This revision petition arises out of a suit for possession through specific performance of the agreement dated 26-12-1986 filed by the respondent on 26-6-1987 in the Court of Civil Judge, Lahore. The suit was resisted by the respondents on various grounds and filed the written statement in the trial Court which gave rise to the following issues:--
(1) Whether the suit is premature and, thus, liable to be dismissed? OPD
(2) Whether the plaintiff has not come in the Court with clean hands? OPD
(3) Whether the suit is liable to be dismissed in view of preliminary objection No.3, of the written statement? OPD
(4) What was the actual rate per Kanal for which the sale was settled between the parties? OP Parties.
(5) Whether the plaintiff paid an amount of Rs.17,65,600 to, the defendants under the impugned agreement and not Rs.1,04,000 only? OPP
(6) Whether the plaintiff is entitled to the specific performance of contract? If so, for what measurement of land and against balance price? OPP
(7) Whether the part of the suit land has been acquired by LDA? If so, its effect? OPP.
(8) Whether the plaintiff has refused to fulfil the terms of the agreement? OPD.
(9) Relief.
The trial Court recorded evidence of the parties but ultimately decreed the suit on thebasis of compromise between the parties subject to payment of Rs.42,00,000 by the respondent/plaintiff till 15-10-1992 failing which the suit was to stand dismissed. It was noted in the decree sheet that further extension of time for purposes of deposit of decretal amount shall not be granted.
2. On 10-10-1992, the respondent filed an application under section 12 (2) read with sections 148/149 and 151 of the C.P.C. and section 35-A of the Specific Relief Act for deducting Rs.17,65,000 said to have been paid by him the petitioner as well as deducting the price of trees allegedly cut by the petitioner from the disputed land in violation of the stay order. It was also prayed that the judgment and decree be ordered to be held in-abeyance and that the respondent be allowed reasonable time for payment of the remaining transfer price. On this application the trial Court suspended the operation of the decree vide the order dated 10-10-1992. The application was contested by the petitioners who filed their reply in the Court. The trial Court appointed Malik Sher Bahadar, Advocate as Local Commissions who submitted his report in the Court on 12-10-1992. The petitioner's request for appointment of some other Local Commissioner was not heeded to by the trial Court. The said application was ,partially allowed leaving it open to the respondent to seek his remedy against the LDA Authorities as well as the petitioner regarding his claims made in the petition. The trial Court extended the time till 23-5-1993 for deposit of decretal amount, reduced the decretal amount to Rs.33,15,000 and also observed that the respondent shall be at liberty to have the sale-deed registered in the name of his nominee. The decree sheet was also amended accordingly.
3. The order dated 23-1-1993 has been assailed through this revision petition. The learned counsel for the petitioner urged that the respondent had agreed to the grant of decree in his favour of payment of Rs.42,00,000 in addition to the amount already paid by him. Hence, there was absolutely no justification for him to claim adjustment of the amount said to have been paid by him before the date of the decree. He further submits that even the date i.e. 15-10-1992 was fixed by the Court with the concurrence of the parties. That is why it was noted in the order dated 18-6-1992 that no further extension of time for purposes of depositing the decretal amount shall be granted.
He emphasises that it was noted in the decree sheet as well that further extension of time shall not be granted. According to him there was no ambiguity either in the statements of the parties or the order of the Court to justify the application filed by the respondent under section 12(2) of the C.P.C. read with other provisions of law noted above. He adds that the respondent was estopped by his conduct from filing the application which was otherwise incompetent in law. He next submits that after passing the decree the trial Court had become functus officio and could not review his order or modify the decree. Lastly he submits that the trial Court had introduced a number of other changes/amendments in the decree sheet which were not prayed for and were thus uncalled for.
4. On the other hand the respondent's learned counsel submits that the original decree dated 18- 6-1992 was subsequently altered materially and a new decree was passed on 23-1-1993, which was appealable under the law. Hence, the revision petition, against it, was incompetent. He further submits that the respondent had applied for extension of time before expiry of the time originally fixed in the decree and that the Court was fully competent to grant extension of time for deposit of the decretal amount and that the discretion was properly exercised in favour of the respondent under the provisions of section 35 (c) of the Specific Relief Act. He adds that the operation of the decree dated 18-6-1992 was suspended by the Court and the petitioners could not be made to suffer for the act of the Court. He next submits that the respondent deposited the entire decretal amount on 22-5-1993 and also purchased stamp paper worth Rs.1,65,750 and deposited the District Council's Fee, amounting to Rs.1,65,750.
In support of his case he places reliance on the following judgment:
(1) Nizam-ud-Din and 13 others v. Ch. Muhammad Saeed (1987 CLC 1682).
(2) Muhammad Riaz Qamar v. Umar Din and 3 others (1985 CLC 474).
(3) Rashad Ehsan and others v. Bashir Ahmad and another (PLD 1989 SC 146).
5. The respondent had claimed extension of time for depositing the decretal amount on the following grounds:-
(i) Land measuring 18 Kanals (out of the total land of 55 Kanals) had been acquired by the L.DA. and that he was not supposed to pay the price of the said land.
(ii) After acquisition of 18 Kanals of land it was no longer possible to obtain possession of the land even through execution of the decree.
(iii) The petitioner had cut off 33 trees and the price of the said trees was to be deducted from the decretal amount.
6. All the above-referred grounds for extension of time were repelled by the Court but surprisingly the Court granted time for four months to the respondent for paying the decretal amount.
Moreover, the decree- dated 18-6-1992 was also amended. On the one hand the decretal amount was reduced to Rs.33,50;000 (or, at least, confusion was created regarding the amount of the decree) and on the other hand the respondent was allowed to have sale-decd registered in the name of his nominee.
7. Admittedly the parties had arrived at a compromise before the trial Court whereby the respondent had agreed to pay a sum of Rs.42,00,000 to the petitioner in addition to any amount already paid by him. When the case was taken up by the trial Court for the first time on 18-6-1992, the respondent made the following statement:--'
It seems that the. petitioner did not agree to the price offered by the respondent whereupon the parties had some mutual dialogue which proved to be fruitful and then both the parties made the following statement before the Court:-- Thus it was absolutely clear that the total sum to be paid by the respondent was Rs.42,00,000 in addition to any amount already paid by him. The order passed by the trial Court reads as under: The case was adjourned for 15-10-1992. The record shows that the order was passed in the presence of the parties who also appended their signatures on the file. This fact, as well as the wording of the order, sufficiently demonstrate that even the last date for deposit of the amount was incorporated in the order with consent of the parties. That is way, it was also mentioned in the order that further extension of time for payment of the decretal amount shall not be granted.
Hence, no scope was left for the trial Court to entertain the respondent's application and that too, on entirely untenable grounds. The respondent was bound to deposit a sum of Rs.42,00,000 till 15- 10-1992. He waited almost till the end of the said period and then made an application on 10-10- 1992 alleging fraud against the petitioner and claiming extension of time for payment of the decretal amount. It appears that he was unable to arrange the decretal amount and wanted to gain time with rnala fide intentions. In view of the unambiguous order that further extension of time shall not be granted, the application merited dismissal summarily. The manner in which the trial Court showed indulgence to the respondent by entertaining his application, suspended the operation of the impugned decree and finally allowing time for four months for paying the decretal amount, despite rejection of the grounds agitated in the application for extension of time, vividly smack of mala fides. Not only that, the trial Court went to the extent of altering the earlier decree and creating a serious confusion qua total decretal amount. On the one hand the suit was shown to have been decreed subject to payment of Rs.42,00,000 and on the other, the decretal amount for the total land of 55 Kanals was shown to be Rs.33,15,000.The order passed by the Court is far from being bona fide. Hence; the respondent cannot be allowed to take advantage of the general principle that no one should be , prejudiced by an act of the Court. The said principle applies only where the act of the Court is honest and bona fide one. In the present case it does not seem to be so, rather the order passed by the Court appears to be collusive and mala fide.
7. The argument of the respondent's learned counsel that the respondent's application filed under section 12 (2) of the C.P.C. ought to have been decided by the trial Court after framing issues and recording evidence, has no force in the circumstances of the case. The said application was filed under sections 148, 149 of the C.P.C. and section 35 (c) of the Specific Relief Act as well, and disposed of accordingly. The respondent accepted the order dated 23-1-1993 and cannot be allowed to agitate at this stage that his application was actually under section 12 (2) of the C.P.C. and required adjudication after framing of issues and recording of evidence. Moreover, there was no element of fraud or misrepresentation in the matter of compromise between the parties reached on 18-6-1992. The order dated 18-6-1992 was passed by the trial Court in the presence of the parties and their, learned counsel who had duly appended their signatures on the file.
8. The judgments relied upon by the respondent's learned counsel proceed on their own distinguishable facts and are not applicable in the instant case. In the case of Muhammad Riaz Qamar the Court had not specified the last date by which the decretal amount was to be paid by the judgment-debtor. This was considered to be an error of the Court and the order allowing extension of time was upheld. In Nizam Din's case it was held that decree in a suit for specific performance of a contract was a category apart and that the Court was empowered to alter the decree and enlarge time specified therein by resort to the provisions of section 35 (c) of the Specific Relief Act. As discussed above, in: the present case, the last date for deposit of decretal amount was fixed with the consent of the parties and the Court could not unilaterally alter it particularly when it was already noted in the decree that further extension of time shall not be granted. In the case of Rashad Ehsan it was held that where the Court had failed to specify in the auction notice the period within which balance of the sale price was to be paid, then non-- compliance of the order could not be allowed" to cause prejudice to the defaulting party. In this connection the Court was pleased to invoke the principle. "Actus curiae neminem gravabit" (an act of the Court shall prejudice no man). In the present case not only the last date for deposit of the decretal amount was mentioned but it was also made clear to the parties that further extension of time for the said purpose shall not be granted. Despite the said order, the trial Court showed favour to the respondent by entertaining his application for extension of time on untenable grounds, took three months for deciding it and again allowed time for four months to the respondent to deposit the amount. The act of Court, as held above, was far from being bona fide.
For the foregoing discussion, it is clear that after decreeing the suit on 18-6-1992 and fixing a definite date for payment of the decretal amount with a clear order that further extension of time for the said purpose shall not be granted, the trial Court had no jurisdiction to entertain the respondent's application and allow him another period of four months for the said purpose.
Therefore, this revision petition is accepted, the impugned order dated 23-1-1993 is set aside and the respondent's suit dismissed, leaving the parties to C bear their own costs.