' KHILJI ARIF HUSSAIN, J.---The petitioner impugns the judgment dated 19-10-2009 passed in II Appeal No.41 of 2009 by a learned Single Judge in Chambers of the High Court of Sindh at Karachi, whereby, judgment and decree passed by the trial Court as well as the first appellate Court, were upheld.
2. Facts as summarized to decide the petition are that the respondent No.1 agreed to purchase the property bearing No.D-129, Block-B, North Nazimabad Karachi admeasuring 1163 sq. Yards (hereinafter referred to as "property in question") for a total sale-consideration of Rs.17,40,000 and a sum of Rs.20,000 was paid to predecessor-in-interest of the petitioner on 25-4-1988. The parties agreed to execute the sale agreement within a period of fortnight from the date of receipt i.e. 25-4- 1988. Apparently, some correspondence was exchanged between the parties for execution of agreement of sale and finally on 28-5-1988, it was executed and respondent No.1 further paid a .
Sum of Rs.1,80,000 to the predecessor-in-interest of the petitioner.
3. As per Clause 2 of the agreement of sale, balance amount of Rs.15,40,000 was to be paid within eighty days from the date of agreement of sale, on giving by the petitioner marketable title and vacant peaceful possession of the property in question along with original documents. The petitioner who was in possession of property in question, through his Advocate vide letter dated 5th September, 1988 informed the respondent No.1 that he had made alternate arrangement and called upon the respondent No.1 as a last opportunity, to pay Rs.15,00,000 to him within seven days from the date of receipt of letter, when the petitioner will handover vacant possession to the respondent No.1 and remaining balance amount of Rs.40,000 will be accepted at the time of execution and registration of the sale-deed which he expected to be executed within one month after receipt of the vacant possession of the property in question. The respondent handed over draft Conveyance Deed and photocopies of pay order and Bank certificate to the petitioner, showing credit balance of Rs.4,41,000 as on 14th September, 1988. The petitioner through his letter dated 17th September, 1988 returned the draft conveyance sale Deed with certain modifications/corrections and requested the respondent that instead of paying Rs.4,40,000 in cash a pay order of the like amount be given for security reasons and asked the respondent to convey the date and place of registration of the Conveyance Deed. The respondent No.1 after taken time for registration from Sub-Registrar for 20-9-1988 through telegram dated 19-9-1988, requested the petitioner to attend the office of the Sub-Registrar on 20-9-1988 for execution of Conveyance .Deed. The respondent got sale deed duly stamped and paid other required charges for the same,however, the petitioner alleged that telegram was received by him in the afternoon of 20-9- 1988 and as such he could not attend the office of the Sub-Registrar. The respondent No.1 when received no reply from the petitioner, filed a suit for specific performance on 29-9-1988 and the learned trial Court while passing restraining order not to alienate the property, directed the respondent No.1 to deposit balance sale consideration of Rs.15,40,000 with the Nazir of the Court.
The amount so deposited by the respondent was invested in Saving Certificates in terms of the order passed by the learned trial Court on 10-11-1988.
4. The petitioner tiled written statement in which he admitted execution of agreement of sale, receipt of part payment and correspondence exchanged between the parties and alleged that it was the respondent who committed the default in performing his part of obligations and thus not entitled for the relief of specific performance.
5. After framing the issues and recording the evidence, trial Court decreed the suit for specific performance vide judgment and decree dated 5-10-2004.
6. The appeal filed against the judgment and decree was dismissed on 31-10-2008 by the learned Additional District Judge, Karachi Central. The petitioner challenged the order passed by the trial Court and appellate Court by filing second appeal before the High Court, which too was dismissed vide the impugned judgment dated 16-10-2009. Hence, this petition for leave to appeal.
7. Heard Mr: Abid S. Zuberi, Advocate Supreme Court for the petitioner and Mr. Tariq Mehmood, Sr.
Advocate Supreme Court for the respondent No.1 and carefully scanned the record.
8. Mr. Abid S. Zuberi, Advocate Supreme Court appearing on behalf of the petitioner, after taking us to various documents available on record vehemently argued that the trial Court as well as appellate Court have not appreciated the- evidence and material available on record in true perspective and wrongly exercised discretion by granting equitable relief of specific performance in favour of the respondent; that with the passage of time, the value of the money considerably decreased, whereas, the value of the property has been increased for which the petitioner cannot be penalized; that the delay in the proceedings was caused due to the respondent, who manoeuvered one Ch. Mushtaq Ahmed as a purchaser of the property who filed Suit No.94/92, which was ordered to proceed along with the suit tiled by the respondents, which was ultimately dismissed for nonappearance, that the respondent is not entitled for equitable relief of specific performance, as he had withdrawn the profit on the amount deposited by him. The learned counsel in support of his contentions relied upon the cases of Mst. Mehinooda Begum v. Syed Hassan Sajjad and 2 others, (PLD 2010 SC 952) and Sultan Muhammad and another v. Muhammad Qasim and others, (2010 SCM R 1630).
9. Mr. Tariq Mehmood, Sr. Advocate Supreme Court appearing for tit respondent No.1 in reply argued that the respondent No.1 was always ready to perform his part of obligations, which is evident from the various documents on record, which was produced by him in support of his contentions and accepted by the three Courts below. The respondent got prepared the pay Order No.POO-3/721652 for the balance sale consideration on 10-9-1988 much before the date of performance agreed between the parties. The petitioner in fact failed to perform his part of obligations. By failing to attend the office of Sub-Registrar on 20-9-1988, where respondent was present along with Conveyance Deed, duly affixed with special adhesive stamps of Rs.1,39,210, and pay orders of the balance sale consideration and pay order of Rs.17,400 as registration fee in the name of Sub-Registrar. The respondent No.1 when came to know that the petitioner is attempting to dispose of the property in question, filed suit for specific performance on 29-9-1988 i.e. Within less than five months from the date of execution of agreement of sale and deposited balance sale consideration of Rs.15,40,000 with the Nazir of the Court which is still lying in the Court, which clearly demonstrates that respondent No.1 was always ready and willing to perform his part of obligations.
10: In reply to the contention of learned counsel for the petitioner that the respondent had withdrawn the profit on the amount deposited by the respondent towards part balance sale consideration, learned counsel contended that the petitioner was enjoying rent of the premises in question right from 1988 till the possession was handed over to him sonic time after April, 2010. This Court in the case of Pirzada Nazir Hassan v. Major (Retd.) Ejaz Ahmad Khan, (1981 SCM R 684), held that vendor will be entitled of amount deposited after the execution of sale-deed and delivery of possession and till the said date, vendee is entitled to the interest accrued on the amount deposited by him. The learned counsel for the respondent No.1 stated that the respondent has not withdrawn profit on the amount deposited by him since November, 2005 although possession was given in the year, 2010, has no objection if the profit of about five years be given to the petitioner.
11. We have taken into consideration respective arguments of learned counsel for the parties and scanned the case record minutely. So far as the facts of the case are concerned, parties have not disputed the same. The petitioner admitted execution of receipt dated 25-4-1988, execution of agreement of sale dated 28-5-1988, receipt of Rs.20,0000 at the time of execution of receipt, receipt of Rs.1,80,000.At the time of the execution of the agreement of sale, extension of time of performance from time to time. The petitioner through his letter dated 5-9-1988, called upon the respondent No.1 to perform his part of obligations within seven days from the date of the receipt of the notice to pay Rs.15,00,000 on receipt of which vacant possession of the property in question was to be handed over to him. The letter was received by the respondent No.1 on 13-9-1988. The respondent No.1 replied the said letter expressed his willingness to pay full amount of Rs.1,540,000 within seven days on execution of the Sale Deed before the Sub-Registrar and enclosed draft Conveyance Deed, photocopies of pay order, Bank certificate showing credit balance in his account. The petitioner through letter dated 17-9-1988 asked the respondent to pay balance amount of Rs.4,40,000 through pay orders and to inform telegraphically as to the time, date and place of registration of the Conveyance Deed. The respondent through telegram dated 19-9-1988 called upon the petitioner to attend the office of Sub-Registrar on 20-9-1988 at 12-00 noon. The petitioner alleged that telegram was received by him in the afternoon of 20-9-1988.
12. The trial Court after taking into consideration all aspects of the matter and that pay orders of the balance amount of sale consideration got prepared before the date of performance agreed between the parties, Conveyance Deed was duly stamped and same could not be registered due to failure of the petitioner to attend the office of Sub-Registrar, exercised its discretion and granted relief of specific performance.
13. There cannot be any dispute about the proposition that grant of decree for specific performance is discretionary as is also made out from the provisions contained in section 12 of the Specific Relief Act, 1877 and it is not necessary to grant a decree for specific relief if it may appear to be inequitable or may cause hardship to the other side.
14. Rise in the price of property agreed to be conveyed may be relevant' factor in denying the relief of specific performance, keeping in view the conduct of the vendee, date of agreement of sale, time agreed for performance and time of filing of the suit before trial Court.
15. However, from the facts and circumstances of the present case, we do not find that exercise of discretion by the trial Court, upheld by the appellate Courts was perverse, arbitrary or inequitable.
16. The discretionary relief cannot be denied to a litigant, who otherwise vigilant, always ready and willing to perform his part of obligation, merely because his lis has remained pending from many years in the Courts for which Judicial System can be blamed. Increase of price of the property during the time when cause remain pending in Courts, not ipso facto disentailed the purchaser to seek discretionary relief of specific performance .
17. Specific performance is by no means absolute right but one E which rest entirely in Judicial discretion and always with reference to the facts of a particular case. Where trial Court has, exercised its discretion in one way and that discretion has been Judicially exercised on sound principles and the decree is affirmed by the appellate Court, the High Court in second appeal will not interfere with that discretion, unless same is contrary to law or usage having the force of law.
18. The respondent filed suit for specific.Performance on 29-9-1988 and deposited the balance sale consideration in terms of the order passed by the Court. All the three Courts below after taking into consideration evidence on record and conduct of both the parties granted relief of specific performance in favour of the respondents, which in the circumstances, appears to be just and equitable. The respondent No.1 cannot be blamed and penalized merely because time has been consumed during the trial. From the conduct of the parties, it appears that although the respondent who was not in possession of the property in question immediately on filing of the suit deposited balance sale consideration in Court which, demonstrates that he was always ready and willing to perform his part of obligations. The petitioner who were enjoying the possession of the property in question and also the rent of it, even not deposited the amount of Rs.2,00,000 which he received in the year 1988, as part sale consideration in Court, and enjoyed the benefit of it.
19. In the case of Shakeel Ahmed v. Mst. Shaheen Kousar, (2010 SCM R 1507), this Court directed the vendor to return the earnest money .With profit as the vendor utilized the money for. His benefit, and in the case of Mst. Mehmooda Begum versus Syed Hassan Sajjad and 2 others, (PLD 2010 SC 952), this Court modified the judgment and decree passed by the High Court and directed the plaintiff to pay a sum of Rs.30,00,000 as additional consideration in view of devaluation in currency and rise in price of property.
From the facts of the case, it appears that the respondent vendee has not deposited balance sale consideration at least till the suit was decreed and there is nothing in the judgment to show whether the said H amount was deposited even thereafter or not. The principle laid down in the above-referred matter has not attracted to the facts and circumstances of the matter in hand.
20. The conduct of the respondent does not appear to be inconsistence, and dishonest to disentitle him to claim equitable and discretionary relief of specific performance. On the contrary what appears is that the petitioner avoided to perform its part of obligations by failing to execute of sale agreement in time, by failing to attend office of Sub-Registrar for registration of Conveyance Deed on 20-9-1988 by withholding the amount of Rs.2,00,000 received by him in the year, 1988 till date and enjoyed the rent and possession of the property in question for more than 22 years from the date of execution of agreement of sale.
21. Having considered the matter from all angles in the light of material on file, we find that concurrent findings of facts recorded by the three courts below leaving no room for further consideration. The learned counsel for the petitioner has not been able to point out any infirmity factual or legal warranting interference by this Court.
22. In the facts and circumstances of the case, we do not find any substance in this petition, consequently, the same is dismissed and leave refused. However, we direct that the interest of the profit earned on the amount deposited by the respondent from November, 2005, be given to the petitioner.