Through this civil revision, the petitioner has challenged the judgment & decree dated 15.1.2018, passed by the learned Additional District Judge, Pasrur who accepted the appeal of the respondent, set. aside the order & decree dated 20.01.2015, passed by the learned Civil Judge, Sialkot and decreed the suit filed by the respondent.
2. Brief facts of the case are that respondent/plaintif f filed a suit for possession through specific performance with permanent injunction against the petitioners on the basis of a written agreement to sell dated 11.03.2014 in respect of land measuring 05 Kanal 04 Marla situated in Moza Gharban Chowinda, Tehsil Pasrur District Sialkot which was purchased by him against consideration of Rs. 72,80,000/- out of which Rs. 800,000 were paid as earnest money and it was settled that remaining consideration of Rs. 64,80,000/- will be paid on 27,07.2014 at the time of registration of the sale deed. The petitioners/defendants appeared before the learned trial Court. On 18,12.2014, the learned trial Court, after recording conceding statement of the petitioners/defendants passed , direction to the respondent/plaintif f to deposit the remaining consideration of Rs. 64,80,000/- on 05.01.2015. On the said ate, amount was not deposited and on the request of the respondent/plaintif f, the case was adjourned for 20.01.2015 for depositing the remaining consideration. Again on 20.01.2015, the amount was not deposited and an application was filed by the respondents/plaintif fs to extend the date for depositing the amount upon which the learned trial Court dismissed the suit filed by the respondent/plaintif f. The respondent filed an appeal which was accepted by the learned appellate Court vide judgment & decree dated-15.01.2018 where by the order & decree dated 20.01.2015, passed by the learned trial Court was set aside and the suit filed by the respondent/plaintif f was decreed. Hence, this civil revision.
3. I have heard the arguments of learned counsels for the parties and have gone through the record with their able assistance.
4. Admittedly , the agreement to sell dated 11.03.2014 was executed between the parties, Rs. 800,000/- were paid as earnest money and remaining consideration of Rs. 64,80,000/- was settled to be paid. on 27.07.2014 at the time of execution of the sale deed. The petitioners/defendants sent notice to the respondent/plaintif f on 09.09.2014 demanding the payment of remaining consideration and showing readiness/willingness to perform their part of the agreement. The respondent/plaintif f in response of the said notice, instead of paying the remaining consideration, filed instant suit for specific performanc e on 25.09.2014. Even in trial proceedings, the petitioners/defendants recorded their statement before the learn ed trial Court on 18.12.2014 that if the respondent/plaintif f deposited the remaining consideration, they would have no objection on decreeing the suit. The statement of the petitioners/defendants as well as order dated 18.12.2014 is reproduced as under: "Statement of Maqsood Hussain Mustafa s/o Mian Ghulam Mustafa r/o house No. 12 Mohallah Park Lane, Temple Road, Lahore On oath: I am general power of attorney on beha lf of Kaneez Fatima mother of the plain tiff and Fouzia Khanim sister . I concede the suit of the plaintiff the agreement was executed by all the defendants with the plaintiff We received Rs.
800,000/- from the plaintiff. If the plaintiff deposited the remaining amount Rs. 64.80.0001- I have no objection on the decree of the suit land measuring 5 kanals 04 marlas in khewat No. 294 and khatooni No. 365. I submit general power of attorney Mark-A .
R.O&A.C: Tariq Mehmood Shad 18.12.2014 Civil Judge 1st Class, Pairur Statement of Ghulam Mustafa slo Mian Ghulam Mustafa r/o house No. 12 Mohallah Park Lane, Temple Road, Lahore On oath: I state that I alongwith my brother , mother and sister entered into agreement with the plaintiff Amjad Javaid. My brother Magsood Hussain Mustafa was also general power of attorney on behalf of the defendant No. 2 & 4.1 also concede the suit of the plaintiff If the plaintiff deposits remaining amount of Rs. 64.80.0001- I have no objection on the decree of the suit. W e already received Rs. 8.00. 000/-.
R.O&A.C: Tariq Mehmovd Shad 18.12.2014 Civil Judge 1st Class, Pasrur 18.12.2014 Present: Ch. Basaharat All Sial learned counsel for the plaintif f Ch. Muhammad Akram learned counsel for the defendants. Defendant No. 1 & 3 Maqsood Hussain and Aamir Mustafa in person.
Maqsood Hussain general power of attorney of Defendant No. 2 and 4. Statements of both Maqsood Mustafa and Aamir Mustafa recorded separately . They have raised no objection on the decree of the suit. So plaintif f is directed to deposit the remaining consideration amount of Rs. 64,80,000/ on 05.01.2015. In case amount is not deposited further order will be made in accordance with law .
Announced: Tariq Mehmood Shad 18.12.2014 Civil Judge 1st Class, Pasrur (emphasis supplied)
5. The relevant portion of the paragraph No. 2 is reproduced as under: {{URDU TEXT}} When the respondent/plaintif f in paragraph No. 3 of his plaint stated that: {{URDU TEXT}} then it was his duty to deposit the balance consideration amount before filing the suit or append the pay order with the plaint but this exercise was not done. Even the petitioners/defendants sent notice to the respondent/plaintif f to perform his part of the agreement by making payment of remaining consideration but, even then he disregarded the demand notice, whereas the readiness of the defendant is obvious that they after receiving the notice from the learned trial Court, got recorded a conceding statement on 18.12.2014 to the effect that they are ready to perform their part of agreement subject to deposit of the remaining consideration amount by the plaintif f, upon which the learned trial Court passed direction to the respondent/ plaintif f to deposit the remaining consideration till 05.01.2015 but he failed to pay the amount and on his request, the case was adjourned to 20.01.2015. But despite availing reasonable opportunity even on 20.01.2015 the respondent/plaintif f again did not deposit the said amount rather filed an application for extension of time without any convincing reason, which constitutes a deliberate default on the part of the respondent/plaintif f and non-compliance of the Court's order which dismantle his assertion of readiness and willingness. It is settled law that the readiness and willingness of a party for the performance of its part of the contract is sine qua non and a defaulting party is disentitled ftom any equitable or discretionary relief as held by the Hon'ble 'Supreme Court of Pakistan in a case cited as Bootay Khan vs. Muhammad Rafiq (PLD 2003 SC 518 ) as under: "18. It may be so but it did not absolve the respondents/ plaintif fs from their legal obligation to prove that they were ready and willing to perform their part of the contract at relevant time. Their oral evidence was not coupled with any substantive steps to prove their intention to perform their part of the agreement coupled with the findings that they did not have sufficient money to pay the sale price. They did not lead any evidence as to why did they keep quiet for about five years for the suit was filed on 16.2.1985. The suit though was filed within period of limitation but inaction on the part of the plaintif fs for a period of about five years before filing of the suit furnishes strong evidence of their conduct that they were not ready and willing to perform their part of the agreement at the relevant time, therefore, were not entitled to any relief in exercise of discretion vested in the Court in the matter , for relief of specific performance of agreement is equitable and discretionary which had been rightly refused on the facts established on the record".
Reliance is also placed on Liaqat Ali Khan & Others vs. Falak Sher & Others (PLD 2014 SC 506 ).
6. The respondent/plaintif f was duty bound to show his bona fide to perform his part of contract by making deposit of the remaining consideration on the very first day of filing the suit Whereas he contumaciously showed defiance to the direction of the learned trial Court regarding the deposit of remaining consideration amount, as such, he is not entitled for any discretionary or equitable relief as settled by the Hon'ble Supreme Court of Pakistan in a judgment titled as Hamood Mehmood vs. Mst. Shabana Ishaque & Others (2017 SCMR 2022 ) wherein it is made mandatory for the person who seeks enforcement of the agreement to sell through a suit for specific performance to apply to the Court for getting permission to deposit the balance consideration amount and any contumacy or omission in this regard would entail the invocation of penal consequences of dismissal of the suit.
The relevant portion of the judgment (supra) is reproduced as under: "3. It is mandatory for the person, whether plaintif f or defendant who seeks enforcement of the agreement under the Specific Relief Act 1877, that on first appearance before the Court or on the date of institution of the suit, it shall apply to the Court getting permission to deposit the balance amount and any contumacious/omission in this regard would entail in dismissal of the suit or decretal of the suit, if it is filed by the other side."
The above principle has been reiterated by the August Apex Court in its recent pronouncement cited as Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another (2020 SCMR 171 ) wherein it has been held as under: "6. ... It is now well settled that a party seeking specific performance of an agreement to sell is essentially required to deposit the sale consideration amount in Court, In fact, by making such depo sit the plaintif f demonstrates its capability , readiness and willingness to perform its part of the contract, which is an essential pre-requisite to seek specific performance of a contract."
7. Even otherwise, the grant of decree for specific performance comes within the discretionary power of the Court which can refuse to grant the relief on the basis of equities even the suitor has proved the case, as settled by the Hon'ble Supreme of Pakistan in its latest judgment titled as Sheikh Akhtar v. Aziz vs. Mst. Shabnam Begum & Others (2019 SCMR 524 ) field as under: "16. Finally , there is no cavil with the proposition that relief of specific performance is discretionary in nature and despite proof of an agreement to sell, exercise of discretion can be withheld if the Court considers that grant of such relief would be unfair and inequitable."
8. From the above, it is established that the learned appellate Court, without considering the proceedings of the learned trial Court and discussing the principle laid down by the Hon'ble Supreme Court of Pakistan in judgments supra, accepted the appeal of the respondent/plaintif f which suffers from patent illegality and irregularity , as such, the same is liable to be set-aside. Reliance is placed on the case of Nazim-ud-Din and others v. Sheikh Zia-ul- Qamar and others (2016 SCMR 24 ).
9. In view of above, this civil revision is allowed, the judgment & decree dated 15.01.2018, passed by the learned appellate Court is hereby set aside, the order & decree dated 20.01.2015, passed by the learned trial Court is- upheld and the suit filed the respondent/plaintif f is dismissed. However , as the petitioners/defendants admitted receiving of the earnest money of Rs. 800,000/- and are using the same since 2014 and learned counsel for the petitioners submitted that the petitioners are ready to return the double amount of earnest money to respondent/plaintif f, as such, the petitioners/defendants are directed to pay an amount of Rs. 16,00,000/- (Rupees sixteen lac only) to the respondent/plaintif f. No order as to costs.