' CH. SHAHID SAEED. J.---- Through this consolidated judgment, I intend to dispose of R.S.A. No.64 of 2010 as well as Writ Petition No.3937 of 2010 as common questions law and fact are involved therein.
2. Precise facts of the case are that prior to the instant suit, the appellant filed a suit for specific performance of agreement to sell dated 4-8-1997 on 24-6-1999 alleging that predecessor-in- interest of the respondents namely Hashmat Ali was owner of the property in dispute who agreed to sell the same through agreement dated 4-8-1997 in favour of the appellant against consideration of Rs,23,71,000/-, out of which Rs,280,000/- was paid as earnest money. During the pendency of the suit, the respondents made an offer that the suit of the appellant be decreed if he deposits the remaining sale price of Rs,20,91,000/-. However, after hearing the parties, the learned trial court decreed the suit of the appellant on 6-1-2000 with the direction to the appellant-plaintiff to deposit Rs,14,91,000/- in the court till 20-1-2000, however, in the decree, a sum of Rs,91,000/- instead of Rs,14,91,000/- was erroneously written. After deposit of sum of Rs,91,000/-, the appellant.
Challenged the said judgment and decree in this Court through R.F.A. No.4 of 2000 taking plea that he has further paid a sum of Rs,450,000/- to the respondents which R.F.A. Was dismissed vide judgment dated 19-12-2000. On 30-1-2001, the appellant filed application under section 152, C.P.C.
Before the trial court for correction of decree which application was allowed vide order dated 6-10- 2003. Thereafter, the appellant moved an application for extension in time for depositing balance consideration amount of Rs,1,400,000/- was dismissed by the trial court vide order dated 27-10- 2003 which was challenged in revision petition, however, the revision petition remained abortive and was dismissed on 12-4-2004 by learned lower revisional court. The appellant feeling aggrieved instituted Writ Petition No.5705 of 2004 in this Court. In the meanwhile, the respondents filed the instant suit for rescission of agreement to sell dated 4-8-1997. This Court, vide judgment dated 12- 12-2005, set aside the orders dated 27-10-2003 and 12-4-2004 passed by learned lower courts and directed that the application of the appellant for extension in time be heard along with the suit for rescission of the agreement filed by the respondents. The learned trial court dismissed the application of the appellant for extension in time for deposit of residual consideration amount and decreed the suit for rescission of agreement to sell dated 4-8-1997 vide judgment and decree dated 15-3-2006. The petitioners also moved another application for extension in time for deposit of balance consideration amount but the same was also dismissed vide order dated 10-7-2007.
The appeal preferred thereagainst by the appellant could also bore no fruit and was dismissed by the learned lower appellate court vide judgment and decree dated 17-2-2010. Hence the appellant has filed the instant R.S.A. And Writ Petition challenging judgment and decree dated 15-3-2006, order dated 10-7-2007 and judgment and decree dated 17-2-2010.
3. Learned counsel for the appellant inter alia contends that vide decree dated 6-1-2000, the appellant was asked to deposit a sum of Rs,91,000/- which decree was complied with and said amount was deposited in the court. He argues that it is the decree which is to be implemented and not the judgment. He stresses more on the point that the decree is always prepared by the court and not by any party and if there is any mistake in the decree, the appellant cannot be penalized for the same. Learned counsel further submits that the judgment and decree dated 6-1-2000 was challenged in R.F.A. Taking certain grounds but the same could not muster any positive results and was dismissed by this Court vide order dated 19-12-2000. Thereafter, on 31-1-2001, the appellant moved application for amendment of decree which was allowed on 6-10-2003, as such, there is no fault on the part of the appellant but it was the court who amended the decree after about two years of filing of the application for rectification of the decree. He maintains that after amendment of decree, the appellant moved application for extension in time but the same was rejected.
Learned counsel avers that it was mandatory that after amendment of the decree, the time ought to have been extended without which the fruit of amended decree could not be reaped. He next argues that the suit filed by the respondents for rescission of the agreement was badly barred by time but learned courts below have failed to appreciate the law and facts of the case and illegally and unlawfully ousted the appellant. In support of his contentions, he has relied upon the cases Shabbir Ahmed and another v. Zahoor Bibi and others (PLD 2004 SC 790) and Mst. Samera Butt v.
Hussain Ahmad Nasir and 3 others 2009 M LD 9421. Learned counsel for the appellant prays that both the R.S.A. And Writ Petition be allowed, impugned judgments and decrees/order be set aside, the suit for rescission of agreement filed by the respondents be dismissed and application under section 148, C.P.C. For extension in time for deposit of remaining sale price be allowed.
4. On the other hand, learned counsel for the respondents has vehemently opposed the instant petitions and supported the impugned judgments and decrees/order. He avers that the suit for rescission of agreement to sell filed by the respondents was within time. He further argues that the application under section 148, C.P.C. Filed by the appellant was rightly dismissed by learned courts below as the conduct of the appellant led the court to such decision. The appellant is enjoying possession of the property without payment of huge decretal amount of Rs,14,00,000/-. Learned counsel for the respondents prays that the instant petitions having no substance merit dismissal.
5. Arguments advanced by learned counsel for the parties have been heard and record also perused.
6. The moot point in this case is whether the appellant is entitled for extension in time to deposit the balance consideration amount or not.
7. Perusal of record reveals that learned trial court held in the judgment dated 6-1-2000 that the appellant would deposit the balance consideration amount of Rs,14,91,000/- till 20-1-2000 failing which the suit would be deemed to have been dismissed. However, in the decree passed on the same date, amount was erroneously written as Rs,91,000/- instead of Rs,14,91,000/-. The appellant knowing well that in fact, a sum of Rs,14,91,000/- was ordered to be deposited by the court while announcing the judgment, did not ask for amendment of the decree rather deposited the sum of Rs,91,000/- as mentioned in the decree. He then filed R.F.A. No.4 of 2000 taking plea that in fact, he had paid Rs,450,000/- to some relatives of the respondents which plea was earlier taken by the appellant before learned trial court who did not concede to as the appellant had failed to raise this plea in his plaint. This Court dismissed the R.F.A. On 19-12-2000. After about half and a month of dismissal of the R.F.A. p i,e, on 31-1-2001, the appellant filed application under section 152, C.P.C. For correction of the decree dated 6-1-2000. Though the said application was allowed vide order dated 6-10-2003 but learned trial court observed that since no prayer for extension in time to deposit the remaining sale price has been made in the application, as such, the matter of extension in time will be seen as and when it comes before the court. Thereafter, the appellant filed an application under section 148, C.P.C. For extension in time to deposit the balance consideration amount which application was dismissed by trial court vide order dated 27-10-2003 which order was challenged and ultimately this Court ordered for deciding the application along with the suit for rescission of the agreement to sell dated 4-8-1997 which had been instituted by the respondents till that time. Both the learned courts below dismissed the application of the appellant under section 148, C.P.C. And decreed the suit of the respondents for rescission of agreement to sell.
8. It is evident from the record that after having passed the decree dated 6-1-2000, the appellant has just tried to gain more and more time and misused the process of law. There is no cavil on the point that decree follows the judgment and it is the decree which is executable and not the judgment. In ordinary circumstances, the superior courts have preferred to allow extension in time whenever decree is amended if the decree holder prays with bona .Fide intentions for the same at the earliest possibility. But when judgment was passed keeping in view submissions of the parties and it was held that the appellant would deposit sum of Rs,14,91,000/-, the appellant in order to show his bona fide ought to have deposited the said amount instead of depositing the amount of Rs,91,000/- erroneously and inadvertently mentioned in the decree. He just to avoid fulfilment of his obligation filed R.F.A. And for more than one year, did not file any application for amendment in the decree which act is sufficient to show male fide on the part of the appellant. When the appellant was in knowledge of the amount decided by the court, it was his obligation to move the court for correction of the decree soon after error in the decree came into his knowledge but he has failed to do so. Rather, he lingered on the matter by filing different petitions and misused the process of law, as such, the learned courts below have rightly refused to grant his application under section 148, C.P.C. For extension in time to deposit the balance consideration amount.
9. The cases referred by learned counsel for the appellant are quite distinguishable on facts with those of the case in hand. Tn case Shabbir Ahmed and another v. Zahoor Bibi and others (PLD 2004 SC 790), learned trial court while decreeing the suit directed for payment of balance consideration amount within one month and before the expiry of the stipulated period, an application for extension in time was moved which ultimately was allowed. Whereas in other case, i,e, Mst. Samera Butt v. Hussain Ahmad Nasir and 3 others (2009 M LD 942), the application for extension in time was moved on the same day when the applicant gained knowledge of stipulation of time for deposit of the amount. But in the instant ease, the appellant was well aware about the order of the court regarding deposit of balance sale consideration from the very inception bin he intentionally and deliberately used delaying tactics in order to get more and more time. After about one year of A expiry of target date, he moved application only for amendment of decree but did not seek extension in time deliberately. When. That application was allowed after two years, then he filed application under section 148, C.P.C. For extension in time which could not be allowed in any manner.
10. The contention of learned counsel for the appellant that the suit of the respondents for rescission of the agreement to sell was badly barred by time is misconceived as when the appellant had deliberately avoided compliance of judgment. Dated 6-1-2000 in garb of frivolous litigation and clerical mistake in the decree, the vendor has every right to seek cancellation of the agreement. Under the law there is no specific terminus a gun for cancellation of agreement to sell but the point when the facts compel the vendor for such action. When the appellant has failed throughout to comply with his obligation and is enjoying possession against payment of only about one-third price of the suit property and reaping its fruits, the respondents-vendors could ask for to rescind the agreement to sell which agreement, even otherwise, was not being complied with by the appellant himself even after having passed a conditional decree dated 6-1-2000. There are concurrent findings of law and fact against the appellant. Learned counsel for the appellant has badly failed to point out any illegality in the impugned judgments/ decrees/order, therefore, no interference is called for.
11. For what has been discussed above, the instant R.S.A. As well as Writ Petition are bereft of any force, hence both dismissed with Cost throughout.