' ZIA-UR-RAHMAN KHAN, J.---T he instant petition is directed against the judgment and decree dated 19.2.2010 rendered by Additional District Judge/Izafi Zillah Qazi, Samar Bagh whereby while dismissing the appeal of the petitioner, the judgment, and order dated 5.12.2009 recorded by the learned Civil Judge/Illaqa Qazi, Samar Bagh rejecting the application of the petitioner fdr setting aside the ex parte decree dated 31.7.2008, has been upheld.
2. Relevant facts forming the' background of the instant petition in short compass are that respondents Nos. 1 and 2 in the capacity of plaintiffs filed a suit for the specific performance of contract on the basis of an agreement to sell dated 2.12.2007 in the Court of Civil Judge/Illaqa Qazi, Samar Bagh against the present petitioner and his brother respondent No, 3 to the effect that the suit property was owned by the petitioner and respondent No, 3 but they agreed to alienate the same by way of sale in their favour for a sum of Rs, 1400,000/- and regarding the sale an agreement to sell was executed in presence of the witnesses. The averments of the plaint further reveals that each transferor alienated his respective share for a sum of Rs, 700,000/- out of which respondent No, 3 received his share of the total sale consideration whereas to the petitioner an amount of Rs, 300,000/- was paid as earnest money and the rest was promised to be received later on the completion of sale after delivering the possession of the disputed property to the vendees. It is worth mentioning that respondent No, 3 admitted the receipt of sale consideration of his share and the sale in favour of respondents Nos. 1 and 2 by filing a cognovit before the Trial Court. However, as per version of the petitioner, after receipt of the summon of the Court, he while denying the sale and receipt of any sale consideration agitated the matter- with respondents Nos.
1 and 2 by involving elders of the locality and was with their intervention that respondents Nos. 1 and 2. Promised not to pursue their case against the petitioner. As a result of that alleged assurance of respondents Nos. 1 and 2, the petitioner did not enter appearance before the Court with the result that ex prate evidence of these respondents was recorded in support of the averments of the plaint arid the recital of sale-deed and the learned Trial Courts being convinced recorded an ex parte preliminary decree against the petitioner in favour of respondents Nos. '1 and 2 with the direction to deposit the outstanding amount in the sum of Rs, 400,000/- within the prescribed period of forty days. The petitioner had no knowledge about the decree. As per his version he was out of his village during the relevant time in connection with earning his livelihood.
Although in the preliminary decree, the time prescribed for the deposit of the outstanding amount was 40 days, which was supposed to expire on 10.9.2008, but respondents Nos. 1 and 2 made an application for the deposit of the outstanding amount on 14.10.2008 before the learned Trial Court by which the preliminary decree was passed. Through this application they sought extension of time on the ground that soon after the preliminary decree they went to Saudi Arabia and being illiterate they were ignorant about the fixation of the prescribed period where under they were bound to deposit the outstanding amount failing which their suit was to be considered dismissed.
This application was also followed by an application for condonation of delay. The learned Civil Judge while entertaining the said two applications gave them proper number as 62/6 of 2008 and it was on 31.10.2008 when the said Court while exercising its powers under section 148, CPC accepted the application and while extending the requisite ,period allowed respondents Nos. 1 and 2 to deposit the outstanding amount mentioned above. Accordingly, the amount was deposited on 5.11.2008. In this order too, the petitioner and respondent No,
3. Were proceeded against ex parte. It was after the deposit of the outstanding sale consideration that respondents Nos. 1 and 2 applied for the grant of final decree on 20.12.2008. Once again this final decree was passed ex parte and the petitioner and respondent No 3 were directed to hand over the possession of the disputed property to respondents Nos. 1 and 2. It was' during the course of execution' when the present petitioner was produced before the Court and in this way he got the knowledge about the ex parte decree. Consequently, the petitioner submitted an application for setting aside the ex parte decree before the Trial Court on 20.4.2009 which was duly contested by respondents Nos.1 and 2 through their reply and the learned Trial Court vide order dated 5.12.2009 while terming the said application being beyond the prescribed period of limitation under section 164 of the Limitation Act, rejected the said application alongwith condonation application. The ground of rejection which found favour with the learned Trial Court was that in the original suit the petitioner was served in person and if the period of limitation is reckoned from that very date, his application becomes beyond thirty days i.e, the prescribed period of limitation. Still dis-satisfied with the said order the petitioner invoked the appellate jurisdiction of the learned Additional District Judge/lzafi Zilla Qazi, Dir Paieen at Samar Bagh but the said appeal also met the same fate. Thus the instant revision petition.
3. The learned counsel 'for the petitioner mainly contended that as the respondent-decree-holders had given assurance to the Jirga Members not to pursue their case before the Trial Court with the result 'that despite service the petitioner did not join the proceedings and furthermore he was prevented by sufficient cause to appear before the Court, hence his application for setting aside the ex parte decree was well within time and both the Courts below have erroneously held the said application being beyond the period of limitation. He also contended that the application of the petitioner for setting aside the ex parte decree could not be straightaway ejected and it was incumbent upon the lower Court to have recorded pro and contra evidence before deciding the application. Lastly he contended that as the ex parte decree in favour of the respondents-decree- holders for the specific performance of the contract was a conditional decree entailing the dismissal of the suit in the event of non-deposit of the outstanding balance amount, this due to non-deposit of the said amount within the prescribed period. The man suit automatically stood dismissed and 'in this way the learned Civil Court was not vested with the jurisdiction to order extension in the deposit of the outstanding amount by accepting the application of the respondents-decree-holders. He also contended that the subsequent final decree is of no use because the basic decree was nullity in the eyes of law and without jurisdiction. In this respect he Defied upon various judgments of the apex Courts.
4. On the contrary the learned counsel for the respondents-decree-holders opposed the said contentions with great vehemence and supported the impugned judgment by maintaining that the original decree was a preliminary decree for the specific performance of the contract, thus the Civil Court had still control over the matter and could order the extension in the deposit of the balance sale consideration. He also maintained that the service of the petitioner was duly effected and his application for setting aside the ex parte decree being beyond the prescribed period of limitation has been rightly rejected by the two Courts below.
5. I have heard the learned counsel for the parties at great length and also examined the material available on the record threadbare with their valuable assistance. The instant case has certain aspects, which require discussion in an independent manner from each other. The fist aspect of the case is the execution of the sale-deed and the subsequent institution of a suit for specific performance of the contract, the non appearance of the petitioner and its subsequent culmination into a preliminary decree granted by the Trial Court in favour of the respondents-decree-holders against the petitioner on payment of balanced amount to the tune of Rs, 400,000/- (four lacs). As far as the service of the petitioner after institution of the suit is concerned, the learned counsel for the petitioner does not dispute this aspect of the case because according to him the petitioner was duly served but for the reason explained above, he did not appear before for to defend the suit at the initial stage.
6. I would also refrain to take a different view from the one taken by the Courts below while holding the application of the petitioner beyond the prescribed period of limitation and there was also no need of recording pro and contra evidence on the application of the petitioner whereby he sought to seek the setting aside the ex parte decree. The obvious reason is that ex parte decree after the non-appearance of the petitioner was passed on 31.7.2008 in the light of the ex parte evidence so recorded and the cognovit filed by respondent No,
3. But the application for setting aside the said ex parte decree was submitted on 20.4.2009 i.e, beyond the prescribed period of limitation and that too without any plausible and sufficient explanation, thus there is no illegality committed by the two Courts below while dismissing the said application by giving reference to various judgments of the August Supreme Court of Pakistan. This aspect of the case does not require any indulgent of this Court within the purview of section 115, CPC and no exception can be taken, to the said, findings. However, the fate of such concurrent findings are conditioned upon the decision of this Court which is yet to be given on the last contention of the learned counsel for the petitioner, as to whether there was any necessity of any application for setting aside the ex parte decree or the same process was a futile exercise.
7. The only legal point, which attracts the attention of this Court and which is of paramount importance is that whether after the passage. Of a decree for the specific performance of the contract the said Court was still vested with the power u/s. 148, CPC to grant extension for the deposit of the outstanding balance amount on the application of the decree-holders despite the expiration of the stipulated period of 40 days for the said purpose? The answer to this question is in negative. The obvious reason is that even if the decree was ex parte due to the deliberate non- appearance of the petitioner, yet a period of 40 days was fixed within which the decree-holders- respondents were legally bound to deposit the outstanding sale consideration, but this condition appears to have not been complied with. In other words as there was a conditional decree in favour of the respondents-decree-holders and in the event of non-deposit of the balance sale consideration the said decree entailed dismissal of the suit of the respondents-decree-holders.
The record reveals that the stipulated period was supposed to expire on 10.9.2008, but application for the deposit of the outstanding sale consideration was made on 14.10.2008 without furnishing any plausible ground as to what was that sufficient ground which prevented the respondents- decree-holders from the said deposit within the stipulated period of 40 days and the learned Trial Court also without realizing the interest of the present petitioner and the accrual of a valuable right due to the said negligence accepted their application with the result that they made the deposit on 5.11.2008. The record further reveals that soon thereafter they applied for the grant of final decree by making an application on 20.12.2008.
8. As the non-deposit of the remaining amount was entailing the penal consequence of the dismissal of the suit, therefore, after the expiration of the stipulated period of 40 days, the learned Trial Court was functus officio and was vested with no jurisdiction to pass an order with regard to the extension of time for deposit of the outstanding amount. The survival and the life of the decree was legally conditioned upon the deposit of the outstanding amount within the stipulated period and thereafter the suit of the respondents decree-holders automatically stood dismissed and extension of time was indeed without jurisdiction. In other words after the expiration of the stipulated period the respondents Nos. 1 and 2 did not remain decree-holders, rather the said decree became a dead leaf and was of no use to them. In this respect I am fortified by various judgments of the apex Courts in which in identical situation through their unanimous view it has been held that even in a suit for specific performance of the contract if a decree is passed subject to the condition of the deposit of the outstanding sale consideration within a stipulated period, the suit shall stand dismissed and no application for extension of time can he granted by allowing the decree-holder to deposit the outstanding amount.
9. The judgment upon, which reliance can be placed is reported as 2003 CLC 1705 titled Mst.
Sultana Begum v. Mst. Sadiqa Begum from the Lahore jurisdiction, the relevant citation is hereby reproduced as under:- "S.
12. Civil Procedure Code (V of 1908), S.
148. Decree in suit for specific performance of agreement to sell: Time fixed in decree for payment of balance price. Trial Court extended such lime on application of decree-holder contending that due to certain difficulties, she could not deposit amount. Validity. Not a single reason had been stated in application for extension of time nor particulars or details of such difficulties were given therein. Impugned order 'was also without any reason Sine qua non for grant of discretionary relief of specific performance that party must always be ready and willing to perform his part of contract. Part to be performed by decree-holder was payment of balance price. Prayer made in application was negation of condition precedent for grant of such relief. Trial Court had acted without jurisdiction to allow application when no ground had been either stated or made out for extension of time. High Court 'accepted revision petition and set aside impugned order, resultantly application for extension' of time stood dismissed."
In this case at the concluding end the revision was allowed and the application for the extension of time was dismissed.
10. Another judgment reported as PLD 2006 SC 140 tilted Shujaat Ali v. Muhammad Riasat and others, the august Supreme Court has held as under:-- "S. .13. Civil Procedure Code (V of 1908). S.148 &, O. R.14. Constitution of Pakistan (1973), Art. 185(3).
Decree in pre-emption suit. Conditional decree. Non-fulfilment of condition. Suit of pre-emptor was decreed by High Court and the Court directed him to deposit the pre-emption money within a specified period. Pre-emptor, instead of depositing the amount, filed application under-S. 148, CPC for extension of time to deposit the amount. High Court dismissed the application and dismissed the suit of pre-emptor. Validity. Once having passed conditional decree and suit having stood automatically dismissed for non- deposit of pre-emption money, the Court decreeing the Suit had become functus officio. High Court could not have extended the time not only because non- compliance had operated into automatic dismissal of suit but also because a valuable right had accrued to the vendee. Supreme Court declined to interfere in the judgment and decree passed by High Court. Leave to appeal was refused.
11. Although in the above-cited case the august Supreme. Court in a pre-emption suit delivered judgment, but the clear observations are with respect to the automatic dismissal of the suit, due to non-deposit of the outstanding amount within the stipulated period.
12. The third judgment which can be quoted with benefit is 2008 CLC g66 titled Waqar Mustafa and 2 others v. Ch. Muhammad Ashraf Mahmood and 2 others from Lahore jurisdiction in which his Lordship was pleased to observe as under:- "S.
12. Civil Procedure Code (V of 1908), S. 148, Constitution of Pakistan. Specific Performance of agreement to sell. Enlargement of time. Non-deposit of decretal amount. Suit filed by plaintiff was decreed in his favour and Trial Court directed him to deposit balance consideration amount within one month. On the second last day of the period granted by Trial -Court, the plaintiff sought correction of description of property in the judgment and decree and also sought extension of time for deposit of balance amount. Trial Court allowed correction but did not extend time for deposit of balance amount, but Appellate Court: in-exercise of revisional jurisdiction extended time "by ten days. Validity. By not depositing remaining amount as ordered by Trial . Court, defendant had accrued valuable right in the property in question. Appellate Court wrongly exercised jurisdiction by extending time to deposit remaining amount. In the matter of specific performance of contracts/ agreements only the intention of parties was to be seen, whereas plaintiff had proved himself otherwise and not in accordance with requirements of law. High Court in exercise of its Constitutional jurisdiction set aside the order passed by Appellate Court and restored that of Trial Court Constitutional petition was allowed in circumstance.
13. The next judgment reported as 2003 YLR page 55 titled Bashir Ahmad and others v. Hussain Industries (Pvt.) Ltd. Is with respect to the definition of the decree as to whether a preliminary decree for specific performance of agreement to sell falls within the definition of a decree u/s: 2, sub-section (2) of the Civil Procedure Code and whether the rights of the parties are finally determined in such a decree or not. In this judgment the learned author Judge has finally held that a preliminary decree for the specific' performance of the contract falls within the definition of the decree and after passing a decree the Court becomes functus officio and no application for extension of time u/ss. 148/115, CPC can be entertained. Relevant citations for the sake of convenience are reproduced as under :-- ' Such decree completely disposes 01 SUR oy determining the rights of parties with regard to all Matters in controversy in suit, and nothing is left outstanding for further adjudication by Court and the ils between parties terminates at trial stage. Same )would be the position in case where decree allowing the suit is passed."
' S. 2(2) Decree for specific performance of agreement to sell. Nature. Deposit of sale price and supply of requisite stamp papers by decree-holder for execution of conveyance deed by judgment debtor or Court would not make such decree preliminary in nature. All such steps being the follow- up in pursuance of decree would fall within domain and realm of execution process. None of such steps would remain a matter of controversy between parties in suit, but would be question for execution, satisfaction and discharge of decree.. If such decree was treated preliminary in nature, then every decree executable under law, such as decree for possession simpliciter, would be a preliminary decree and such approach would be directly in conflict with definition of decree."
14. Although in the aforesaid judgments only the applications of the decree-holders at the fag-end were rejected, but no final verdict has been given with regard to the fate of the main suit. This controversy has been resolved in a case reported as PLD 2002 Lahore 88 titled Muhamnad Iqbal through Legal Heirs v. Bashir Ahmad and 19 others. The relevant citation 'A' of which is reproduced hereunder:- "S.
12. Suit for specific performance of agreement to 'sell. Conditional decree. Failure to deposit balance consideration amount. Effect. Where the balance consideration amount was not deposited. The suit would he deemed to have been dismissed and no decree for specific performance would be deemed to have been passed."
15. In the quoted judgment it has been categorically held that if the balance amount is not deposited within the stipulated period, the suit automatically stands dismissed and the decree so granted shall be deemed to have never been passed.
16. As far as the contention of the learned counsel for the respondent-decree-holders that since the decree was of a preliminary nature, thus the Trial Court still had control over the proceedings and being so was vested with the jurisdiction to entertain the application for the grant of extension of time for depositing of the outstanding amount concerned, this contention of the learned counsel carries no weight on two counts: firstly, on the ground that no plausible explanation whatsoever has been furnished by the respondents-decreeholders in their application and secondly: the Court after the passage of the decree had become functus officio and in view of the penal clause entailing the dismissal of the suit in the event of non-deposit of the decretal amount in time the Court was not vested with the power to grant such like extension.
17. I musty further explain that the application of the respondents for seeking permission with regard to the extension of time was also on the back of the present petitioner and no serious efforts were made by the Court to effect his service nonetheless it was incumbent upon it under the law because due to the non-deposit of the balance amount a valuable right had accrued to him of which he could not be deprived so lightly on flimsy grounds rendered by the respondents decree- holders. 'Likewise the final decree was also granted by the said Court one-sidedly on the back of the petitioner without effecting his service.
18. What can possibly be deduced and inferred from the above narration is that the respondents- decree-holders were never interested to perform their part of the contract and they were granted the opportunity by the Courts below to reap the advantage of their own wrong and negligence at the costs of the petitioner..
19. Once it is held that the basic original decree was without jurisdiction and was the result of an illegal act of the learned Civil Court then the entire edifice raised thereon shall automatically dash to the ground and crumble. Thus obtaining the final decree also looses its importance and is of no use to the respondents-decree-holders. In this respect a judgment reported as 2006 CLC page 1827 titled Abdul Ghaffar Khan v. Mst. Batool Begum and others through General Attorney can be placed reliance upon. The relevant citation is reproduced as under:- "S.
115. Revisional jurisdiction of High Court. Scope of revision under S. 115 is not limited and entire proceedings from the stage of institution of suit up to the appellate order, are open to revision.
While deciding a revision petition under S. 115, CPC, once the Court assumes jurisdiction, it may make any order that circumstances of the case may warrant. If erroneous findings given by Trial Court were not assailed in appeal nor exception to said findings had been taken through filing the cross-objection such findings could be reversed at revisional stage."
20. The net result and crux of the above discussion is that this Court has come to an irresistible conclusion and is suffering from no confusion, but to hold that the Trial Court after passage of the decree was vested with no jurisdiction to order the grant of extension and the suit of respondents Nos. 1 and 2 after the lapse of the stipulated period automatically stood dismissed, even if there was no application for setting aside the said ex parte decree which exercise was a futile one and the said findings with regard to the dismissal of the application of the petitioner do not offer any legal hindrance and are liable to be ignored. Rather it was incumbent upon the lower Court to have taken judicial notice of the said legal aspect of the case.
21. Resultantly, while accepting the instant revision petition the impugned findings, judgments of both the Courts below being erroneous, not warranted by law, and without jurisdiction are hereby set aside and at the same time the suit of the respondents decree-holders stands dismissed' and they are at liberty to ask for the refund of the deposited sale consideration. At the same time the execution proceedings also stand terminated. Parties are left to bear their own costs.