Malik Waqar Haider Awan, J. Through this civil revision the petitioner has thrown a challenge to judgments and decrees dated 01.09.2022 and 04.10.2022 passed by the learned Civil Judge 1st Class, Lahore and the learned Addl. District Judge, Lahore respectively. By virtue of former, the learned trial court decreed the suit of plaintiff (hereinafter referred to as respondent No.1) whereas by the latter, appeal filed by defendant No.1 (hereinafter referred to as the petitioner) against the judgment and decree of the learned trial court was dismissed.
2. Brief facts of the case are that respondent No.1 filed a suit for possession through specific performance of agreement to sell dated 05.03.2007 (Exh.P-1) against the petitioner alleging therein that the petitioner being owner of Plot No.84, Block-E, measuring 10-Marlas in Phase-I of the PIA Employees Co-operative Housing Society in Lahore made an agreement to sell with him for consideration of Rs.21,00,000/- out of which Rs.6,00,000/- paid as an advance. As per the agreement, when respondent No.1 asked the petitioner to transfer the plot, she kept delaying the process but later flatly refused leading respondent No.1 to file suit against the petitioner. In first round defendants No.2 & 3 were proceeded against ex parte whereas the present petitioner/defendant No.1 and defendant No.4 filed their contesting written statements. Later petitioner was also proceeded against ex parte whereas respondent No.4 has not resisted the suit.
Learned trial court after framing four key issues including relief and recording evidence of both the parties decreed the suit of respondent No.1 vide ex parte judgment and decree dated 21.11.2015. The said judgment and decree was assailed by the petitioner by filing a civil appeal which was accepted vide judgment and decree dated 13.07.2016 and matter was remanded to the learned trial court for decision afresh after framing proper issues including the issue as to whether time was the essence of the agreement.
3. In the post-remand proceedings learned trial court upon divergent pleadings of the parties framed as many as thirteen issues including the issue of relief. After recording oral as well as documentary evidence of respondent No.1 the petitioner being defendant was invited to produce her evidence but after availing a few chances she failed to produce oral evidence which was closed under Order XVII Rule 3 CPC vide order dated 31.07.2021. Against the said order, the petitioner filed a revision petition but could not succeed. Thereafter, suit of respondent No.1 was decreed vide impugned judgment and decree dated 01.09.2022 and appeal filed thereagainst was also dismissed vide impugned judgment and decree dated 04.10.2022. Hence this civil revision.
4. Learned counsel for the petitioner contends that the petitioner was prejudiced as her right to lead oral evidence was erroneously closed by the learned trial court which is in the field up till now as the learned appellate court has also decided the appeal of the petitioner on the basis of available record. Further pleads that specific performance of the agreement could not take place as time was the essence of the contract as agreement was executed on 05.03.2007 and target date was set as 13.03.2007. Avers that respondent No.1 failed to fulfill his obligations by making the balance amount in the stipulated period but both the courts below have failed to appreciate this aspect of the matter. Adds that specific performance of an agreement is a discretionary and equitable relief which cannot be granted to someone with unclean hands. Adds that even if only evidence of respondent No.1 is minutely scrutinized his suit was neither maintainable nor could have been decreed. Maintains that learned trial court wrongly closed her evidence after approving her request to summon witnesses. Contends that Order XVII Rule 3 CPC was not applicable at any cost as previous date before closing her evidence was not given on her request neither any prior warning was issued nor the previous adjournment was opposed by the learned counsel for plaintiff/respondent No.1. States that closing of evidence of the petitioner is the cornerstone leading to prejudice her right as even after closing of her evidence number of adjournments were given which is not fair dealing by the learned trial court. Adds that balance consideration was deposited on 04.12.2015 when trial court ordered in its judgment dated 21.11.2015. Avers that readiness of respondent No.1 with regard to all aspects including the payment of balance amount is the basic ingredient of suits filed under Section 12 of the Specific Relief Act, 1877.
Places reliance on judgments reported as "Shamshad Khan and another Vs. Arif Ashraf Khan and 2 others" (2008 SCMR 269), "Rashid Baig and others Vs. Muhammad Mansha and others"
(2024 SCMR 1385), "Muhammad Abdul Rehman Qureshi Vs. Sagheer Ahmad" (2017 SCMR 1696), "Mrs. Mussarat Shaukat Ali Vs. Mrs. Safia Khatoon and others" (1994 SCMR 2189), "Liaqat Ali Khan and others Vs. Falak Sher and others" (PLD 2014 Supreme Court 506), "Rab Nawaz and 13 others Vs. Mustaqeem Khan and 14 others", (1999 SCMR 1362), "Nadeem Ahmed Vs. Altaf Hussain and others" (2014 MLD 921), "Syed Arif Shah Vs. Abdul Hakeem Qureshi" (PLD 1991 Supreme Court 905) and "Ghulam Nabi and others Vs. Seth Muhammad Yaqub and others"
5. On the other hand learned counsel representing respondent No.1 while controverting the arguments of learned counsel for the petitioner supported the impugned judgments and decrees of both the learned courts below and contends that agreement to sell and its terms are admitted and there is no denial to the earnest money. Adds that the balance consideration was deposited by respondent No.1 on 04.12.2015 as per order of the learned trial court at the time of passing of judgment and decree dated 21.11.2015. Avers that the day fixed for depositing of balance consideration on 13.03.2007 and thereafter he was always ready to make the balance consideration amount and had also visited the office of the Society in this regard.
6. Arguments heard. Record perused.
7. Primary contention of learned counsel for the petitioner that right of the petitioner to lead evidence was unjustifiably closed lacks merit as the learned trial court acted within its discretion under Order XVII Rule 3 CPC after providing opportunities to her for production of evidence, but she remained miserably failed to do so resulting into justly closure of her right to produce evidence, as such, no procedural irregularity has been committed by the learned trial court. Notably, in earlier round of litigation, she after filing written statement, failed to produce evidence and thereafter ex parte judgment and decree was passed against her. Again, in second round, after remand of the case by the learned Addl. District Judge, her evidence was closed under Order XVII Rule 3 CPC. The Court, after granting opportunities and noting default on part of the petitioner, invoked its discretion under Order XVII Rule 3 CPC. The law does not oblige the Court to secure presence of witnesses once the party fails to act with due diligence. Lethargic attitude could be assessed from the fact that learned trial court vide its interim order dated 31.07.2021 had observed that diet money was not deposited by the petitioner qua the summoned witnesses and right to lead oral evidence was closed. Thereafter grant of further adjournments to other defendants, post closure of evidence of the petitioner, does not revive the right once finally closed.
8. Apart from what is given above, the argument of learned counsel that interim order qua closure of her right to lead evidence could be challenged along with final judgment and decree passed by learned trial court on the premises that interim order merged into final order. I am afraid this concession and facility of law was not available to her as she challenged the order of closure before revisional court but remained unsuccessful and did not challenge the same any further.
Case law referred in this regard are distinguishable and not helpful to her case as it relates to general rule that interim order merges into final judgment, in contrast when a party challenges an interim order before the higher forums and remained unsuccessful thereafter loses right to challenge the same along with final judgment and decree as the interim order attained finality and this is an exception to general principle that the interlocutory order merges into the final judgment and an aggrieved person may challenge interim orders while assailing the final judgment. Thus, in present parlance the petitioner does not have any legal right to assail order of closure of her evidence to her extent as well as to the extent of other witnesses excluding summoned witnesses.
9. The petitioner admitted the agreement to sell dated 05.03.2007 (Exh.P-1) and earnest money of Rs.6,00,000/- was also admitted as mentioned in the agreement to sell. The balance consideration was also deposited in Court vide payment of receipt (Exh.P-2). Dispute among the parties which has been raised by the petitioner is that respondent No.1 was not ready to fulfill his obligation by the target date as he being the property dealer was not having capacity to pay the remaining amount and that only filing of the suit is not enough. This fact is refuted as respondent No.1 filed the suit on 26.03.2007 just after a few days of target date i.e. 13.03.2007, he had also made statement while appearing as PW-1 that he was ever ready to make the payment and that the petitioner did not pay the departmental dues and had violated the terms of agreement who also refused to accept the remaining balance consideration of Exh.P-1. Further deposed that as per Clause No.6 of the agreement, he was given permission to further sell the property. Only defendant No.4 cross- examined respondent No.1 and his witnesses in first round of litigation, however, evidence of both the parties was recorded afresh after remand proceedings, yet again the petitioner failed to lead her evidence and consequently her right to produce evidence was closed under Order XVII Rule 3 CPC.
10. The courts often ask the plaintiffs in a suit for specific performance to deposit the sale amount in court to show that they are financially capable and genuinely willing to fulfill their part of the contract which is essential for getting the relief. However, there is no strict rule in the Specific Relief Act, 1877 that forces the plaintiffs to submit the outstanding payment when filing the case during its admission or before issuing summons to the defendants. So for all intent and practical purposes, the deposit of the sale consideration or balance sale consideration in the Court is not an automatic or precondition by fiction of law but there must be an order of the Court for deposit with certain timeline with repercussions of non-compliance. Reliance is placed on judgment reported as "Meer Gul Vs. Raja Zafar Mehmood through legal heirs and others" (2024 SCMR 1496). Learned counsel for the petitioner failed to pinpoint any single occasion whereupon respondent No.1 was ordered to deposit the balance consideration but he failed to comply with the order or his reluctance in this regard at the time of cut-off date or filing of suit or recording of his statement. It is also admitted by both the learned counsel that possession of the disputed plot was remained with the petitioner- lady till decree of the suit by the trial court.
11. The judgments cited by the learned counsel for the petitioner are distinguishable, as they do not override the factual concurrent findings affirming the claim of respondent No.1. It is evident that suit of respondent No.1 was rightly decreed by the learned trial court and upheld by the learned appellate court as the suit for specific performance is a discretionary remedy and such discretion is to be exercised judicially, based on equitable principles. In the present case, respondent No.1 acted with diligence by initiating proceedings shortly after the target date and depositing balance consideration as per court order. No evidence of bad faith, misrepresentation, or undue delay was brought on record against him.
12. As regards the contention that respondent No.1 came with unclean hands, no material has been brought on record to support such an allegation. Mere status as a property dealer does not disqualify a person from seeking equitable relief, nor has any fraudulent conduct or concealment been established.
13. Pursuant to the above, it is held that the learned Courts below have committed no illegality, irregularity and wrong exercise of jurisdiction, rather after evaluating evidence on record have reached to a just conclusion that the petitioner has miserably failed to dispel the case of respondent No.1 who proved his stance through trustworthy and reliable evidence. The impugned judgments and decrees do not suffer from any infirmity, rather law on the subject has rightly been interpreted and appreciated. It is trite law that revisional jurisdiction under Section 115 CPC does not permit re-appraisal of evidence or substitution of a concurrent finding of fact, unless it is perverse, arbitrary, or without jurisdiction. The concurrent findings of fact recorded by both the learned courts below are based on proper appreciation of evidence and do not warrant interference.
14. As a sequel to above discussion, instant Civil Revision being devoid of any force is hereby dismissed.