MUHAMMAD FAHEEM WALLI, J- Petitioner, through this civil revision filed under Section 115 of CPC, has called in question the vires of Judgment & Decree dated 18.01.2023 of the learned Additional District Judge-1 D.I.Khan, whereby his appeal against Judgment & Decree dated 24.11.2020, rendered by learned Civil Judge-11 D.I.Khan, was dismissed, and thereby the decree passed in favour of respondent No.1 was maintained.
2. Facts forming factual canvas of the instant petition are that the respondent No.1 initially filed a suit for specific performance of the agreement dated 25.10.2014 in respect of a landed property and sought declaration of ownership and cancellation of registered deed No.3193 along with consequential relief in the shape of perpetual mandatory and prohibitory injunction. In alternate, respondent No.1 prayed for recovery of Rs.1 crore. The petitioner contested the suit by filing his written statement. During pendency of the suit, respondent No.1 failed to comply with the order of learned trial court regarding deposit of remaining sale consideration, and therefore, his suit to the extent of prayers for specific performance of the agreement and declaration was dismissed leaving behind the alternate prayer for recovery of Rs.1 crore. The trial court proceeded ahead with the recovery claim of respondent No.1 and, after recording evidence of both the parties, passed a money decree of Rs.10 million in favour of the respondent No.1 and against the petitioner vide Judgment & Decree dated 24.11.2020. The appeal of petitioner against the said decree was dismissed by the learned Additional District Judge-I, D.I.Khan, vide Judgment & Decree dated 18.01.2023, and thereby the money decree passed in favour of the respondent No.1 was maintained.
Now the petitioner has approached this Court for the reversal of findings of both the learned courts below.
3. 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.
4. The foremost objection of learned counsel for petitioner, during the course of arguments, was that the learned trial Court has committed severe illegality in not dismissing the entire suit. In this regard, scanning of the record transpires that vide order sheet No.14 dated 21.10.2015, the learned trial court dismissed the application of petitioner for rejection of plaint and directed the respondent No.1 to deposit the remaining sale consideration within fifteen days. Petitioner, thereafter, failed to make compliance of the said direction. Consequently, vide order sheet No.1 dated 07.12.2015 the learned trial court dismissed the suit to the extent of Prayers " , and " " i.e. specific performance of agreement and declaration. The relevant excerpt from the order dated 07.12.2015 is reproduced hereunder:
5. It is obvious from the above extracted pare of the order dated 07.12.2015 that the prayers A41 and Bay of the suit were dismissed due to non-deposit of the outstanding sale consideration in the compliance of court order. In this context, provisions of Rule 3 of Order XVII CPC are very much relevant which read as under:
3. Where any party to a suit to whom time has been granted fails to produce his evidence, or to cause the attendance of his witnesses, or to perform any other act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding each default, proceed to decide the suit forthwith.
6. It is clear from the above that where a party to a suit, to whom time has been granted, fails to perform any act necessary to the further progress of the suit, for which time has been allowed, the Court may, notwithstanding such default, proceed to decide the Suit forthwith. The word "forthwith" does not mean to pronounce judgment at once or dismiss the suit at the same time. The said rule simply lays down that the Court may proceed with the suit notwithstanding either, party fails to produce evidence etc. Meaning thereby that in case of default to do a specific act by any party to the suit, the next step required to be taken in the suit, should be taken. Though the word "forthwith" means without any further adjournment yet, it cannot be equated with the words at once pronounce judgment, as used in Order XV. Rule 4 C.P.C. While rendering this view Z am fortified by the verdict of worthy Supreme Court recorded in the case of "Muhammad Aslam vs. Nazeer Ahmad" (2008 SCMR 942). The same view was reiterated by the Apex Court in the Case of "Hasham Khan and others Vs. Haroon ur Rashid and others" (2022 SCMR 1793), wherein the worthy Court was pleased to held:
5. The perusal of the above said provision of the C.P.C. would reveal that "to decide the suit forthwith" does not mean to decide or dismiss the suit there and then. The law on the subject has become established and explained time and again by this Court but we have noted that its application and appreciation by the Courts below still goes with a bit of confusion. The Court, while going to implement the provisions of Rule 3 ibid can take time to go through the available record and then decide the matter. Even, in case of failure of a party to comply with the or within the contemplation of above said provision of law, the Court can ask the failing party to record its statement and then to proceed with the matter. In such like situation, if the filling party is Plaintiff who records its own statement, then Court can ask the other party/ defendant for defense rebuttal evidence. "
7. Even otherwise, the language employed in Order XVII, Rule 3 by using the 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. Guidance in this regard has been derived from the reported judgment of the august Supreme Court in the case of "Muhammad Asif Awan Vs. Dawood Khan and others" (2021 SCMR 1270)
8. Now coming back to the point, the order dated 21.10.2015 of learned trial Court was specific, whereby it was noted that the fate of suit for specific performance of the agreement was subject to deposit of remaining sale consideration. The overall impact of the non-deposit of remaining amount was that a suit for specific performance of the agreement could not proceed as the respondent No.1 failed to fulfil his own obligation as to payment of remaining amount. However, he could not be dislodged from the relief in equity for the return of already paid amount. The discretion exercised by the trial Court, vide order dated 07.12.2015, by keeping the alternate prayer alive for adjudication was not perverse and this order, though not specifically referred, was fully covered by the provision of Rule 3 of Order XVII CPC. In the light of supra quoted dicta as well as law, provisions of the Rule 3 of Order XVII CPC do not place any bar on the discretion of Court to proceed ahead with the suit in view of the circumstances of the case.
9. As regard the money decree of Rs.10 million in favour of respondent No.1 is concerned, the admissions on the part of petitioner in the instant suit and also in another suit titled, "Attaullah Vs. Hizbullah etc" in respect of the same property, are sufficient to make the belief that petitioner received an amount of Rs.10 million from respondent No.1.
10. The plea of petitioner that respondent No.2, Raza Ullah, was the partner & agent of respondent No.1, to whom property was transferred by petitioner at the instance respondent No.1, could not be proved through evidence. Besides, the suit filed by petitioner titled "Attaullah Vs. Hizbullah etc" for cancellation of the registered deed No.3193 dated 29.10.2014, was finally decided vide order dated 26.10.2019 of learned Civil Judge-II D.I.Khan on the basis of compromise by petitioner whereby he admitted the rights of Hizbullah and Raza Ullah etc over the suit land. Nowhere in the said plaint or in the compromise deed the petitioner referred that the property was transferred at the instance of respondent No.1 to the said Raza Ullah etc. Moreover, the petitioner in his own suit admitted the execution of agreement with respondent No.1 then the authenticity of said judicial record cannot be ignored in the present suit, filed by respondent No.1, wherein the subject matter is the same agreement. There is no illegality, irregularity or any jurisdictional defect in the impugned Judgments & Decrees of both the learned courts below, and as such, the same cannot be interfered with under the revisional powers of this Court. il, For and in view of the above recorded reasons, there is no merit in this petition which is accordingly dismissed with listed CMA. Parties shall bear their own cost.