FAISAL ZAMAN KHAN, J. Through this Regular First Appeal order and decree dated 30.10.2019 passed by the learned Civil Judge, Lahore has been assailed, whereby a suit for possession through specific performance and permanent injunction instituted by the appellant against the respondent has been dismissed due to non-deposit of remaining sale Consideration.
2. Succinctly, the facts of the case are that respondents/vendors on 24.05.2016 allegedly entered into an agreement to sell with the appellant/vendee regarding the property in dispute (details of which have been given in paragraph No.1 of the plaint) against a consideration of Rs.129,727,500/-, out of which an amount of Rs.38,090,000/- was paid by the appellant as earnest money, whereas, the remaining amount of Rs.91,637,500/- was to be paid at the time of transfer of the property in disputed. Due to non-performance of the agreement by respondents, a suit for possession through specific performance of agreement to sell and permanent injunction was instituted by the appellant against respondents, in which on 17.04.2019 learned trial court directed the appellant to deposit the remaining sale consideration keeping in view the judgment passed by the Honourable Supreme Court of Pakistan reported as Hamood Mehmood v. Mst. Shabana Ishaque and others (2017 SCMR 2022), however, the order of the court was not complied by him despite availing numerous opportunities including a last opportunity on 04.10.2019, which culminated into dismissal of suit through the impugned order and decree, hence, this appeal.
3. Learned counsel for the appellant submit that in the interest of justice if one opportunity is granted to the appellant to deposit the remaining sale consideration, appellant is ready to make the requisite payment.
4. Despite service of respondent No.1, who is the attorney of respondent Nos.2 to 5, none has entered appearance, thus, these respondents are proceeded against ex parte.
5. Arguments heard. Record perused.
6. The moot point, which requires determination by this Court, is as to whether in the facts and circumstances of the present case, suit could be dismissed due to non-deposit of remaining sale consideration.
7. The Honourable Supreme Court of Pakistan in judgment reported as Hamood Mehmood v. Mst.
Shababa Ishaqu e and others (2017 SCMR 2022) has held as follows:- "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 decretal of the suit, if it is filed by the other side."
Following the afore-noted judgment, the Honourable Apex Court in judgment reported as Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another (2020 SCMR 171) has held as under:- "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. I 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."
The Honourable apex Court in case reported as Inayatullah Khan and others v. Shabbir Ahmad Khan (2021 SCMR 686) has also examined the afore-noted question and in paragraph No.15 has observed as under: "A person seeking the specific performance of a contract must first show that he is ready, able and willing to perform his obligations under the contract, but this the respondent had failed to do. The law does not require that the balance sale consideration must be tendered or deposited in court, but such tender/deposit helps establish that the buyer was not at fault. The respondent's learned counsel's contention that only after the court directs the deposit of the sale consideration, is it to be deposited, is misplaced. We may also take judicial notice of the fact that invariably the value of money depreciates over time and that of land appreciates.
Courts adjudicating such cases should not be unmindful of this reality and should endeavor to secure the interest of both parties. In a suit for specific performance of land, if the seller/vendor has refused to receive the sale consideration, or any part thereof, it should be deposited in court and invested in some government protected security (such as Defence or National Savings Certificates); in case the suit is decreed the seller would receive the value of money which prevailed at the time of the contract and in case the buyer loses he can similarly retrieve the deposited amount."
Likewise, the Honourable Supreme Court of Pakistan in a case reported as Muhammad Shafiq Ullah and others v. Allah Bakhsh (deceased) through L.Rs. and others (2021 SCMR 763) has held as under: "6. Admittedly, neither Matiullah nor his legal heirs (the petitioners herein) tendered the balance sale consideration to the sellers (respondent Nos.4 to 10) nor deposited the same in court, if they had refused to receive it. Not paying the balance of the sale consideration constituted violation of an "essential term of the contract that on his (buyer's] part remains to be performed' (clause (b) of section 24 of the Specific Relief Act). Therefore, for this reason too the specific performance of the purported contract could not be enforced. Matiullah and the petitioners also did not demonstrate that they were ready, able and willing to perform their obligation to make payment of the balance sale consideration."
Similarly, the Honourable apex Court in case reported as Muhammad Yousaf v. Allah Ditta and others (2021 SCMR 1241) has observed in paragraph No.6 as under: "The only obligation on the plaintiff (respondent No.1) was to tender money to the seller and in case of the seller's refusal to receive it then to deposit the same in the Court or otherwise demonstrate his ability and readiness to make payment, which elements are entirely missing in the instant case. The respondent No.1 filed a suit seeking specific performance of a contract but did not at any stage demonstrate that he was ready, able and willing to perform his obligation there under, which was to tender/deposit the balance sale consideration. Therefore, there was no justification for the learned ADJ to decree the suit and to permit the buyer (respondent No.1) to tender the balance sale consideration after a lapse of about twenty years."
The above ratio decidendi has further been endorsed by the Honourable Supreme Court of Pakistan in judgment reported as Mst. Rehmat and others v. Mst. Zubaida Begum and others (2021 SCMR 1534), wherein in paragraph No.14 it has been held as under: "It may be observed that, a vendee seeking specific performance of an agreement to sell is essentially required to demonstrate that he is and was always ready and willing to perform his reciprocal obligation to pay balance sale consideration. If balance consideration is not offered or paid earlier, best time to demonstrate such "readiness and willingness to perform" is offering balance sale consideration at the time of filing suit for specific performance."
The above issue was also examined by the Honourable apex Court in a case reported as Muhammad Asif Awan v. Dawood Khan an others (2021 SCMR 1270), wherein it was held as under:- "7. Admittedly, unlike section 24 of the Pre-emption Act, which caste 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 immovable 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."
In paragraph No.8 of the said judgment, it has been held as follows:- 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 v 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 demonstrate that the non-completion of the contract was not the fault of the vendee and the contract would have been completed."
One of us (Shahid Waheed, J.) while enunciating the view taken in the case of "Hamood Mehmood" supra has very eloquently elaborated the reasons for depositing the remaining sale consideration and in paragraph No.18 of his judgment reported as- Mst. Waris Jan and another v.
Liaqat Ali and others (PLD 2019 Lahore 333) has held as follows:- "18. There is yet another good ground for which the suit must fail. The plaintiff, as stated above, in his suit ought to have pleaded and proved not only his willingness, which was mental process, but also his readiness, which was something to do with translating that will into action and was preceded by necessary preparation for being in a position to be ready, that is, to be financially able to pay the purchase price. To adjudge whether' the plaintiff was ready and willing to perform his part of the agreement (Ex.P1), the conduct of the plaintiff prior and subsequent to the filing of the suit was relevant. It was for this reason it was mandatory for the plaintiff to prove that at the relevant time he had sufficient money to pay the remaining sale price; and to apply to the Court, on his first appearance, for getting permission to deposit the balance amount. On the contrary, the plaintiff had neither stated in the plaint nor deposed in his evidence that on or before 20th October, 2007 he was in possession of the balance amount and tendered the same to the first defendant for performing his part of the agreement. Even the plaintiff on his first appearance before the Trial Court had not tendered the balance amount and thus, according to the principle settled in the case of Hamood Mehmood he was not entitled to the decree as prayed for in the plaint. This aspect of the matter was not considered by the Courts below and therefore, their findings in respect of issue No.1 are not sustainable in the eye of law and the same are accordingly reversed."
8. It shall be important to mention here that in the case of "M. Asti Awan" supra the Honourable apex Court while upholding the order of deposit of remaining sale consideration, has created an exception and has held that straight away, a suit will not be dismissed due to non-deposit of remaining sale consideration unless the plaintiff is cautioned about the consequences of non- deposit and non-compliance of the order of the court. For reference operative part of the judgment is reproduced as under:- "In the given circumstances, unless the appellant would have been put to notice that the non- deposit of the balance sale price would be deemed to be his incapability of performing his part of the contract as envisaged under section 24(b) rendering the contract non-enforceable, the suit could not have been dismissed. Even otherwise, the language employed in Order XVII, Rule 3 by using word, "the Court may, notwithstanding such default, proceed to decide the suit forthwith" is permissive and discretionary and does not in all circumstances entail penal consequences and the discretion exercised by the trial court by extending time for deposit of balance sale price pendente lite just for few days in the face of denial of deal by the vendor was not perverse entitling High Court to interfere in its writ jurisdiction."
9. A cumulative reading of the afore-noted case law would show that the wisdom behind ordering a vendee to deposit the remaining sale consideration is not only to see the bona fides of the vendee and his seriousness about fulfilling his contractual obligation but also to safeguard the rights of the vendor, therefore, any such order of deposit would definitely allure to the benefit of both the parties.
10. In the above backdrop, from the perusal of the record, it transpires that from the very beginning appellant has been employing delaying tactics in order to obviate the deposit of remaining sale consideration. On 17.04.2019 an order of deposit of remaining sale consideration was passed by the learned trial court in view of the judgment passed in case of Hamood Mehmood supra, whereafter, successive opportunities were granted to the appellant to do the needful including last opportunity on 04.10.2019 but even then he did not bother to do the needful, which culminated into passing of impugned order and decree.
11. Keeping the above interpretation of the Honourable Apex Court qua deposit of the remaining sale consideration and the exception to the said principle in view, it is clear and obvious that when the learned trial court directed the appellant to deposit the remaining sale consideration along with a caution with regard to non-deposit by referring to the case of Hamood Mehmood supra and the same was not complied with despite availing opportunities including a last opportunity, the learned trial court rightly dismissed the suit as the case of the appellant does not fall within the exception as created in case of Muhammad Asif Awan supra.
12. Another aspect, which further weakens the case of the appellant is that the Honourable Supreme Court of Pakistan in judgment reported as Moon Enterpriser CNG Station Rawalpindi v.
Sui Northern Gas Pipelines Limited through General Manager, Rawalpindi and another (2020 SCMR 300) has held that once last opportunity is given to a litigant for doing a certain act and he fails to do the same, the penal provision has to be invoked, otherwise, it will amount to making mockery of law. For reference operative part of the judgment is reproduced as under: "In our view it is important for the purpose of maintaining the confidence of the litigants in the court systems and the presiding officers that where last opportunity to produce evidence is granted and the party has been warned of the consequences, the court must enforce its order unfailingly and unscrupulously without exception. Such order would in our opinion not only put the system back on track and reaffirm the majesty of the law but also put a check on the trend of seeking multiple adjournments on frivolous grounds to prolong and delay proceedings without any valid or legitimate rhyme or reason. Where the Court has passed an order granting the last opportunity, it has not only passed a judicial order but also made a promise to the parties to the lis that no further adjournments will be, granted for any reason. The Court must enforce its order and honour its promise. There is absolutely no room or choice to do anything else. The order to close the right to produce evidence must automatically follow failure to produce evidence despite last opportunity coupled with a warning. The trend of granting (Akhri Mouqa) then (Qatai Akhri Mouqa) and then (Qatai Qatai Akhri Mouqa make a mockery of the provisions of law and those responsible to interpret and implement it. Such practices must be discontinued, forthwith."
13. Placing the afore-noted case law in comparison with the facts of the present case, it has surfaced that the conduct of the appellant was not only contumacious but also dilatory for the reason that he despite availing numerous opportunities including last opportunity, failed to do the needful, therefore, his case squarely falls within the mischief of the parameters given in the afore- noted judgment, thus, the suit has rightly been dismissed.
14. It shall be important to mention here that under section 22 of the Specific Relief Act, 1877 it has been provided that the jurisdiction to issue a decree of specific performance is discretionary in nature as it is an equitable relief, thus, the court is not bound to grant such relief merely because it is lawful to do so. For reference reliance can be placed on judgments reported as Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCMR 2189), Sirbaland v. Allah Loke and others (1996 SCMR 575), Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others (1999 SCMR 1362), Shakeel Ahmed v. Mst. Shaheen Kousar (2010 SCMR 1507), Liaqat All Khan and others v.
Falak Sher and others (PLD 2014 SC 506), Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad (2017 SCMR 1696) and Mrs. Zakia Hussain and another v. Syed Farooq Hussain (PLD 2020 SC 401).
15. Since the learned counsels for the appellant have not been able to point out any jurisdictional defect or procedural impropriety in the impugned order and decree passed by the learned Civil Judge, Lahore, therefore, no interference can be made by this Court.
16. In view of the above, this appeal fails and the same is dismissed.