Ch. Muhammad Masood Jahangir , J. In concision, facts of the case are that present petitioner brought suit for specific performance of agreement to sell dated 06.02.2018 along with possession as well as permanent injunction against respondent No.1/defendant asserting that subject area vested to latter, who settled bargain against consideration of Rs.3,20,00,000/- and after receipt of Rs.80,00,000/-, aforesaid agreement to sell executed. The suit was also accompanied by independ ent application for grant of temporary injunction, which was declined on 03.11.2018. The application u/o. I r. 10 of the Code, 1908 tabled by the petitioner for impleadment of subsequent ostensible vendee dismissed as well and simultaneously keeping in view the dicta laid down in "Messrs Kuwait National Real Estate Company (Pvt) Ltd and others vs. Messrs Educational Excellence Ltd. And another"
(2020 SCMR 171) he was further directed to deposit balance sale consideration in the Court vide order dated 06.10.2020. Being offended, the petitioner preferred Civil Revision before the learned District Court, which partly allowed and request for adding subsequent vendee as defendant granted, but the demand to make good the balance amount maintained by twofold order dated 31.10.2020, thus to that effect instant Constitutional Petition has been moved.
2. Arguments heard. Record perused.
3. The case of the petitioner qua immovable area is hinging upon agreement to sell, the execution whereof specifically denied by respondent No.1, who not only further alienated the said property , rather possession also delivered to the third party . No doubt, in "Messrs Kuwait National Real Estate Com pany (Pvt) Ltd's case (supra) , it has been observed that party seeking specific performance of agreement to sell is required to deposit balance sale consideration in the Court so as to prove readiness & willingness at its part, but this Court having minutely gone through cited esteemed judgment humbly focused that the Hon'ble Supreme Court held so because subject matter involving that lis was not the immovable property , whereas vendor therein straighta way admitted the transaction as well as execution of sale agreement, besides to propose that if remaining sale price would be paid, then suit might be decreed. After having such fair attitude on the part of vendor , the apex Court required the vendee to make good the balance sale consideration. Thus, the rule so laid down might be for the cases where execution of contract was admitted and in its due compliance the vendor consented to transfer subject property as well. The said canon cannot be applied where the transaction as well as execution of document entailing terms/conditions of alleged deal is questioned from its inception. In the current case subject property is immovable one, possession of which never delivered to the plaintif f and the vendor also specifically asserted sale agreement to be fabricated, deceptive & concocted one, besides has already created third party' s charge by transferring title & possession of subject area to him. The alleged agreement to sell is bilateral document and its genuineness or otherwise as well as ascertainment who is at fault to perform his part besides to search readiness & willingness of either party is, indeed, a fact, which could only be determ ined after collecting evidence. The three honorable Judges of the august Supreme Court while deciding a lis qua specific performance of contract in case reported as Maksud Ali and others vs Eskandar Ali (PLD 1964 SC 381) held that though invariable for the vendee to expressly plead his readiness & willingness in the plaint, but omission thereto would not be enough to non-suit him. The apex Court, indeed, focused in said judgment that sine qua non for the vendee to prove his readiness from the date of contract to that of hearing. The relevant part of this judgment being advantageous is reproduced as under:- "So far as the question of making any express averment to the pleading of such readiness and willingness is concerned, we are of the view that althoug h there can be doubt that this is the invariable practice of pleading, and if we may say so. A desirable practice, designed to give a clear and express notice to the opponent of the case sought to be made out, it cannot be said that this is a rule of law which would render the structure of the suit itself defective or that without it a proper caus e of action would not appear on the plaint. We are, therefore, unable to accept the contention of the learned counsel that the present suit was bound to fail in the absence of such an averment.
Now so far as the question of what exactly the plaintiff must still prove; namely , as to whether he must prove his readiness from the date of the contract to the date of hearing, is concerned; we express no final opinion, for, full arguments have not been advanced before us on this aspect of the question, as on the evidence in this case it has been held by all Courts below that even such readiness and willingness had in fact been established."
Having gone through the said esteemed verdict, the wisdom of the apex Court was that willingness & readiness is a pure question of fact and without requiring evidence, the same could not be resolved.
4. Adverting to "Messrs Kuwait National Real Estate' s case (supra) , the law laid down therein, in stricto sensu is not applicable to each suit of alike form, rather the same can be followed in cases, where with all four corners is applied as per its statistics. Even otherwise, it is well settled that each case has to be decided on its peculiar facts, therefore, with utmost respect, the law introduced in the cited judgment cannot be applied as 'universal rule' for certain reasons like-
(i) If a forger brings a suit for specific performance of contract alleging that entire consideration stood already paid, then it may proceed because no such direction can be passed;
(ii) In a genuine case, where balance consideration was required to be paid within next twelve months or so, but the vendor with ulterior motive soon after execution of the sale agreement further transferred title as well as possession of the subject property to someone else or the terms & conditions are violated at his end, compelling the vendee to institute suit prior to cutof f date (which might have to come much after approaching the Court), then in that eventuality requiring the promisee/plaintif f to deposit rest of the amount forthwith, which he has still to arrange/manage after certain period, being beyond the scope of their contract, would be unjustified; and
(iii) Section 12 of the Specific Relief Act, 1877 provides that specific performance of the contract might be enforced in the discretion of the Court, whereas Explanation thereof clearly states that unless & unless the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money and its section 19 lays down that any person suing for specific performance of a contract may also ask for compensation for its breach, either in addition to or in substitution for, such performance. More importantly , u/s 22, jurisdiction to decree specific performance is discretionary and the Court is not bound to decree or grant such relief merely because it is lawful to do so.
Thus in peculiar features of case in hand, there would be no justification to bound down the plaintif f to deposit a massive sale amount, who purportedly had already paid healthy amount, but still is out of picture to receive any benefit. The petitioner not only still to prove his case, but also to rebut stance of his vendor , besides to shatter the claim of the third party . For these reasons, deposit of the balance amount, in fact, will not be in aid of justice to either promote the case of the plaintif f or even beneficial to the other party , who till this time is disputing the settlement of sale, thus there will be no fun to force the vendee in this behalf.
4. As a corollary of the above discussion , the impugned orders of the learned lower fora to the extent of requiring the petitioner to deposit remaining consid eration being unwarranted are set aside and this petition stands allowed accordingly . However , keeping in mind the involvement of massive consideratio n and exigency of the parties, learned Civil Court is directed to finally culminate trial proceedings within next six months positively , even by conducting proceedings on day to day basis, if need be.