MUHAMMAD FAHEEM WALI J. Petitioner filed this petition under Section 115 of the Code of Civil Procedure (Act- V) 1908 questioning the legality of Judgment & Decree dated 20.03.2021 of learned District Judge D.I.Khan whereby his appeal, filed against Judgm ent & Decree dated 04.07.2020 of the learned Civil Judge-XI D.I.Khan, was dismissed and thereby the decree as to dismissal of the suit of petitioner , due to non-deposit of balance amount in the Court, stood concurrently maintained.
2. Facts of the case, as narrated in the plaint, are that the petitioner/plaintif f instituted a suit for specific performance of the agreement to sell 06.01.2014 in respect of the property , detailed in the head-note of plaint, against a sale consideration of Rs.55,9 0,000/-, out of which a total sum of Rs.33,10,000/- was paid to the defendant till 05.01.2016, failing which the payment was to be made till 31.07.2016 but in that case, after 06.01.2016, the price per kanal was to be charged @ Rs.15,00,000/-. According to plaintif f, after the said agreement, possession of land was hand ed over to him and he incurred a huge amount over the improvement of same and thereafter contacted defendant to transfer the suit property after receiving the balance amount from him, but after settling certain issues related to the suit land, but defendant used delaying tactics and is reluctant to perform his part; hence, plaintif f instituted the present suit.
3. The respondent/defendant contested the suit by filing his written statement and after framing issues and recording evidence of some of the plaintif f's witnesses, respondent/defendant filed an application for dismissal of suit due to non-deposit of the balance amount of the agreement to sell. The learned trial Court vide order dated 01.10.2019 directed petitioner/plaintif f to deposit the balance sale consideration in the Court within one month. The petitioner assailed the said order in Civil Revision before the learned Additional District Judge-V D.I.Khan, however , his civil revision was dismissed vide order dated 16.11.2019 by giving one month time, from the date of order , to deposit the balance amount. This time, petitioner approached this Court through constitutional petition No.41- D/2020 which too was dismissed vide Judgment dated 24.02.2020 and thereby 15 days more time was extended to the plaintif f to deposit the balance amount. However , petitioner failed to honour the directions of this Court as well as learned two courts below as to the depsoit of balance amount, and as such, his suit stood dismissed by the learned Civil Judge-XI D.I.Khan vide order dated 04.07.2020, and his appeal too was dismissed by the learned District Judge D.I.Khan vide Judgment & Decree dated 20.03.2021, hence, the instant petition.
4. Arguments of the learned counsel for parties heard and record gone through with their valuable assistance but for the sake of brevity , without reproducing the arguments of the counsels, same will be adequately dealt with at appropriate stages in this judgment.
5. A threadbare perusal of the record transpires that parties were entered into an agreement to sale the property of respondent/defendant and in this regard they executed an agreement dated 06.01 .2014 with the certain conditions regarding mode and manner of the payment of sale consideration and the stipulation of dates. Legally , the grant of decree for specific performance of the agreement is a discretionary relief which discretion is not to be exercised arbitrarily but reasonably guided by judicial principles and capable of correction by a Court of appeal and in this regard Section 22 of the Specific Relief Act is relevant which provides:
22. Discretion as to decreeing specific performance. The jurisdiction to decree specific performance is discretionary , and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal. The following are cases in which the Court may properly exercise a discretion not to decree specific performance:- I. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there be no fraud or misrepresentation on the plaintiff's part.
II. Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff: III. Where the plaintiff had done substantial acts or suffered losses in consequence of a contract capable of specific performance.
6. Thus, a vendee is required to be and continues to be ready and willing to perform his part of the agreement to sell. Willingness to pay entire sale consideration under an agreement to sell pertains to the financial capacity of a buyer to make payment of the balance consideration. Plaintif f has to show that he had necessary financial capacity to pay the balance sale consideration at all points of time after the agreement to sell was entered into. The readiness to pay the sale consideration by plaintif f to perform his part of the contract is because of the fact that specific performance is a discretionary relief and to get such relief, the payment of balance amount is an obligation of plaintif f within the contemplation of Section 37 of the Contract Act, 1872, which enumerates that the parties to a contract must either perform, or offer to perform their respective promises, unless such performance is dispensed with or executed under the provisions of this Act, or of any other law. The petitioner/plaintif f was directed thrice by the Courts to deposit the balance amount of total sale consideration and in this regard, first of all, 30 days' time was given him by the learned trial court vide order dated 01.10.2019; then 30 days' more time was extended to him by the learned Addl. District Judge-V D.I.Khan in its revisional jurisdiction vide order dated 16.11.2019; and finally , this Court vide judgment dated 24.02.2020 directed him to deposit the balance amount within 15 days of the judgment.
But he was not able to perform his obligatory part by depositing the balance amou nt to express his willingness. In such an event, the Court cannot exercise the discretion to grant decree for specific performance of the agreement as such discretion would be arbitrary . Though, in Para No.7 of the plaint, the petitioner contended that he prior to stipulated date was in the condition to pay the balance amount and annexed bank's statement pertaining to his account, but such capacity of payment prior to stipulated date does not amount to have financial capacity to pay the balance sale consideration at all points of time after the agreement to sell was entered into rather failure of petitioner to perform his part even after the Courts' directions leave no doubt that he was not having the capacity to pay the balance amount and initially made efforts to linger on the payment, and thereafter , failed to deposit the balance amount in the Court despite repeated directions.
7. Even otherwise, the deposit of balance amount in the Court is the pre-requisite for a proposed purchaser at the time of filing suit seeking enforcement of agreement to sell and in this regard, guidance has been sought from the verdict of worthy Supreme Court of Pakistan in the case of "Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others Vs. Messrs Educational Excellence Ltd. and another" (2020 SCMR 171) wherein it was held: 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 deposit the plaintiff 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. Failure of a plaintiff to meet the said essential requirement disentitles him to the relief of specific performance, which undoubtedly is a discretionary relief.
In the case of "Inayatullah Khan and others Vs. Shabir Ahmad Khan" (2021 SCMR 686) worthy Apex Court reiterated the above said view that although the law does not require deposit of the balance sale consideration in Court, but such deposit helps in establishing that the buyer was not at fault.
8. In this regard, in my opinion, petitioner/plaintif f has miserably failed to make compliance of the directions of the Court and self-serving ipse dixit averment of the petitioner/plaintif f having the financial capacity to pay the balance sale consideration would not discharge the burden of petitioner to deposit the same in the Court.
9. Considering the above facts and circumstances, petitioner has failed to point out any illegality or infirmity committed by the learned trial Court as well as learned appellate Court while passing impugned judgments, which do not call for any interference by this Court. Consequently , concurrent finding passed by both the learned Courts below are maintained and instant petition with listed CMA stand dismissed being devoid of merits. Parties are left to bear their own cost.