_ Act; 1877, hereinafter referred to as "Section 35", the Court, granting a decree in a suit for specific performance , does not become functus officio and that a decree passed in such suit is in the nature of a preliminary decree, as such, the trial Court has the power to pass further order in that regard.
7. During the course of arguments, learned counsel appearing for the respective parties referred to the definitions of "decree" i,e, section 2(2) and section 148 of Civil Procedure. Code, hereinafter referred to as "section 148" and section 35, which are reproduced below for ready reference.
Civil Procedure Code, 1908 S.2(2) "Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint [the determination of any question within section 144, and an order under rules 60, 98, 99, 101 or 103 or order XXI] but shall not include--
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation.--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final. Section 148. Enlargement of time.--Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired.
Specific Relief Act, 1877 Section 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 Court 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.
8. It is contended on behalf of the appellants that learned High Court erred in declaring that a decree in a suit for specific performance is a final decree and it conclusively determines the right of the parties and completely disposes of the suit and that by doing so ignored section 35, which, inter alia, provides statutory recognition to the fact that a suit for a specific performance does not come to an end by passing of the decree and that even after decree, the Court retains the power to extend time for deposit of sale price. Learned counsel also argued that in a suit for specific performance the plaintiff invokes equitable relief/jurisdiction and the words "as the justice of the case may require" clearly empower the Court to do justice between the parties having examined the relevant facts and that who is more to blame for nonperformance of the Contract as the situation arises. He submitted that in a case where bona fide claim of title to property is made out, it would be just and proper to extend time period. He also contends that in these matters the respondents had tried to cheat and defraud the appellants. He also argued that the reliance placed by High Court on the judgment reported as Shah Wali v. Ghulam Din PLD 1966 SC 983 was not warranted. Explaining it, he .Stated that above case applied to "preemption suits" and not to suits for "specific performance". He also stated that in the matters governed by the Specific Relief Act, 1877 even after the decree is passed trial Court has power to pass further order including to rescind the contract itself. It is also urged that Civil Procedure Code does not state that a decree in a suit for specific performance must specify the date by which payment must be made and that in case of default the suit shall be dismissed. Explaining it further, he stated that a decree is the conclusive determination of all matters in controversy between the parties and that fixation of time during which the purchaser is directed by the Court to make payment is neither a part of the controversy between the parties nor does it determine any of the right of the parties. He submitted that time limit cannot form a part of the decree, as contemplated by the C.P.C. And that the Court can always extend time. He argued that the very fact that the provisions of section 35 and that of Order XX, rule 14, C.P.C. Being entirely different, as such, their scope is also different and one cannot be used to nullify the effects of the other. In support of above contentions, he cited;--
(1) Abdul Shaker Sahib v. Abdul Rahiman Sahib and another 1923 Mad.284.
(2) Gokul Prasad v. Fattelal AIR (33) 1946 Nag.29.
(3) Mahanth Ram Das v. Ganga Das AIR 1961 SC 882.
(4) Shah Wali, v. Ghulam Din alias Gaman and another PLD 1966 SC 983.
(5) Asraf Ali alias Asrafuddin Mondal and another v. Bayla Hasda and others PLD 1967 Dacca 557.
(6) Muhammad Riaz Qamar v. Umar Din and 3 others 1985 CLC 474.
(7) Nizam-ud-Din and 13 others v. Ch. Muhammad Saeed and 7 others 1987 CLC 1682.
(8) Yeshoda and another v. K. Nagarajan (1996) II SCC 228. ,
(9) Fazal Hussain v. Malik Muhammad Saeed and others 1998 MLD 974.
(10) Asim Hussain Qadri v. Muhammad Umar 1999 MLD 1466.
(11) Maj. (Red.) Hamid Ali Khan v. Mian Muhammad Anwar 2000 CLC 1633.
9. It is significant to note that leading authority on the point ofspecific performance relating to meaningful discussion on section 35 is the case Abdul Shakir Sahib v. Abdul Rahiman Sahib and others (supra), wherein it was held .That where specific performance of sale has not been affected 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 expiry of the date peremptorily granted and that the original Court has ample power to extend the time for specific performance. The rule enunciated in this case was followed in above quoted cases.
10. As against above, Mian Dilawar Mahmood, Senior Advocate Supreme Court appearing on behalf of the respondent in Civil Appeal No,210 of 2003 cited:--
(1) Kurpal Hemrai v. Shamrao Raghunath Taote AIR 1923 Born.211.
(2) Gaya Din v. Lalta Prasad and others AIR 1936 All.477.
(3) Beni Parsad v. Om Prakash and another AIR 1938 All.497.
(4) Shri Murti Parasnathji through Sarbarakar Singhai Motilal and another v. Gulabchand s/o Mithulal Jain and others AIR (30) 1943 Nag.111.
(5) Bengal Central Bank Ltd. v. Bexon and Co. And another AIR (38) 1951 Cal.299.
(6) Narayanan Nair Raman Nair v.Govindan Nair Raman Nair and another AIR 1952 Travancore Cochin 440.
(7) D. Sitaraman and other v. SS Pattabhiraman alias Rathnam AIR 1958 Mad.453.
(8) Shah Wali v. Ghulam Din alias Gaman and another PLD 1966 SC 983.
(9) Bhujangrao Ganpati v. Sheshrao Rajaram AIR 1974 Born.104.
(10) Ilam Din and others v. Abdul Hamid and others 1980 CLC 807.
(11) Sultan Ali v. Khushi Muhammad PLD 1983 SC 243.
(12) Amjad Malik V. Muhammad Saleem and 5 others 1992 MLD. 31
(13) Muhammad Ismail v. Muhammad Akbar Bhatti and 5 others PLD 1997 Lah.177.
(14) Dr. Iftikhar Ahmed Zahid v. Mrs. Neelofar Akhtar and another PLD 2002 Lah.176.
(15) Dr. Iftikhar Ahmad Zahid v. Mrs. Neelofar Akhtar and another 2004 SCMR 96. to contend that after passing of the decree, the trial Court becomes "functus officio" and section 148 could not be invoked. He further contended that the provisions of section 35 have no application where the decree itself provides consequences of automatic dismissal of the suit in case of failure of decree holder to pay the purchase price within time specified in the decree.
Referring to the judgment Shah Wali v. Ghulam Din (supra), he submitted that now it is settled' proposition of law that section 148 does not apply where the period is fixed by a decree in a suit unless the decree is in the nature of a preliminary decree and the Court still retains in over the action. He argued that above_ is the ratio of the said judgment. It is also urged that even in a suit for a specific performance if it is dismissed the decree shall be treated as final decree because such adjudication completely disposes of the suit by determining the rights of the parties with regard to all the matters in controversy and for all practical purposes nothing is left for further adjudication by the Court and the lis between the parties terminates at the trial stage.
11. It is significant to note that learned counsel of both sides have placed reliance upon above referred case, as such, we feel it necessary to correctly understand the dictum laid down therein. In this case a person filed a suit for pre-emption, which was decreed and he was directed to deposit pre-emption money by 21-3-1961 and the Court further ordered that "otherwise his decree will be cancelled". On appeal by the vendee-defendant, the amount of pre-emption money was enhanced and the District Judge directed the pre-emptor to deposit the enhanced preemption amount by 30-3-1962 and ordered that "otherwise his suit will be treated as dismissed with costs".
The pre-emptor on 18-4-1962 deposited the pre-emption amount, which by a bona fide mistake fell short of Rs,123.75. At the same time, however, he had filed a second appeal to High Court and this appeal was dismissed in limine on 9-10-1962, On 17-10-1962, the pre-emptor sought extension of time to deposit aforesaid deficit amount on the ground that the short fall in payment was due to bona fide mistake. The trial Court refused to grant extension in time, holding that it had no jurisdiction to do so. Against this order, the pre-emptor went in the appeal and the District Judge disagreed with the findings of trial Court and extended time for depositing the pre-emption amount. The vendee thereupon went in revision before High Court and High Court dismissed the petition and held that the Appellate Court had jurisdiction to extend time. The vendee thereafter approached this Court and leave to appeal was granted to consider:-- "Whether extension of time could be granted to a successful pre-emptor on appeal against an order of refusal to extend the time for depositing pre-emption money when the original decree was not under appeal." Above matter was heard by a Full Bench of this Court of five Hon'ble Judges including the then Chief Justice. It was held that the pre-emptor's suit stood dismissed by his default in making payment of the correct amount within the time fixed by the appellate decree and there was no question of extension of time involved either by the original Court or by the Appellate Court. In this matter three learned Judges agreed with above rule and the remaining two agreed with the conclusion reached by the three but added some reasons which were somewhat different.
12. In the case at Sl. No,1 cited by learned counsel for the respondent with reference to section 35, it was held that in case of default by plaintiff-suit by defendant for rescission can lie and the Court also in the same suit can order rescission of contract. In the case at Si. No,2, trial Court dismissed the application for restoration of suit, and held that under section 148, time could not be extended for payment. In case at SI. No,3, it was held that a subordinate Judge has no jurisdiction to extend time so fixed for payment of court-fee. In case at SI.No,4, the Court observed that once the time fixed in the decree has passed without performance, the other side can operate under section 35 and can so operate by motion in the action. In case at SI.No,5, it was held that section 148 has no application when the period is fixed by a final decree of the Court. This suit related to a large sum of money and for the declaration of the charge on certain Calcutta premises. In case at Si. No,6, it was held that the Executing Court has no jurisdiction to extend the time as fixed in the decree because it will be altering or modifying the terms of the decree. The suit of this matter related to partition and recovery of share in the family properties. In the case at SI. No,7, the dictum laid down is that where the suit, .Appeal or other proceedings has by virtue of any order passed by the Court ceased to exist, section 148 has no application. The case cited at Sl. No,8 has already been discussed.
13. With reference to SI.No,9, it is held therein that failure on the part of the party to carry out the terms of the decree automatically results in dismissal of the suit and the Court becomes functus officio. In the case at Si. No,10, the rule laid down is that in case the Court fee is not paid within period prescribed by decree, it becomes incapable of execution and the Court after passing decree becomes functus officio and section 148 is not attracted. In the case at Sl.No,11, it was held that total absence of jurisdiction could never be waived by parties nor could an illegality in an order be cured by consent of the parties. In this matter the question was of the interpretation of the terms of mortgage deed. It was held that the power of the Court to extend time under section 148 for the doing of any act, does not apply where the period is fixed by a decree in a suit, unless the decree is in the nature of a preliminary decree and the Court still retains seisin over the action. This principle proceeds on the basis that a decree normally puts an end to a suit and thereafter, the power of the Court to pass any other order with regard to subject-matter of such suit also comes to an end and the Court becomes functus officio with regard thereto.
14. In the case at Si. No,12, learned Single Judge of Lahore High Court, having taken into consideration various authorities cited before him in a case relating to specific performance with reference to section 35, held that the said section itself empowers the Court to rescind or not to rescind the contract despite the decree and the default of the purchaser in the payment of the purchase money, it should follow logically that in case of such a decree, the Court does not become functus officio and retains control over the action even after the decree. In the case at sl.No,13, the learned Single Judge of Lahore High Court with reference to specific performance of contract held that decree for specific performance of agreement of sale is in the nature of preliminary decree and such decree partakes character of contract, whereby vendee has to deposit purchase price, cost for purchase of necessary stamps for execution of conveyance deed, while seller has to appear in Court, sign conveyance deed and receive purchase price, therefore, such decree is not final but preliminary in nature and that Court passing such decree would retain seisin over the lis and would have power to enlarge time for payment of purchase price fixed therein. It is significant to note that the cases at SI.No,12 and 13 do not support the case of the respondents and on the contrary dictum laid down therein lends support to version of the appellants. In the case at Sol.No,14, it was held that in a suit for a specific performance of agreement to sell the decree passed by trial Court attained finality and the Court, which passed the decree, had no seisin over the lis. It was further held that the decree in this case was self- executing and trial Court had no jurisdiction to extend time and application for enlargement of time was rightly dismissed. High Court declined to interfere with the order passed by trial Court.
15. In the case at SI. No,15, learned Bench of this Court comprising three Judges granted leave to appeal to consider whether the time to deposit the amount could be extended in view of the fact that the question raised in the petition was of first impression and there was no authoritative judgment of this Court on said point.
16 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.
17. Decrees for specific performance and for pre-emption suits are altogether different. The pre- emption decree is required to be formulated in accordance with the provisions of Order XX, rule 14 of C.P.C. In case of failure to deposit the pre-emption money, the suit is to be dismissed. In above Rule 14 requiring payment of purchase money in Court is a mandatory provision and its non- compliance entails positive and negative penalties barring application of general principles that technicalities should not be permitted to hinder justice and rule of substantial justice. The provisions of Order XX, Rule 14(1) are penal in nature, strict compliance whereof is. Necessary to impose on the party the penalty of dismissal of suit, whereas a suit for specific performance is entirely on different footing and the principle applicable in pre-emption suit cannot be invoked in a suit for specific performance.
18. In consequence, both the appeals are allowed and the impugned judgments passed by High Court in these appeals are set aside with no order as to costs. In Civil Appeal No,732 of 1998, the decree passed by learned Civil Judge First Class, Lahore on 3-10-1994 is restored/upheld and the remaining amount of sale price shall be paid by the appellant to respondent No,1 at the time of execution of sale-deed. Like-wise, in Civil Appeal No,210 of 2003, the decree dated 15-12-2000 passed by learned Civil Judge, Sheikl upura is restored/upheld and the amount deposited by the appellant during extended period be paid to the respondents. The extension of time in both these matters, as prayed, is allowed.