S.M. ATTIQUE SHAH, J.- Through the instant appeal, the predecessor of the appellants namely Abdur Rashid had challenged the order dated 14.7.2010 passed by learned Civil Judge-XI, D.I.Khan, whereby his application filed under Sections 148 & 151 CPC and suit were dismissed.
2. The brief facts of the case are that the appellant Abdur Rashid filed a suit for specific performance and perpetual injunction against the respondents in respect of the property known as "Syed Plaza" fully detailed in the head note of the plaint, on the basis of agreements to sell executed on 04.8.2007 and 11.3.2008 against a sale consideration of Rs.4,78,00,000/- in his favour and out of the entire sale consideration, an amount of Rs.1,81,00,000/- had been paid to the respondents; that the remaining sale consideration could not be paid to the respondents, due to status quo order passed in suit No.46/6 of 2008 against the them. The respondents were asked time and again to clear the disputed property from litigation and transfer the same in favour of the appel lant on receipt of the remaining sale consideration, but to no avail, hence, the suit.
3. The appellant alongwith his suit also filed an application for grant of temporary injunction, while the respondents filed an application for issuance of direction to the appellant to deposit the remaining sale consideration. The learned trial Court vide its order dated 24.11.2008 allowed both the said applications and directed the appellant to deposit the remaining amount within thirty days.
4. Not contented with the order dated 24.11.2008, the appellant filed revision petition before this Court, which was accepted vide judgment dated 16.6.2009 and the matter was remanded to the learned trial Court for afresh decision.
5. Thereafter , vide order dated 19.11.2009, the learned trial Court again accepted both the applications of the parties and directed the appellant to deposit the admitted balance amount within thirty days.
6. Feeling dissatisfied with the order dated 19.11.2009, the appellant filed C.R.No.08 of 2009 before this Court, which was dismissed vide judgment dated 13.5.2010, whereafter , the appellant filed Civil Petition No.1035 of 2010 before the august apex Court and also filed an application before the learned trial Court for extension of time, which was dismissed vide impugned order dated 14.7.2010 alongwith his suit and thereafter , his Civil Petition was also dismissed as withdrawn by the august apex court vide its order dated 25.1 1.201 1. Hence, the instant appeal.
7. Learned counsel for the appellant argued that the impugned order is illegal and against the material available on record of the case; that though Civil Petition of the appellant was dismissed as withdrawn, however the august apex Court made an observation that judgment dated 13.5.2010 passed by this Court in C.R.No.08 of 2009 shall not cause any prejudice in any manner to the appellant; that the remaining sale consideration could not be deposited due to the status quo order passed in suit No.46/6 of 2008 filed agains t the respondents; that the sale transaction was entered between the parties against a sum of Rs.4,78,00,000/-and till the filing of the suit, an amount of Rs.1,81,00,000/- had already been paid, however , the learned trial Court in its impugned order inadvertently mentioned the same as Rs.1,78,00,000/-; that the condition of the deposit of the remaining sale consideration under agreement to sell is not applicable to the instant suit, due to its peculiar facts and circumstances; that the impugned order is liable to be setaside on acceptance of instant appeal.
8. Learned counsel for the respondents submitted his written arguments: wherein he has challenged the very maintainability of instant appeal, being badly time barred, as the same had been filed on 04.01.2012 i.e. after one year and five months of the dismissal of the suit of the appellant. Learned counsel strongly defended the impugned order of the learned trial court and conten ded that the appellant was directed by the learned trial Court to deposit the balance amount of Rs.30000000/-, but instead of depositing the said amount, he submitted an application for further extension of time, which had rightly been dismissed alongwith his suit by the learned trial Court. The learned counsel while supporting the impugned order prayed for dismissal of the instant appeal being meritless.
9. Arguments heard and record perused.
10. Perusal of the record reveals that the parties entered into an agreement to sell in respect of the suit property known as "Syed Plaza" against a sale consideration of Rs.4,78,00,000/- out of which, Rs.1,78,00,000/- were received by the respondents at different intervals through postdated cheques, however , the appellant could not deposit remaining amount and thus, filed a suit for specific performance of agreement alongwith an application for grant of temporary injunction, wherein, the respondents appeared before the court and filed an application for issuance of direction to the appellant to deposit the remaining sale consideration. The learned trial Court vide order dated 24.11.2008 directed the appellant to deposit the remaining amount within thirty days. The appellant, being aggrieved of the said order , filed C.R.No.01 of 2009 before this Court, which was accepted and, the matter was remanded to the learned trial Court for afresh decision. After remand, the learned trial Court vide its order dated 19.11.2009 again directed the appellant for deposit of the said amount, which was once again challenged before this Court by the appellant in C.R.No.08 of 2009 and vide judgment dated 13.5.2010, this Court dismissed the said revision petition by directing the appellant to deposit the balance sale consideration as per directions of the learned trial Court within thirty days. The appellant, being aggrieved of said judgment filed Civil Petition No.1035 of 2010 before the august Apex Court, which was subsequently withdrawn on 25.11.201 1 on the ground that during pendency of the ibid Civil Petition, the suit was dismissed by the learned trial court, vide its impugned order dated 14.7.2010.
11. It is worth mentioning that after filing Civil Petition by the appellant, the august apex Court had neither granted status quo in his favour, nor suspended the operation of the judgment dated 13.5.2010 passed by this Court. It is also noteworthy that the impugned order was passed by the learned trial court on 14.7.2010, whereas the appellant filed the instant appeal on 04.01.2012 with a delay of one year and five months. Though the appellant filed C.M.No.54-D/2017 for condonation of the delay, but the delay had not been sufficiently explained therein, therefore, the said application merits dismissal. As of now, it is settled that invoking of a remedy by an aggrieved person beyond the prescribed period of limitation, created valuable rights in favour of the opposite party, therefore, in such circumstances, the delay of each day has to be sufficiently explained by the defaulting party to the satisfaction of the Court. "Lt. Col. Nasir Malik Vs. Additional District Judge, Lahore" 2016 SCMR 1821, "Lanvin Traders, Karachi Vs. Presiding Officer, Banking Court No.2, Karachi" 2013 SCMR 1419, "Lal Khan Vs. Muhammad Yousaf" 2011 PLD 657 Supreme Court, "Qaisar Mushtaq Ahmad Vs. Controller of Examinations" 2011 PLD 174 Supreme Court.
12. So far as, the contention of the learned counsel for the appellant that they could not deposit the remaining amount due to the status quo order passed by the learned trial Court in suit No.46/6 of 2008 is concerned, the record of the said suit reveals that though a status quo order was passed on 05.4.2008 till the next date of hearing i.e 12.4.2008, however, subsequently, neither the same was extended nor confirmed by the learned Court, hence, the stance of the appellant that he could not deposit the remaining sale consideration due the status quo order in the ibid suit is misconceived, particularly, in the peculiar circumstances of the case, when the appellant in para No.6 of his plaint himself had shown his willingness to pay the remaining sale consideration, therefore, he should not have avoided the deposit of the same, when the trial Court as well as this Court directed him to do so.
13. Now coming towards the observation of the august apex Court in Civil Petition No.1035 of 2010 decided on 25.11.201 1 that the impugned judgment dated 13.5.2010 shall not cause any prejudice in any manner to the petitioner , if he chooses to file an appeal is concerned, suffice it to say that the appellant cannot get any benefit out of the said observation, as the instant appeal is filed after the delay of one year and five months, which is badly time barred. In view of above, the appellant could not make out a case for interference, as no illegality or irregularity had been committed by the learned trial Court at the time of passing the impugned order .
14. As it has earlier been discussed that the transaction between the parties was struck against a sum of Rs.4,78,00,000/- and an amount of Rs.1,78,00,000/- had been received by the respondents in the year 2008 and as per the terms and conditions of the subsequent deed 11.3.2008, Rs.1,28,00000 /- were considered as payment in respect of three shops and an open space (2122.41) sq.ft and its possession was also handed over to the petitioner , whereas, rest of the amount (Rs.53,00000/-) had been shown counted towards the remaining property , which remained with the respondents for a long period of eleven years. Therefore, a question arises that whether the appellant is entitled under the law to get his amount back, after the dismissal of his suit? Similar question came for discussion before the august apex court in a case titled Malik Bahadur Sher Khan Vs. Haji Shah Alam and others" (2017 SCMR 902 ), wherein the august apex Court held that:- "When considered in this background, we do not think the finding of the fora below can be held to have been based on a proper appraisal of evidence. We, thus, do not feel inclined to maintain it. However, since a sum of Rs.20,00,000/- was received by the appellant who at no stage made any effort to return the same to the respondent or deposit it in the Trial Court or its return to the respondent in the same without considering decrease in the value of rupee and corresponding increase in the prices of the land would be rather unjust. We, in this view of the matter hold that the appellant would pay Rs.30,00,000/- over and above Rs.20,00,000/- to the respondent within a period of three months to be reckoned from today".
Thus, while deriving wisdom from the aforesaid dictum of the august apex court and, in view of the peculiar facts and circumstances of the instant case, particularly when record of the case is silent regarding the intention and effort of the respondents to return the aforesaid amount to the appellant at any stage of the proceedings and keeping in view the prevailing depreciation in the value of the currency and the corresponding increase in the value of the property, the respondents are directed to pay Rs.50,00,000/- over and above Rs.1,78,00,000/- to the appellant (now his legal heirs) within a period of three months from the date of the judgment of this Court and appellant is directed to hand over the possession of the property to the respondents in order to safeguard the interest of both the parties.
15. In view of the above, the instant appeal is disposed of in the above terms.