' ABID AZIZ SHEIKH, J.---Through this appeal, the appellant has challenged the judgment and decree dated 5-1-2013 passed by the learned Civil Judge, Lahore, whereby the suit for specific performance filed by the appellant/plaintiff was dismissed.
2. Brief facts of the case are that on 14-12-2010 the appellant/plaintiff filed a suit for specific performance of agreement to sell dated 1-9-2010 regarding a plot measuring 06-Marlas, detail of which is already given in Para No.1 of the plaint. According to aforesaid agreement to sell, the appellant/plaintiff agreed to purchase the aforesaid plot for a consideration of Rs.57,00,000.
Earnest money of Rs.10,00,000 was paid and remaining amount of Rs.47,00,000 was to be paid by 30-11-2010. On 27-11-2010, the last date for making the remaining payment and execution of the sale deed was extended up to 15-12-2010 and it was also settled that no further change will be made in the agreement to sell. According to the contents of the plaint, the respondent/defendant failed to provide the "FARD" of the plot, accordingly the appellant/plaintiff filed a suit for specific performance on 14-12-2010. The defendant put his appearance before the learned trial Court through his counsel on 10-3-2011 and his counsel made the statement that if the remaining amount of Rs.47,00,000 is paid within a period of 10 days, the defendant has no objection in decreeing the suit, however, in case of failure to deposit the remaining amount, the suit may be dismissed. In view of the above statement, the appellant/defendant on 21-3-2011 tendered cross cheque for an amount of Rs.47,00,000 in favour of respondent/defendant in the Court and it was directed that the cheque shall not be encashed and will remain in Court till the finalization of sale deed in favour of plaintiff and handing over the possession and completion of agreement. Thereafter, the matter remaining pending for one reason or another and finally on 19-12-2012, the learned counsel for the appellant/ plaintiff made a statement before the learned trial Court that he' will make payment of the remaining amount within 10 days and the suit may be decreed. The aforesaid statement was accepted by the leaned counsel for the respondent/defendant and accordingly, the learned trial Court on 19-12-2012, with consent of the parties directed that pay order for remaining amount be deposited by 3-1-2013, otherwise, the suit will not be proceedable. Due to holiday on 3-1-2013, the matter came up for hearing on 4-1-2013 and finally on 5-1-2013 but the appellant/ plaintiff failed to make payment of the remaining amount through pay order, therefore, the suit of the appellant/plaintiff was dismissed vide impugned judgment and decree dated 5-1-2013. Hence this appeal.
3. The learned counsel for the appellant/plaintiff argued that the default was on the part of respondent/defendant who failed to provide copy of the "FARD" and also partition the property, so that sale deed could be executed. Submits that the statement of learned counsel for the appellant/plaintiff dated 19-12-2012 was without any authorization from the appellant, therefore, the same was not binding on the appellant/plaintiff. Contends that the impugned judgment and decree dated 5-1-2013 is not sustainable under the law. Further submits that if the property in dispute has been transferred by the respondent/defendant during the pendency of this appeal, the said sale is hit by principle of lis pendens. Reliance is placed on Mst. Tabassum Shaheen v. Mst.
Uzma Rahat and others (2012 SCM R 983).
4. Conversely, the learned counsel for the respondent/defendant argued that the appellant/plaintiff was never willing to perform his part of the agreement. Submits that in order to show his bona fide, the respondent/defendant on the very first date before the learned trial Court on 10-3-2011 made a statement that he has no objection in passing of decree if the remaining amount is deposited by the appellant/plaintiff but no amount was deposited by the appellant/ plaintiff and the matter was delayed on one pretext or another. Further submits that the counsel for the appellant/plaintiff himself made a statement on 19-12-2012 for deposit of remaining amount within 10 days which offer was accepted by counsel for the respondent/defendant and consent order was passed by the learned trial Court on 19-12-2012, where it was specifically mentioned that the pay order be made by 3-1-2013, otherwise the suit will not be proceedable, therefore, on failure to deposit the remaining amount, the learned trial Court had no other option but to dismiss the suit on 5-1-2013. Submits that admittedly, the respondent/defendant (Sheikh Khalid Saeed) is co-owner of the property measuring 2-Kanals 7-Marlas 33 square feet and his share in the said property is much more than 6-Marlas plot sold to the appellant/plaintiff which fact was in the knowledge of the appellant/plaintiff. Further submits that even otherwise, all the co-shares appeared before the learned trial Court on 25-4-2011 and stated that they have no objection in execution of sale deed in favour of the appellant/plaintiff. Submits that despite the above, no remaining payment was made by the appellant/plaintiff. Learned counsel for the respondent/ defendant further points out that after the dismissal of the suit, the property is already transferred to a third party, therefore, the agreement is not executable and appeal has become infructuous.
5. We have given our anxious consideration to the arguments advanced by learned counsel for the parties and perused the record with their able assistance.
6. We are conscious of the fact that relief for specific performance is a discretionary relief. The circumstances of the case and conduct of the parties in a suit for specific performance is very much relevant. The parties must be ready to perform their part of agreement at all pertinent dates i.e. At the time of agreement, at the time of filing of the suit and also at the time of decree passed in the suit. In the present case, as per agreement to sell dated 1-9-2010,, the plot measuring 06-Marla was purchased by the appellant/ plaintiff for an amount of Rs.57,00,000. Earnest money of Rs.10,00,000 was paid and the remaining amount was to be paid by 30-11-2010. The last date was further extended up to 15-12-2010.
7. We have noted that it is admitted position between the parties that remaining payment was not paid by the appellant/ plaintiff till the last date mentioned in the agreement to sell. It is also not disputed that after filing of the suit, the respondent/defendant's counsel appeared on 10-3-2011 and by admitting the claim of the appellant/plaintiff made a statement that if the remaining amount is paid within a period of 10 days, he has no objection in the passing of the decree in favour of appellant/plaintiff but again no remaining amount was paid by the appellant/plaintiff. Though the appellant/plaintiff deposited the cheque with the Court on 21-3-2011, but thereafter, no effort was made by appellant/ plaintiff to get execute the sale deed by making payment to the respondent/ defendant. Finally on 19-12-2012, the appellant/plaintiff's counsel himself made a statement that the remaining amount will be paid within 10 days' time which offer was accepted by the respondent/defendant and on this statement, a consent order was passed to deposit the remaining amount by 3-1-2013 or otherwise, the suit will not be proceedable but again no amount was paid by the appellant/plaintiff and therefore, the suit was dismissed on 5-1-2013. The august Supreme Court of Pakistan in a case reported as Muhammad Sharif and others v. Nabi Bakhsh and others (2012 SCM R 900) held that remedy by way of specific performance is an equitable relief which cannot be claimed as of right and that under section 22 of the Specific Relief Act, 1877, this remedy is discretionary and Court is not bound to grant such relief merely because it is lawful to do so. We are of the view that a suit for specific performance which is not based upon breach of statutory rights but based on terms and conditions of the agreement, the discretion lies with the Court to see whether the party is entitled for the decree of specific performance on the basis of equity or for any fault on his part.
8. The circumstances of this case show that it was the appellant/plaintiff who delayed the proceedings of the suit on one pretext or another and was never willing to pay the remaining consideration amount despite the conceding statement of the respondent/defendant on the very first date of hearing i.e. 10-3-2011. The appellant/ plaintiff even after the statement of his own learned counsel dated 19-12-2012 which resulted into a consent order, failed to deposit the remaining amount through pay order. The above conduct of the parties shows that from day one, the equity as well as fairness lies in favour of respondent/ defendant and not with the appellant/ plaintiff, therefore, the learned trial Court has rightly dismissed the suit as the appellant/plaintiff cannot claim the performance of the agreement to sell as of right.
9. The argument of learned counsel for the appellant/ plaintiff that no remaining payment was made because the property was not partitioned and "FARD" of the property was not handed over to the appellant is misconceived. In the agreement to sell dated 1-9-2010, it was specifically mentioned that 06-Marlas land is part of plot measuring 02-Kanals 07-Marlas and 33-square feet.
No condition was imposed in the agreement that the said 06-Marlas will be partitioned before the payment of remaining amount. In any case, it is not denied by appellant/plaintiff that the respondent/defendant is co-owner of the property measuring 02-Kanals 07-Marlas and 33 square feet and his share is much more than 06-Marlas sold to the appellant/ plaintiff. We have also noted that before the learned trial Court on 25-4-2011, all the other co-owners also appeared and made a statement that they have no objection in transferring the plot to appellant/defendant, if remaining amount is paid. Despite the above position, no remaining amount was paid by the appellant/defendant, therefore, the learned trial Court has rightly dismissed the suit.
10. Further we have noticed that the impugned judgment and decree also comes under the purview of another provision of law available with the learned trial Court conferring the power upon' it to proceed with the case forthwith. The said provisions Order XVII, Rule 1(3) of the Code of Civil Procedure, 1908 which is reproduced hereunder:-- "(3) Where sufficient cause is not shown for the grant of an adjournment under sub-rule (1), the Court shall proceed with the suit forthwith."
' In this case, the appellant/plaintiff vide order dated 19-12-2012 was directed to deposit the remaining amount and he intentionally avoided to pay the same which was required for the progress of the case. Once the appellant/plaintiff failed to comply with the order of the learned trial Court, the learned trial Court has rightly exercised the jurisdiction vested with it under the aforesaid provision to dismiss the suit. We further fortified by the judgment of august Supreme Court of Pakistan reported as Pirzada Amir Hussain and others v. Mrs. Shamim Shah Nawaz and others (1987 SCM R 249) and by the judgment of Division Bench of this Court reported as Ghulam Qadir alias Qadir Bakhsh v. Haji Muhammad Suleman and 6 others (2002 CLC 1111).
11. For what has been discussed above, there is no merit in this appeal and we also do not find any illegality or infirmity in the impugned judgment and decree dated 5-1-2013, therefore, this appeal is dismissed with no order as to costs.
12. Requisitioned record be sent back to the concerned Court forthwith.