AZIZ-UR-RAHMAN, J.---The above suit has been filed by the Plaintiff on 17.6.2013 for specific performance of contract dated 28.05.2013 and permanent injunction against Defendants with the following prayers :- a. To direct the Defendant No,1 to transfer the suit property i,e, plots bearing No,171/I and No,171/11, admeasuring 1000 sq.yds each situated at 22nd Street, Phase VIII, Defence Officers Housing Authority, Karachi in accordance with the terms and conditions of the sale agreement dated 28.5.2013 by receiving the balance sale consideration of Rs,13700000/- from the Plaintiff and in case of his failure the Nazir of, this Hon'ble tours may be directed to receive the above mentioned balance sale consideration from the Plaintiff and to get the suit property transferred in favour of the Plaintiff accordingly. b. To permanently restrain the Defendants, their agents, attorneys, officers, legal heirs, managers, or anyone else working on their behalf from creating third party interest and alienating the-suit property. c. To award any other remedy warranted by facts and circumstances of the case. d. To award the cost of suit.
2. Precisely, the relevant facts leading to the above prayers are as follows:
3. Per averments made in the plaint, Defendant No,1, is the lawful owner in possession of plots bearing No,171/I and No,171/II, admeasuring 1000 sq.yds each situated at 22nd Street, Phase VIII Defence Officer Housing Authority, Karachi [suit property]. It is the case of Plaintiff that Defendant No,1, had agreed to sell the 'suit property' to Plaintiff for a total sale consideration of Rs,1,52,00,000/- [Rupees One Crore Fifty Two Lacs Only] vide Sale Agreement dated 27.05.2013 [wrongly stated as 28.05.2013]. Per averments, under the said agreement, Defendant No,1, was given an amount of Rs,15,00,000/- [Rupees Fifteen Lacs only], as token/earnest money through two cheques bearing Nos,0397790 dated 28.05.2013 amounting to Rs,5,00,000/- and cheque No,0397786 dated 30.05.2013 amounting to Rs,10.00,000/- drawn at MCB Bank Limited, Badar Commercial Branch, Karachi. According to Plaintiff's version, Defendant No,1, under the said Sale Agreement of 27.05.2013 had also agreed to transfer the suit property as described hereinabove in favour of Plaintiff through adopting a proper procedure which was to be completed before Defendant No,2 [DHA], however, after payment of 'balance sale consideration' of Rs,1,37,00,000/- on or before 28.09.2013 [wrongly stated as 30.06.2013] to the Defendant No,l.
4. Per assertions made in the plaint, Plaintiff always remained ready and willing to pay the alleged balance sale consideration of Rs,1,37,00,000/- to Defendant No,1 and get the 'suit property' transferred in his name. Plaintiff, however, a few days ago, as asserted, came to know that Defendant No,1 is/was trying to sell out the suit property/plots to someone else through some Estate Agents on higher. price. Sale of 'suit property' as intended by Defendant No,1 is in violation of mutually agreed terms and conditions of sale agreement dated 27.05.2013 [Annexure 'P/2' to the plaint].
5. Upon coming to know about such efforts as being made by Defendant No,1, Plaintiff, thereafter, tried his best to contact and stop Defendant No,1 from committing such an illegal, unjustified act vis-a-vis sale of the 'suit property'. Defendant No,1 however, as alleged deliberately and intentionally avoided to give any positive response. Plaintiff, under such circumstances, was constrained to send a legal notice dated 08.06.2013 through his advocate, whereby, Defendant No,1, was asked to abide by agreed terms and conditions of sale agreement dated 27.05.2013 [Annexure 'P/2' to the plaint], and, get the 'suit property' transferred in favour of Plaintiff, however, after receiving 'balance sale consideration' of Rs,1,37,00,000/- within seven days w,e,f, 08.06.2013.
Nevertheless, despite receiving such legal notice of 08.06.2013, Defendant No,1, however, failed and/or avoided to reply legal notice of 08.06.2013. Defendant No,1, besides, non-serious was found busy in transferring the 'suit property' in favour of some other persons. In case as alleged, the 'suit property' is sold and transferred to someone else/other persons, then, of-course, Plaintiff shall be prejudiced seriously.
6. Per 'Para 6' of the plaint, 'cause of action' arose in favour of Plaintiff and against Defendants on 30.06.2013 when, Defendant No,1 failed to transfer the 'suit property' in favour of Plaintiff. Further, 'cause of action' accrued when besides, repeated requests/contacts, a legal notice dated 08.03.2013, was served upon Defendant No,1 [Annexure 'P/5' to the plaint] but Defendant No,1 either failed and/or avoided to send reply of such legal notice to the Plaintiff or otherwise, get the 'suit property' transferred in the name of Plaintiff. For and in view of the above, Plaintiff thus constrained to file the instant suit on 17.06.2013, before this Court which Court besides having ample power and jurisdiction, can adjudicate upon the 'lis' involved in the suit in hand.
7. Along with plaint, inter alia an injunction application under Order XXXIX Rules 1 and 2 C.P.C. [CMA No,7386/2013], was also filed. On 19.06.2013, when the above suit came-up before the Court, then the following order was passed:- 19.06.2013 Ch. Waseem Akhtar, advocate, for Plaintiff
1. Urgent granted.
2. Granted subject to all just exceptions.
3. Learned counsel argued that vide sale agreement dated 27.05.2013; available at Page-15, the Plaintiff agreed to purchase two plots No,171/I and 172/II, 22nd Street, Phase VIII, Defence Officers Housing. Authority, Karachi, measuring 1000 sq.yds., each. Out of total sale consideration of Rs, 152,00,000/-, the Plaintiff has paid Rs, 15,00,000/- through two cheques. Copies of cheques are available at Page-23. Learned counsel argued that the Plaintiff is ready to pay entire sale consideration in view of agreement to sell but now the Defendant No,1 is avoiding sale transaction and according to information of learned counsel, he has again advertised the same plots in newspaper daily "Dawn" on 07.06.2013. Issue notice to the Defendants. Meanwhile, the Defendants are restrained from creating any third party interest. Adjourned to 27.06.2013. [Underlining is mine] Sd/ JUDGE
8. Upon service, Defendant No,1 as well as Defendant No,2 [DHA] filed their written-statements.
Defendant No,1, in his written-statement vehemently denied the averments and assertions made by Plaintiff in the plaint. Per averments made in the 'written-statement Defendant No,1, has never entered into any alleged sale agreement dated 27.05.2013. The alleged 'sale agreement' of 27.05.2013 [Annexure 'P/2' to the plaint], in fact is a forged document. Per Defendant No,1 's version, the said agreement of 27.05.2013 [Annexure P-2 to the plaint] does not bear the signatures of Defendant No, 1.
9. According to Defendant No,1, it is inconceivable that the 'suit property', as alleged, by the Plaintiff was sold to him for a value of PKR 15,200,000.00. The 'suit property' as per Defendant No,1 's version, is valued at Rs,100,000,000/- i,e, Rs,50 Million for each plot. Per Defendant No,l's version, even the 'forced sale value' of the suit property is between PKR.85.00 Million and PKR.90.00 Million. In this regard, reference has been made to 'valuation reports' of three independent property evaluators/surveyors [Annexures 'A' to 'A/2' to the 'written-statement' of Defendant No,1]. Per stand of Defendant No,1, the two witnesses on the alleged sale agreement dated 27.05.2013 are un-known to Defendant No,
1. Even Defendant No,1, is not known to the Plaintiff or otherwise, Defendant No,1 has ever met with Plaintiff.
10. Defendant No,1, as alleged, by Plaintiff, has never received any amount from Plaintiff. Defendant No,1, however, had received 'a letter dated 19.07.2013 from MCB whereby, Defendant No,1, was informed that a cheque No,397786 for an amount of PKR 1,000,000.00 [Rs,1.00 Million] has been deposited in his account, but it was bounced. Defendant No,1, under such circumstances, contacted his bank through his counsel for clarification, but in response, no reply was received.
Defendant No,1, it is worth to mention, has never deposited the aforesaid dis-honoured cheque of the alleged amount of PKR 1,000,000.00 in his account or otherwise given any consent to Plaintiff.
Defendant No,1, however, believes that the said dis-honoured cheque in fact has been deposited by Plaintiff ex-facie with a view to give some support to his frivolous claim. Even purported receipt of 07.05.2013 is a forged document.
11. Further, Defendant No,1, has never received any cheque No,0397790 for a sum of PKR 500,000.00, as alleged by Plaintiff. Defendant No,1, upon receiving a letter dated 19.07.2013 from MCB regarding bounced cheque for Rs,1,000,000.00, contacted all those banks where Defendant No,1 maintained his account and requested them for providing 'statement of accounts'. Defendant No,1, thus came to know about deposit of PKR. 500,000.00 by someone else in the Account No,142201010004528 maintained by Defendant No,1 in MCB Bank Ltd., Mehdi Tower Branch. This amount of Rs,500,000.00, was 'never deposited by Defendant. No,1 and/or otherwise, any consent was given to anyone else for deposit of such amount in his account. Defendant No,1, in any event is ready and *willing to deposit the said amount of Rs, 500,000/- seemingly deposited by Plaintiff with the Nazir of this Court.
12. Besides, Defendant No,1 through his counsel wrote letters to MCB Bank [head office as well as concerned branches] and sought therefrom information with regard to the said cheques. The following queries, were raised in the letters of Defendant No,1:- i. Details, if any, maintained with the bank or the respective branches thereof with regard to the cheque Nos, 397790 and 397786. Any deposit slips maintained by the bank which may help in establishing the depositors' identity may be helpful in this regard. Since the subject matter of the fraud is over PKR 100,000,000.00, usage of CCTV footage may also be warranted; and ii. Information regarding the possible methods, which may have been used by the perpetrator to acquire Our Clients' account details. Our Client has informed us that a centralized system is maintained by the bank and the account details can be acquired using the CNIC number of the account holder. Kindly confirm and/or further clarify this.
13. The above letters, however, were not replied by MCB Bank and as such, Defendant No,1 is still not aware as to how the aforementioned cheques of which the cheque for PKR.10,00,000/- stood dishonoured was deposited into the bank account of Defendant No, 1 . Defendant No,1 without admitting the execution of sale agreement has averred in Para 9 of the written statement that Plaintiff, in any case, is not ready,' willing and/or otherwise, able to perform the alleged agreement.
Per Defendant No,1 's stand taken in his written-statement, legal notice dated 08.06.2013 [Annexure P-5 to the Plaint], sent by the Plaintiff has been suitably replied. In this regard, reference was made to Defendant No,1 's reply dated 22.06.2013, [Annexure 'E' to the written statement' of Defendant No,1] of which copy was also forwarded to Defendant No,2 for its' information and record. Per Defendant No, l's stand in no manner Plaintiff as alleged, shall be prejudiced or otherwise, will suffer financial losses if agreement dated 28.05.2013, is not performed. Besides, accrual of any 'cause of action' in favour of the Plaintiff and against Defendants has also been denied. The Plaintiff's suit according to Defendant No,1 is liable to be dismissed with punitive of costs, otherwise, Defendant No,1 shall be seriously prejudice.
14.In the 'written-statement' filed by Defendant No,2 [DHA], it is significant to note, that the factum of 'ownership' of Defendant No,1 of the 'suit property' has been expressly admitted in 'Para-1' of 'written statement', which is in answer to Para 1 of the Plaint.
15.On 15.04.2014, when again the above suit for specific performance and permanent injunction came-up before the Court then, the following order was passed: 15.04.2014 Ch. Waseem Akhtar, advocate for the Plaintiff Mr. Ovais Ali Shah, advocate for Defendant No, 1.
Mr. Ejaz Khattak, advocate for DHA.
It is the' case of the Plaintiff that Defendant No,1 had agreed to sell the suit property to him in consideration of Rs,15,200,Q00.00, out of which Rs,1,500,000.00 was paid by him to Defendant No,1 through two cheques of Rs,1,000,000.00 and Rs,500,000.00. The cheque of Rs,500,000.00 was encashed, whereas the cheque of Rs,1,000,000.00 was returned to Defendant No,1. These assertions have been denied by Defendant No,1 by asserting that the case / claim of the Plaintiff is bogus and mala fide. The Plaintiff's counsel concedes that according to the purported agreement between the parties, a sum of Rs,14, 700,000.00 is payable by the Plaintiff to Defendant No,1 in order to perform his agreed part of the contract. He requests for time to seek instructions from the Plaintiff as to whether the Plaintiff is ready and willing to deposit the said amount of Rs,14, 700,000.00 with the Nazir of this Court. The request is allowed subject to the condition that firm instructions in this behalf shall be submitted by him through a statement in writing before the Court on the next date. Learned counsel also requests for time to file affidavit in rejoinder in reply to the counter affidavit filed by Defendant No,1 to CMA No, 7386/2013, and counter affidavits to the three applications filed by Defendant No,1. [Underlining is mine] To come up on 30.04.2014. Interim order passed on CMA No,7386/2013 is extended till the next date of hearing. Sd/ JUDGE
16. Subsequently, on 13.11.2014, learned counsel for Plaintiff before Court made statement to the effect and extent that Plaintiff, is willing to deposit the balance sale consideration in sum of Rs,14,700,000/- within three weeks. At this juncture, it is worth to mention that in 'Para 3 of the plaint', Plaintiff has also specifically averred ... "That the Plaintiff is always ready to pay the balance sale consideration to Defendant No,1" ... The plaint, it is needless to say, is on oath. For convenience purpose, order dated 13.11.2014 is also reproduced herein below: - 13.11.2014 Chaudhry Waseem Akhtar for Plaintiff Mr. Ovais All Shah for Defendant No, 1.
Mr. Ejaz Khattak for DHA.
Learned counsel appearing for the Plaintiff submits that he is willing to deposit an amount of Rs,14,700,000/- (Rupees Fourteen million seven hundred thousand only) in pursuance of the order dated 15.4.2014 within three weeks. At this stage, learned counsel for Defendant No,1 submits that he is voluntarily depositing a sum of Rs,500,000/- (Rupees Five hundred thousand only), which is claimed to have been deposited by the Plaintiff in his account in pursuance of such sale agreement.
Be that as it may, without prejudice to the right of either party, let such amounts be deposited with the Nazir of this Court. Once such amounts are deposited by the Plaintiff and Defendant No,1 with the Nazir, the same shall be invested separately in best profit bearing scheme subject to further orders in this regard. [Underlining by mine] Adjourned. Interim order passed earlier to continue till the next date of hearing. Sd/.
JUDGE
17. Defendant No,1 in compliance with order dated 13.11.2014 did deposit the amount of Rs,500,000/- through cheque No,06900304 dated 17.12.2014, before the Nazir of this Court. This factum of deposit of Rs,500,000/- [Rupees Five Lac only] is quite evident from the endorsement of Nazir. The relevant part of report submitted by Nazir/Deputy Nazir [G] of this Court reads as follows:
1. It is respectfully submitted that in view of order dated 13.11.2014, the amount of Rs,5,00,000/- (Rupees Five lac Only) has been deposited by the Defendant No,1 which is lying with the Nazir vide Computerized Ledger No,2452 (Copy is annexed) and the same is to be invested with National Saving Centre,, Karachi.
2. Therefore, a cheque for Rs,5,00,000/- (Rupees Five lac Only) bearing No,06900304 dated 17.12.2014 has been prepared in favor of National Saving Centre, Karachi for investment, which is being sent herewith for favor of signature.
18.As far as, Plaintiff is concerned, despite Plaintiff's averments on oath to the effect and extent that Plaintiff is always ready to pay/deposit the balance sale consideration, however, failed and/or avoided to deposit Rs,14,700,000.00 before the Nazir of this Court pursuant to order dated 13.11.2014.
In view of this position, Court was left with 'no option' but to recall the restraining order dated 19.6.2013 in view of order dated 13.11.2014, whereby the balance sale consideration of Rs,14,700,000/- was to be deposited within three [3] weeks. The relevant part of order dated 30.03.2015, whereby the restraining order of 19.06.2013 was recalled, reads as follows: - On 13.11.2014 the learned Counsel appearing on behalf of Plaintiff had submitted before the Court that he is willing to deposit the amount of Rs,14,700,000/- (Rupees Fourteen millions even hundred thousand only) in pursuance of order dated 15.4.2014 within three weeks. Nazir's report dated 17.1.2015 reflects that though the Defendant has complied with the order passed on 13.11.014, whereas, the Plaintiff has not complied with the orders passed on 15.4.2014 and 13.11.2014 and has failed to deposit the balance sale consideration for which undertaking was given before this Court.
Mr. Choudhry Waseem Akhtar Advocate for Plaintiff submits that though the Plaintiff was willing to deposit the balance sale consideration but pleads no instructions as of today. In view of such circumstances, the Court is left with no option but to recall the order dated 19.6.2013 which already stands modified and made conditional on 13.11.2014, whereby, the Plaintiff was directed to deposit the balance sale consideration within three weeks. Applications listed at serial Nos,1 & 4 stand disposed of in the above terms.
[Underlining is mine].
19.Under the aforesaid circumstances, on 17.4.2017, when the above suit again came-up before the Court, then in view of the dictum laid down in the cases of Haji Abdul Hameed Khan v. Ghulam Rabbani [2003 SCM R 953] and [ii] Syed Muhammad Waaar-ud-Din v. Owais Ahmed Idress [2015 M LD 4911 Plaintiffs counsel was directed to satisfy the Court on the point of maintainability of this suit, as Plaintiff had failed to deposit the balance sale consideration of Rs,14,700,000/- pursuant to order dated 13.11.2014.
20.Chaudhry Waseem Akhtar, learned counsel for the Plaintiff, on 24.04.2017 was not ready to advance arguments on the question of maintainability of the suit and then on the request of Plaintiff's counsel the case was adjourned to 17.5.2017. It is significant to note that despite Plaintiff' averments made on oath and as transpires from 'Para 3 of the plaint' and Court's orders as referred to herein above, the amount of Rs,14,700,000/-, however, was not deposited.
21.Lastly, on 17.5.2015 when, the above suit came-up before me, then, I heard Chaudhry Waseem Akhtar, learned counsel for the Plaintiff, and Mr. Arshad Tayebaly, learned counsel for the Defendant No,1, on the question of maintainability of the above suit in view of Plaintiff's failure to deposit the balance sale consideration as per averments made in 'Para 3 of the plaint' as well as in compliance with Court's orders of 15.4.2014 and 13.11.2014. In terms of order dated 13.11.2014, Plaintiff was required to deposit Rs,14,700,000/- within three [03] weeks.
22.Chaudhry Waseem Akthar, learned counsel for the Plaintiff, while advancing arguments on the question of maintainability of the suit contended that though the Plaintiff has failed to deposit balance sale consideration of Rs,14,700,000/- in compliance with Court order dated 13.11,2014, but still on account of non-deposit of balance sale consideration, Plaintiff's suit is not only maintainable but also deserves to be decreed. Per Ch. Waseem Akhtar merely on account of Plaintiff's failure to deposit balance sale consideration, the instant suit filed by Plaintiff for specific performance of contract and permanent injunction needs to proceed onward. The deposit of 'balance sale consideration' according to learned counsel is not a strict requirement of law, as such, the suit cannot be dismissed on this score alone.
23.Conversely, Mr. Arshad Tayebaly, learned counsel for the Defendant No,1, contended in vehemence that in a suit for specific performance, it is obligatory upon the Plaintiff not only demonstrate in unequivocal terms in pleadings but also a Plaintiff be ready and willing throughout the proceedings to perform his part contract as agreed. Per learned counsel, in the suit in hand since Plaintiff herein is seeking equitable remedy of 'specific performance', as such, he always be ready and willing to perform his part of contract without any excuse. Mr. Arshad Tayabaly next contended that no-doubt, 'interim order' passed on 19.6.2013 has been vacated but still, on account of doctrine of lis-pendens, Defendant No,1 can neither raise any construction nor otherwise 'dispose of the suit property during pendency of the instant suit. Per learned counsel, since, Plaintiff is unwilling to perform his part of contract, as such, on this score alone suit is liable to be dismissed.
24.In support of his contention, Mr. Arshad Tayabaly, learned counsel for the Defendant No,1, placed reliance on the cases of [i] Haji Abdul Hameed Khan v. Ghulam Rabbani [2003 SCM R 953] and [ii] Syed Muhammad Waqar-ud-Din v. Owais Ahmed Idress [2015 M LD 491]. Lastly, learned counsel for Defendant No,1, prayed that the suit in hand filed by an unwilling Plaintiff to deposit 'balance sale consideration'/ perform his part of contract is liable to be dismissed with special and punitive costs.
25. Heard.
26. It is significant to note that the Plaintiff in 'Para 3 of the plaint' [which is on oath], has specifically averred that the Plaintiff is always ready to pay the balance sale consideration to Defendant No,1.
Despite such statement made on oath and Court's order dated 13.11.2014, Plaintiff herein, however, has failed and/or avoided to fulfill his commitments/statement made on oath. Per Court's order dated 13.11.2014. Plaintiff was required directed to deposit Rs,14,700,000/- with the Nazir of this Court within three [3] weeks. As transpires from the said order of 13.11.2014, Defendant No,1, had agreed voluntarily for depositing of Rs,500,000/- i,e, the alleged earnest money deposited by Plaintiff himself in the account of Defendant No,
1. The deposit of Rs,500,000/- in the account of Defendant No,1 as urged is without consent of account holder/Defendant No,l. Per order dated 13.11.2014, it is worth to mention, Nazir of this Court was also directed to invest the amounts upon its' deposit in some best profit bearing scheme separately.
27.Defendant No,1, as evident from the endorsement of Nazir, deposited the amount of Rs,500.000/- [Rupees Five Lac only] through a Pay Order No,428898, dated 28.11.2014, with Nazir of this Court. The said amount, as per direction of the Court, has also been invested by Nazir of this Court in a profit bearing scheme. At this juncture, it is needless to say during litigation, the value of money will considerably be decreased and contrary to this, value of suit property would be increased significantly.
28. As far as, Plaintiff is concerned, despite averments made in Para 3 of the plaint to the effect that Plaintiff is always ready to pay the 'balance sale consideration' to Defendant No,1, however, has failed and/or avoided to deposit the requisite amount of Rs,14,700,000/- with the Nazir of this Court.
Plaintiff, in this way, falsified/belied himself in his averments made on oath that the Plaintiff is ready, willing and/or able to perform his part of contract under the alleged sale agreement of 28.5.2013 [Annexure 'P/2' to the plaint].
29. It is worth to mention, in the suit in hand, Plaintiff is seeking an equitable relief of 'specific performance of contract', thus it is obligatory on the Plaintiff to be always ready and willing throughout the proceedings to perform his part of contract, otherwise, it shall be legitimately presumed that Plaintiff is not willing and ready to perform his part of contract. In the suit in hand, ex-facie, Plaintiff has failed and/or avoided to deposit the 'balance sale consideration' as per his commitments/averments made on oath as well in compliance with Court's order dated 13.11.2014.
Plaintiff, under circumstances, has disentitled himself to have a decree in his favour for 'specific performance'. It is significant to note, at the time of passing of order dated 13.11.2014, Plaintiff had shown his willingness to deposit Rs,14,700,000/- in pursuance of order dated 15.04.2014 with the Nazir of this Court. Per order dated 13.11.2014, the amounts on its' deposit was ordered to be invested in some profit bearing scheme, separately till further order.
30.On the above aspect of the matter, reliance was placed on the cases of (i) Haji Abdul Hameed Khan v. Ghulam Rabbani 12003 SCM R 953] and (ii) Syed Muhammad Waqar-ud-Din v. Owais Ahmed Idress [2015 M LD 49]. The relevant portions therefrom read as follows:
[i] 2003 SCM R 953
7. ...In a suit for specific performance, it is always of paramount consideration that the Plaintiff seeking equitable remedy of specific performance must be always willing and ready to perform his part of contract. Conduct of the petitioner unequivocally tends to reflect that he has been protracting the litigation on one or the other ground and has been successful so far on untenable grounds. Since the petitioner did not deposit the sale amount in compliance with the trial Court judgment as well as within the extended period, as permitted by the High Court, we would be legitimately justified in presuming that the petitioner is not serious in the prosecution of his remedy. He appears to be rather unwilling to perform his part of contract. This ground alone, in our view, is sufficient to disentitle him to a decree for specific performance. [Underlining is mine].
[ii] 2015 M LD 49
9. There is a vast difference between the capability or ability to perform the agreed part of the contract, and the readiness and willingness to do so. A party may be fully capable and able to fulfill his obligation under the contract, and yet he may not be ready or willing to do so. In a Suit for specific performance, it is obligatory upon the Plaintiff to demonstrate in unequivocal terms in his pleadings, as well as by his conduct throughout the proceedings, that he has always been and is still ready and willing to perform his agreed part of the contract. The said readiness and willingness of the Plaintiff is the essence of and a condition precedent for seeking specific performance of contract, and in the absence thereof the equitable and discretionary relief of specific performance cannot be granted. In the instant case, the conduct of the Plaintiff and the reluctance on his part to deposit the balance sale consideration despite the order of this Court, undoubtedly reflects his deliberate and intentional unwillingness to perform his agreed part of the contract.
10. Since the Plaintiff admittedly did not deposit the balance sale consideration as directed by this Court on 14-10-2013, or within 60 days sought by him for this purpose, it can be safely and legitimately presumed that he is not serious in performing his agreed part of the contract or in pursuing his remedy of specific performance. This ground alone is sufficient to disentitle him to a decree for specific performance. In support of this view, which is now being consistently followed by the Superior Courts. I may refer to the case of Haji Abdul Hameed Khan v. Ghulam Rabbani, 2003 SCMR 953. The case of Allah Ditta (supra) relied upon by the learned counsel for the Defendant, also supports this view. In both the cited authorities, the order of dismissal of the Suit for specific performance passed by the trial Court due to the Plaintiff's failure to deposit the requisite / balance amount in Court, was upheld the honourable Supreme Court. (Underlining is mine].
31. Evidently, the Plaintiff in the case in hand has failed to deposit the balance sale consideration as per his own averments/commitments made on oath [See Para 3 of the plaint], as well as pursuant to and in compliance with Court's orders dated 15.4.2014 and 13.11.2014 respectively. Keeping in view the conduct and attitude of Plaintiff it can safely and legitimately be presumed that Plaintiff besides, un-willing is not serious to perform of his agreed part of contract. At this juncture, it is worth to mention that on one hand prices of immovable properties going-up and on the other hand the value of money is coming down/decreasing due to de-valuation of currency. In a situation like this one, it is Defendant No,1 and not the Plaintiff who shall be seriously prejudiced if, the Plaintiff is allowed to push the suit forward and keep it alive without depositing the balance sale consideration with the Nazir of this Court as per his own commitment/averments made on oath in para 3 of the plaint as well as in compliance with Court's order dated 13.11.2014.
32. For, and in view of all the above, I have come to the conclusion that Plaintiff herein, is not entitled to have a decree for 'specific performance' of contract, as Plaintiff besides, being un-willing is not serious in prosecution of his remedy for specific performance. In the instant suit Plaintiff merely seems in a drill to prolong the litigation and thus keep Defendant No,1 deprived from using/disposing off the suit property as per his wish and desire. The un-willing Plaintiff who fails to perform his part of contract, in my view, in no event is entitled to have a decree in his favour for specific performance which relief/remedy in fact is a discretionary and equitable in nature.
33. The dictum laid down in the cases supra, it is obligatory on the Plaintiff who is seeking equitable remedy of specific performance to be ready and willing throughout the proceedings to perform his agreed part of contract, otherwise, it would be presumed genuinely that the Plaintiff is not serious in the prosecution of his remedy as the case in hand is.
34. The Plaintiff in view of the foregoing circumstances, since, deliberately and intentionally has avoided/omitted to perform his agreed part of contract which act alone, in my view, has disentitled the Plaintiff to have a decree in his favour for specific performance. Consequently. Plaintiff's suit for specific performance filed on 17.5.2013 is dismissed but with no order as to costs. Plaintiff, however, is left at liberty to withdraw the sum of Rs,500,000/- (Rupees Five Hundred Thousand only) along with accrued up-to-date profit thereon, if any, which the Defendant No,1 believes that the same was deposited by the Plaintiff himself in the account of Defendant No,1.
35. Suit stands dismissed accordingly along with pending application[s], if any.