1. ' ABDUL QADEER CHAUDHRY, J.--The appellant filed a suit on 18-10-1984 to enforce specifically the performance of an agreement of sale, dated 15-3-1984 between him and respondent No,1. The respondent No,2 was joined because he had the first charge to the extent of Rs,4,42,000 on the property, the subject-matter of the agreement. As per agreement, dated 15-3-1984 the respondent No,1 agreed to sell 26 Ghuntas of land in Survey No,186, Deh Safooran, Taluka Karachi. Rs,2,00,000 was paid as an advance to the respondent No,1 upon the execution of the agreement. It is also alleged by the plaintiff/appellant that further sum of Rs,2,00,000 was paid whereas defendant No,1 does not admit this payment. The suit for specific performance was filed by the appellant with the following reliefs:- "(1) Direct the defendant No,1 to sign the lay-out plan as submitted to him under covering letter, dated 16-9-1984.
(2) Obtain permission for sale, certificate under Capital Gains. Tax Act, get the property demarcated.
(A) Register Sale-Deed in favour of the plaintiff and on his failure to do so, the Nazir of this Honourable Court may be directed to comply with all the conditions of the Agreement dated 15-3- 1984 and specifically perform the same by registering the sale-deed in favour of the plaintiff on bahalf of the defendant No,1 in respect of 26 Ghuntas in Survey No,186, Deh Safooran, Karachi.
(B) Restrain the defendant No,1 for interfering with possession of plaintiff over the suit land and further be restrained from alienating encumbering or creating any charge against the property, and the defendant No,2 be restrained from delivering the documents or committing any acts or deeds in derogation of the plaintiff's rights under Agreement, dated 15-3-1984.
(C) In the alternative a decree for Rs,9,00,000 being damages and earnest money paid to the defendant No,1, carrying 15% interest per annum from the date of filing the suit till realisation of the decretal amount.
(D) Cost of this suit."
2. ' The defendant/respondent No,1 in the written statement has stated that defendant has been ready and willing at all times to specifically perform and complete the transaction in terms of the agreement and in that regard has already obtained the necessary sale permission from the relevant authorities. The defendant No,1 has no objection whatsoever to sign all or any documents as stipulated and provided in the agreement of sale. In fact on account of breach of the contract by the plaintiff and his mala fide intentions, defendant's land in suit is tied up in the litigation falsely filed by the defendant. It is further stated that defendant No,1 is ready and willing to perform his part of the contract and creates an unencumbered marketable title in favour of the plaintiff in respect of the land in suit against payment of the balance of the sale consideration namely Rs,18,00,000. As to the reliefs claimed, the defendant No,1 agrees and consents that a decree be passed for specific performance of the contract dated 15th March, 1984 and the Nazir of this Court be appointed to complete the sale on terms and conditions stipulated in the agreement of sale dated 15th March, 1984. The defendant No,1 further consents that the balance of the sale consideration namely Rs,18,00,000 be deposited in Court and be paid to the defendant No,1 on registration of the deed of sale and after paying a sum of Rs,4,42,000 with 15% interest from 12-12- 1982 until date of actual payment to the defendant No,2 against delivery of a valid discharge of his lien. The defendant No,1 further consents that on payment of the balance of the sale consideration as stipulated in the agreement of sale and on the date of the registration of the deed of sale, the defendant No,1 will hand over physical possession of the land in suit to the plaintiff.
3. ' In these circumstances, the learned single Judge passed a decree for specific performance in the suit subject to the condition that plaintiff will deposit a sum of Rs,18,00,000 in Court before 6-1-1985 and upon payment of this amount Nazir of this Court will execute a proper and valid sale-deed in respect of the property in suit in favour of the plaintiff and will also at the time of registration of sale-deed deliver vacant and peaceful possession of the property to the defendant. It is further ordered that in case it is found at the time of execution of sale-deed that some area of the land has been acquired by the Government, the defendant will be paid the proportionate amount of sale consideration after deducting for the area which stood, acquired under the notification relied by the plaintiff. In case the amount of sale consideration as stated above is not deposited by the plaintiff within, the time mentioned above the decree for specific performance shall be deemed to have been refused and the suit will proceed for other reliefs claimed in the suit. It is also to be mentioned that an application for amendment was filed by the plaintiff/appellant which was also disposed of by the same order and the amendment was al owed with cost to the extent that according to the notification which has come to the notice of the plaintiff a portion of the disputed Ian has since been acquird by the Government for purposes of widening of the road and consequently the total area of the land purchased by him stands reduced, and framed issue "whether a sum of Rs,2,00,000 was paid by the plaintiff to the defendant on 29-7-1984. If not whether the plaintiff is liable to pay this amount to the defendant".
4. ' Subsequently an application under section 114 read with Order XLVII, Rule 1, C.P.C. Was filed by the plaintiff and it was contended that the decree, dated 23-12-1984 which was passed on admission had become un-enforceable for the reason that subsequently the plaintiff discovered that the defendant is not the owner of 26 Ghuntas of land which is subject-matter of the suit. This application was rejected by the learned single Judge and it was observed that the present application does not appear to be bona fide one and is just an attempt by the plaintiff to avoid payment of balance of sale consideration which is a condition for grant of relief for specific performance. It was contended before the learned single Judge that the land agreed to be sold to the plaintiff does not belong to defendants and proceedings have been started by the Revenue authorities to cancel the entries in the name of defendants and therefore the decree dated 23-12- 1984 may be reviewed and the order directing the plaintiff to deposit the sum of Rs,18,00,000 in Court may be recalled or in the alternative the plaintiff may be permitted to give a bank guarantee for the above amount. The Court observed that as the plaintiff failed to comply with the condition imposed in the decree, it has already become final on the default, and secondly the ground urged by the learned counsel now are beyond the scope of the suit as it is presently constituted.
5. ' We have heard the learned counsel for the parties.
6. ' The learned counsel for the respondent has submitted that the decree being a consent decree the appeal is not competent. The pleadings of the parties have been referred to in the earlier part of the judgment and the defendant has admitted the material part of the plaintiff's case. The plaintiff's suit was decreed. It was stated in the decree that in case the amount of Rs,18,00,000 was not deposited by the plaintiff within the time mentioned above, the decree for specific performance shall be deemed to have been refused and the suit will proceed for the other relief claimed in the suit. The appeal against the consent decree is not maintainable under section 96(3), C.P.C. But the present appeal is an intra-court appeal and has been filed under section 3 of Law Reforms Ordinance, 1972. In a case of Muhammad Aslam v. Member Board of Revenue (Settlement and Rehabilitation Wing)/Chief Settlement Commissioner and 6 others reported in PLD' 1980 SC 45 it has been observed that the appeal before the Division Bench under section 3 of the Law Reforms Ordinance, 1972 would not attract the provisions of subsection (3) of section 96 of the C.P.C. We therefore hold that the appeal is competent.
7. ' The learned counsel for the appellant has stated that the direction of the learned single Judge that at the time of execution of sale-deed if it was found that some area of the land has been acquired by the Government, the defendant will be paid the proportionate amount of the sale consideration after deducting for the area which stand acquired is wrong as the Nazir was legally not competent to amend the decree. The learned counsel for the appellant has referred to a case of Mst. Amina Begum and others v. Mehar Ghulam Dastgir reported in PLD 1978 SC 220 in which it has been observed that a civil Court has inherent power to avoid multiplicity of proceedings to shorten litigation and to do complete justice between parties and would relief according to altered circumstances in larger interest of justice. He has also referred to a case of Jai Jarain Ran Lundia v.
8. Kedar Nath Khetan and others reported in AIR 1956 SC 359 wherein it has been held that the fact that it is a decree for specific performance where the decree itself cannot be given unless the side seeking performance is ready and willing to perform his side of the bargain and is in a position to do so. It was further observed that a decree must either be executed as a whole or not at all; it cannot be split up into different and unrelated parts and be executed unilaterally. He has also referred to a case of Din Muhammad and others v. Boota and another reported in PLD 1972 Lah.
9. 709 wherein it has been held that allotment obtained fraudulently cancelled under section 10 of the Displaced Person Land Settlement Act, bona fide purchaser from such allottee not to suffer. He has also referred to a case of the Secretary to the Government of West Pakistan, Communication and Works Department and another v. Gulzar Muhammad reported in PLD 1969 SC 60 in which it has been held that important evidence having material bearing on merits of a case discovered subsequently there are three courses open to a party to the litigation, he may apply for admission of the fresh material as additional evidence before the judgment is pronounced, and apply for a review of the judgment after it has been pronounced in appeal from the judgment. The learned counsel has stated that material evidence has come to the knowledge subsequently after the institution of the suit therefore, it was necessary that the amendment sought by the appellant may be allowed for the fair and complete justice of the case.
10. ' The appellant's contention does not seem sustainable. The suit was decreed for specific performance of sale to him of the suit land subject to his depositing in Court a sum of eighteen lakh of rupees and a sum of sixteen lakh rupees therefrom could be withdrawn by respondent No,1 before surrendering his title in favour of the appellant and the remaining sum of two lakh of rupees was to remain in deposit till the issue for alleged payment of that much sum in advance was determined by the Court. There was direction in the decree that in case the sum of eighteen lakh of rupees was not deposited within the specified time, the decree for specific performance would be deemed to have been refused and the suit would proceed for other reliefs claimed in the suit. It is obvious that the appellant was granted conditional decree. It is undisputed fact that the amount of eighteen lakh rupees was not deposited as directed in the decree. Of course, the appellant B sought review of the decree by advancing a new plea as regards doubt regarding title over the suit property etc. His plea was repelled and the original decree was sustained. Since the conditions for giving effect to the first part of the decree were not complied with by the appellant, he lost the benefit of the decree for specific performance of the sale agreement and, in consequence thereof, the suit was to proceed for the other reliefs claimed therein. The appellant's reliefs for specific performance of the sale agreement stood defeated not only on this ground of his failing to deposit the balance of the consideration stipulated in the sale, agreement but also on the other ground projected by him that the title of respondent No,1 over the property was not clear from clouds.
11. Accordingly, the decree passed in favour of the appellant for specific performance of the sale agreement stood scrapped and the suit has to proceed for determination of the 'alternate reliefs put forth by the appellant, as directed by the learned Single Judge. The cases relied upon by the learned counsel for the appellant do not apply to the facts of this case.
12. ' For the aforesaid reasons, there is no merit in this appeal and it is dismissed with costs.