Shujaat Ali Khan, J. Succinctly , respondent No.1 filed suit for cancellation of agreement to sell, dated 14.06.2014, against respondent No.2 whereas the petitioner filed suit for possession through specific performance of agreement to sell, dated 16.06.2014, alongwith permanent injunction, against the respondents. The learned trial court consolidated both the suits. During pendency of suits, respondent No.1 filed an application for dismissal of the suit, filed by the petitioner , due to non-deposit of remaining sale consideration whereas the petitioner filed an application seeking permission to deposit Rs.6,35,00,000/- viz. the remaining sale consideration. Learned Trial Court, vide order , dated 15.07.2021, while dismissing the application filed by respondent No.1 for dismissal of suit of the petitioner , allowed that of the petitioner seeking permission to deposit the remaining sale consideration directing him to deposit remaining sale consideration within a period of fifteen days with the observation that in case of his failure to deposit said amount within the stipulated time the suit filed by him would stand dismissed on account of non-compliance of order of the court. The petitioner , in compliance with the order passed by learned Trial Court, deposited an amount of Rs.2,35,00,000/- on 27.07.2021 and Rs.1,00,00,000/- on 28.07.2021 and to the extent of remaining amount of Rs.3,00,00,000/- he filed an application seeking extension of time fixed by the learned Trial Court. The learned Trial Court, vide order , dated 30.07.2021, while rejecting the application filed by the petitioner seeking extension in time, dismissed his suit due to non-compliance of order , dated 15.07.2021; hence this petition.
2. Learned counsel for the petitioner submits that bona fide on the part of the petitioner is manifest from the fact that in compliance with order , dated 15.07.2021, passed by learned Trial Court, he deposited Rs.3,35,00,000/- and further moved application seeking extension of time to deposit the balance amount, hence, the observation of learned Trial Court that the petitioner was not serious to get enforced the subject agreement to sell is against the record; that according to Order XVII rule 3 CPC decree was to be drawn pursuant to the order passed by the learned Trial Court but since no decree followed the impugned order , the same is not sustainable; that even while invoking the provisions of the Order XVII rule 3 CPC ibid findings on every Issue are to be given by the court but the impugned decision being contrary to the said principle is not sustainable; that as per section 148 CPC learned Trial Court was fully empowered to extend time enabling the petitioner to deposit the balance amount but non- exercise of jurisdiction by learned Trial Court speaks volumes about its non-judicial approach; that since matter was fixed for recording evidence of plaintif f, the suit could not be dismissed at that stage and that since the petitioner deposited the balance amount on 30.07. 2021, lenient view was to be adopted by learned Trial Court. Relies on Muhammad Asif Awan v . Dawood Khan and others ( 2021 SCMR 1270 ).
3. Conversely , learned counsel appearing on behalf of respondent No.1, while defending the impugned decision, states that since the petitioner failed to deposit balance amount in court, despite the fact that agreement to sell between the parties was executed in the year 2014, no illegality has been commi tted by learned Trial Court while passing the impugned order; that the petitioner himself filed application in the year 2016 seeking permission to deposit the balance amount which was allowed but he did not deposit the same despite lapse of many years which shows his negligence to perform his part of the contract; that respondent No.1, who is an expatriate, on the one hand, has been deprived of his valuable land without payment of balance amount and on the other is being blackmailed by the petitioner and respondent No.2 by lodging criminal case against him and that a learned Division Bench of this Court, while discussing all the case-law on the subject, in the case of Irfan Rasheed v. Muhammad Muazim and others (PLD 2022 LHR 372), has held that in the event of failure of plaintif f to deposit balance consideration, in a suit for specific performance, his suit should be dismissed on that score alone.
4. Learned counsel representing respondent No.2, while supporting the petitioner , submits that technicalities apart, since the suit filed by respondent No.1 is also sub judice before learned Trial Court, it is in the fitness of things that while setting aside the impugned decisio n, matter be referred to the said forum as entire balance amount has already been deposited by the petitioner .
5. In furtherance of his above arguments, learned counsel representing respondent No.1 contends that since the petitioner is a real estate developer he intends to usurp land of respondent No.1 without payment of balance amount, hence, no leniency can be shown to the petitioner .
6. While exercising his right of rebuttal, learned counsel for the petitioner submits that since the petitioner himself filed application seeking permission to deposit the balance amount and no directio n was issued by the court in the year 2016, the order passed by learned Trial Court, on 21.12.2016, cannot be used to the disinterest of the petitioner; that though the petitioner depo sited remaining amount of Rs.3,00,00,000/-, on 28.07.2021, but its effect could not be incorporated in the relevant record till 30th July, 2021 and that since respondent No.1 denied execution of agreement to sell out-rightly , the petitioner could not be compelled to deposit the balance amount forthwith.
7. I have heard learned counsel for the parties at considerable length and have also gone through the documents, annexed with this petition as well as the case-law cited at the bar .
8. Firstly , taking up the point raised by learned counsel for respondent No.1 that since the petitioner did not deposit the balance amount despite the fact that his application in that regard was allowed way back in the year 2016, I am of the view that when the learned Trial Court invoked the penal provisions of Order XVII rule 3 CPC ibid due to non- compliance of order , dated 15.07.2021, no reference can be made to any previous omission or commission, if any, on the part of the petitioner . Reliance in this regard is placed on Sultan Ahmad and others v. Khuda Bux and others (1986 SCMR 1005 ) wherein the august Supreme Court of Pakistan responded the query , under discussion, in the following manner: - "7. The main contention in support of these petitions urged by the learned counsel is that the second order prescribing time for making up deficiency of court-fees and filing the statement of net profits, was passed without application of mind and ignorance of the orders passed earlier under which the time allowed had already expired . In other words the submission was that upon expiry of the period earlier fixed as the plaintiffs had failed to comply therewith the plaints were liable to be rejected under Order VII rule 11(d), C.P.C. It was further urged that the conduct of the plaintiffs in not comply ing with the first order by making up a proper application to the revenue authority for obtaining the statement of net profits the plaintiffs were guilty of contumacy and negligence and accordingly were not entitled to the exercise of discretion in their favour extending the time. The power of the Court to pass a fresh order after the expiry of the period prescribed under the first order was also challenged. We have carefully considered these contentions and find no substance therein. The plaints were not liable to be rejected under Order VII, rule 11 (d), C.P.C. unles s the Court had first made an order calling upon the plaintiffs to make up the deficiency in court-fees by specifying the amount thereof. In this case no such order was passed directing the plaintiffs to pay a specific amount by way of deficiency in the court-fees. In the circumstances the plaints originally filed by the plaintiffs were still before the Court' on the date of the subsequent order and the Court was amply empowered to extend the time for doing the needful as earlier ordered or even pass a fresh order to the same effect by a specified future date. It is well-settled that the power vesting in the Court under section 148, C.P.C. can be exercised successively and even after the time under previous such order has expired.
Therefore, nothing turns on the fact that there was a gap between the period covered by the two orders . So far as the justification for extension of time under section 149. C.P.C., the first appellate Court applied its mind and came to the conclusion that the plaintiffs in the two suits were entitled to the grant of time in the circumstances of the case. This is a discretionary order and there is nothing to hold that the discretion was perversely exercised. The Courts below have acted upon the rule laid down by this Court in Siddique Khan v. Abdul Shakur Khan PLD 1984 SC 289 and there is no legal infirmity in the impugned orders in these two petitions. Both petitions are accordingly dismissed." (emphasis provided)
If the contention of learned counsel for respondent No.1, under discussion, is appreciated in the light of the afore- quoted judgement of Apex Court of the country it becomes vividly clear that since no direction was passed by the learned Trial Court asking the petitioner to deposit the balance amount within specified period, the order passed by the learned Trial Court on the application of the petitioner , in the year 2016, cannot be used to his disinterest.
Considering from another angle, undeniably , the application filed by respondent No.1 seeking dismissal of the suit file by petitioner on account of non-compliance of order dated 21.12.2016 was dismissed by the learned trial court on 15.07.2021 by holding that since no direction was issued by the court, non-compliance on the part of the petitioner did not entail any penal action and the said order having not been challenged by respondent No.1 has attained finality . In this background, respondent No.1 cannot be allowed to re-agitate the said ground before this Court.
9. It is admitted position that after filing of suit the petitioner himself filed an application seeking permission to deposit the balance amount wherein notices were issued but respondent No.1 did not opt to file reply to the said application. On the other hand, while filing written statement he denied the very execution of agreement to sell with the petitioner rather his stance was that he entered into an agreement to sell with Hassan Nazir (respondent No.2), on 14.06.2014, but due to non-fulfilme nt of the conditions stipulated therein , the said agreement to sell automatically stood rescinded, however , as a matter of abundant caution he filed a suit seeking cancellation of agreement to sell prior to filing of suit by the petitioner seeking specific performance of Agreement to Sell entered between the petitioner and respondent No.2. In the wake of such outright denial of execution of the agreement to sell, subject matter of the suit out of which present revision petition has stemmed, the petitioner could not be made to suf fer especially when he has deposited the entire consideration amount.
10. Admittedly , the petitioner filed applic ation seeking extension of time to deposit the balance consideration amount, before expiry of the period stipulated by the learned trial court vide order , dated 15.07.2021. It is of common knowledge that established businesses stood toppled due to pandemic Covid-19 and for that reason in addition to certain steps at government level, even the individuals at their own relaxed/deferred due payments just for the reason that all and sundry were adversely affected by the said disease. Undeniably , only one chance was given by the learned Trial Court to the petitioner to deposit the balance amount. While dealing with powers of the court to extend period for compliance of an order passed by a court, the Apex Court of the country in the case reported as Malik Hadayat Ullah and 2 others v. Murad Ali Khan (PLD 1972 SC 69) has inter-alia held as under: - "The Punjab Pre-emption Act does not prescribe any procedure for obtaining such extension of time but upon general principles a Court has normally to be moved by an application of some kind, either oral or written. This does not, however , mean that the Court has no jurisdiction, in the absence of any such application, to grant a discretionary relief where the justice of the case so requires. In the absence of any provision in the Statute or in the rules made under the Statute expressly providing that the Court shall act on the application: of a party it cannot be said that such an application is a conditio n precedent to the exercise of the powe r. The power does not become nugatory , if no application is made for invoking that power . If the Court could we-a re clearly of opinion that it could under subsection (4) of section 22 extend time, then it could do so either on the application, written or oral, of a party or even suo motu where the justice of the cause so demanded.
In the present case, the learned Judge of the High Court thought that there was no ground at all for granting such an extension although it was argued before him that in the present case the Court had made it practically impossible for the appellants, who were plaintiffs in the pre-emption suit, to comply with the order for making the deposit within the time originally fixed by the Court by its own action, namely , the adjournment of the application for furnishing security instead of making the deposit in cash from the 6th of Decem ber 1967, to the 6th of January 1968, on which date the pre-emption suit itself was fixed for hearing. If the Court had not done so but had disposed of the application soon after it was filed the present difficulty would not have arise n. The pre-emptors would have had sufficient time to make the deposit in cash.
The extension of time in the present case was granted before the time originally fixed for making the deposit had expired and before the disposal of the suit. No objection could, therefore, be taken on this ground either . If the Court had the power to extend time it could do so even after the expiry of the period originally fixed unless the statute prohibited this or unless the order had become final and rendered the Court functus officio. The general principle is that where by an order time is fixed by a Court for doing any act the Court can grant extensions from time to time till it ceases to have jurisdiction over the matter or loses seisin of the matter .
In the circumstances, we are clearly of the view that the High Court grievously erred in holding that the Civil Judge had no jurisdiction at all to grant the extension of time. At worst, all that could be said was that perhaps the Civil Judge had not exercised his discretion in a proper manner in granting the extension but then the matter would not have been revisable by the High Court under section 115 of the Civil Procedure Code. Before the High Court could interfere under this latter section, it had to be satisfied that the Court below had acted illegally or with material irregularity in the exercise of its jurisdiction or exercised a jurisdiction not vested in it by law or failed to exercise a jurisdiction so vested.
Obviously , the learned Judge in the High Court was conscious of this difficulty and hence it appears to us, unnecessarily went out of his way to hold that in the present case the Civil Judge had no jurisdiction to extend the time, notwithstanding the provisions of subsection (4) of section 22 of the Punjab Pre-emption Act.
There was, as we have already pointed out, a very good and substantial reason for the extension of time, because, even assuming that no application was made by the appellants for such extension of time, the Court, in the interest of justice, was fully competent suo motu to extend the time when it had by its own act made it practically impossible for the appellants to comply with its original order by adjourning the application for furnishing security to the 6th of January 1968.
We are thus fully satisfied that this appe al must be allowed and we, accordingly , allow the same with costs, set aside the order of the High Court and restore that of the trial Court. The suit should now be taken up for hearing and disposed of as expeditiously as possible. Let the records be sent down immediately ." (emphasis provided)
A similar view was taken by Hon'ble Supre me Court of Pakistan in the case reporte d as Sultan Ahmad and others (Supra) by inter-alia observing as under: - "7. *In this case no such order was passed directing the plaintiffs to pay a specific amount by way of deficiency in the court-fees. In the circumstances the plaints originally filed by the plaintiffs were still before the Court' on the date of the subsequent order and the Court was amply empowered to extend the time for doing the needful as earlier ordered or even pass a fresh order to the same effect by a specified future date. It is well-settled that the power vesting in the Court under section 148, C.P.C. can be exercised successively and even after the time under previous such order has expired........." (emphasis provided)
Likewise, the Apex Court of the country in the case reported as Muhammad Nawaz and others v. Muhammad Sadiq and another (1995 SCMR 105) has dealt with the proposition of law, under discussion, in the following manner:- "10. From the above-referred case, inter alia, it is evident that the consistent view of this Court is that an appellate Court is competent to extend time for deposit of the pre-emption money either during the pendency of an appeal before it or at the time of disposing of the same notwithstanding that the time mentioned in the pre-emption decree for the said purposes may have expired. Furthermore, an appellate Court may extend time for the above purpose at the stage when an appeal is not admitted for regular hearing by it or a petition for leave to appeal is not granted and such an extension of time will not be nullified by the factum that the appeal or the petition for leave to appeal is subsequently dismissed summarily . However, neither a trial Court nor an appe llate Court can extend time for deposit of pre-emption money once the matter stands disposed of and it is no-long er pending before it. In such an event, the direction contained in the original decree to the effect that in case of failure to deposit the pre-emption money the suit shall stand dismissed. becomes effective. However , the above rule seems to be subject to one exception, namely , that if an appellate Court varies the finding of the Court below on the quantum of the pre- emption money , in other words it either increases or reduces the same, in that event, it should fix fresh reasonable time for deposit of the pre-emption money and in the absence of any such fixation, the pre-emptor may deposit the same within reasonable time as has been held by Cornelius, C.J. and Hamoodur Rahman, J. in the case of Shah Wali v. Ghulam Din alias Gaman and another (supra). It is also evident from the above reports that an appellate Court is not bound to grant extension of time in every case: The conduct on the part of a pre-emptor may disentitle him from pressing into service exercise of the above discretionary power by an appellate Court in his favour . It may be observed that it is difficult to categorize all the cases in which a pre-emptor will not be entitled to seek exercise of the above discretionary power in his favour by an appellate Court. It will depend on the facts of each case. If the sole object of a pre emptor in filing of an appeal is to delay deposit of the pre-emption money , about the correctness of which, there cannot be any reasonable doubt, to a reasonable man, in such a case an appellate Court may decline to extend the time."
Following the above verdicts of the Apex Court of the country , a learned Division Bench of this Court in the case of Muhammad Asghar v . Mian Muhammad Hussain ( 2010 CLC 22 ) has resolved as under: - "12. *The provisions of section 148, C.P.C. were consciously invoked by the learned trial Court whereby delay was condoned on the application of the defendant/respondent. The said provisions could be brought into consideration either suo motu by the Court in the interest of justice or on the application of the party concerned......"
The aforesaid view was also authenticated by the Supreme Court of Azad Jammu & Kashmir , in the case of Ghulam Rabani v . Muhammad Fiaz and another ( 2016 CLC 1547 ) in the following manner:- "8. The right of appeal is a statutory right of a party . Under the provision of section 107, C.P.C., the powers vested in the Courts of original jurisdiction are also available with the appellate Courts. The time for depositing the decretal amount is fixed by the Court under the provisions of Order XX, Rule 14 of Civil Procedure Code, whereas according to the provisions of section 148, C.P.C., any period fixed or granted by the Court for doing of any act prescribed or allowed by this Code including the period for depositing the decretal amount can be enlarged from time to time. On the legal proposition of enlargement of time, we have benefited from an authoritative judgment of the apex Court of Pakistan in the case reported as Muhammad Nawaz and others v. Muhammad Sadiq and another [1995 SCMR 105], wherein the comprehensive appreciation of the statutory provision of section 148, C.P.C. has been made in the following terms:- "10. From the above referred case, inter alia, it is evident that the consistent view of this Court is that an appellate Court is competent to extend time for deposit of the pre-emption money either during the pendency of an appeal before it or at the time of disposing of the same notwithstanding that the time mentioned in the pre-emption decree for the said purpose may have expired. Furthermore, an appellate Court may extend time for the above purpose at the stage when an appeal is not admitted for regular hearing by it or a petition for leave to appeal is not granted and such an extension of time will not be nullified by the factum that appeal or the petition for leave to appeal is subsequently dismissed summarily . However neither a trial Court nor an appellate Court can extend time for matter stands disposed of and it is no longer pending before it. In such an event, the direction contained in the original decree to the effect that in case of failure to deposit the pre-emption money the suit shall stand dismissed, become effective. However , the above rule seems to be subject to one exception, namely , that if an appellate Court varies the finding of the Court below on the quantum of the pre-emption money , in other words it either increases or reduces the same, in that event, it should fix fresh reasonable time for deposit of the pre-emption money and in the absence of any such fixation the pre-emptor may deposit the same within reasonable time as has been held by Cornelius C.J. and Hamoodur Rahman , J., in the case of Shah Wali v. Ghulam Din alias Gaman and another (supra). It is also evident from the above reports that an appellate Court is not bound to grant extension of time in every case. The conduct on the part of a pre-emptor may disentitle him from pressing into service exercise of the above discretionary power by an appellate Court in his favour . It may be observed that it is difficult to categorize all the cases in which a pre-emptor will not be entitled to seek exercise of the above discretionary power in his favour by the appellate Court. It will depend on the facts of each case. If the sole object of a pre-emptor in filing of an appeal is to delay deposit of the pre-emption money , about the correctness of which, there cannot be any reasonable doubt, to a reasonable man, in such a case an appellate Court may decline to extend the time."
In the referred case, the apex Court of Pakistan has also held that the application for extension of time can even be entertained by the appellate Court after expiry of the time allowed by the trial Court.
9. The case law referred to and relied upon by the learned counsel for the appellant being based upon distinguishable factual proposition hardly applies to the case in hand according to its peculiar facts. Whereas, the case law cited by the learned counsel for the respondent regarding power of attorney is not required to be discussed as the point agitated is not convincing one. Even, otherwise, we have decided the appeal on merits.
The Courts below have rightly passed the orders and no illegality has been commit ted, hence, finding no force, this appeal stands dismissed. No order as to costs."
The conclusion from the above case-law is that the question relating to extension of time to comply with an order of the court depends upon the facts and circumstances of each case. As far as the case in hand is concerned, the petitioner was entitled for extension of time to comply with order , dated 15.07.2021 for the reasons that firstly he was given only one opportunity and secondly when he deposited the entire outstanding amount by 30.07.2021 the learned Trial Court was supposed to show grace by extending period for deposit of outstanding balance amount.
11. At the cost of repetition it is observed that since the suit was fixed for recording of evidence of plaintif f same could not be dismissed due to non-deposit of balance amount as held by Hon'ble Supreme Court of Pakistan in the case of Muhammad Asif Awan (Supra) in the following words: - "12. Coming to the second limb of submission, the record reflects that the order dated 15.07.2018 of the trial Court whereby the appellant in the light of Hamood Mehmood case (supra) was directed to deposit the remaining consideration did not provide any penal consequences, on the contrary the suit was fixed for the evidence of the plaintif f, therefore, in our opinion, the suit in the circumstances could not have been dismissed on account of non-deposit . The approach of the High Court that the non-compliance of the order directing the deposit would amount to failure on the part of the appellant to perform act necessary to the further progress of the suit and therefore, would result in dismissal of the suit under Order XVII, Rule 3, C.P.C. appears to be totally misconceived. The Order dated 15.07.2018 reflects that the matter was fixed for evidence of the plaintiff and record does not show that further progress was not possible on account of non-production of plaintiff evidence. 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 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 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." (emphasis provided)
12. There is no cavil with the proposition that in the event of non-compliance of a court' s order , court can invoke penal provisions of Order XVII rule 3 CPC but prior to resorting to such penal action the court should satisfy itself that the party concerned has failed to comply with its order despite availing reasonable time. Reference in this regard can be made to the cases reported as Zahoor Ahmed v. Mehra through Legal Heirs and others (1999 SCMR 105), Jind Wadda and others v. Abdul Hameed and another (PLD 1990 SC 1192), Haji Shamsur Rehman and another v. Nadar Khan and 6 others (2005 CLC 215) and United Bank Ltd. v. Haji Muhamm ad Rahim Khan (1994 MLD 2312 ). While dealing with the issue, under discussion, the Apex Court of the country in the case of Jind W adda and others (Supra) has inter-alia held as under: - "Accordingly , the revision petition was dismissed. It is remarked with regret that the learned Judge did not read the record with care. It is an obvious case of misreading as dismissed above. It was not a case of application of Order WIT, Rule 3, C.P.C. Otherwise too it is not correct that the appellants had obtained more adjournments as compared to the large number of adjournments granted for the sake of the respondents' side. The suit was instituted in 1985 and it was adjourned for more than a dozen times for the sake of the defendants/respondents.
However , be that as it may the fact remains that there was absolutely no justification for application of Order XVII, Rule 3, C.P .C. The impugned judgment, accordingly , is liable to be set aside on this ground alone."
Similar view was taken by the Apex Court of the country in the case of Zahoor Ahmed (Supra) in the following terms:- "4. We have heard the learned counsel for the parties and perused the material on record. We find that the Trial court had acted illegally and/or with material irregularity in not giving sufficient time to the appellant/defendant to produce his evidence in the facts and circumstances of the present case . The order passed by the Trial Court in the purported exercise of its power under rule 3, Order XVII, C.P.C. was not conformity with the well-accepted principles laid down by the Superior Courts. The Trial Court should have adjourned the case to ascertain the market value of the suit land. The learned Judge in Chambers was also wrong in holding that the appellant was employing delaying tactics. In such matters, the law favours the decision on merits rather than on technicalities unless the party concerned is guilty of gross negligence, within the contemplation of rule 3, Order XVII, C.P .C.
5. In view of the above, the appeal is allowed. The impugned judgments of the Courts below are set aside and the case is remitted to the Trial Court for recording evidence of the appellant/defendant to ascertain the market value of the suit land and that of the respondent/pl aintiff, in rebuttal thereof, on 13-5-1998. The resolution of the other issues by the Trial Court is upheld. The parties shall bring their witnesses along, without any process of the Court, on the said date. The Trial Court shall finalize the matter within a week of 13-5-1998, under intimation to the Additional Registrar of this Court. There shall be no order as to costs." (emphasis provided)
Likewise, a learned Division Bench of Peshawar High Court in the case of Haji Shamsur Rehman and another (Supra) while deprecating invocation of penal provisions of Order XVII rule 3 CPC without giving sufficient time to the party concerned, has inter-alia resolved as under: - "11. Now coming to the revision petition, we find that the learned trial Court has given only one full opportunity to the petitioner for producing evidence and on his failure has closed his evidence under Order 17, rule 3, C.P.C. which is not justified, as such, the impugned order , dated 8-3-2001 is set aside."
13. It is important to mention over here that the suit filed by the petitioner was consolidated with that of respondent No.1 seeking cancellation of agreement to sell in favour of respondent No.2. It is well settled by now that when different proceedings are consolidated by a court of competent jurisdiction, they are to be decided jointly until and unless they are unconsolidated by the same forum with tangible reasons. The Apex Court of the country in the case of Sheikh Khurshid Mehboob Alam v. Mirza Hashim Baig and another (2012 SCMR 361), while dealing with question as to whether court can invoke penal provisions of Order XVII rule 3 CPC to the extent of one suit, especially when it was consolidated with another suit, has laid law to the following ef fect: - "6. As to the fact of the decree in favour of the appellant the High Court had rightly placed reliance upon the case QUTUB-UD-DIN v. GULZAR (ibid) and it would not make any difference whether or not the decree in favour of the appellant came under challenge. The suits filed by the plaintif f and the respondent were consolidated and thus the same ought to have been decided together , as both plaintiffs prayed for decree on similar basis regarding the same subject matter ." (emphasis provided)
If the validity of the impugned decision is considered in the light of afore-referred judgment of Hon'ble Supreme Court of Pakistan, it becomes crystal clear that the suit of the petitioner could not be dismissed in isolation without deciding the fate of the suit filed by respondent No.1 which was consolidated with that filed by the petitioner .
14. Seemingly , undue haste on the part of the learned Trial Court looks to be due to its misconception about word "forthwith" with reference to Order XVII rule 3 ibid. The Hon'ble Supreme Court of Pakistan, in the case of Maulvi Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (PLD 1971 SC 434) defined the said word in the following manner:- "Thus it is quite clear that the word "forthwith" does not mean on the same day. The reasonable meaning of this word in the context of Order XVII, rule 3, C. P. C., is that the Court should proceed to decide the suit within a reasonable time under the circumstances of the case. In our opinion, the view expressed in above decision that the suit should be decided on the same day is not in accordance; with law .
In view of the above conclusion, we are satisfied that the trial Court was perfectly justified in adjourning the case for argument so as to enable him to proceed with the suit forthwith. We, therefore, find no fault with the order of the trial Court and are satisfied that it is a perfectly legal order . There is, therefore, no force in this appeal which is dismissed with costs."
Moreover , the Hon'ble Supreme Court of Pakistan in the case of Muhammad Aslam v. Nazir Ahmed (2008 SCMR 942) has defined the said term as under:- "It may be pointed out here that though under Order XVII, rule 3, C.P.C. it has been provided that where sufficient cause is not shown for the grant of adjournment the Court may proceed to decide the suit forthwith but the words used in the provision in question "proceed to decide the suit forthwith" do not mean "to decide the suit forthwith" or "dismiss the suit forthwith". 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, he 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. where, on issuance of summons for final disposal of the suit either party fails, without sufficient cause, to produce the evidence on which he relies".
7. Since in the instant case it appears from record that on 7-9-2006 the plaintiff himself was in attendance when the case was adjourned for the next day i.e. to 28-9-2006 for orders, otherwise recourse to Order XVII, rule 2 could have been made, therefore, the trial Court, despite non-production of witnesses by the plaintiff, ought to have asked the plaintiff to come in the witness-box instead of dismissing the suit forthwith."
Further , a learned Division Bench of Peshawar High Court in the case of Government of N.-W .F.P. and others v.
Fazal Maula and others ( PLD 1993 Peshawar 192 ) has defined the said term in the following manner:- "2. During the course of hearing the learned counsel for the plaintiffs respondents was confronted with. a legal position that Order XVII, rule 3, C.P.C. was permissive and not mandatory and further Court was supposed to proceed to decide the suit forthwith on merits that in the process he was to hear the arguments of the parties and give judgment on each and every issue in the light of the evidence brought on record and that he was not supposed to summarily decide the case in the manner as to grant a decree to the plaintiffs as against the defendants without discussion and decision on each issue......"
The accumulative study of the afore-quoted judgments leads to irresistible conclusion that it is not mandatory to decide the lis on the same day when a party fails to comply with the order of a court rather the court should adjourn the proceedings to the decide the same on merits or having regard to the peculiar facts and circumstances of the case should extend the period for compliance of its own order suo moto or on the application of the party concerned. Insofar as the case in hand is concerned, admittedly , the petitioner filed application seeking extension in time for compliance of order dated 15.07.2021 prior to expiry of the period fixed by the learned Trial Court for deposit of outstanding amount of dif ference.
15. It has not been denied by learned counsel representing respondent No.1 that entire outstanding amount has already been deposited by the petitioner with the only difference that Rs.3,00,00,000/- was deposited beyond the cut-of f date fixed by learned Trial Court. There exists no provision in the Specific Relief Act, 1877 compelling plaintif f in a suit for Specific Performance of Agreement to Sell to deposit the balance amount of consideration rather the courts order so to adjudge the readiness of the plaintif f to perform his part of the contract. Reference in this regard can be made to the case of Muhammad Asif Awan (supra) wherein the question, under discussion, has been dealt with in the following manner:- "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 consider ation, 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."
If the conduct of the petitioner is adjudged in line with the above quoted decision of the Apex Court of the country , upon deposit of the entire balance amount of consideration it cannot be doubted that he not willing to perform his part of the contract.
16. This Court is fully cognizant of the fact that vendors are entitled to the consideration amount as per schedule stipulated in the agreement to sell and Overseas Pakistanis deserve special treatment as they invest their hard earned savings with the hope that they would get something out of it but at the same time while dealing with a matter Court has to strike a balance betw een the parties irrespective of their stature. Reliance in this regard can be placed on the cases reported as Service Industries Limited through Chief Financial Officer v. Government of Pakistan through Secretary and others (2020 CLD 562), Shaikh Aijazur Rehman v. The State (NAB) through Director General (NAB) and another (PLD 2006 Karachi 629) and M.Z. Khan v. Aziz-Ud-Din Ahmad Khan and others ( 2004 YLR 84 ).
17. As per section 148 ibid, a court enjoys power to extend period fixed by it for performance of an act by a party to the lis upon showing sufficient cause for non-compliance of its order within the stipulated period. Admittedly , the learned Trial Court failed to exercise its powers in violation of the above provision despite the fact that the petitioner filed application for extension of time to comply with order dated 15.07.2021 prior to expiration of the period fixed by the Trial Court which amounts to failure on its part to exercise the power vested in it which calls for interference by this court in exercise of its revisional jurisdiction vested under section 115 CPC. Reliance in this regard can be placed on the case reported as Ahmad Yar and 6 others v. Ghulam Rasool and 5 others (2016 CLC NOTE 42) wherein this Court while dealing with its powers to correct any illegality by a subord inate court in respect of misuse of the jurisdiction vested in it or its failure to exercise the jurisdiction vested in it has inter alia concluded as under:- "10. So far as case law relied by the learned counsel for the respondents with regard to the concurrent findings of the courts below while dealing in the civil revision is concerned, as the discussion above noted shows that both the courts below failed to exercise jurisdiction vested in them by law and have misinterpreted the evidence on the file and failed to consider the real question in controversy between the parties and take note of the legal position involved in the case and reached to a wrong conclusion, therefore there is no hurdle in the way of this court while exercising jurisdiction under section 115 of the C.P.C. to correct a wrong committed by the courts below . In this view of the matter , the case law relied by the learned counsel for the respondents is not applicable to the facts of this case. For what has been discussed above, this revision is accepted. Judgments and decrees passed by the learned courts below dated 25.10.1995 and 25.7.2002 are set aside. Resulta ntly, suit filed by the plaintiffs- respondents stands dismissed with costs throughout."
18. Now coming to the case-law , referred by learned counsel for respondent No.1, I am of the view that though it has been held in the said case that non-deposit of balance amount in suit for specific performance is fatal but in the light of judgment of Hon'ble Supreme Court of Pakistan in the case of Asif Awan (Supra) no reliance can be placed on the judgment passed by a learned Division Bench of this Court. Even otherwise, the learned Division Bench of this Court formulated certain points to be considered by the subordinate judiciary while dealing with question relating to deposit of balance amount by inter-alia observing as under: - "2. At the time of taking cognizance of the suits by the civil courts, while issuing notice to the defendants, 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. The amount so deposited as balance sale consideration shall be invested, pendente lite, in a profit bearing scheme with a high rate of return." (emphasis provided)
Admittedly , only single chance was given to the petitioner to comply with the order passed by learned Trial Court, hence, instead of lending any support to respondent No.1, the referred case goes in favour of the petitioner .
Viewing from another angle, in none of the cases referred by the learned Division Bench in its above referred judgment, the Hon'ble Supreme Court has forbade the Trial Court to exercise its power to extend period already fixed to perform an act. Moreover , since every case has to be decided in the light of its peculiar facts and circumstances, in my humble opinion, the present case is quite distinguishable from cases referred in the judgment of the learned Division Bench of this Court, referred supra, inasmuch as in none of the referred cases the suit, which otherwise was consolidated with other suit(s), was decided in isolation in exercise of the powers vested under Order XVII rule 3 CPC.
19. For what has been discussed above, instant petition is accepted and impugned order , dated 30.07.2021, passed by learned Trial Court is set-aside . As a result, the suit filed by the petitioner shall be deemed to be pending and learned Trial Court shall decide the same alongwith suit filed by respondent No.1 by or before 30th June, 2022 , positively , under intimation to this Court through the Deputy Registrar (Judicial). No order as to cost.
20. Before parting with this judgment it is observed that to comply with the above direction learned Trial Court would be at liberty to proceed with the matter on day-to-day basis.
21. Office is directed to transmit a copy of this judgment to the learned District & Sessions Judge, Gujranwala, through fax , for its onwards information and compliance by the learned Trial Court.