1. ' Though the facts were not in dispute, yet, a brief reference to them shall be necessary for a proper understanding of the principal point arising for decision in the case by this Court.
2. ' A double-storeyed constructed property under Survey No,1493/B, situated in Saddar Bazar, Ghulam Muhammad Abad in Faisalabad was owned by Muhammad Yousuf son of Lakhmir. On 31- 7-1988, he agreed for its sale to Nasir Ahmad son of Abdur Rashid, petitioner for a sum of Rs,7,04,000. Agreement to sell was reduced in writing. A sum of Rs,54,000 was paid in advance towards the agreed sale price. A cheque for Rs,50,000 was also given to the owner. It was not encashed. The date fixed for completion of the sale was 1-2-1989. As the sale was not finalized by the owner of the property, the petitioner instituted a civil suit for specific performance of the agreement to sell in his favour on 1-8-1989. The suit was filed in the civil Court at Faisalabad.
3. Defendant resisted it. Suit was tried on merits. Eventually, it was decreed in favour of the plaintiff on 15-6-1993 subject to payment of the balance sale-price in the sum of Rs,6,50,000 which the plaintiff was called upon to pay by or before 20-7-1993, failing which, his suit was to stand dismissed. Issue No,6 covered the relief. Under it, the trial Court made the above direction. It observed "The upshot of the above discussion is that the instant suit succeeds and the same hereby stands decreed with costs in lieu of Rs,7,04,000. The plaintiff is directed to deposit the remaining sum of Rs,6,50,000 (six lacs fifty thousand) by or before 20-7-1993. Failing which, the instant suit shall stand dismissed.
4. Decree-sheet be prepared". The decree-sheet prepared by the trial Court embodied similar terms in it. No appeal was filed from the judgment and decree of the trial Court passed in the suit for specific performance. Consequently, the judgment attained finality for the purpose. Decretal- amount was not deposited till the appointed date in the decree passed by the trial Court.
5. ' On 29-7-1993, the petitioner-decree-holder petitioned the trial Court for an extension of time to deposit the balance sale price. On 31-7-1993, the trial Court dismissed the petition and declined to extend the time. After narrating factual aspects of the case, it observed "It is obvious from careful perusal of the instant application that it spells out no cogent reason on the part of the plaintiff for not depositing the amount within fixed time. Furthermore, it is an accepted principle of law that after passing of decree for specific performance, a Court becomes functus officio and as such, it cannot grant any extension in time of deposit of decretal amount and in this context, reference can be made to PLD 1993 Lah. 743 (no judgment on the point was traceable on this page. Probably, the reference is incorrect). By any stretch of imagination, the instant application appears to be devoid of any force and substance, therefore, this application merits no consideration and the same hereby stands dismissed in limine". From this decision of the trial Court, a revision was preferred in the Court of learned District Judge. Faisalabad. It was entrusted for hearing to an Additional District Judge in the District. On 21-8-1993, revision petition was returned for its presentation in competent jurisdiction. Thereupon, it was filed in this Court.
6. ' Material points raised in the petition were; whether the Court passing the decree in the suit for specific performance fixing a time limit for payment of the purchase-price in it retained season of the lis and could further extend the time for deposit/payment of the purchase price and, if so, what were the relevant factors for permitting the exercise of jurisdiction by the Court for extending the time further. These points had been agitating the minds of the Courts in several cases in pre- and post-partition era and were a subject-matter of learned debates before them. Basic authority on the subject was the case in Abdul Shaker Sahib v. Abdul Rahman Sahib and another AIR 1923 Madras 284. Schwab, C.J. Dealing with the point observed: "It would seem to be absurd to hold that the mere fact that a date of completion is fixed in the original decree puts an end to the action and that the control of the original Court expires on the expiration of that date and thus substitute in effect for all the known remedies stated above, the simple expedient of treating the action and the decree as dead for all purposes and leaving the vendor in undisturbed possession of property which is not his and may as in the present case, lie of a greater value than the contract purchase- money, which, perhaps by some accident, purchaser has failed to produce on the day fixed. In this particular case, it is worth observing that there is no evidence that the first defendant was ready to execute a conveyance or hand over the title-deeds in exchange for the money and in fact so far from intending to complete, he was appealing on the ground that the decree was wrong.
7. ' In my judgment, it was intended by this decree that the payment of Rs,4,000 by the date named should be a condition, failing to comply with which, would deprive the successful plaintiff of all his rights under the decree. In my judgment, this decree is in the nature of a preliminary decree, the original Court keeping control over the action and having full power to make any just and necessary orders therein, including in appropriate cases the extension of the time. If I am wrong in this and the proper interpretation of this decree is as contended for by the appellant, then, in my judgment, this decree is wrong, and I should, if necessary, order that it be set right by eliminating the condition which ought not to have been imposed upon the successful plaintiff except at a much later date and upon definite refusal by him to complete. Even in that case, such condition could only be imposed at the request of the defendant who as I have pointed out has other various remedies. As long as this form of decree is understood to be of a preliminary nature and the Court still retains full power over the action, I do not see any particular harm in the continuance of its use.
8. Some words such as "further consideration reserved" shall be added. But, personally, I should be prepared to say that the appropriate forms are those set out in Setan.
9. ' It is however contended that this form having been used, we are precluded by authority from holding that the time fixed is not a condition and, as I understand, also from holding that either the original Court or this Court has power to extend the time. I do not so interpret this decree but as I have said, if that is the correct interpretation of it, in my judgment, it must be varied. Therefore, the question whether we are bound' by authorities which so - interpret it, is not of great importance".
10. Thereafter, the learned Chief Justice referred to a few decided cases. Wallace, J. Who agreed with the learned Chief Justice in enunciating the above view of law observed: "No special form for drafting a decree for specific performance is supplied by the Civil Procedure Code, as is supplied by it in the case of a decree in a pre-emption suit by Order 20, Rule 14, which directs that, if the purchase-money is not paid as stipulated in the decree, the suit shall be dismissed with costs.
11. Hence the analogy of decree, etc., in pre-emption suits and reported rulings thereon is not of assistance in this case. The form of decree drawn up in the trying Court is the general form adopted in this Presidency for such decrees. But that it is in the nature of a preliminary and not a fmal decree is, I think placed beyond doubt by section 35 of the Specific Relief Act. As I read that section, it lays down that when a decree for Specific Performance of a contract of sale has been passed and the purchaser makes default in payment of the sum which the Court has ordered him to pay, the vendor may either file a fresh suit, for rescission of the contract or may, in the specific performance suit itself, apply to the Court to rescind the contract. It is perfectly clear that the contract is not determinable or determined by the mere failure to comply with the terms of the decree. It is not determined until the Court orders that it is determined. By the decree for specific performance the Court sets out what it finds the real contract between the parties was, and declares that such a contract exists and gives what it considers a reasonable time within which the contract shall be carried out. Regarding the decree from this point of view, as a contract, it is clear in this case, as in most others of the same kind, that time is not of the essence of the contracts, and that until the contract is rescinded by formal order or decree, such time for performance, not being an essential part of the contract may be varied by the Court which has declared what the essential terms of the contract are. It is clear as the learned Chief Justice has shown that it must be within the power of the Court to vary the time within which the contract shall be performed, as difficulties might arise through no fault whatever of the parties preventing performance within the time specified in the decree; e.g., when a third party has within that period set up a bona fide claim of title to the property, it may even be necessary to direct specific performance to stand over for a reasonable but indefinite period until that claim has been adjudicated.
12. ' I take it then that where specific performance of sale has not been effected within the period laid down by the decree, it is open (a) to the purchaser to apply to the Court for an extension of time for payment of the purchase-money, and (b) to the vendor to apply either for a final and peremptory order for specific performance or for an order rescinding the contract either immediately or to follow automatically on the expiry of the period peremptorily granted. The original action is thus open until a final decree or order of such a nature and scope is passed, and the original Court has until then ample power to extend the time for specific performance". In a later portion of the judgment, the learned Judge further observed: "I am therefore quite clear that the original Court has in this case full power to extend on proper application made to it, the time fixed by its decree for specific performance, and equally so has the appellate Court in an appeal which is of the nature of an appeal from a preliminary decree. The argument that plaintiffs should not be allowed to get a fresh extension of time because defendant has appealed against the decree does not impress me". The net result of the views expressed by Hon'ble Judges of Madras High Court was that the original Court retained the control of the lis for further extending the time fixed for payment of purchase-price in the decree, the form of the decree notwithstanding. The decision in AIR 1923 Madras 284 was relied upon in the case of Abdur Rahim Molla and others AIR 1933 Calcutta 580 by Paterson, J. In Shri Murti Parasnathji through Sabarakar Singhai Motilal and another v. Gulabchand son of Mithulal Jain and others AIR (30) 1943 Nagpur 111, Abdur Rahim Molla and others v.
13. Tamijaddin Molla AIR 1933 Calcutta 580 was relied upon. In Gokul Prasad v. Fattelal AIR (33) 1946 Nagpur 29, it was held that the decree in a suit for specific performance on a contract for sale fixing time for payment of purchase-money is in the nature of a preliminary decree and, therefore, the Court has the power to extend the time fixed by the decree. However, in former case, no provision as to what would happen if the successful party failed to make the payment in time was made in the decree. In Ashraf Ali alias Asrafuddin Mondal and another v. Bayla Hasda and others PLD 1967 Dacca 557, it was held that "the decree in an action for specific performance of contract, no matter whatever may be the form in which it may be drawn up is, in the eye of law, a preliminary decree and as such, even when a default clause is attached thereto, is not dead but pending, though in a comatose condition. Necessarily, the Court retains control over the action and has, therefore, jurisdiction to enlarge time, regardless of the default clause contained in the decree.
14. ' Where, therefore, a decree for specific performance of a contract of sale has been passed with a condition that the plaintiff should deposit the purchase amount within a specified time and the plaintiff makes default in payment of the sum which the Court has ordered him to pay, the Court retains the jurisdiction to extend time under section 148 of the Civil Procedure Code, 1908 even though the decree passed contained a default clause providing that in default of the plaintiff to make the requisite payment within the period fixed by the Court, the suit shall stand dismissed.
15. Such power to extend time vests not only in the original Court but can be exercised by the appellate Court as well". I had also an occasion to examine the point in Muhammad Riaz Qamar v.
16. Umar Din and 3 others 1985 CLC 474 (Lahore) and relying upon the case in Abdul Shaker Sahib v.
17. Abdul Rahman Sahib AIR 1923 Madras 284, I had taken the view that till a formal rescission of the contract for sale, the Court retained the power to extend the time for payment of purchase-price.
18. Similar views were expressed by Fazal Karim, J. In Nizam-ud-Din and 13 others v. Ch. Muhammad Saeed and 7 others 1987 CLC 1682 (Lahore). In CV. RM. Ramaswa mi Chettiar and others v. AK. RM. M.
19. CT. Chidambaram Chettiar AIR 1954 Madras 1040, the Court took the view that upon a conjoint reading of S.56 of the Contract Act with S.35 of the Specific Relief Act the Court itself, which passed the decree for specific performance, can and should declare its own decree void if the act becomes impossible of performance or by reason of some event which neither party could prevent. Head note in Someshwar Dayal and others v. Widow of Lalman Shah and others AIR 1958 Allahabad 488 reads: "Section 148, Civil P.C. Cannot strictly apply to a decree for specific performance which fixes a time within which the sale consideration is to be deposited. The Code does not prescribe any particular form for the drawing up a decree for specific performance as it does in the case of some other decrees nor does the Code indicate the contents of such a decree as it does in the case of a decree in a pre-emption suit as provided for by Order 20, Rule 14 of the Code. All that a decree for specific performance can properly contain is an adjudication to the effect that the plaintiff was entitled to the enforcement of the contract which the defendant had entered into with him for the sale of a certain property for a certain specified sum. The power of the Court to fix a period for the deposit of the sale consideration is not provided for specifically, either in the Civil Procedure Code or in the Specific Relief Act. Indeed S.35 of the Specific Relief Act indicates a contrary intention, for S.35 indicates that in the event of a party to the decree being in default another party could either file a suit for the rescission of the contract on which specific performance had been granted or he could even apply to that Court which could then rescind the decree. It is no doubt true that in this country usually when Courts pass a decree for a specific performance, they fix a time during which the plaintiff is enjoined to pay consideration and thereby get a proper sale in respect of a property. But this is more for purposes of convenience rather than in compliance with any provision of law.
20. ' The decree which is made in a suit for specific performance is not a final decree of the character that completely debars the Court from extending the period fixed by it, for the decree in such a suit partakes of the nature of a contract and unless it is rescinded or performed it subsists and therefore the right of the Court to make the extension of time for payment also subsists.
21. ' Since the fixation of the time by the Court did not in this particular case at any rate partake of the nature of a decree, the Court's power to extend time was in no manner affected by the provisions of 0.20, R.3 of the Code of Civil Procedure". In taking this view, the Court referred to the cases reported as AIR 1923 Madras 284, AIR 1926 Madras 144, AIR 1933 Calcutta 580, AIR 1946 Nagpur 29, AIR 1923 Oudh 16, AIR 1950 Allahabad 675. In Tribeni Tewary and others v. Ramratan Nonia and others AIR 1959 Patna 460, the headnote reads: "The phrase "in the same case" in the last clause of S35 Specific Relief Act, refers to the case provided in clause (c) of S.35. The section makes it clear that in order to avoid the effect of the decree in the case of non-payment of purchase-money by the vendees as adjudicated thereunder the defendant has to take certain step and unless that step is taken the matter remains pending. Therefore the decree passed in a suit for specific performance of contract of sale, providing therein a time period for the payment of the purchase-money, is in the nature of a preliminary decree, and if that is so then the Court remains in seisin of the case until the money is paid or the contract is got rescinded as provided in S.35(c) of the Specific Relief Act.
22. Hence the provision as laid down in 5.148 of the Code of Civil Procedure is available to the Court for the alteration or extension of time if thought fit and proper". In Manicka Gounder v. Samikannu Gounder AIR 1967 Madras 397, in a decree in the suit for specific performance without a default clause, the Court was held to possess of the power to extend the time for payment of purchase- price. In Bisun Prasad Mishra v. Kamla Kant Jha and others 1972 Patna 322, side note (D) reads: "Extending time for making deposit under a decree is not modification of the decree and hence even where the original decree has merged in the decree of the High Court, the Court which passed the decree can extend the time even after its expiry under S.148, Civil Procedure Code, or in an application under S.28 of the Act". The judgment was, given under section 28 of the Specific Relief Act, 1963 which was a parallel provision of section 35 of the Specific Relief Act, 1877. In Pankoj Kumar Bhattacharjee v. Manmatha Nath Vidyabhushan Bhattacharjee AIR 1973 Calcutta 439, note
(A) reads: "Although the power of fixing time limit for payment of the purchase money or other sums in the decree for specific performance is not expressly provided in section 35(c) of the Act, it must be deemed to have been there by necessary implication. Where the decree specifically provides for payment of the balance of the purchase money within certain times, it is not open to the decree-holder to come at any time to pay the money and ask for the enforcement of the decree. No question of payment within reasonable time arises in such case. The Court may, however, extend the time taking into consideration the attitude of the decree-holder. Where the decree-holder has not made any application for enlargement of time at any stage of the proceeding for rescission, the order rescinding the contract and decree for specific performance is justified". In Bhujangrao Ganpati v. Sheshrao Raiaram AIR 1974 Bombay 104, the Court took the view that "A decree which provides that the suit is to stand dismissed if payment is not made within the time fixed is a self-operative final decree. Provisions of S.28 of Specific Relief Act do not apply to such a decree. Failure on the part of the party to carry out the terms of the decree automatically results in dismissal of suit. The Court becomes functus officio and has no power to grant an extension of the time fixed by the decree". My brother Fazal Karim, J. In the case of Amjad Malik 1992 M LD 31 had relied upon this view for holding that in case of a conditional decree, the power stood already exhausted. Commenting upon the relevant provisions of the Specific Relief Act, in Shmt.
23. Sarupi and others v. Har Gian and others AIR 1975 Punjab and Haryana 231, the Court said "Usually when Courts pass a decree for specific performance, they fix a time during which the plaintiff is to pay the consideration and thereby get a proper sale in his favour. But this is done more for purposes of convenience rather than in compliance with any provisions of the Civil Procedure Code. The decree for specific performance of the contract for sale is not a final decree of the character that completely debars the Court from fixing or extending the time for deposit of the purchase money. Thus, where the appellate Court dismissed the appeal against the decree but failed to make any direction regarding the redeposit of the purchase money which the respondent-vendee had deposited in trial Court according to its direction but was allowed to be withdrawn during pendency of the appeal by the appellate Court, it was held that the appellate Court had discretionary power to fix the time and to extend the same. The fact that the Court fixed the time and extended the same did not amount to modification of the decree and no notice was required to be given to the appellant-vendor before passing the order. When a decree is silent as to what is to happen, if the purchase money is not paid within the time fixed, the decree will not lapse automatically on the plaintiff's failure to pay within the prescribed time. The default will, however, entitle the vendor to apply for rescission of the contract under section 28(1). But so long as the Vendor does not apply for such relief the decree subsists and the decree-holder can still execute it within the period of limitation by depositing the purchase money within the time allowed or extended. If, however, the decree directs that in the event of default of deposit within the time fixed the suit shall stand dismissed, the Court would be incompetent to extend the time. In such a case it will be deemed that the Court has also, in substance, passed an order of rescission of contract as contemplated by the concluding portion of section 28(1)". Relevant discussion on the point was contained in para. 6 of the judgment. It reads: "The case may be different when the Court records a direction in the decree for specific performance that in the event of default of deposit of the purchase money within the prescribed time, the suit shall stand dismissed. In such a case, it would be deemed that the Court has also, in substance, passed the order of rescission of contract as contemplated by the concluding portion of the subsection (1) of section 28 of the Specific Relief Act. It is in the case of such a decree that the Court may not, when the purchase money has not been deposited by the successful plaintiff within the prescribed time, be competent to extend the time for its deposit. The decision of the Calcutta High Court in Bhutanath Das v. Sahadeb Chandra Panja, AIR 1962 Cal. 485, relied upon by the learned counsel for the appellants for contending that the decree had lapsed because the respondents had failed to deposit the amount within one month from July 14, 1972 when the appeal was dismissed, relates to the decree which specified the penal consequence in case of the decree-holder's default to make the deposit within the prescribed time".
24. ' Since the decision of the moot point turns on construction of section 35 of the Specific Relief Act, 1877, it shall be advantageous to make a reference to it. The section falls under Chapter IV of the Act 'dealing with the rescission of contracts. It is headed: "When rescission may be adjudged". It runs "Any person interested in a contract in writing, may sue to have it rescinded, and Such rescission may be adjudged by the Court in any of the following cases, namely:---
(a) where the contract is voidable or terminable by the plaintiff;
(b) where the contract is unlawful for causes not apparent on its face, and the defendant is more to blame than the plaintiff;
(c) where a decree for specific performance of a contract of sale, or of a contract to take a lease, has been made, and the purchaser or lessee makes default in payment of the purchase-money or other sums which the Court has ordered him to pay.
25. ' When the purchaser or lessee is in possession of the subject-matter, and the Court finds that such possession is wrongful, the Court may also order him to pay to the vendor or lessor the rents and profits, if any, received by him as such possessor.
26. ' In the same case, the Court may, by order in the suit in which the decree has been made and not complied with, rescind the contract, either so far as regards the party in default, or altogether as the justice of the case may require".
27. ' Term 'sue' used in section 35 of the Specific Relief Act was not defined anywhere. In Wharton's Law Lexicon, it is defined "to prosecute by law, to claim a civil right by means of legal procedure". Black's Law Dictionary defines the term 'sue' "To commence or to continue legal proceedings for recovery of a right; to proceed with as an action, and follow it up to its proper termination; to gain by legal process. To commence and carry out legal action against another". Subsection (c) of section 35 dealt with the post-decree events in the suit for specific performance and its last clause dealt with rescission of the contract in the very suit in which the decree was made and not complied with.
28. Word "sue" was not treated equivalent to the word "suit" in case of Nizam Din and 13 others (supra) and this view was reiterated in Amjad Malik v. Muhammad Saleem, etc. 1992 M LD 31. Without entering deep into the controversy, whether the term 'sue' was equivalent to commencement of civil proceedings by presentation of a plaint or otherwise which controversy may not directly arise for consideration in the present case, it was sufficient to observe that after the decree in suit for specific performance fixing a period for deposit of purchase price, neither party approached the Court for rescission of the contract. The decree-holder applied for extension in time. The judgment- debtor merely opposed his prayer for extension in time and no more. Therefore, the contract was yet alive between the parties for its enforcement. Unless, it was formally rescinded in terms of section 35 of the Act and the equities arising out of it were adjusted in terms of the succeeding sections of the Act the trial Court retained jurisdiction to further extend the time for payment/deposit of purchase-price. Assuming that a conditional decree of the kind under consideration could be made by the Court, dismissal of the suit occasioned by operation of default clause in the decree did not tantamount to rescission of the contract. In my opinion, the trial Court could not have cribbed its jurisdiction in advance to foreclose its powers to extend or not to extend the time fixed in the decree passed by it for payment of purchase-price on the happening of future events of variegated nature. Therefore, despite presence of a default-clause in the decree, the Court was not precluded to extend the time on the basis of power preserved in section 35 of the Specific Relief Act, 1877. The decree passed was in the nature of a preliminary decree and the Court passing it sill had seisin of the matter to allow the relief. The judgment-debtor had received Rs, 54,000 in advance and the balance was yet payable to him under the decree which the decree- holder was still prepared to pay. The suit was decreed in his favour on 15-6-1993. He was allowed a little over a month for depositing the remaining consideration of Rs,6,50,000. Application for extension in time was submitted by him a few days after the expiry of the period fixed in the decree.
29. It was dismissed in limine on 31-7-1993, even without a notice to and hearing of the other side upon an incorrect assumption that the Court was bereft of jurisdiction to allowthe extension in time.
30. Having regard to all the relevant facts and circumstances bearing on the decision, the petitioner deserved extension of time for payment of outstanding purchase-price for completion of the sale of the land in his favour.
31. ' In view of the above, I would accept the civil revision; set aside impugned order of the trial Court; permit the petitioner to deposit the balance sale-price in Court on or before 28th February, 1994. In default, the suit for specific performance shall be deemed to have been dismissed and the contract for sale of land between the parties shall be rescinded. There shall be no order as to costs.
32. Record shall be returned.