' The order and decree, dated 15-12-2003 of the learned Civil Judge 1st Class, Lahore, has been assailed in this appeal which arises out of the following circumstances.
2. Learned counsel for the appellant has been heard and the record perused with his assistance.
3. On 14-7-2003, respondent No.1, through her attorney (respondent No.2), executed an agreement to sell House No.51 Block-W, Phase-III in the Defence Housing Authority, Lahore Cantt. For a consideration of Rs.20,000,000. The vendor received an earnest money of Rs.25,00,000. The period of completion, contemplated by the said agreement, was upto 15-10-2003. On 12-11-2003, the appellant filed suit for specific performance, and in the alternative prayer for damages amounting to double of the earnest money, was made. On 21-11-2003 the learned counsel for the respondents Nos.1 and 2 conceded the suit filed by the appellant, and accordingly, made a statement before the learned trial Court. Resultantly, on the said date, the appellant was directed to deposit the balance sale consideration of Rs.1,75,00,000 upto 5-12-2003 otherwise his suit shall be deemed to have been dismissed. The order, dated 21-11-2003 was challenged before this Court in Civil Revision No.2291 of 2003 which was dismissed vide order, dated 4-12-2003. On 5-12-2003, the appellant made an application for extension of time for making the deposit by six months and also sought review of the order, dated 21-11-2003. These applications were dismissed by the learned trial Court vide the order impugned in this appeal. It was followed by a decree of even date directing dismissal of the suit of the appellant.
4. The learned counsel for the appellant contends that from 24-9-2003 upto 14-1-2004 the appellant was confined in judicial lock-up in a criminal case, therefore, he was entitled to extension of time to comply with the order, dated 21-11-2003. According to him, the discretion to refuse extension of time has arbitrarily been exercised by the learned trial Court in the circumstances of the case, the suit was instituted on 12-11-2003 and the proceedings thereon were completed on 20- 11-2003 within a few days, statement on behalf of respondents Nos.1 and 2 was recorded in the absence of the appellant or his learned counsel which, at best, amounted to an offer and unless it was accepted, the appellant could not have been non-suited. It was further submitted that according to clause (5) of the agreement the vendor had to complete all the title documents for the purpose of conveyance in favour of the appellant which was not done. He also contended that apart from specific performance. An alternative prayer made in the suite was for recovery of an amount of Rs.50,00,000, the double of the amount of earnest money on the ground that the vendor had failed to perform her part of the contract. He lastly argued that respondent No.1 had filed a suit on 12-11-2003 seeking a declaration that on account of nonperformance of his part of contract by the appellant, the aforesaid agreement to sell stood cancelled and that the appellant had made an application for consolidation of the suits on 21-11-2003. Therefore, the suit of the appellant could not have been dismissed.
5. The submissions made by the learned counsel for the appellant have been considered. In a suit for specific performance, the appellant is required to be ready and willing to perform his part of the contract. As far as the order,. Dated 21-11-2003 is concerned, having been affirmed by this Court in Civil Revision No.2291 of 2003 it is not possible to go behind the said order. In fact in terms of the order, dated 21-11-2003, the suit of the appellant stood dismissed. The submission of the learned counsel that because the appellant was confined in judicial lock-up, discretion to extend time under section 148 of the Code of Civil Procedure should have been exercised in his favour, has not impressed us for the reason that he remained in confinement upto to 14-1-2004, as stated by the learned counsel before us while in the application made on 5-12-2003 he desired extension of time by six months. It only establishes that on the date of the suit or even up to 5-12-2003, the appellant was not ready and willing to perform his part of contract. It may be noted that while B the date for completion of the transaction was 15th of October, 2003, the appellant filed the suit on 12-11-2003, which was conceded by respondents Nos.1 and 2 on the first hearing which amply demonstrates that the vendor was ready and willing to perform her part of contract. Therefore, the claim of the appellant for damages was misconceived.
6. The relief of specific performance is discretionary and in the circumstances, we do not find any justification for interference. Accordingly, this appeal is dismissed in limine.