SAYED NAJAM-UL HASSAN KAZMI, J.-- Through this appeal, the appellants seek modification of judgment and degree, dated 19.6.1997, of the learned Civil Judge, whereby the suit for specific performance of appellants was decreed, subject to deposit of balance sale price till 28th of June, 1997.
2. To enforce agreement of sale dated 29.2.1996, in regard to Bungalow No. 123-G Model Town Lahore, the appellants filed a suit for specific performance, claiming therein, that respondent No. 1 had agreed to sell the Bungalow under reference, in consideration of Rs. 77 Lac, received a sum of Rs. 8 Lac as earnest money and committed to execute sale-deed till 1.9.1995. The appellants claimed having remained ready and willing to perform their part and complained failure on the part of respondent No. 1 in doing the needful, in terms of sale agreement, with the result, that indulgence of Court was sought to give effect to the terms of the sale agreement.
3. Respondent No. 1, in his defence, inter alia maintained, that he was a doctor settled in United States of America, who came to Pakistan, on 22.8.1996, for execution of sale-deed, which could not be executed, because of paucity of funds with the appellants and that despite a notice to the appellants for performance of their obligations in terms of sale agreement, they could not arrange for the requisite funds and allowed the stipulated period to expire, whereafter the suit was filed with mala fide, intents to cause harassm ent, as the appellants knew, that respondent No. 1 could not stay for long in Pakistan. Notwithstanding the default and breach of contract on the part of appellants, which rendered them dis-entitled to seek any relief in equity, respondent No. I, offered to execute the sale-deed, subject to the condition, that the appellants should make payment of balance sale price within five days.
4. An application under Order 39 Rules 1 and 2 of C.P.C. Seeking injunctive relief against alienation of property and transfer of possession, pending decision of the suit, was filed by the appellants. Vide order, dated 7.9.1996, the learned Trial Court directed the appellants to deposit balance sale price of Rs. 69 lac, before the next date of hearing, failing, it was observed, that the ad interim injunctive order would not he extended.
5. The appellants assailed the aforesaid order of learned Trial Court, in F.A.O. 238/96 which was dismissed on 24.9.1996, with a direction to the learned Trial Court to decide the suit expeditiously.
6. An application under Order 7 Rule 11 of C.P.C. Was tiled by respondent No. 1 in the Trial Court, seeking rejection of the plaint. During hearing of the application, the Apposite side, reiterated the offer, that respondent No. 1 was prepared to executive sale-deed, provided the appellants pay the balance sale price of Rs. 69 lac., The learned Trial Court, vide judgment and decree, dated 19.6.1997, conditionally decreed the suit, with the direction, that the balance sale price of Rs. 69 Lac should be deposited till 28.6.1997, failing which suit would be deemed to have been dismissed. The final judgment and decree of the learned Trial Court has now been assailed in this appeal.
7. Learned counsel for the appellants, argued, that the learned Trial Court should not have conditionally decree the suit and it should have been left open for the appellants to deposit the balance sale price at their own convenience. He further submitted, that since Order 20 Rule 14 of CPC was not attract to a decree for specific performance, therefore, neither the Trial Court could impose any condition to the decree nor it was ermissible under Section 35 of the Specific Relief Act.
Reliance was laced on PLD 1965 SC 37 to contend that an equitable estate had been reated in favour of the appellants by virtue of the sale agreement of which ey could not be deprived.
Conversely, learned counsel for the respondent No. 1, argued, that there was no bar in imposing condition to the grant of ecree for specific performance and that in the circumstances of the case, e conduct of appellants did not justify indulgence in equitable jurisdiction.
8. We have considered the submissions made by learned counsel for the parties and perused the record.
9. The plea that the Trial Court could not impose condition while granting decree for specific performance, is not in accordance with law. No doubt the provisions of Order 20 Rule 14 of CPC are not attracted to a decree for specific performance, nevertheless, it cannot be said, that while granting a ,relief in equitable jurisdiction, the Court could not impose a condition to safeguard the interest of vendor. The provisions of section 35 of Specific Relief Act, appear to have not been properly construed by the appellants. There is no bar in law, if the Court, while granting decree for specific performance, indicate that it will come to an end, in the event of ailure to make payment of balance sale price by a stipulated date.
10. The question raised by learned counsel for the appellants, was also considered, in the case of Amjad Malik v. Muhammad Saleem, etc. (NLR 1991 (C) 475) where it was held as follows:- "True that the Code of Civil Procedure does not supply the form, for a decree in a suit for specific performance, yet there is no provision in the Code of Civil Procedure and none was cited precluding the Court from fixing a date for the payment of the purchase money and at the same time ordering that the suit shall stand dismissed in the case the payment is not made timely. In such a case, the Court has indicated in advance that the contract would stand determined by the failure to make the payment by the appointed date. Some support is lent to this view by the following observations of Wallace, J. In Abdul Shaker v. Abdul Rahman.
"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 that it finds the real contract between the parties was, and declares that such 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 contract, it is clear in this case, as in most others of the same kind, that time is not of the essence of the contract, 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."
Here, the Court had, while passing the decree, made a formal order that the suit would stand dismissed in case the condition of the payment of the purchase money by the appointed date was not performed. That order in the decree was also a formal rescission of the contract effective from the date specified in the decree. It seems to be inexorable logic therefore, that the order in the decree that the suit shall stand dismissed produced the result that after the appointed date, the Court had become functus officio and also that after that date, the contract was no more in existence. It is equally plain that the power under Section 35 of the Specific Relief Act, 1877 being the power to rescind the contract, the contract must be in existence for that power to operate upon. To rescind means to annul, to abrogate, to put an end to. The power to rescind, therefore, presupposes the existence of what is to be rescinded; for just as you cannot build anything on nothing, you cannot rescind something that does not exist.
I would, therefore, respectfully adopt the view taken in Bhujangrao Ganpati's case and hold that both because the Court had become functus officio and the contract stood rescinded by the order in the decree itself that the suit would be dismissed, the learned Trial Judge rightly held that he had no power to extend the period for the payment of the purchase money."
11. We agree with the view taken in the above-noted case and observe that the learned Trial Court could in law, warn pre-hand, while passing the decree for specific performance, that non-payment of the balance sale price, will ipso facto result in rescission of the contract and dismissal of the suit and while doing so, it did not commit any error of law.
12. The case referred to by the learned counsel for the appellants, namely, Joydeh Agarwala v.
Baitulmal Karkhana Ltd. (PLD 1965 SC 37), is not in any way, helpful to the appellants in canvassing the proposition advanced by the learned counsel for the appellants. In the said case, it was observed, that a decree for specific performance has the effect of confirming the equitable estate in question for the due ordering of the rights and obligations of parties under he authority of Courts of law. There is no cavil with this proposition nor the issue under consideration in the said case is subject-matter of issue in the present appeal. Here, the question raised is, if the Trial Court could pass a conditional decree or provide for dismissal of the suit in case of non-deposit of the balance sale price, which as observed above, was within the competence of the learned Trial Court.
13. Since the matter under consideration, relates to the grant of relief in equity, therefore, certain important features of this case reelecting upon the conduct of appellants cannot be overlooked.
The agreement of .Sale was admittedly executed on 29.2.1996, in terms whereof, the sale-deed was to be executed till 1.9.1996, on payment of balance amount of sale consideration. The respondent No. 1, came from United State on 22.8.1996 for the purposes of execution of sale-deed which fact is also not denied in the plaint. 'Despite notice from the respondent, the appellants did not, arrange for the balance sale price and instead, filed the suit for, specific performance on 2.9.1996.
The suit was initially filed without any Court-fee, when the learned Trial Court directed the appellants to make up the deficiency in Court-fee. The deficiency was later made up under the orders of the Court. For seeking interim relief, against proposed alienation and transfer of possession, the appellants tiled an application, when the learned Trial Court directed them to deposit balance sale price, to show their bona fide, for seeking ad interim relief. It was observed, that if the balance sale price would not be deposited by the next date, the interim injunctive order would not be extended. To circumvent the effect of the order, one appellants tiled application for transfer of the suit and obtianed order for stay of proceedings in the Trial Court. They did it 't deposit the balance sale price in compliance to the Order of the Court.
14. Later, the appellants filed F.A.O. No. 238/96 against order, dated 7.9.1996, requiring them to deposit the balance sale price, which appeal was dismissed on. 24.9.1996. Despite dismissal of the appeal, the appellants did not deposit the balance sale price.
15. The respondent No. 1, despite breach of contract on the part of appellants and their dis- entitlement to seek any relief in equity, right from the beginning made an offer firstly in their reply to the application for injunction and thereafter in the written statement, that he would execute the sale-deed, provided the appellants deposit balance sale price within five days. The appellants did not take any step to show their readiness and willingness to perform acts under the contract. So much so, at the time of hearing of application for rejection of plaint, an offer was made by the opposite side, in the aforesaid terms, when the learned Trial Court, finding the claim having been accepted, proceeded to pass a decree for specific performance, on the condition, that the balance sale price should be deposited till 28.6.1997, failing which, the suit should be treated to have been dismissed. The appellants did not accomply with the order, allowed the time to expire and on the last date, i.e. 28.6.1997, applied for certified copies of the impugned judgment and decree, obtained the copies on the same date and proceeded to file this appeal. Even in appeal, vide order, dated 30.6.11997, this Court directed, that the appellants might deposit the balance sale price at their own risk and cost. The appellants, failed to make any deposit.
16. From the resume of the facts, the conduct of the appellants become evident. In a suit for specific performance, one has to allege and prove his readiness and willingness to perform obligations under the sale agreement. To reflect his bona fide and readiness, one has to show that he had the requisite funds within the stipulated time and that he was ready with the funds in his pocket, when he approaches the Court for the enforcement of the agreement. The vendor can at any stage, agree, that the suit be decreed and agreement he enforced, which cannot be refused by the vendee, on the pretext, that he could not arrange funds or that there was a shortage of time.
The parties, keeping in view the nature of transaction, the value of the property involved and considering the character of their respective obligations, fixed a period until 1.9.1996 for execution of the sale-deed, during which time, no sale-deed could be executed, as, the appellants did not have the funds. The lack of bona fide and willingness to perform contract, on the part of the appellants is further strengthened, by the conduct of the appellants, who did not make any deposit, when called upon to do so by the Court. So much so, the suit remained pending since 2.9.1996 till 19.6.1997, when the impugned decree was passed, yet the appellants could not arrange for the funds and simply filed the appeal for the sake of gaining time and prolonging agony of the vendor by waiting upon unlimited extent. The relief of specific performance u/S. 22 of the Specific Relief Act, being discretionary in nature, cannot be allowed, if one does not act with promptness and prove with his conduct of bona fide to perform obligations in terms of the agreement. The circumstances noted supra, are evident of the fact, that the appellants were not ready and willing to perform the obligations, despite having gained opportunities to do so-. It is not at all a case in which, even extension in time can he allowed. The appellants have already availed double the time than provided in the agreement itself, yet they failed to take any step, demonstrating their bona fide to perform the obligations. The respondent No. 1 havingagreed to the grant of conditional decree, the learned Trial Court was fully justified in granting equitable relief, conditionally on the payment of balance sale price within the time fixed in the order and also providing for dismissal of the suit in the event of default. In doing so, no provision of Law of Rule of Equity has been violated.
17. For the reasons above, there is no merit in this appeal, which is accordingly dismissed with costs.