NAZAR AKBAR J.---This civil revision is directed against the impugned judgment dated 26.08.2009 passed by learned Additional District Judge, Moro in Civil Appeal No.94/2007 where by the findings of the trial court in Suit for specific performance bearing FC Suit No.22/2004 were reversed.
2. The brief facts of the case are that applicant No.1. had sold his land bearing survey No.132, measuring 04-09 acres situated in deh Korai, Taluka Moro hereinafter the suit property to the respondents for the sum of Rs.90,000/- and executed such agreement. Out of total sale consideration an amount of Rs.30,000/- were paid as earnest money and remaining were to be paid subsequently. Thereafter applicant No.1 sold his property to applicant No.2 therefore suit for specific performance was filed against the applicants with additional prayer for cancellation of subsequent transfer of the suit property by applicant No.1 to applicant No.2. Claim of the respondents is that they had made entire payment of sale consideration before filing of the suit.
However, in appeal the main point for determination was point No.3 i.e. Whether an amount of Rs.60,000/- were paid by the appellants to the respondent No.1?" and the appeal was allowed in the following terms: "Consequently, the suit of the appellant is hereby decreed. The appellants are directed to pay Rs.
60,000/- as remaining amount to the respondent. No.1 and the respondent No.1 is directed to execute the registered sale deed in favour of the appellant failing which Nazir of the learned trial court is directed to receive the said amount from the appellant and execute the sale deed in favour of the appellants in respect of suit land bearing S.No.132 admeasuring 4-09 acres of Deh Korai."
3. I have heard both the learned counsel at length and gone through the evidence of both sides. It is conceded by both the learned counsel that it is settled principle of common law that when in a suit for specific performance an agreement of sale and even the sale consideration is not disputed and judgment and decree of the suit is being delayed on account of pendency of litigation the amount of sale consideration is supposed to be enhanced keeping in view the difference in market value at the time of judgment particularly in the cases in which for whatever reasons the remaining sale consideration amount has not been deposited by the plaintiff/buyer in court at the time of filing of suit for specific performance. Similarly in case the suit is to be dismissed and the earnest money has not been returned by the seller and he has sold the immovable property to third person, the court irrespective of terms of agreement shall, order for the return of the earnest money with an additional amount to be determined in accordance with principles of equity and convert the suit for specific performance of contract into suit for recovery of money and decree the same accordingly. Learned counsel for the applicants has also relied upon "Muhammad Yar v.
Mehmood and 2 others" (2003 M LD 878) in which High Court has reversed the findings of the trial court in a suit for specific performance and decreed the same as money decree to the extent of amount of earnest money refundable by the appellant/ seller to the plaintiff/buyer. In the case in hand the earnest money amounting to Rs.30,000/- was admittedly paid on 09.10.1997 by the respondents to the applicant which has neither been returned nor offered to be returned by the applicant or even subsequent buyer when he was put on notice of Suit No.22 of 2004. The case of the plaintiffs/ respondents was that they had made entire payment of sale, consideration.
However, their suit was dismissed and in appeal the appellate court on 26.08.2009 held that a sum of Rs.60,000/- was payable by plaintiff/ respondents to the applicant towards sale consideration for specific performance of the sale agreement. The respondents have not assailed the said findings against them and filed an execution of appellate decree before the trial court. It is admitted by them that they have filed execution application but they could not deposited the said amount of Rs.60,000/- in the executing court on account of the facts that the decree was suspended in this revision. However, Keeping in view the settled principle of law on the point of liability of the purchaser, and the seller of immovable property once the suit for specific performance was decreed subject to payment of Rs.60,000/-, the respondents were liable to pay Rs.60,000/- forthwith. It was their duty to offer to deposit the said amount in court pending the revision application. However, probably under the bona fide belief, neither they deposited the said amount in the court nor the applicants pending their revision requested the court that the respondents should be burdened with the payment of Rs.60,000/- in court. Therefore, to be precise for last almost nine years the amount of Rs.60,000/- has not been paid by the applicant/purchaser o the suit property who has filed suit for specific performance and the respondents/ seller have neither returned the earnest money to the applicant since October, 1997. In view of above, the simple question was raised by the court that if revision application is to be dismissed then what should be the additional amount of sale consideration should be paid by the respondents for execution of decree of specific performance on account of lapse of nine years, and in case the court come to the conclusion that it be converted into money decree what should be the order for the applicant to refund the earnest money and on what terms.
4. Learned counsel for the respondents in presence of respondent No.1 Sadruddin has offered that his earnest money may be refunded and the impugned order may be modified to the extent that the applicants Nos.1 and 2 jointly or severally should make payment of Rs.30,000/- with interest at the rate of Rs.15 percent per annum from 09.10.1997 within thirty days from today. The learned counsel for the applicant has no objection to this proposition. The revision is, therefore, by consent disposed of in the following terms:-
(i) The applicants will refund earnest money of Rs.30,000/- along with 15 percent interest per annum from 09.10.1997 to the respondents within 30 days from today. directly through cross cheque and in case of avoidance the said amount shall be deposited with Nazir of trial court.
(ii) In case of failure of applicants to comply with the above, the revision shall be deemed to have been dismissed and the executing court already seized of execution application of appellate decree on receiving Rs.60,000/- without any additional amount shall execute the sale deed through Nazir of the trial court, and put the respondents in possession of the suit property.
5. In view of the above, the judgments and decrees of the courts below are modified in the above terms.