Anwaar Hussain, J. The petitioner instituted a suit for specific performance on the basis of an agreement to sell dated 21.03.2012 ("the agreement"), against the respondents. Respondent No.1 is the husband of respondent No.2, and the suit property is jointly owned by them in equal shares, however, the agreement was executed solely by respondent No.1, who represented himself as the authorized agent of respondent No.2. After service of notices, only respondent No.2 appeared whereas respondent No.1 was proceeded against ex-parte. Consequently, after recording of evidence, the suit was dismissed to the extent of respondent No.2 through judgment dated 26.02.2019, while it was ex-parte decreed against respondent No.1. Subsequently, respondent No.1 filed an application for setting aside the ex-parte decree, which was allowed through order dated 18.01.2022. In his written statement, respondent No.1 admitted execution of the agreement but averred that the petitioner did not tender balance sale consideration within time frame stipulated in the agreement and hence, the earnest money was forfeited. The Trial Court, through order dated 07.06.2022, directed the petitioner to deposit the balance sale consideration (50% of the total sale consideration) proportionate to the share of respondent No.1. The petitioner failed to comply, leading to the dismissal of his suit to the extent of respondent No.1 through the impugned order dated 20.06.2022. The appeal preferred against said order was dismissed in limine, through the impugned order dated 14.12.2022, affirming the findings of the Trial Court.
2. Learned counsel for the petitioner argues that respondent No.1 actively misrepresented his authority to act on behalf of respondent No.2, thereby inducing the petitioner to enter into the transaction under a false belief, and therefore, directing the petitioner to deposit the balance sale consideration was erroneous. In support of his arguments, places reliance on case reported as Muhammad Jahan Zaib Khan v. Muhammad Rafique Khan and 2 others (2021 PLC (CS) 1435).
Adds that sufficient time was not granted to the petitioner to deposit the balance sale consideration. Further contends that even today, the petitioner is willing to deposit the balance sale consideration.
3. Conversely, learned counsel for the respondents supports the impugned findings, arguing that the petitioner, having entered into a contractual obligation, was duty-bound to deposit the balance sale consideration as per the directions of the Trial Court and since the petitioner failed to do the needful, the Trial Court was justified in passing the impugned order while placing reliance on case reported as Hamood Mehmood v. Mst. Shabana Ishaque and others (2017 SCMR 2022), which has been rightly upheld by the Appellate Court below.
4. Arguments heard. Record perused.
5. The record unequivocally establishes that the suit property was agreed to be sold for a total consideration of Rs.14,762,000/-, out of which Rs.500,000/- was paid by the petitioner, as token money, through a cross cheque. The remaining amount was to be paid by the petitioner within a stipulated timeframe, i.e., between 21.03.2012 and 21.05.2012. The petitioner also averred that he paid another amount of Rs. 2,000,000/-. However, before the completion of this period, a third-party suit was instituted on 19.05.2012, in which status quo was granted, effectively placing legal impediments on the execution of the sale deed.
6. The main ground for dismissing the suit of the petitioner is non deposit of balance sale consideration in compliance with the order of the Trial Court despite the fact that a clear warning was given to the petitioner that no further opportunity will be granted and in case of failure, the suit will be dismissed. Therefore, the legal question which requires determination by this Court can be articulated as under: Does the non-deposit of the balance sale consideration, in compliance with a Court order prescribing penal consequences, invariably warrant the dismissal of the suit as a general rule? If so, what legal criteria and parameters must be kept in sight by the Court before passing such an order?
7. On first blush, the impugned order passed by the Trial Court appears to be in line with ratio laid down in number of reported judgments, inter alia, Hamood Mehmood supra case; Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another (2020 SCMR 171); and Muhammad Asif Awan v. Dawood Khan and others (2021 SCMR 1270), however, a fundamental aspect of this case is the misrepresentation by respondent No.1 qua his authority to enter into the agreement on behalf of respondent No.2, which was denied by the latter. It is admitted that respondent No.1 executed the agreement not only on his own behalf but also on behalf of respondent No.2, despite lacking any written authority to do so. This is a crucial fact because it goes to the root of the transaction, affecting its enforceability. It is settled principle of law that a party who induces another into a contract through misrepresentation cannot, at a later stage, benefit from its own wrongful act. The doctrine of fraus et jus nunpuam cohabitant (fraud and justice never dwell together) is well entrenched in jurisprudence and squarely applies to the present case. In such circumstances, directing the petitioner to deposit the balance sale consideration was legally untenable.
8. This Court is of the opinion that the requirement to deposit the balance sale consideration must be examined in the light of the surrounding circumstances. It is an undisputed fact that litigation concerning the suit property was pending when the date of payment of balance sale consideration was due. In such a situation, the petitioner was legally justified in withholding the remaining consideration, as his obligation to pay was intrinsically linked to the vendor's (respondents') ability to deliver an unencumbered title. Moreover, only respondent No.2 appeared, while ex-parte proceedings were initiated against respondent No.1--the very signatory of the agreement.
Respondent No.1 sought to have the ex-parte judgment and decree dated 26.02.2019 set aside, and this request was granted. At this juncture, suffice to observe that the principle of reciprocal obligations under the law of contract dictates that where one party's performance is contingent upon the other's compliance, the non-fulfillment of a material condition by one party absolves the other from immediate performance.
9. When appeal was preferred by the petitioner challenging the impugned order of the Trial Court, which dismissed the suit of the petitioner for non-deposit of the balance sale consideration, the Appellate Court below summarily dismissed the appeal, in limine, and failed to appreciate the factual intricacies of the case, the respondents' conduct, and the petitioner's key contention that the delay in performance was initially caused by the pending litigation and subsequently aggravated by respondent No.1's deliberate avoidance of the trial proceedings while respondent No.2--his wife, sought refuge in by pleading that the agreement is void to her extent as she was not signatory, despite their shared social and economic interests being evident from the present proceedings. Had there been bonafides on part of the respondents, respondent No.2 while contesting the suit should have unequivocally taken the stance that the agreement was lawfully executed and that any failure in its performance was solely due to the petitioner's unwillingness to pay the balance sale consideration.
10. In the present case, the petitioner's reluctance to deposit the balance sale consideration was neither arbitrary nor indicative of malafide intent. Rather, it was a prudent and legally justified response to the uncertainty created by respondent No.1's misrepresentation and the litigation over the suit property. In this regard, the reliance placed by the petitioner's side on case of Muhammad Jahan Zaib Khan, supra is apposite. This Court, in the said case, made a critical distinction between mechanically requiring a vendee to deposit the balance sale consideration and determining whether, in the facts and circumstances of a particular case, such a requirement is justified. The judgment explicitly recognized that where a vendor, through his conduct, creates circumstances that obstruct the smooth execution of the contract--such as transferring the property to a third party, breaching essential terms, or failing to provide clear title--then compelling the vendee to deposit the outstanding consideration would be legally untenable. More importantly, the Honourable Supreme Court of Pakistan, in its recent landmark judgment reported as Meer Gul v. Raja Zafar Mahmood through legal heirs and others (2024 SCMR 1496), conducted a comprehensive analysis of a series of precedents on the subject, including cases of Muhammad Asif Awan and Messers Kuwait, supra and held as under: "10. At one fell swoop, a ground reality cannot be lost sight of that much debate is made on the effect and outcome of non-depositing the balance sale consideration in the Court with or without order of the Court or non-compliance of the order of the Court, but we cannot ignore that despite depositing the amount in Court, it is a matter of fact that several number of years are consumed to decide civil suits for specific performance of contract by the Civil Courts, specially relating to immovable properties (residential, commercial and industrial) at original side, and after decision, the remedies of appeals and revision are inaugurated and ultimately the litigation is concluded in this Court, and by that time, much water seems to have been flown under the bridge which creates serious frustration for both sides and, not only the amount deposited in Court but also the property, both remain blocked for a considerable time. In the intervening period, if the performance of contract relates to the immovable property, the value of contractual price increases manifold which may not be found commensurate to the price deposited in Court despite adding to the profit on it if the amount ordered to be invested by the Court envisages some profitable scheme. So, in order to overcome such eventualities, what may the Court do?.........In the case of Imtiaz Ahmad v. Ghulam Ali (PLD 1963 SC 382), this Court held that the proper place of procedure in any system of administration of justice is to help and not to thwart the grant to the people of their rights. All technicalities have to be avoided unless it be essential to comply with them on grounds of public policy. Any system which, by giving effect to the form and not to the substance, defeats substantive rights, is defective to that extent. The ideal must always be a system that gives to every person what is his. According to annotation from the book, Judicial Reflections of Justice Bhagwati (2008 Edition), the judiciary has to devise new methods, forge new tools and innovate new strategies for the purpose of reaching social justice to the common man. It must abjure reactive approach and adopt a proactive role. It must respond to the demands and urges of the large masses of people for social justice, and by adopting a creative and activist approach, it must mould and develop the law and bring it closer to the people so that the rule of law becomes meaningful and social justice a reality for them.
Today, a vast revolution is taking place in the judicial process; the theatre of law is fast-changing and the problems of the poor re coming to the forefront 11 ......... .
12. The function of the courts is to do substantial justice between the parties after providing ample opportunity of hearing, which is one of the significant components and virtue of fair trial."
(Emphasis supplied)
11. Having above analysis in sight, this Court is of the opinion that in suits for specific performance, under Section 12 of the Specific Relief Act, 1877, the Court's discretion to direct the plaintiff to deposit the balance sale consideration must be exercised in light of the equities of the case. It is also crucial to recognize a common pattern in cases where the vendors enter into agreements to sell but later on evade the performance, forcing the buyers to institute suits for specific performance. In the present case, it was inherently unjust to compel the petitioner to deposit the balance sale consideration when the vendors, while retaining possession of the suit property, either completely disown the agreement(s) or deliberately prolong the matter under various pretexts. Respondent No.1 initially did not appear before the Trial Court, whereas respondent No.2--his wife outrightly denied the agreement and the suit was ex-parte decreed to the extent of respondent No.1, after a period of 6 years, and when respondent No. 1 filed application for setting aside the ex-parte decree, the same was allowed and the Trial Court abruptly observed, on 24.05.2022, that balance sale consideration amounting to Rs. 12,262,000/- has not been deposited by the petitioner/plaintiff and passed a direction in the following terms: "24.05.2022 Present: Learned counsel for the parties.
Instant suit is fixed today for arguments upon application for grant of temporary injunction, however, another adjournment is request on behalf of plaintiff.
2. Perusal of record at this stage reveals that the plaintiff has not yet deposited remaining sale price Rs.1,22,62,000/-. The plaintiff is directed to deposit said amount till next date fixed. Adjourned for deposit of said amount for 01.06.2022.
Announced: Malik Muhammad Abdul Sattar 24.05.2022 Admin/Civil Judge 1st Class, Multan"
On 01.06.2022, following order was passed: "01.06.2022 Present: Learned counsel for the parties.
Instant suit is fixed today for deposit of remaining sale price Rs.1,22,62,000/- by the plaintiff, however, learned counsel for the plaintiff requests for another adjournment for deposit of said amount. In the interest of justice, as per request, a final last opportunity for deposit of said amount is hereby provided to the plaintiff for 07.06.2022 with clear warning that no further opportunity shall be granted and in case of default, instant suit shall be dismissed. Adjourned.
Announced: Malik Muhammad Abdul Sattar 01.06.2022 Admin/Civil Judge 1st Class, Multan"
On 07.06.2022, following proceedings took place: "07.06.2022 Present: Learned counsel for the parties.
Instant suit is fixed today for deposit of remaining sale price Rs.1,22,62,000/- as final last opportunity.
2. Learned counsel for the plaintiff states that instant suit was dismissed to the extent of defendant No.2 and decree in ex-parte to the extent of defendant No.1. It is further stated that appeal of the plaintiff to the extent of defendant No.2 is pending adjudication and since subject agreement to sell was executed by both the defendants to the extent of their properties (31-Marla of defendant No.1 and 30-Marla of defendant No.2), therefore, plaintiff was to deposit remaining sale price only to the extent of said property of defendant No.1.
3. In the given circumstances, plaintiff is directed to deposit remaining sale price (Rs.62,31,508) to the extent of defendant No.1. As per request, an absolute final last opportunity for the deposit of said amount is hereby provided to the plaintiff for 20.06.2022 with clear warning that in case of default, the instant suit shall be dismissed without granting any further opportunity at any cost.
Announced: Malik Muhammad Abdul Sattar 07.06.2022 Admin/Civil Judge 1st Class, Multan"
Thereafter, through impugned order dated 20.06.2022, the suit of the petitioner was dismissed in the following terms: "20.06.2022 Present: Learned counsel for the plaintiff.
Learned counsel for the defendant No.1.
Instant suit is fixed today for the deposit of remaining sale price Rs.62,31,508/- by the plaintiff as final last opportunity.
2. Said sale price is not deposited by the plaintiff.
Learned counsel for the plaintiff requests for another adjournment in said regard. Perusal of record reveals that the plaintiff has failed to deposit said amount insptie of availing several opportunities including final last opportunity on the last date of hearing. Under such circumstances, said request is turned down and resultantly, suit in the circumstances is hereby dismissed to the extent of defendant No.1 due to nonpayment of said remaining sale price in the light of law laid down in 2017 SCM R 2022. No order as to costs. Decree sheet be prepared accordingly. File be consigned to record room after its due completion.
Announced: Malik Muhammad Abdul Sattar 20.06.2022 Admin/Civil Judge 1st Class, Multan"
Before analyzing the propriety and legality of the above quoted orders of the Trial Court, it is pertinent to note that a Division Bench of this Court, in case reported as Irfan Rasheed Vs Muhammad Muazim and others (PLD 2022 Lah 372), held as under: "2..... an order shall be made for the deposit of the balance sale consideration by the vendee (if he is a plaintiff in the suit) within a stipulated time. In sum, not more than two opportunities for making the deposit shall be given by the court. At the time of granting the second and last opportunity (if requested by the vendee), the civil court shall specifically mention the consequences that will visit the failure to deposit viz. that the suit shall be dismissed on that account. It is made clear that this order shall be passed separately and will not be made part of any other order passed for a different purpose."
Perusal of the above quoted orders of the Trial Court reveals that, for the first time, the petitioner was directed to deposit the remaining sale consideration on 24.05.2022, while the case was fixed for arguments on application for grant of temporary injunction, without appreciating that to the extent of respondent No.2, the suit had already been dismissed and the issue remained alive only to the extent of respondent No.1. The Trial Court rectified and modified the order dated 24.05.2022 as well as 01.06.2022 through order dated 07.06.2022, by directing the petitioner to deposit the remaining sale consideration to the extent of the share of respondent No.2, in the suit property, however, on the next date of hearing, the suit was dismissed on account of non-deposit of the remaining sale consideration, vide impugned order dated 20.06.2022. The two opportunities required to be granted as per dicta laid down in case of Irfan Rasheed supra, were to be considered from order dated 07.06.2022, whereby the earlier orders were modified, hence, adherence to the dicta laid down in case of Irfan Rasheed supra is conspicuously missing, in the present case. The Hon'ble Supreme Court of Pakistan, in case of Meer Gul supra has categorically observed that the function of the Courts is to do substantial justice between the parties after providing ample opportunity of hearing, which is one of the significant components and virtue of fair trial and the ideal must always be a system that gives to every person what is his. In present case, the petitioner was not treated fairly by the Courts below in general and the Appellate Court below in particular, which dismissed the appeal of the petitioner in limine, therefore, merits rectification by this Court in exercise of its revisional jurisdiction.
12. In view of the foregoing discussion, this petition is allowed and the impugned orders passed by the Courts below are set aside. As a corollary, the suit of the petitioner shall be deemed to be pending before the Trial Court. The petitioner is directed to deposit the balance sale consideration of Rs. 6,231,508/-, within one month from today, with the Trial Court. Failure to deposit the said amount within the stipulated timeframe shall render this judgment inoperative, and the findings of the Courts below shall stand restored.