' This FA.O. Is directed against the order, dated 1-10-1989, by which the learned Civil Judge, Gujranwala, as executing Court dismissed appellant's application for extension of, time as also his execution application for executing the order of the High Court dated 26-3-1989 passed in R.FA No,157 of 1986.
2. Brief facts giving rise to this appeal are that Mumtaz Ahmad, respondent No,1, had agreed to sell to Muhammad Rafiq Khan petitioner a piece of land measuring 14 Kanals 10 Marlas situated in village Audorai Qilla Naurah Singh, Tehsil Gujranwala, for a sum of Rs,2,000,000 and, after receiving an earnest money of Rs,100,000 from the latter, executed agreement to sell dated 17-5-1984. He delivered its possession to him (petitioner) and authorised him to carve out plots, sell the same and to pay the remaining sale price out of their proceeds aria in case of non-fulfilment of his obligations, he (respondent No,1) undertook to return the earnest money alongwith a penalty of like amount to him (petitioner).
3. The petitioner allegedly sold a few plots to certain persons and went on paying certain amounts to respondent No,1 from time to time, total being Rs,408,000 and went on insisting for the execution of the sale-deed by the latter but he, instead of so doing, gifted away the disputed property to respondents Nos.2 to 7, 9 and 10 through his general attorney, respondent No,8, by two different gift deeds. This compelled the petitioner to institute a suit for the specific performance of the contract of sale against the respondents in the Court of Civil Judge, Gujranwala, alternatively praying for the recovery of Rs,816,000. Respondents Nos.1 to 7, 9 and 10 resisted the suit. On 26-4-1986 the learned trial Judge on the statements of the counsel for the parties and respondent No,1 decreed the petitioner's suit, without petitioner's consent and he filed R.F.A. No,157 of 1986, challenging the compromise decree. It was dismissed on 26-3-1989 but the learned Judges allowed the petitioner a period of six months for the execution of the decree. During this period the petitioner allegedly went on persuading the respondent for the execution of the sale-deed but he went on putting him off on different pretexts. Eventually in August, 1989 he told him that he had filed an appeal in the Supreme Court and declined to execute the sale-deed. On reopening of Civil Courts after summer vacation the petitioner on 2-9-1989 filed execution application before the learned Civil Judge in which he, after explaining the reason for its delayed filing, prayed for a direction to the respondent for executing the sale-deed in his favour after receiving the remaining consideration amount of Rs,15,92,000 from him.
4. Notice of this application was issued on 3-9-1989 to the opposite-party for 9-9-1989. On this date of hearing respondent No,1 appeared and informed the Court through an affidavit that he had filed an appeal before the Supreme Court. The executing Court asked him to file copy of the order on 20-9-1989 arid be ready for the completion of the document. Meanwhile on 10-9-1989 the petitioner filed an application, alleging therein that no stay order had been issued, by the Supreme Court and his opponent had filed a false affidavit. He repeated his request for a direction to the respondents for early completion of the sale-deed on the receipt of the remaining sale price. This application was adjourned to 12-9-1989 and on this date respondents were summoned for 14-9- 1989 but they were not served and notices were repeated for 20-9-1989. On this date the learned Civil Judge was on leave. On this date, therefore, an application was moved before the Duty Judge but he too was found to be on leave and the application was submitted before the learned District Judge, Gujranwala, who entrusted it to Mr. Ghulam Rasul, Civil Judge, who directed the same to be put up before the executing Court on 23-9-1989. On this date no one appeared from the side of the respondents and the learned Executing Court directed the execution of the order of the High Court, dated 26-3-1989, and for that purpose asked the petitioner to file draft of the sale-deed alongwith the stamp paper till 26-9-1989. On this date of hearing the petitioner filed an application, requesting the executing Court to review its order, dated. 23-9-1989, and to allow him at last 20 days for filing the draft deed and stamp papers. On this date since the Presiding Officer was on leave, the proceedings were adjourned to 30-9-1989. Meanwhile on 28-9-1989 the petitioner filed an application alongwith a bank challan for permission to deposit, the cost of stamp papers but the learned Civil Judge, instead of granting permission,' adjourned the same to 30-9-1989 when the petitioner filed another application for the extension of time for the execution of the decree. As the respondents wanted to file a reply to the petitioner's application, dated 26-9-1989, the proceedings were adjourned to 1-10-1989 and on this date the executing Court dismissed the petitioner's application for extension of time, giving rise to this F.A.O.
5. With reference to the provisions of section 35 of the Specific Relief Act as interpreted and amplified in Nizam-ud-Din and 13 others v. Ch. Muhammad Saeed and 7 others 1987 CLC 1682 it was argued on behalf of the appellant that originally it was respondent No,1 who procrastinated the execution and registration of the sale-deed in favour of the petitioner within the time specified by the High Court in its order, dated 26-3-1989, passed in R.F.A. No,157 of 1986. According to the appellant's counsel, when his client, feeling disappointed about the elusive conduct of his opponent, on 2-9-1989 filed an application for the execution of the said order of the High Court, the matter was unnecessarily delayed by the learned Civil Judge himself by his lethargic performance as also by the fraudulent conduct of respondent No,1 who told a lie before that Court that he had filed an appeal before the Supreme Court against the said order of the High Court. His conduct also contributed towards the wastage of sufficient time and on 23-9-1989 when the appellant was directed to file draft sale-deed besides stamp papers for its execution till 26-9-1989, he obviously could not accomplish this work within this short period and requested for review of the said order but by that time the time limit specified by the High Court had already expired, he added. He requested that a reasonable time should be given to the appellant which could be given under section 35 ibid for the deposit of the stamp papers and filing of draft sale-deed.
5-A. On the contrary, it was urged on behalf of the respondents that on the basis of agreements to sell, the consent decree for specific performance of the sale contract was passed in favour of the appellant on 26-4-1986 but it was he who agitated against it before the High Court and vide its order dated 26-3-1989 passed in his R.FA. No,157 of 1986 though the same was dismissed, yet he was allowed six months time for the completion of sale-deed on the payment of remaining sale price of Rs,15,92,000. He contended that the appellant whiled away five out of six months indolently and brought the execution application before the Executing Court at the nick of time on 2-9-1989 and after necessary proceedings when the Court on 23-9-1989 asked him to file draft sale-deed alongwith requisite stamp papers, on which the sale-deed was to be written, he failed to comply with the order and came up with an application for its review and extension of time which could not be extended, He submitted that the appellant himself was playing hide and seek with the. Court and was not entitled to my indulgence.
6. After carefully considering the above contentions, I am of the view that the conduct of both the parties has not been above board as both of them have been trying to outwit each other from start to find. Initially it was respondent No,1, who in violation of the commitment made by him with the appellant, gifted the suit land to respondents Nos.2 to 10, thereby compelling the appellant to file the suit. It was the appellant, who challenged the consent decree passed in his favour and delayed the matter for quite some time. However, he was given six months period for the payment of remaining sale price and for the completion of sale. Instead of acting promptly, he wasted more than five months and initiated proceedings against his opponent only 24 days prior to the deadline. The Executing Court then started whiling away the time and no effective order was passed by it till 23-9-1989 when only three days had been left to the expiry of non-extendable time limit. Meanwhile respondent No,1 duped the Court, with a view to mark the time, by filing a false affidavit to the effect that he had filed an appeal before the Supreme Court against the order of the High Court, dated 26-3-1989, and the proceedings might be adjourned. Thus he wasted a week or so. On 23-3-1989 when the appellant was asked to bring draft sale-deed alongwith the stamp papers on 26-3-1989, then he started shirking his obligations and expressed his inability to comply with the order due to shortage of time. Though there was some substance in this contention yet had he been vigilant he could produce the draft sale-deed and the stamp papers or at least bring the money for the purchase of the stamp papers and show the same to the Court to prove his bona fides. In this respect he too was not very sincere perhaps due to lack of funds.
7. Thus it will be seen that each party was trying to steal a march over the other with an eye on the valuable property. In a situation like this, when respondent No,1, as informed by his counsel in response to the Court query, is not willing to return the money he has intermittently received from the appellant in case the appeal is dismissed and the decree in his favour falls through, the only equitable course seems to grant him more time for the completion of sale transaction, especially.
When fate of a host of persons, who have purchased plots from him and might have even raised constructions thereon, is tied up with the success of this appeal.
8. In view of the above, the appeal is accepted (but without costs), the impugned order is set aside and the appellant is allowed to complete the execution and registration of the sale-deed till 20th of December, 1991. To be a little more precise, he shall supply to the executing Court the draft sale- deed and the requisite stamp papers besides depositing the remaining sale price of Rs,15,92,000 through it for respondent No,1, by the end of the current month. Then the Court shall summon respondent No,1 for a date to be fixed till 10th of December next for the execution and registration of the sale-deed and this process shall be completed with his participation before 20th December. If he does not turn up on that date for any reason, the Court shall on a date to be fixed prior to 20th December next, get the execution and registration of the sale-deed completed through the Cowl official. After the completion of the sale-deed, the remaining sale price got deposited by the appellant shall be released to respondent No,1. Failure on the part of the appellant to complete any step within the specified time, which shall not be extendable, shall entail dismissal of his appeal with costs.