MUHAMMAD RAZA QURESHI, J. The Petitioner being Plaintiff/Decree Holder has called into question the legality and propriety of Order dated 24.03.2021 passed by the learned Trial Court dismissing an Application for seeking enlargement of time to deposit balance sale consideration. Being disgruntled with the Order, the Petitioner instituted an Appeal which was also dismissed by the learned Appellate Court below through Judgment dated 03.02.2022.
2. The concurrent findings contained in the Impugned Order and Judgment emanate from a Suit for Specific Performance of Agreement to Sell dated 15.08.1993 filed by the Petitioner/vendee. The said Suit was filed on 27.02.2015 and upon non-appearance of the Respondent No.1/Defendant the same was decreed ex parte through Judgment and Decree dated 20.10.2020 on the following terms: "Hence, in these circumstances, suit of the plaintiff for specific performance of agreement to sell no.272, dated 15.08.1993 is hereby decreed in favour of the plaintiff and against the defendant.
Plaintiff is directed to pay the remaining consideration amount i.e. Rs.30,000/- within a period of two months from the date of this judgment, failing which suit of the plaintiff shall be deemed to be dismissed. No order as to costs. Decree sheet be prepared."
3. The Petitioner being Decree Holder on 11.02.2021 filed an Application for enforcement of Judgment and Decree dated 20.10.2020 and sought permission to deposit the balance sale consideration amount of Rs.30,000/- as per the mandate of Judgment and Decree. It is pertinent to mention here that in his Application the Petitioner/Decree Holder conceded that due to an inadvertent mistake he could not deposit the amount within the time stipulated by the Judgment and Decree passed by the learned Trial Court. The justification canvassed in the Application for non-deposit of the balance sale consideration after the expiry of time stipulated by the Judgment and Decree was on account of his ailment. It is an admitted position that the Application neither disclosed the nature of ailment nor annexed any documentary material in support thereof.
4. The learned Civil Judge while adjudicating the merits of the Application dismissed the same upon finding that the subject matter Application failed to substantiate the reason for delayed attempt to deposit the balance sale consideration and ultimately held that since the Court has become functus officio, therefore, the Application was liable to be dismissed. The Appeal filed by the Petitioner was also dismissed by upholding the Order passed by the learned Trial Court.
5. The learned Counsel for the Petitioner submits that the Impugned Order and Judgment are illegal and unlawful as both learned Courts below erred in law by holding that they have become functus officio in the facts and circumstances of the case. According to learned Counsel though the Application of the Petitioner was in the nature of execution petition, but the learned Courts below could have considered the same in terms of Section 148 of the Code of Civil Procedure, 1908 ("CPC"). While relying upon the Judgment reported as PLD 2004 SC 790, titled "Shabbir Ahmed and another vs. Zahoor Bibi and others" learned Counsel contends that Impugned Order and Judgment have been passed in violation of the law laid down by the Hon'ble Supreme Court of Pakistan. According to learned Counsel, a decree in a suit for specific performance of an agreement to sell is preliminary in its nature, therefore, the Court retains its jurisdiction to extend the time for deposit of balance sale consideration. As per contention of the Petitioner, the language of Section 148 CPC itself equips the Court to 'enlarge the time even though the period original fixed or granted may have expired'. Therefore, according to learned Counsel, by passing the Impugned Order as well as Judgment the learned Courts below have committed material illegality and smack injustice.
6. Conversely, learned Counsel for the Respondents has argued that the Impugned Order as well as Judgment follow the canons of justice, equity, and fair play, and have been passed in accordance with the law. According to learned Counsel, the conduct of the Petitioner itself demonstrates that a discretionary relief was rightly declined by the learned Courts below. According to the learned Counsel, the subject matter Application fails to pass a minimum requirement of law justifying deposit of balance sale consideration by the Petitioner. As per contention of learned Counsel the nature and scope of Judgment and Decree dated 20.10.2020 clearly spells out that upon failure of the Petitioner to deposit the balance sale consideration the learned Courts below had become functus officio and consequently, it was rightly held that no jurisdiction vests with the learned Courts below to entertain an Application for enlargement of the time by the Petitioner. While supporting the Impugned Order and Judgment learned Counsel submits that instant Petition is meritless and is liable to be dismissed. In support of his contention the learned Counsel has relied upon 2016 SCMR 179 titled "Muhammad Wahid and another vs. Nasarullah and another".
7. The arguments of the learned Counsel for the parties have been heard and the record has been perused with their able assistance. The moot points, in this case, are whether a judgment and decree passed in a suit for specific performance of an agreement to sell is preliminary or final in its nature, scope, and ambit? and whether in the facts and circumstances of the case learned Courts below lawfully declared that they had no jurisdiction to enlarge the time expired for deposit of balance sale consideration as directed by the Judgment and Decree dated 20.10.2020?
8. As reproduced above, pursuant to the Judgment and Decree dated 20.10.2020, the Suit of the Petitioner was decreed and he was directed to pay the remaining sale consideration within a period of two months from the passing of the judgment and as a consequence of default the Suit was deemed to have been dismissed.
9. There is no cudgel to this fact that the Judgment and Decree in the instant case was ex parte and the delinquent Petitioner i.e. vendee who defaulted in complying with the condition contained therein approached the Court for seeking an extension of time for deposit of the balance sale consideration when the granted time of two months had already lapsed and the subject matter Application was filed after a delay of more than three and half months from the passing of Judgment and Decree. Verily, the default was committed by the Petitioner, thus, the crucial and pivotal facet remains whether Court had become functus officio or still had seisin over the lis for extending or enlarging the time fixed for deposit of balance sale consideration.
10. To address the first question as posed in paragraph 7 above i.e. determination of the nature, scope and ambit of a decree in a suit for specific performance of an agreement to sell, it is essential to consider the definition of decree as provided in Section 2(2) CPC, which is reproduced hereunder: "S.2(2) "Decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. It shall be deemed to include the rejection of a plaint the determination of any question within section 144, and an order under rules 60, 98, 99, 101 or 103 or order XXI but shall not include--
(a) any adjudication from which an appeal lies as an appeal from an order, or
(b) any order of dismissal for default.
Explanation.--A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final."
[Emphasis added]
11. It is evident from the definition of term "decree that the expression of adjudication by the Court may be preliminary or final. According to the Explanation contained at the foot of the said provision, the decree is preliminary if further proceedings have to be taken before whom the suit cannot be completely disposed of, whereas, it will be considered final if the expression of adjudication completely disposes of the suit. Therefore, it is the expression of adjudication and legal consequence in a suit that may assist in legally evaluating the status of a decree.
12. By now it is a settled position of law that generally a decree in a suit for specific performance of an agreement to sell is preliminary in its nature and scope as any such decree has an effect and character of a contract where vendee has to deposit the purchase price, cost of purchase of necessary stamps for the execution of conveyance deed and so on and so forth, while the seller remains under an obligation to appear before Court to sign the conveyance deed and receive the purchase price. In such a situation it clearly follows that a decree passed in an action of specific performance of an agreement to sell is not final but preliminary in nature and the Court passing the decree retains seisin over the lis and obviously also retains power to enlarge or extend the time for payment of purchase price fixed therein.
13. There is a possibility that expression of adjudication of a decree in a suit for specific performance of an agreement to sell is conditional and the Court which grants the decree may retain jurisdiction till fulfillment of such condition including but not limited to extending the time for deposit of balance sale consideration within the period stipulated in the decree under consideration and till the time the condition is complied with within stipulated time, such decree would also be construed as a preliminary decree.
14. Another legal avenue can be that Court while passing the decree for specific performance of an agreement to sell, which is discretionary in its nature, may in order to curb any expected delinquency on the part of either of the parties may use the expression of adjudication by imposing a condition, for example, the stipulation of time for deposit of balance sale consideration and command a consequence of any default in respect thereof. In this situation, the whole edifice of consideration of the scope of a decree whether it is final or preliminary would depend upon the expression of adjudication used in a decree entailing a penal clause contained therein. If the expression of adjudication of a decree is such that failure of a party would lead to a legal consequence that the suit would be deemed to have been dismissed, it will only be construed as a preliminary decree till the time of fulfillment of the condition imposed by the Court within a time stipulated in the decree. The moment the time stipulated by the Court in a decree expires the penal consequence will become self-operative and the decree in such a situation would be considered as final in its ambit and scope. Obviously, in such a case the Court passing a decree would become functus officio forthwith having no power to extend or enlarge the time.
15. It is imperative to understand that legal expressions in a decree for specific performance of an agreement to sell entailing penal clauses such as "the suit will be dismissed" and "the suit will stand dismissed" or "the suit will be treated as dismissed", as each one has different connotations leading to diverse legal consequences. The analysis of consequences will assist in reaching a conclusion that under Section 148 CPC in what circumstances does the Court retains jurisdiction to extend or enlarge the time for performance of condition imposed by the decree?
16. In a case where decree specifies a condition to be complied with in a targeted stipulated time and in case of failure to fulfill said condition consequence thereof contains an expression "the suit will be dismissed" leads to a logical conclusion that failure or default of a party to lis would lead to a consequence to be followed or determined or adjudicated by the Court and in that case the effect will be that the decree is preliminary in its nature and scope. As in such cases using such terms are not words of automatic operation as they contemplate a further formal order.
17. Whereas, in case the expression of adjudication while passing a decree is embedded with the term that "the suit will stand dismissed" or "the suit will be deemed as dismissed" upon expiry of time stipulated in a decree are the words of finality and consequences are to take effect automatically and in such a scenario the Court will have no jurisdiction to enlarge or extend the time as any decree using such expression leads to an irresistible conclusion that the decree is final in its nature and no further steps are to be taken in case of delinquency of a party as the words are capable of operating automatically without any further order of the Court.
18. This distinction is not without importance as the term contained in decrees which are not strictly speaking preliminary decrees may not always be such as are intended to operate automatically without any further intervention by the Court. Therefore, these terms are the real test to identify whether the decrees have been made in such terms as to indicate the Court has finally disposed of all matters so that it is to operate automatically or whether the Court has still retained some control over the litigation. For extending or enlarging time under Section 148 of CPC previously fixed or granted by a Court this may be considered even a litmus test. Reliance in this regard is placed upon PLD 1966 SC 983 titled "Shah Wali vs. Ghulam Din alias Gama and another" (this Court is conscious of the legal position that in this case decree emanated from a pre-emption suit)
19. Now adverting to the Judgment and Decree which is the subject matter of instant Petition, the learned Trail Court while decreeing the suit for specific performance of the agreement to sell unequivocally imposed a condition on the Petitioner to pay
(i) remaining sale consideration in the amount of Rs.30,000/-;
(ii) the period stipulated for deposit of said amount was two months from the date of Judgment and Decree; and (iii) the consequence of non-payment was held as "the suit of the plaintiff shall be deemed to be dismissed".
20. While applying the test laid down in the preceding paragraph it is held that till the time stipulated therein the subject matter Decree was preliminary in its effect and scope, but as soon as the said period lapsed the Decree which entailed a penal clause became final and conclusive as no further steps are contemplated to be taken by the learned Trial Court and at the time of filing of subject matter Application more than three and half months had lapsed and the Court had become functus officio. In a similar situation this Court in the Judgment reported as PLD 1997 Lahore 177 titled "Muhammad Ismail vs. Muhammad Akbar Bhatti and others" and PLD 2004 Lahore 103 titled "Mst. Naseema Salahuddin and 2 others vs. Mst. Daulat Fatima and 4 others" has declared that for the purposes of Section 148 CPC in a decree for specific performance of an agreement to sell the Court would become functus officio.
21. In Mst. Naseema Salahuddin case supra a learned Division Bench of this Court has declared the position of law as under: "We have heard the learned counsel for the parties. In view of the preponderance of the case-law cited by the learned counsel for the petitioners, we have come to the conclusion that, where a Court, while passing a decree in a suit for specific performance has directed the plaintiff/decree- holder to make the deposit of the balance consideration in the Court, by a specific date, and the judgment and the decree also provides the consequences of the dismissal of the suit, in case of the failure to comply with the decree, such decree for all intents and purposes, is final in nature and the Court does not retain any control over the litigation. Therefore, the Court has no jurisdiction under section 148, C.P.C. to extend the time on the principles of becoming functus officio. We are not inclined to accept the plea of the learned counsel for the respondents, that the decree passed in a suit for specific performance is preliminary in nature, because under such decree, the Court yet has to enable the conferment of the title of the property upon the decree-holder, and in certain cases, to deliver the possession also. Resultantly, until and unless, the above objects are accomplished, the decree remains to be a preliminary. Case reported as 2000 CLC 1633, on which, reliance has been placed in this behalf, is distinguishable, because in the said judgment, the definition of he decree given in section 2(2), C.P.C. has not been considered, which makes the proposition clear and easier to understand. The explanation to the section ibid, vividly provides that a decree shall be preliminary, when further proceedings have to be taken before the Court, before the suit can be completely disposed of, however, it shall be final when such adjudication completely disposes of the suit. In the suit for specific performance, the issues involved in the lis are finally and conclusively decided by a decree for the specific performance of immovable property, if granted to the plaintiff, and the steps for the conferment of the title and the delivery of possession, if so required under the decree, are purely in the nature of the execution and satisfaction of the decree. If the decree for specific performance is held to be preliminary in nature, then all the decrees, which require the enforcement through the process of execution, shall be rendered preliminary. For example, in the suit for simple possession of the immovable property, which according to the settled law, is a final decree, but because the possession has be delivered to the decree-holder in pursuance thereof, shall also be a preliminary decree, which according to law is not. Therefore, we are of the firm view that, once a decree, in a suit for specific performance of an immovable property, has been passed, which is conditional in nature envisaging a direction to the plaintiff/decree-holder to make the deposit of certain balance consideration in the Court by a specific date and in case of his failure to do the needful, the suit shall be deemed to have been dismissed, this means the decree is final and conclusive for all intents and purposes, as the Court had finally disposed of the matter, and nothing is left for further determination by the Court, therefore, the Court loses its control over the lis. Resultantly, if the condition of the deposit of certain amount for the grant of decree is not fulfilled, the Court shall have no power under section 148, C.P.C. to extend the time, as being functus officio."
[Emphasis added]
22. There is yet another aspect to analyze the conclusion drawn by this Court in paragraph 20 i.e. what will be the effect of a decree passed in favour of the vendee as ultimately the Suit for specific performance of an agreement to sell was decreed. Now the question remains whether the subject matter agreement to sell would still hold the field or on account of the failure of the Petitioner to comply with the condition imposed therein within the stipulated time the subject matter document would stand rescinded by operation of the decree, containing a penal clause. Under Section 35 of the Specific Relief Act, 1877 (the "Act, 1877") though the suit filed by the plaintiff for specific performance of an agreement to sell may stand decreed yet the contract may be rescinded through adjudication by the Court of competent jurisdiction. For the purposes of convenience Section 35 of the Act, 1877 is reproduced hereunder: "Section 35. When rescission may be adjudged.--Any person interested in a contract in writing may sue to have it rescinded and such rescission may be adjudged by the Court in any of the following cases, namely:
(a) Where the contract is viodable or terminable by the plaintiff;
(b) Where the contract is unlawful for causes not apparent on its face, and the defendant is more to blame than the plaintiff;
(c) Where a decree for specific performance of a contract of sale, or of a contract to take a lease, has been made and the purchaser or lessee makes default in payment of the purchaser-money or sums which the Court has ordered him to pay.
When the purchaser or lessee is in possession of the subject-matter, and the Court finds that such possession is wrongful, the Court may also order him to pay to the vendor or lessor the rents and profits, if any received by him as such possessor.
In the same case, the Court may by order in the suit in which the decree has been made and not complied with, rescind the contract, either so far as regards the party in default, or altogether as the justice of the case may require."
[Emphasis added]
23. As per the mandate contained in Section 35 CPC there are three occasions when the rescission may be adjudged. Two cases have been enumerated in subsections (a) and (b) of Section 35 of the Act, 1877, which are not relevant as far as the controversy in hand is concerned. The third situation is envisaged in subsection (c) of Section 35 of the Act, 1877, whereunder the Court may by order in the suit in which the decree has been made and not complied with, rescind the contract, either so far as regards the parties in default, or altogether as the justice of the case may require.
24. In this regard, this Court acknowledges the reliance of the learned Counsel for the Petitioner upon Shabbir Ahmad's case referred supra wherein a learned three members Bench of the Hon'ble Supreme Court of Pakistan in paragraph 16 of the Report declared as under: "Perusal of section 35(c) clearly indicates that even after passing of decree, the Court possesses the power to rescind the contract and consequently set aside the decree, which it had passed earlier. Irresistible conclusion, therefore, would be that a suit, which was once decreed, could be dismissed again if the case falls within the scope of section 35(c). The main characteristic of section 35 is that the Court has been empowered to rescind or not to rescind the contract, despite the fact that decree has already, been passed. If still the Court permits the decree to remain operative, certainly the time could be extended. Normally in a civil suit after passing of decree, the proceedings come to an end. In a suit for specific performance, the situation is different and if the case falls under clause (c) of section 35, still the order of rescission can be passed: This brings it within the scope of preliminary decree, as further proceedings, as a rule, are to be taken before a suit could be completely disposed of. Besides, such decree itself assumes the characteristics of a contract, whereby certain acts are yet to be performed, including depositing of the purchase price, cost of purchase price of necessary; stamps for execution of conveyance deed, the seller has also to put his appearance for signing conveyance deed, to receive the purchase price, etc."
25. However, both learned Counsel omitted to rely upon Judgment reported as 2007 SCMR 1464 titled "Tasneem Ismail and others vs Messers Wafi Associates and others", which was delivered by another learned three members Bench of the Hon'ble Supreme Court of Pakistan wherein by referring to Shabbir Ahmad case supra revisited the earlier opinion and held as under:
11. ......When a decree is silent as to what is to happen, if the purchase money is not paid within the time fixed, the decree will not lapse automatically on the plaintiff's failure to pay within the prescribed time. The default will, however, entitle the vendor to apply for rescission of the contract under section 28(1). But so long as the vendor does not apply for such relief the decree subsists and the decree-holder can still execute it within the period of limitation by depositing the purchase money within the time allowed or extended. If, however, the decree directs that in the event of default of deposit within the time fixed the suit shall stand dismissed, the Court would be incompetent to extend the time. In such a case it will be deemed that the Court has also, in substance, passed an order of rescission of contract ....."
[Emphasis added]
26. In the Tasneem Jamil's case supra, it has been declared that if a consequence of non- fulfilment of the condition contained in the decree in a suit for specific performance has been provided as automatic dismissal than nothing is left to be performed by the Court. The Hon'ble Supreme Court in the facts and circumstances of that case held that "the decree in the case in hand did not provide for dismissal of suit forthwith in the event of default. It had to precede an order of the Court in terms of section 35 of the Specific Relief Act and the Court still had the discretion to extend time".
27. Since according to the law laid down in the case of Tasneem Ismail supra the position of law stands settled, therefore, in the facts and circumstances of the instant case, this Court declares that on account of the penal clause contained in the subject matter Decree that "the suit of the Plaintiff shall be deemed to be dismissed , therefore, upon failure of the Petitioner to deposit the remaining sale consideration within two months from the Judgement as envisaged by the Decree resulted in the dismissal of the Suit and consequently, the subject matter agreement to sell automatically stood rescinded in terms of Section 35(c) of the Act,1877. The jurisdiction with the learned Trial Court was only available within the stipulated period in the subject matter Decree and the moment this stipulated period expired it ceased to have jurisdiction and had become functus officio, in view of the expression of adjudication through a condition contained in the Decree.
Reliance in this regard is also placed upon the case reported as 2016 SCMR 179 titled "Muhammad Wahid and another vs. Nasarullah and another".
28. The last important aspect of the matter is that Act, 1877 is based upon principles of equity, reason, and good conscience. Therefore, the delinquent conduct of the Petitioner does not create an entitlement in his favour for the grant of discretionary relief. The Petitioner despite having knowledge that the Decree contained a self-operative penal clause yet defaulted in payment of balance sale consideration for more than three and half months and the reasons for such a delayed Application seeking extension of time was bereft of any lawful justification or reliable substantiation. The subject matter Application conceded that the Petitioner could not deposit the amount due to an inadvertent mistake and the reason for his ailment throughout remained unsubstantiated. In such facts and circumstances the learned Courts below lawfully declared that the Petitioner does not deserve a favourable discretion and rightly declined his Application.
29. Despite hectic efforts and able assistance of the learned Counsel for the Petitioner this Court is not persuaded that the jurisdiction exercised by learned Courts below is tainted with any illegality or stained with any material irregularity, therefore, the same are free from any jurisdictional or legal flaw calling for interference in Revisional jurisdiction of this Court which is equitable and discretionary in nature. Consequently, the Civil Revision is declared as meritless and devoid of any force, and the same is accordingly dismissed with no order as to costs.
30. Before parting with this Judgment, it is acknowledged by this Court that the assistance rendered by learned counsel for the parties is praise-worthy and their respective dedicated commendable effort is highly appreciated.