' This petition, under section 115 of Civil Procedure Code by Muhammad Ismail plaintiff, raises two questions of legal importance. Firstly whether a Court, which passes the decree in an action for specific performance, retains control over the lis and has power to enlarge the time fixed by it for depositing the purchase price under section 148/151, C.P.C. And whether a decree, in an action for specific performance, is a preliminary in nature. Secondly, if so, whether on facts and circumstances of the case, petitioner had made out a case for enlargement of time. The second question is consequential in nature and its answer will depend upon reply to first question.
2. The facts, briefly stated, giving rise to this petition are: that Muhammad Ismail/petitioner brought an action for specific performance of an agreement to sell with regard to land (completely described in the plaint) against the respondents/Muhammad Akbar Bhatti, etc. This action was commenced on 23-7-1984. The suit was contested and was ultimately decreed on 2-6-1986 by first Court. Feeling aggrieved, the applicant preferred an appeal which he withdrew on 23-6-1986. The learned Appellate Court, while allowing the prayer for withdrawal of appeal, enlarged the time specified in the decree and directed the applicant to deposit the balance purchase price of Rs,1,45,678/00 up to 2-8-1986. This, however, was not all. After the lapse of above period, the .
Applicant moved an application to the trial Judge for extension of time allowed by Appellate Court.
This application was contested and was rejected by the learned trial Judge on 2-9-1986 in following terms:--- "It could not be denied by the learned counsel for the petitioner that the murder case in which his son has allegedly been involved, had been under trial even before the institution of the present suit.
Similarly a permanent, ailment of the petitioner and his being of the old age is also no ground for extension of time. So far as the closure of the Courts in August is concerned, a duty Judge is always available to do the needful. The petitioner has been indolent and sleeping over his rights in the grace period for deposit of the decretal amount. Not only that, the Court has become functus officio and it is beyond its jurisdiction to grant this application...."
3. The learned counsel for the applicant, while impugning the order, relied upon section 35 of the Specific Relief Act to contend that the decree in an action for performance of an agreement of sale was not a final decree but was a preliminary one and so the learned trial Judge retained its seisin over the lis and had power to enlarge the time fixed in the decree. It was further submitted that the learned trial Judge had committed a patent irregularity in overlooking that the applicant was prevented by unavoidable circumstances to deposit the purchase price within the time fixed by the Court and that he had been continuously ill and so there were sufficient grounds for enlargement of time. The learned counsel for the respondent, on the other hand, strongly supported the impugned order. He, fiercely, stressed that the conduct of the applicant/decree-holder, from inception to finish, was unclean; that instead of depositing the balance purchase price, he had been prolonging the matter to cause immeasurable injury to respondent/judgment-debtor.
4. Having penned down the facts, circumstances of the case, submissions made by the learned counsel for the parties and questions for consideration, I proceed to determine these points. The first point is a vexed one. The High Court of Oudh in Dori Lal v. MT Jamaga etc. AIR 1923 Oudh 16, held that the decree, in an action for specific performance, was a final decree and so the Court, which passes such decree, becomes functus officio after passing it and so has no power to enlarge time fixed therein. This view was followed by Allahabad High Court after partition in Jagjit Singh v.
Sankatha Singh AIR 1950 All.
675. The view taken in Dori Lal's case, supra, was not shared by Madras High. Court in Abdul Shaker Sahib v. Abdul Rahiman Sahib AIR 1923 Mad.
284. In this case Abdul Rahiman Sahib plaintiff obtained a decree for specific performance of contract for the sale of certain land and superstructure. The suit was decreed subject to payment of Rs,4,000 within two months. Before the expiry of that date, the plaintiff moved an application before the Court for extension of time. This application was kept pending till the decision of Appellate Court. On appeal, the question arose as to whether the first Court had jurisdiction to extend the time. After examination of relevant law and precedents, it was held that the decree, in such a case, was preliminary and the Court had sufficient power under section 148, C.P.C. To enlarge the time fixed for payment of price under the contract of sale. The opinion was rendered by Schwabe, C.J, and the note was added by Wallace, J. Dealing with the above point, he said: "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. The case reported in Moideen Kuppai v. Ponnuswa mi Pillai 1914 ILW 882 is not a case in point. It was apparently not a case of a decree for specific performance since no reference was made to section 35 of the Specific Relief Act. In the 3 L.W. Case also no reference is made to that section, and in any case the application to extend the time was made after the time granted by the decree had expired. In Ramaswami Kone v. Sundara Kone (1907) 3 I Mad. 28 there was no application for extension of time at all, and the decision turned on the propriety of interpreting the appellate decree in terms of the original decree.
In the present case an application to extend the time was put in by plaintiffs to the Court which passed the decree and no final order has yet been passed on that. 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 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. His appeal was tantamount to declaration that he would not receive the money and carry out his part of the contract, and thus made it 'useless for plaintiffs to attempt to carry out their part of it."
' The view taken in Abdul Shaker Sahib's case supra was followed by Madras High Court in Rama Bhatlu v. Annayya Bhatlu AIR 1926 Mad. 144 by Calcutta High Court in Abdur Rahim v. Tamijuddin AIR 1933 Cal.
580.
5. I now come to decision of Bombay High Court reported as B. Ganpati v. S. Rajaram AIR 1974 Born.
104. In this case a conditional decree for specific performance was passed in favour of plaintiff on 30-3-1968 in following terms:--- "Defendant shall execute a sale deed in respect of the suit land in favour of the plaintiff. The plaintiff shall deposit in Court the costs for the execution and the registration of the sale deed within one month from this date. In case the plaintiff fails to deposit the costs as aforesaid, the suit shall stand, dismissed. On his depositing the costs in Court, defendant shall execute the sale deed and get it registered. In case of failure of the defendant so to do, plaintiff should be entitled to get the sale deed executed and registered in execution of the decrees through Court."
' As the plaintiff failed to make the deposit within the time fixed by the decree, he, therefore, filed an application praying for condonation of delay in complying with it within the time fixed by decree.
He also filed an application for execution. The learned Trial Judge, however, rejected the application for extension of time and he, so, dismissed the execution application also. On appeal learned Court of appeal set aside the above order and remitted the proceedings to trial Court for disposal of the application on merits. Against this order the revision petition was filed. This was allowed by the learned Single Judge of Bombay High Court in B. Ganpati v. S.Rajaram AIR 1974 Born.
104 in following terms:--- "It is, therefore, quite clear that whilst laying down, in effect, that section 148 must be liberally construed, the Supreme Court has excluded from its ambit conditional decrees like the one in the present case. The unreported decision of S.T. Desal and Datar, J., referred to by me above is perfectly in consonance with the view taken by the Supreme Court in Mahanth Ram Das' case just cited by me and is, therefore, still good law. In that view of the matter, this Revision Application succeeds and the Rule must be made absolute with costs. The order passed by the learned District Judge is set aside and that of the Civil Judge restored, and the application for extension of time made by the plaintiff Exh.4 stands rejected and dismissed."
6. Stage is, now, set to examine the three, cases decided by this Court namely, Muhammad Riaz Qamar v. Umar Din 1985 CLC 474, Amjad Malik v. Muhammad Saleem 1992 M LD 31 and Nasir Ahmad v. Muhammad Yousaf PLD 1994 Lah.
280. In the first case his Lordship Mr. Justice Gull Zarin Kayani (as he then was) agreed with the view taken in AIR 1923 Mad. 284 in Abdul Shaker Sahib's case. The next comes 1992 M LD 31. In this case his Lordship Mr. Justice Fazal Karim (as he then was) had occasion to examine sections 148, 151 and 152 of C.P.C. Alongwith section 35 of Specific Relief Act and preferred to follow the view taken in B.
Ganpati's case in following terms:--- "7. In Bhujangrao Ganpati's case a decree for specific performance had been passed directing the purchase money to be deposited by a specified date and saying that the suit would stand dismissed if the money was not so paid. Vimadalal, J., agreed with the view taken in another case that ' in a conditional decree for specific performance of the nature contemplated by section 28(1) of the Specific Relief Act, 1963, the Court would have the power to grant in extension of the time for payment fixed under that decree'. Vimadalal, J., however, was of the opinion that the case before him was not a decree under section 28(1) of the Specific Relief Act; 'It is a self-operative final decree which provides, in express terms that if the payment is not made within the time fixed, the suit is to stand dismissed. In the case of such a decree, it is impossible to apply the provisions of section 28 of the Specific Relief Act, 1963, which for instance, provide for a subsequent application for the rescission of the contract itself, and for certain consequential orders'. Vimadalal, J., derived support for this view from a decision of a Division Bench of that Court also a case under section 28 of the 1963 Act, where it had been held that 'the failure on the part of the plaintiffs to carry out the terms of the decree had automatically resulted in the disposal of the suit and the Court had become functus officio and had no power to grant an extension of the time fixed by decree' ."
7. The ratio, deducible from the preceding examination, is: Firstly, that decree passed by Court, in an action for specific performance of agreement of sale, is in the nature of preliminary decree. It actually partakes the character of a contract; vendee has to deposit the purchase price, cost for purchase of necessary stamps for the execution of conveyance deed and so on so forth; while the seller had to appear in the Court, sign the conveyance deed and receive purchase price. In these state of affairs, it clearly follows that decree, passed in such an action, is not final but preliminary in nature and the Court passing the decree retain season over the lis and has power to enlarge/extend the time for payment of purchase price fixed therein. The Court, however, had to pass such orders after objectively assessing the merits of such applications. Secondly, Specific Relief Act is an adjective law and substantive law is to be looked for elsewhere. It presents a codification of principles derived from long series of precedents and practices of English Courts of Equity. Specific Relief Act so is based upon principles of equity, reason and good conscience. The most leading principle is that ' who comes to get the equity, must do equity to others'. Thirdly, section 35 of the Specific Relief Act.Lays down a procedure for rescission of the written contract. It applies to both vendor and vendee. Any one of such party may move the Court by motion in the action for an order for putting an end to contract. This mechanism is, however, subject to following limitations/namely where the trial Court has decreed the suit for specific performance of contract subject to condition that purchase price shall be deposited in Court within a specific time and also ordered that if that money is not put in within that time, the suit shall stand dismissed, the Court has no power to extend the time as in such a case; that the decree by Court is final and self- operative and in case of default of payment of purchase price; the mandate of Court tantamounts to rescission of the contract. In such a case recourse to section 148 of C.P.C. Or section 151, C.P.C. Will not be permissible. Fourthly, the Court will not allow the plea for extension of time if it finds that it will occasion a wrong to the other side. Furthermore, in order to succeed in an action for specific performance, the plaintiff had to show that he had been willing and ready to perform his part of contract.
8. Applying the above rules to the facts and circumstances of the case in hand, it is manifest that the suit for specific performance of petitioner was decreed on 2-6-1986; that feeling aggrieved from the date of the payments of purchase price mentioned therein, petitioner preferred appeal which he withdrew and undertook to pay the purchase price up to 2-8-1986; that on this view of the matter, the learned Appellate Court modified the time specified in the decree of the first Court and directed him to deposit the balance of purchase price i,e, 1,45,678 up to 2-8-1986. Regardless getting above mandate, he did not comply with it and thereafter filed an application for extension of time specified by the Appellate Court. This application had been rejected and his revision petition had been pending adjudication in this Court for about 10 years. Petitioner had made no attempt, whatsoever, to put in the balance purchase price in Court. Meanwhile, much water has flown under the bridge. The prices of immovable properties have gone sky-high. In these circumstances, I have no difficulty in coming to conclusion that the petitioner has made no case for allowance of his application. On the strength of circumstances noted and discussed above, the decision of the Trial Court rejecting his application appears to be eminently correct. The same is free from any jurisdictional or legal flaw calling for interference in revisional jurisdiction of this Court which is equitable and discretionary in nature and cannot be exercised in favour of person to do wrong of the other person. This revision petition so is found to be without any merit. The second question is so answered in favour of the respondent. For whatever has been stated above, this revision petition fails and is hereby dismissed. The petitioner (plaintiff) shall bear the cost of proceedings throughout.