KAUSAR SULTANA HUSSAIN, J. Instant High Court Appeal has been filed against the impugned order dated 22.09.2020, passed by the learned Single Judge in Suit No. 1225 of 2017, whereby the suit of the appellant seeking Specific Performance of Sale Agreement dated 27.01.2007 along with damages and injunction has been dismissed along with pending applications. The appellant has prayed that impugned order dated 22.09.2020 may be set aside and the case may be remand back to the learned trial Court for it's decision upon merits.
2. Brief facts of the case are that the Appellant filed a Suit No.1225 of 2017 (original jurisdiction) for Specific Performance of Sale Agreement dated 27.01.2017, Damages and Injunctions against the Respondents/Defendants with the following prayer:- a) That this Hon'ble Court be pleased to direct/order the above named defendant No.1, to perform the sale agreement dated 27.01.2017, in respect of the suit property i.e., Plot of Land and building constructed thereon (6 shops at ground floor and upper stories) bearing No.10/1, measuring 137.50 Sq.yards situated at Liaquat Ali Khan Road, Model Colony, Karachi by way of Execution of Sale Deed in favour of the above named plaintiff and in case of failure on the part of the defendant No.1, Nazir of this Hon'ble Court may be directed to Execute the Sale Deed on behalf of the defendant No.1, in respect of the suit property mentioned above. b) That this Hon'ble Court be pleased to grant permanent injunction restraining the defendant No.1, his employees, servants, agents, worker and any other person on behalf of the above named defendant No.1, from dispossessing the plaintiff forcibly/illegally from the suit property i.e., Plot of Land and building constructed thereon (6 shops at ground floor and upper stories) bearing No.10/1, measuring 137.50 Sq. yards situated at Liaquat Ali Khan Road, Model Colony, Karachi, till the final disposal of the case. c) That this Hon'ble Court be pleased to grant mandatory injunction directing the Respondent No.3/SHO Model Colony, Karachi not to harass/disturb/dispossess the above named plaintiff in collusion with the defendant No.1, against the law. d) That this Hon'ble Court be pleased to direct/order the defendant No.1, to pay the damages amount of Rs.100,00,000/- (Rupees One Crore only) to the plaintiff. e) Any other relief or relives which this Hon'ble Court deems fit and proper under the circumstances the case. f) Cost of the proceedings.
3. Perusal of record shows that during proceedings of case before the learned Single Judge, on 05.03.2020 the appellant was directed to deposit the balance sale consideration of Rs.60,00,000/- (Rupees Sixty Lacs Only) with the Nazir of this Court within thirty (30) days time, however, inspite of above order, the appellant and his counsel did not comply with the order dated 05.03.2020, nor shown appearance in Court either to deposit the amount or even to seek extension of time in the regard. In this regard, Report from Nazir was also called, who vide his report dated 30.04.2020, has confirmed that the appellant has not complied with the order of this Court dated 05.03.2020. In view of above facts and non-compliance of Court's order as referred to hereinabove by the appellant and his counsel, who did not show appearance on the date of hearing the, suit and listed application on 22.09.2020, after hearing learned counsel for the Respondent No.1, the learned Single Judge has been pleased to dismiss the suit of the Appellant in the following terms:- "From the record, it appears that despite sufficient time provided to the plaintiff he has failed to deposit the balance sale consideration with Nazir of this Court, which shows financial incapacity as well as non-seriousness of the plaintiff to perform his part of contract or pursuing his remedy of specific performance. The Hon'ble Supreme Court in the case of Hamood Mehmood v. Mst.
Shabana Ishaque and others reported in 2017 SCMR 2022, inter alia, has held as under:- "3. It is mandatory for the person whether plaintiff 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 decreetal of the suit, if it is filed by the other side."
In view of the dictum laid by the Hon'ble Supreme Court of Pakistan in the case of Hamood Mehmood (supra), non-deposit of the balance amount of sale consideration in the present case by the plaintiff, dis-entitles him to a decree for specific performance. In the circumstances, suit is dismissed while pending applications also stand dismissed being infructuous."
4. The appellant being aggrieved with the above order has preferred instant appeal on the grounds that the learned Single Judge while passing the impugned order did not take into consideration that during the prolonged period of lockdown commenced on 24.03.2020, which had lasted up to 04.08.2020, economies of the countries worldwide have suffered substantively, which has caused negative financial impact on the mosses as well. It has been further argued on behalf of appellant that amount could not be deposited on account of financial crunch, whereas appellant is willing and ready to comply with the order dated 05.03.2020, therefore this Court may set aside the impugned order dated 22.09.2020 and remand the case back to the learned Single Judge for deciding the same on merits instead of technicalities. While concluding his arguments, learned Counsel for the appellant has submitted that deposit of amount otherwise is not the requirement of law in a suit for Specific Performance.
5. Conversely, learned counsel for respondent No.1 has submitted that impugned order is based on correct appraisal of facts and the legal position as established through judgment of superior Courts as cited in the impugned order, therefore, requires no interference by this Court in the instant High Court Appeal. It has been further submitted that respondent has categorically denied execution of alleged sale agreement in respect of suit property as according to learned counsel, it contains forged signatures of the respondent. As regard payment of Rs.50,00,000/- learned counsel for the respondent No.1 has submitted that it was deposited by the appellant in respondent's account without his permission and to justify the false claim of Sale Agreement, however, when it came in the knowledge of respondent, the said amount was immediately returned and deposited in the account of appellant. It has been argued by learned counsel that the appellant has failed to comply with Court's order, therefore, cannot seek any relief in the instant High Court Appeal.
6. We have heard the learned counsel for the parties and also perused the record with their assistance, which shows that the appellant filed a Suit No. 1225 of 2017 for "Specific Performance of Sale Agreement dated 27.01.2017, Damages and Injunction" on 09.05.2017 against the respondent No.1, whereas, on the first date of hearing i.e. 11.05.2017 ex-parte ad-interim restraining order was passed against the respondent No.1, which was operating since then against the respondent, however, suit did not proceed further till 05.03.2020, when the learned Single Judge issued direction to the appellant to deposit balance sale consideration in Court before proceeding further. The learned Single Judge was further pleased to observe that interim order passed on 11.05.2017 will continue only subject to deposit of the balance sale consideration of Rs.60,00,000/- (Sixty Lacs) before the Nazir of this Court within 30 days from the date of such order i.e. 05.03.2020. It appears that, on the date of hearing the suit and pending applications, appellant and his counsel did not appear in Court, nor complied with the Court's order, whereas, attention of the Court was drawn by the learned counsel for respondent towards non-compliance of the order dated 05.03.2020 as well as the report of Nazir dated 13.04.2020, which proved that inspite of lapse of considerable time the appellant did not deposit the balance amount of sale consideration as claimed by the appellant, in the office of Nazir of this Court. However, due to non-appearance of appellant and his counsel, the matter was adjourned in the interest of justice to 10.07.2020, but on the said date also, the appellant or his counsel chose to remain absent without any intimation, therefore, the learned Single Judge left with no option, was pleased to vacate the ad-interim order operating in the suit since 11.05.2017.
The case was fixed in Court on 22.09.2020, however, no body appeared on behalf of the appellant nor any request for adjournment or seeking extension of time to deposit the balance sale consideration was made. Keeping in view the conduct of the appellant, continued non- appearance and also non-compliance of the order dated 05.03.2020 requiring the appellant to deposit balance amount within 30 days, the learned Single Judge was factually and legally justified to dismiss the suit of the appellant in the aforesaid terms.
7. It may be observed that the reason for not depositing the balance sale consideration in compliance of the Court's order dated 05.03.2020 as given by the learned Counsel for the appellant that appellant was incapable to make compliance of the Court's order due to pandemic (COVID- 19), which caused financial crises worldwide, besides being vague, is otherwise not tenable for the reason that in a case of Specific Performance of Sale Agreement, the purchaser has to establish his willingness as well as capability to perform his part of agreement regarding payment of sale consideration within the stipulated period as agreed between the parties, and only then can claim the discretionary relief of Specific Performance of an agreement, however, subject to fulfilment of other conditions of agreement and requirements of law. The argument of learned counsel for the appellant to the effect that the learned Single Judge while dismissing the suit of the appellant erred in law while placing reliance on a judgment passed by the Honble Supreme Court, reported in 2017 SCMR 2022 (Hamood Mehmood v. Mst. Shabana Ishaque and others) for the reason that it was a leave refusing order, therefore, was not binding as held by larger Bench of Hon'ble Supreme Court in their judgment dated 27.04.2021 passed in Civil Appeal No. 1767 of 2019, is of no assistance or relevant to the facts of instant case, as the appellant failed to make out a prima facie case through evidence and the documents on the one hand, but also failed to comply with Court's order to deposit the balance amount of sale consideration in Court, and did not pursue the case after having obtained ad interim restraining order against the respondent on 11.05.2017. This reflects upon the un-willingness as well as incapacity of the appellant to perform his part of agreement, which is essential for seeking specific performance of an agreement.
8. There is no cavil to the principle as laid down by the Hon'ble Supreme Court in the judgment passed in C.A No. 1767 of 2019, wherein, it has been held that the order passed in Hamood Mehmood case was a leave refusing order and it should not be followed necessarily and imperatively, but in the same judgment (C.A No. 1767 of 2019) the Hon'ble larger Bench of the Supreme Court has been further pleased to hold as under:- "7. Admittedly, unlike Section 24 of the Pre-emption Act, which cast a duty upon the Court in a suit for pre-emption to require the plaintiff to deposit in Court 1/3rd of the sale price, there is no provision in the Specific Relief Act, which upon filing of the suit seeking specific performance of an agreement in respect of an immoveable property cast any duty on the Court or requires the vendee to first deposit the balance sale consideration, however since the law of Specific Relief is based on the principles of equity and further that the relief of specific performance is discretionary and cannot be claimed as a matter of right, therefore, the Court in order to ensure the bona fide of the vendee at any stage of the proceedings may put him to terms.
8. Additionally, Section 24(b) of the Specific Relief Act, details the contracts which cannot be specifically enforced provides that specific performance of a contract cannot be enforced in favour of a person, who has become incapable of performing or violates, any essential term of the contract that on his part remains to be performed. Therefore, the vendee while seeking specific performance/enforcement of a condition to be performed by the vendor must state that either he has performed all the conditions which under the contract he was bound to perform and/or that at all times right from the date of the agreement down to the date of filing the suit he has been ready and willing to perform/fulfill his part of the deal. He is not only supposed to narrate in the plaint his readiness and willingness at all material time to fulfill his part of the agreement but also is bound to demonstrate through supporting evidence such as pay orders, Bank statement or other material, his ability to fulfill his part of the deal leaving no doubt in the mind of the Court that the proceedings seeking specific performances have been initiated to cover up his default or to gain time to generate resources or create ability to fulfill his part of the deal. It is in that pursuit that the Court to weigh his capacity to perform and intention to purchase may direct the vendee to deposit the balance sale consideration. The readiness and willingness on the part of the vendee to perform his part of obligation also prima-facie demonstrates that the non-completion of the contract was not the fault of the vendee and the contract would have been completed, if it has been not renounced by the vendor. Reference can be made to the case of Abdul Hamid v. Abbas Bhai Abdul Hussain (PLD 1959 (W.P.) Karachi 629)."
9. From bare reading of the judgment (supra) it is obvious that in a suit for Specific Performance vendee is bound to demonstrate through evidence, such as pay order, bank statement or other material, his ability as well as willingness to fulfil his part of the agreement. It has been further held in the same judgment by the Hon'ble Supreme Court that in order to weigh his capacity to perform his part of agreement as well as his intention to purchase the property, the Court may direct the vendee to deposit the balance sale consideration, therefore, the learned Single Judge was justified to pass an order to this effect, which was not even disputed or challenged by the appellant in the instant case.
10. It is pertinent to mention that the learned Single Judge did not dismiss the suit of the appellant merely for non-compliance of the Court's order dated 05.03.2020 requiring the appellant to deposit the balance amount of sale consideration, but was pleased to recall the ad-interim order of status quo dated 11.05.2017, while putting the appellant on notice, vide order dated 10.07.2020, and the matter was adjourned for further proceeding after summer vacation. However, inspite of repeated opportunity to comply with Court's order, or to proceed with the case, the appellant and his counsel, without any reasonable explanation, chose to remain non-compliant and did not pursue the suit. Under the circumstances, the learned Single Judge having no option, has rightly dismissed the suit of the appellant in the above terms. We do not find any factual error or illegality in the impugned order, which does not require interference by this Court in the instant High Court Appeal.
Accordingly, instant High Court Appeal was dismissed along with listed applications vide our short order dated 21.09.2021, and above are the reasons for such short-order.