' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- Petitioner seeks leave to appeal against the judgment, dated 29th April, 2000 whereby Lahore High Court, Lahore dismissed the R.F.A. No,140 of 1992 filed by him to challenge the order dated 29th March, 1992 passed by the Civil Judge, Sargodha rejecting the plaint of the petitioner in exercising of powers under Order VII, rule 11, C.P.C.
2. Precisely stating relevant facts giving rise to instant petition are that as back as on 28th February, 1973 respondent filed a suit for specific performance of agreement dated 12th December, 1972 in respect of the subject property purchased by him for a total consideration of Rs,205,500 out of which Rs,25,000 were paid as earnest money. The balance amount of Rs,1,80,000 was payable at the time of execution and registration of the sale-deed. Learned trial Court decreed the suit vide judgment, dated 22nd March, 1980 against the petitioner with costs, subject to depositing balance of sale price in the Court i,e, Rs,1,80,000 less the cost of the suit up to 20th April, 1980 failing which the petitioner was entitled to recover Rs,50,000 as penalty amount from the respondent as an alternative relief. The amount was deposited by the respondent as per the direction of learned trial Court.
3. The petitioner being aggrieved from the order of learned trial Court vide judgment dated 22nd March, 1980 filed R.F.A. No,75 of 1980 which was admitted for regular hearing vide order, dated 14th April, 1980 and the operation of the impugned decree was suspended subject to notice. During the pendency of the appeal respondent filed C.M. No,2864/C of 1980 with the prayer that either his appeal be heard in June, 1980 or in the alternative petitioner be permitted to withdraw the amount of Rs,1,80,000 and gave an undertaking to deposit the same within one month before the final hearing if the office of the Court informed him about the final hearing of case well in time. The application was allowed on 4th October, 1980 vide following orders:-- "Learned counsel for the appellant has no objection to the withdrawal of the decretal amount. The respondent is, therefore, allowed to withdraw the amount till further orders."
' R.F.A. No,75 of 1980 filed by the petitioner was dismissed by learned High Court vide judgment dated 3rd July, 1988.
4. It is pertinent to mention here that learned High Court while dismissing R.F.A. No,75 of 1980 did not pass any order for redepositing of Rs,1,80,000. Petitioner being aggrieved from the order of learned High Court preferred C.P.S.L.A No,919 of 1988 before this Court which was dismissed on 24th June, 1990. On the dismissal of petition, petitioner filed an application dated 18th July, 1990 seeking permission from the trial Court to deposit the remaining consideration amount which was allowed subject to rights of the respondent, if any. Thereafter, respondent filed an execution petition before the trial Court on 19th July, 1990. During pendency of the execution petition, petitioner filed an application under section 47, C.P.C. With the prayer that the respondent has failed to deposit the remaining consideration amount according to his own undertaking and he has violated the decree under execution, therefore, the decree for specific performance of the contract is not enforceable.
The application was contested by the respondent which was dismissed by learned trial Court vide judgment dated 29th January, 1991. The respondent, being aggrieved from this order, filed F.A.O.
No,54 of 1991, which later on was withdrawn by him on 3rd June, 1991 with the observation that the petitioner can avail remedy under section 35 of the Specific Relief Act if it is permissible under the law and not otherwise.
5. Petitioner filed a suit under section 35(c) of the Specific Relief Act on 16th June, 1991 for rescinding the contract and decree obtained by the respondent on the ground that he has failed to re- deposit the amount as per his undertaking mentioned in C.M. No,2864/C of 1980. The respondent by contesting the suit filed an application under Order VII, rule 11, C.P.C. For the rejection of the plaint which was accepted vide order dated 29th March, 1992. Petitioner feeling aggrieved from the rejection of the plaint preferred R.F.A. No,140 of 1992 which has been dismissed by learned Division Bench of the High Court by means of impugned judgment.
6. Learned counsel contended that the plaint dated 6th June, 1991 was not liable to be rejected on account of non-deposit of Rs,1, 80,000 by the respondent in his C.M.A. No,2864/C of 1980 which also contains its undertaking to deposit the same within the period of one month before the final hearing if the office of the Court informed about the final hearing of case well in time. He further contended that learned trial Court as well as High Court had not passed order with lawful authority while rejecting the plaint because they had travelled beyond the scope of the Order VII, rule 11, C.P.C. As it is evident from the contents of both the orders, therefore, he prayed for leave to appeal.
Reliance in this behalf was placed by him on Union Eagle Ltd. v. Golden Achievement Ltd. AELR 1997 p.215.
7. On the other hand learned counsel for respondent contended that learned trial Court as well as High Court had rejected the plaint strictly in accordance with law by making reference of the facts, which have been mentioned in the plaint pertaining to earlier litigation between the parties resulted in passing finally adverse order against the petitioner by this Court vide C.P.S.L.A. No,919 of 1988 which was dismissed on 24th June, 1990.
8. We have heard learned counsel for parties at length and have also gone through the impugned judgment carefully as well as plaint/suit dated 6th June, 1991, instituted by the petitioner under section 35(c) of the Specific Relief Act for rescinding the contract/agreement because as per the contents of C.M. No,2864/C of 1980 petitioner made request before the Appellate Court for the withdrawal of Rs,1,80,000 pending disposal of the appeal, with an undertaking to deposit this amount within one month before the final hearing of the case, if the office of the Court informed him about the final hearing of case well in time.
9. The case of the petitioner is that as this amount was deposited on 18th July, 1990 after about 10 years from the date of withdrawal on 4th October, 1980, therefore, the contract is liable to be rescinded. In this behalf it is to be noted that respondent undoubtedly has given an undertaking to deposit the amount, if he is informed one month before the final hearing of the case. Admittedly this portion of his undertaking was not accepted and learned High Court accorded permission to withdraw the amount subject to further orders, contents whereof have already been reproduced hereinabove, meaning thereby that it was for the learned Appellate Court to direct the respondent to deposit the amount by passing another order in this behalf. Admittedly learned High Court dismissed the R.F.A. On 3rd July, 1988, operative para. There from is reproduced hereinbelow:-- "The respondent's conduct throughout seems to be blame free and the appellant being responsible for the breach of the contract it is in the interest of justice and equity that the respondent should be given the relief of specific enforcement of contract. We may mention here that payment of Rs,25,000 so penalty in case of breach of the contract cannot, as envisaged by section 20 of the Specific Relief Act, 1877, stand in the way of grant of the desired relief to the respondent."
' Essentially no time was fixed by the learned High Court for deposit of the amount. This order was challenged by the petitioner 'before this Court where matter remained pending for consideration upto 24th June, 1990 when the petition was dismissed and leave was declined.
10. The respondent could have been held guilty for non-compliance of the order of learned Appellate Court if it has fixed a time for depositing of Rs,1,80,000. Notwithstanding the fact that matter was pending before this Court and both the parties obviously were waiting for the result as such non-depositing the amount during this period would not be enough to rescind the contract, however, after the final adjudication by this Court the amount was deposited as it is indicated from the record. Therefore, petitioner has no cause of action to claim that the contract be rescinded in terms of section 35(c) of the Specific Relief Act. Learned trial Court as well as High Court had not travelled beyond the scope of the Order VII, rule 11, C.P.C. In any manner. Judgment relied upon by the learned counsel is distinguishable in view of the facts noted hereinabove.
' Thus, for the foregoing reasons no case is made out for grant of leave to appeal as such petition is dismissed.