' MUHAMMAD ATHER SAEED J.---This High Court Appeal has been filed against the judgment of the learned single Judge dated 24-4-2002 in Suit No,834 of 1999 wherein the appellant's C.M.A. No,2637 of 2002 praying for extension of time to deposit the balance sale consideration was regretted and the application was dismissed.
2. Brief facts of the case are that the present appellant had filed a suit for specific performance of contract and injunction stating that she had entered into an agreement of sale with defendant No,1 in the suit and in this appeal in respect of property bearing Plot No,112, Phase-VI, D.H.A., Karachi in the sum of Rs,87,75,000. According to the plaintiff, after payment of certain amounts at the request of the defendant, the defendant failed to honour the agreement and therefore the suit was filed praying therein as under:--
(a) A declaration that the alleged cancellation of contract and forfeited of advance payment is illegal and without any legal effect;
(b) A decree directing and commanding the defendant and any person(s) claiming through or under him to specifically perform the contract dated 17-4-1999 and sign, execute and deliver the transfer documents in favour of the plaintiff and/or her nominee in respect of the immovable property being sub-divided Plot No,112, 25th Street, Phase VI, D.H.A. Karachi in terms of the letter dated 24-5-1999 of the D.H.A. And deliver the physical possession to the plaintiff; ' In the event of failure of the defendants the Nazir of this Hon'ble Court may be appointed as Commissioner/authorized officer; to execute and deliver the transfer documents in favour of the plaintiff or her nominee in respect of the said property;
(c) A permanent Injunction restraining and prohibiting the defendants, his nominee, assigns and Administrators, from selling, disposing of, alienating and/or in any manner creating a third party interest, except the plaintiff and/or her nominee, the immovable property being Plot No,112, 25th Street, phase-VI, D.H.A., Karachi.
(d) Cost of the suit; and
(e) Any other relief(s), which this Hon'ble Court deem, appropriate.
3. Written statement was filed but before the issues could be framed the learned counsel for the defendant conceded before the learned single Judge that the defendant had no objection if the suit was decreed in favour of the plaintiff subject to the plaintiff being directed to deposit the balance sale consideration of Rs,81,03,000 with the Nazir of this Court. The learned Single Judge in view of the statement made by the counsel for the defendant decreed the suit by judgment dated 31-10-2010 as under:-- ' In view of the statements made by Mr.Arshad Tayabali there does not seem anything to be done in the suit except to decree the same as under:-
(1) The plaintiff is directed to deposit the balance sale consideration of Rs,81,03,000 with the Nazir of this Court within a period of 30 days from today.
(2) On being deposited aforesaid amount the defendant is directed to complete the sale proceedings before the D.H.A. Or any other authority within a week thereof failing which the Nazir of the Court will be at liberty to execute the required documents completing the sale and transferring the property in favour of the plaintiff.
(3) The Nazir is further directed that after the above is done the amount so deposited by the plaintiff will be paid to the defendant No,1 on due verification and the documents and the possession of the suit property will be handed over to the plaintiff.
(4) No order as to cost.
4. In accordance with this judgment, the plaintiff/ present appellant had to deposit the balance sale consideration with the Nazir of the Court latest by 30th November, 2001. However, the appellant failed to deposit the sale consideration or move any application before the Court before the expiry of the period mentioned in the above judgment and decree. It is an admitted fact that the application for extension of time to deposit the balance sale consideration which is the subject matter of this appeal was moved on 8-4-2002 and was heard by the learned Single Judge on 24- 2-2002 when the learned counsel for the plaintiff had submitted that it took considerable time for arranging the balance sale consideration which was a huge amount and since plaintiff/present appellant was short of funds therefore balance sale consideration could not be deposited before expiry of period prescribed in the judgment and decree. The learned Single Judge dismissed the application by holding that in his view this was hardly a ground for condonation of delay and extension of time to deposit the amount. Hence this appeal.
5. At the first hearing of this appeal on 30-5-2002 it was contended before the Division Bench that the time for payment was liable to be extended unless the contract had been rescinded by the Court on the motion of the defendants and on this point the case was admitted and it was directed that if the amount stipulated in the decree is deposited within one week of the said order, the impugned order will be suspended and this order was complied by the present appellant and the amount was deposited on 4-6-2002.
6. We have heard Mr. Anwar Tariq the learned counsel for the appellant and Mr. Amel Kansi the learned counsel for the respondent and Mian Mushtaq Ahmed the learned counsel for the Intervenor.
7. The main contention of the learned counsel for the appellant before us was that the judgment and the decree in question wherein she was asked to deposit the balance sale consideration within thirty days was not a consent judgment and in fact late Muhammad Sharif Advocate who was the counsel of the plaintiff/appellant at that time had submitted before the learned Single Judge that there were number of other issues in the suit and unless those issues were decided the suit could not be decreed and due to prevailing conditions in the country his client was not in a position to deposit the amount in, the short span of time and required longer time for that purpose. .He, stated that this objection was not considered by the learned Single Judge and the suit was decreed on the statement made by the learned counsel for the respondent No,
1. He further argued that the decree passed in such a suit for specific performance is a preliminary decree and not a final decree and the Court does not become functus officio for the purpose of passing any further order in this decree. He submitted that the only circumstances in which the Court could have become functus officio and, as such, could have refused to extend the time for deposit of the balance sale consideration was if an application had been filed by the respondent No,1 under section 35 of the Specific Relief Act praying to the Court to have the contract rescinded and the Court had allowed such an application. He submitted that the respondent had not filed such an application till today and therefore it was his right to move an application for extension of time and the Court had the discretion to allow it. In Support of his contention the learned counsel relied on the following judgments:--
(1) Shabbir Ahmed and another v. Zahoor Bibi and others (PLD 2004 Supreme Court 790);
(2) Nasir Ahmad v. Muhammad Yousuf (PLD 1994 Lahore 280);
(3) Asraf Ali alias Asrafuddin Mondal and another v. Bayla Hasda and others (PLD 1967 Dacca 557);
(4) Smt. Periyakkal and others v. Smt. Dakshyani (1984 PSC 33) (Supreme Court India);
(5) Gokul Prasd v. Fattelal (Niyogi J.) (AIR (33) 1946 Nagpur 29 and
(6) Abdur Rahi v. Tamijaddin (Patterson, J.) (AIR 1933 Calcutta 580).
8. The learned counsel therefore prayed that the impugned order may be set aside and this Court may allow extension of time for deposit of the balance sale consideration and hold that the consideration deposited on 4th June, 2002 in accordance with directions of this Court issued vide its order dated 3-5-2002 may be considered to be the deposit of balance sale consideration in accordance with the directions given in the judgment vide which the original suit was disposed of and decreed.
' He further submitted that this amount is lying with the Nazir of the Court for more than eight years and since the appellant has complied with the directions of the appellate Court and had shown his bona fide therefore the balance of convenience is in his favour.
9. The arguments of the learned counsel were strongly opposed by Mr. Amel Kansi the learned counsel for the respondent No,1 and Mian Mushtaq Ahmed the learned counsel for the Intervenor/respondent No,3.
10. The learned counsel for respondent No,1 narrating the facts of the case submitted that in his suit the applicant had stated that she had prepared the pay-orders for paying to the defendants somewhere in May/June, 1999 and had also submitted in the suit that she was willing and prepared to deposit the balance sale consideration immediately so that the contract in question can be specifically performed. According to him the learned Single Judge while decreeing the suit on the statement of his senior who was then representing the defendant No,1, that he had no objection if the suit was decreed and suit was decreed in favour of the plaintiff with directions to deposit the balance sale consideration with the Nazir of this Court, had shown a lot of indulgence to the present appellant/plaintiffs by granting thirty days time to deposit the balance sale consideration. He submitted that after the plaintiff/appellant had failed to comply with the conditions of the judgment, he had executed a gift in favour of his son somewhere in December, 2001 and the property was transferred to the Intervenor through the Nazir of this Court in accordance with the judgment of this Court dated 8-3-2002 in Suit No,235 of 2002 somewhere in 2002. The learned counsel further submitted that in his application for extension of time which had been dismissed by the learned Single Judge the appellant had not given any reason for filing the application almost four months and eight days after the expiry of the period prescribed in the judgment and decree for depositing the balance amount. He further submitted that the learned Single Judge had not discussed whether it was preliminary decree or final decree nor had held that he was functus officio in the suit but had only stated that the reason advanced by the appellant in the application was hardly a ground for condonation of delay and extension of time to deposit the amount of sale consideration. He further stated that the application was also hit by latches. He also argued that although it was not a consent order but the fact that neither any appeal was filed against the judgment and the decree in the suit nor any review was filed nor had any application been filed during the validity of the prescribed period, for extending the prescribed period, therefore the appellant/plaintiff had consciously accepted the above order and consequently the conditions prescribed in that order. The learned counsel submitted that an order for extension of time could not be passed without his consent. On this point he relied on a judgment of the honourable Supreme Court of Pakistan in the case of Farooq Imran v. Naeem Ahmed Siddiqui (2009 SCMR 157). He referred to paragraphs 7 of that judgment wherein the honourable Supreme Court had held that the jurisdiction of a Court to extend time as such and whether time should be extended, in the circumstances, are two different matters and whether or not time should be extended can only be adjudicated by looking at the circumstances of each case. He therefore prayed that the order of the learned Single Judge being in accordance with law should be upheld and the appeal being without merit be, dismissed.
11. The learned counsel for the Intervenor while adopting the arguments of the learned counsel for the respondent No,1 referred to annexure R-3 of the comments to point out that so far back on 12th December, 2001 when the learned counsel for the present appellant/plaintiff had objected to the notice of the sale published in daily 'Dawn' dated 9-12-2001, she was aware that the plot was being sold by the present defendant but despite that knowledge the plaintiff except objecting to such sale did not seek any remedy from this Court by asking for stay of sale proceedings or moving an application for extension of time to deposit the money and since he had seen that due to non- payment of the balance sale consideration within the stipulated time the decree had become non-operational, therefore he had gone ahead with the purchase the property and now has acquired a vested right. He relied on the judgment of the honourable Supreme Court in the case of Shujat Ali v. Muhammad Riasat and others (PLD 2006 Supreme Court 140) wherein the honourable Supreme Court had held that once having passed conditional decree the Court having decreed the suit had become functus officio and the time could not be extended because due to noncompliance of the judgment a very valuable right had already accrued to the vendee and therefore the impugned order refusing to extend the time cannot be taken any exception to.
12. Exercising his right to reply the learned counsel for the appellant submitted that since she had filed an objection the intervenor respondent No,3 should not have gone ahead with the sale and if he had gone ahead to purchase, the same was at his own risk and therefore he had not acquired any vested rights.
13. We have examined the case in the light of the arguments of the learned counsel and have carefully perused the records of that case and the judgments relied on by them.
14. We will first take up the judgments relied on by the learned counsel for the appellant.
15. In the case of Shabbir Ahmed and another v. Zahoor Bibi and others (quoted supra) the facts are that a suit for specific performance was decreed in favour of the plaintiff the appellant before the Honourable Supreme Court, wherein he was directed to deposit balance amount of Rs,1,45,000 within a period of one month after passing of the decree and it was also provided that failing such deposit the suit would be deemed to have been dismissed. However, before expiry of the period the appellant applied for extension of time for depositing the amount which was dismissed by the trial Court and the appellate Court and the writ petition filed against the judgment of the appellate Court was dismissed on the ground of maintainability and the honourable apex Court had held that the trial Court had not become functus officio and the decree was preliminary in nature and that the discretion should have been exercised in the interest of justice.
16. In the case of Nasir Ahmed (quoted supra) a learned Single Judge of the Lahore High Court had allowed the application of the plaintiff filed immediately after failing to deposit the decretal amount within a specified time again holding that the decree was in the nature of preliminary decree and the Court passing it had seisin with the matter and on the facts of the case held that the plaintiff deserved extension of time for depositing purchase price.
17. In the case of Ashraf Ali alias Asrafuddin Mondal and another (quoted supra) the Court again held that the Court possessed the discretion to extend time.
18. In the cases of Smt. Periyakkal and others (quoted supra) the honourable Supreme Court of India held that time could be granted in rare cases to prevent manifest injustice and it would not be extended ordinarily nor for the mere asking, whereas in the Calcutta case it was held that the Court had jurisdiction to extend the time if it is so satisfied that there were adequate reasons for the same whereas in the Nagpur case (quoted supra) it was held that the decree in a suit for specific performance of contract for sale fixing time for payment of purchase money is in nature of preliminary decree and therefore Court has the power to extent the time fixed by the decree.
19. In the case of Farooq Imran v. Naeem Ahmed Siddiqui relied on by the learned counsel for the respondent the Court held that the order of deposit was made at the time and as a condition of passing the decree. It could not be extended without the consent of opposite party to whom valuable right had occurred. It will also be relevant to reproduce the paragraphs 6 and 7 of this judgment which read as under:--
(6) We are not unmindful of another fact that the petitioner/decree holder had not made proper arrangements for the admitted amount nor he had any future target. Needless to repeat that he should have been prepared for any such deposit even at the time of institution of suit. A perusal of condonation application would indicate that he, in the prayer clause thereof had asked for an indefinite period for the deposit involved. Any such extension would have seriously jeopardized the rights of the defendant, who had conceded entirely to the suit against him. As to the date so fixed through compromise between the parties, its extension was unwarranted.
(7) Learned counsel for the petitioner drew our attention to our judgment in Shabbir Ahmed v.
Zahoor Bibi PLD 2004 SC 790, where the extension of time was held to be within the jurisdiction of trial Court with reference to section 12 read with section 35(c) of Specific Relief Act, 1877 (hereinafter referred to as the Act, 1877). Before adverting to the case aforesaid, one may realize that the jurisdiction of a Court to extend time as such and whether time should be extended, in the circumstances, are two different matters. We have already held, in the circumstances of the present case, that the time should not be and had rightly not been extended by the learned trial Court as well as the learned High Court.
20. Whereas in the case of Shujat Ali (quoted supra) in which the judgment has also been passed by his lordship Mr. Sardar Muhammad Raza Khan of the honourable Supreme Court as he then was, the Court held under paragraph 3 as under:--
(3) It is but obvious that once having passed a conditional decree and the suit having stood automatically dismissed for non-deposit of preemption money, the court decreeing the suit had become functus officio. It is also obvious that the Court could not have extended the time not only because non-compliance had operated into automatic dismissal of suit but also because a very valuable right had thereby accrued to the vendee, now a decree-holder. The impugned order cannot be taken any exception to There being no force in the petition, it is hereby dismissed and leave to appeal refused.
21. A perusal of the above analysis and extracts of the judgment relied on by the learned counsel leads to the conclusion that the following principles of law have been settled in these judgments:-- That a decree in suit for specific performance is not in the nature of preliminary decree and the Court does not become functus officio for the purposes of passing any further order in respect of such a decree.
' The Court has got the discretion to extend time prescribed in the judgment and decree for the payment of the sale consideration but such discretion should be exercised judiciously and rarely on A the basis of the facts and circumstance of each case and cannot be exercised merely for asking.
(3) That in all the cases relied on by the learned counsel for the appellant the application for extension of time was filed before the expiry of the stipulated time or immediately after the expiry of the stipulated time.
22. There can be no cavil to these propositions. However, on a perusal of the impugned order it is seen that the learned Single Judge did not dismiss the application by holding that he had become functus officio for the purpose of passing any further order or that he did not have the B discretion to pass any such order or by holding that the decree was final and not preliminary decree but had held that in his view the ground stated for the extension of time was not valid ground for allowing the application.
23. In this connection it would also be relevant to once again peruse, the underlined part of para.7 of the judgment of the honourable Supreme Court reproduced above wherein it has been observed that the plaintiff should have been prepared for making any such deposit even at the time of institution of the suit and that any such extension would have seriously prejudiced the rights of the plaintiff who had conceded entirely to the suit against him. A perusal of the impugned order leads to further observation that the plaintiff or his counsel had not given any reason for not filing the application before expiry of the period stipulated in the decree or within a reasonable time of such expiry. The learned counsel for the appellant conceded that the application can only be considered if it is made within reasonable time. According to him the period of four to five months after the expiry of the stipulated time was reasonable. However, neither such argument was made before the learned single Judge nor any explanation has been given before us for such delay and we are of the considered opinion that the reasons stated in the application as stated by the learned single Judge cannot be valid ground for extension of time and the delay of filing an application after more than four months after the expiry of the stipulated time is in our view not a reasonable delay but a very unreasonable delay and unless the delay has been explained the learned Single Judge was justified in rejecting the application.
24. We are therefore of the consideration opinion that the order of the learned Single Judge has been passed on the consideration and facts and circumstances of the case and is unexceptionable and therefore no interference is called by this Court.
25. In consequences thereof this High Court appeal being without merits is dismissed.