1. ' CH. IJAZ AHMAD, I.-- The brief facts out of which the present appeal arises are that the appellant owned land measuring 13 Kanals and 7-1/2 Marlas in Chak No,45-A(N.13.), Tehsil and District Sargodha. He executed agreement to sell qua the land in question with the respondent on 12-12- 1972 for a total consideration of Rs,2,05,000 out of which Rs,25,000 were paid as earnest money. The balance amount of Rs,1,80,000 was payable at the time of execution and registration of the sale- deed. Respondent filed a suit for specific performance of agreement against the appellant which was decreed by the trial Court vide judgment and decree, dated 22-3-1980 against the appellant with costs on depositing balance to sale price into the Court amounting to Rs,1,80,000 less the cost of the suit upto 20th April, 1980, failing which the respondent was entitled to recover Rs,50,000 as penalty amount from the appellant as alternative relief. The respondent deposited the amount as directed by the trial Court vide the aforesaid judgment and decree within the stipulated period. The appellant being aggrieved filed Regular First Appeal No,75 of 1980 before this Court which was admitted for regular hearing- vide order, dated 14-4-1980 and the operation of the impugned decree was suspended meanwhile subject to notice. During the pendency of the appeal respondent filed Civil Miscellaneous No,2864/C of 1980 with the prayer that either his appeal be heard in June, 1980 or in the alternative respondent be permitted to withdraw the amount of Rs,1,80,000 and gave an undertaking to deposit the same one month before the final hearing. The aforesaid application was accepted by this Court vide order, dated 4-10-1980 as the learned counsel of the appellant has no objection to the withdrawal of the .Decretal amount. The respondent has withdrawn his amount of Rs,1,80,000 from the Court. Regular First Appeal No,75 of 1980 was dismissed by this Court vide judgment, dated 3rd July, 1988 with costs. It is pertinent to mention here that no order for redeposit of the amount was passed in Court while dismissing R.F.A.
2. No,75 of 1980. The appellant being aggrieved filed C.P.S.L.A. No,919 of 1988 before the Honourable Supreme Court of Pakistan which was dismissed by the Honourable Supreme Court vide order, dated 24th June, 1990. The Honourable Supreme Court of Pakistan did not fix any time for redeposit of the decretal amount. The respondent filed application for grant of permission to deposit the remaining consideration amount before the trial Court on 18-7-1990 which was allowed subject to the rights of the appellant, if any. Respondent deposited the amount on 18-7-1990. The respondent filed an execution petition before the trial Court on 19-7-1990 which is also pending adjudication.
3. During the pendency of the execution petition appellant filed application under section 47, C.P.C.
4. On 19-7-1990 with the prayer that the respondent has failed to deposit the remaining consideration amount according to his own undertaking and has violated the terms of decree under execution, therefore, the decree for specific performance of the contract was not enforceable. The application was contested by the respondent and the same was dismissed by the trial Court vide order, dated 29-1-1991. The appellant being aggrieved filed F.A.O. No,54 of 1991 before this Court which was withdrawn by him on 3rd June, 1991 and this Court observed that the appellant can avail of the remedy under section 35 of the Specific Relief Act if it, is permissible under the law and not otherwise. The appellant filed suit under section 35(c) of the Specific Relief Act on 6-6-1991 for rescinding the contract and decree obtained by the respondent on the ground that the respondent failed to redeposit the amount as per his undertaking mentioned in C.M. No,2864/C of 1980. The respondent contested the suit and filed the application under Order VII, Rule 11, C.P.C. Which was accepted vide order, dated 29-3-1992 and the plaint was rejected, hence the present appeal.
2. The learned counsel of the appellant stated that trial Court accepted the application of the respondent under Order VII, Rule 11, C.P.C. In violation of the principle laid down by the superior Courts and in violation of Order VII, Rule 11, C.P.C. As is evident from paras. 5 and 6 of the impugned judgment that the trial Court considered the material beyond the contents of the plaint. The trial Court erred in law and accepted the application of the respondent without adverting to the provisions of section 35(c) of the Specific Relief Act as is evident from paras. 5 to 8 of the impugned judgment. The trial Court has no jurisdiction to go beyond the decree as the principle laid down by this Court in PLD 1996 Lah.
582. The respondent filed Civil Miscellaneous No,2864/C of 1980 with the prayer that the respondent be allowed to withdraw the amount deposited by him and he had undertaken to deposit the same amount within one month before final hearing. The respondent failed to redeposit the amount withdrawn by him before the final hearing of R.F.A. No,75 of 1980. The respondent did not deposited the same during the pendency of the petition filed by the appellant before the Honourable Supreme Court. Admittedly respondent deposited the amount on 18-7-1990 after obtaining permission from the trial Court and the permission was granted to the respondent by the trial Court without notice to the appellant. Therefore, the same is without lawful authority. He relied on AIR 1927 Born.
239. The respondent failed to deposit the same within reasonable time and the trial Court erred to grant permission to deposit the same in violation of the law as the decree, dated 22-3-1980 for specific performance had become void and inoperative and the trial Court should have cancelled the agreement, dated 12-12-1972 as the law laid down by the superior Courts in the following judgments:--
(1) Abdul Shaker's case AIR 1923 Mad. 284,
(2) AIR 1937 Nag. 279,
(3) Shah Wali's case PLD 1966 SC 983,
(4) Messrs Ansari Brother's case PLD 1971 SC 700,
(5) Khurshid Akbar v. Mian Manzoor Ahmad 1982 SCMR 824,
(6) Muhammad Riaz Qamar's case 1985 CLC 474,
(7) Muhammad Shamoon's case PLD 1984 SC (AJ&K) 94,
(8) Union Eagle Ltd. Case 1997 (Vol.2) All ER 215,
(9) Nizamud Din's case 1987 CLC 1682;
(10) M. Ismail's case PLD 1997 Lah.
5. 177.
6. ' He summed up his arguments that suit of the appellant under section 35(c) is competent and he relied upon 1992 MLD 31; that order, dated 4-10-1980 in C.M. No,2864/C of 1980 clearly reveals that the words "till further orders" are written by pen whereas the other order is typed one, therefore, these words were added subsequently and this fact was not considered properly by the trial Court at the time of deciding the application under Order VII, Rule 11, C.P.C.
3. Learned counsel for the respondent supported the impugned judgment and stated that trial Court vide decree, dated 22-3-1980 directed the respondent to deposit the remaining amount till 20-4-1980. The appellant deposited the remaining amount Rs,1,80,000 before the target date mentioned in the aforesaid decree. Therefore, respondent did not violate the direction of The trial Court and did not commit any default on his part. He further stated that appellant was allowed to withdraw the amount by this Court vide order, dated 4-10-1980 passed on his application during the pendency of R.F.A. No,75 of 1980 with the consent of the learned counsel for the appellant. The R.F.A. No,75 of 1980 was dismissed and this Court did not fix any time to deposit the amount earlier withdrawn by the respondent. Petition for leave to appeal filed by the appellant was finally dismissed by the Honourable Supreme Court on 24-6-1990. The Honourable Supreme Court also did not fix any time to redeposit the same. The respondent deposited the same with the permission of the Court, original decree was preliminary in nature as the original decree was conditional.
7. Therefore, trial Court has power to extent the time and he relied upon the following judgments:-- ' Ashraf Ali's case PLD 1967 Dacca 1557, Shah Wali's case PLD 1966 SC 983, Nizamud Din's case 1987 CLC 1682; Muhammad Rafique Khan's case 1992 CLC 822 and Abdul Shaker's case AIR 1923 Mad.
8. 284.
9. ' On the basis of the aforesaid judgment learned counsel for the respondent stated that trial Court had jurisdiction to pass order, dated 17-7-1990 regarding deposit of the amount already withdrawn by the respondent. He further stated that this Court allowed the respondent to withdraw the amount till the further orders on 4-10-1980, as mentioned above, this Court has not fixed any time for redeposit of the amount. The respondent did not commit any default as the respondent deposited the amount on 18-7-1990. Therefore, suit filed by the appellant under section 35(c) is not competent as the law laid down by the superior Courts in the following judgments:-- ' Abdul Shaker's case AIR 1923 Mad. 284 and Amjad Malik's case 1992 MLD 31.
10. ' The Judgments cited by the learned counsel of the appellant are distinguished on facts and law and in fact those judgments are in favour of the respondent. He further urged that agreement to sell and decree for specific performance had not become non-existent as the respondent deposited the amount within one month after final decision of the Honourable Supreme Court.
11. Therefore, judgments, cited by the learned counsel for the appellants, are distinguished on facts and law as the respondent redeposited the amount within a reasonable time i,e, within one month after the decision of the Honourable Supreme Court. It is settled principle of law that nobody should be penalised by the act of the Court. He relied upon the following judgments:-- ' Ch. Abdul Rashid's case PLD 1959 Lah. 224, Mian Irshad Ali's case PLD 1975 Lah. 7, Rashid Ihsan's case PLD 1989 SC 146 and Inatullah Begum's case PLD 1996 Lah. 582, Fazal Hussain's case 1998 MLD 974.
12. ' The trial Court is competent to look into other material on the record apart from the contents of the plaint at the time of deciding the application under Order 7, Rule 11, C.P.C. He relied upon the following judgments:-- ' Mian Muhammad Akram's case 1989 CLC 15, Muhammad Akhtar's case 1981 SCMR 878, Fazal-ur- Rehman's case 1987 SCMR 1036, Muhammad Yasin's case 1991 MLD 2295.
13. ' He further stated that suit under section 35(c) is not competent and appellant had filed application under section 47 of the C.P.C. Which had been dismissed by the trial Court and filed F.A.O. No,54 of 1991 but later on same was withdrawn on 3-6-1996 and could not file the instant suit.
14. Plaint was filed under section 35(c) of the Specific Relief Act is not maintainable as the law laid down by the superior Courts. He relied upon the following judgments:-- ' Chaturbhuj Bhovanidas's case AIR 1927 Bom. 239, Bashir Ahmad's case 1987 CLC 1862, Amjad Malik's case 1992 MLD 31.
15. ' The respondent filed execution petition before the trial Court and the trial Court directed the Reader of the Court for completion of the sale-deed. The appellant filed application for setting aside the ex parte order which was dismissed by the trial Court vide order, dated 24-10-1992 and the appellant filed F.A.O. 199 of 1992 which was dismissed by this Court vide judgment, dated 16-3- 1993. This Court observed that the appellant's conduct is not above board. He summed up his arguments that the impugned judgment is in accordance.With law laid down by the superior Courts.
4. Learned counsel for the appellant in rebuttal stated that trial Court has no jurisdiction whatsoever to look into the material beyond the contents of the plaint and the Civil Court have the jurisdiction to entertain the suit of the appellant as the respondent failed to redeposit the remaining amount within a reasonable time. Therefore, original decree, dated 23-34980 has become void automatically, resultantly the agreement to sell also rescinded automatically.
5. We have given our anxious consideration to the contention of the learned counsel for the parties and perused the record, relevant provisions of law and precedent cases relied on behalf of the parties. It is better and appropriate to reproduce the relevant facts in chronological order to resolve the controversy between the parties:--
(i) Agreement to sell, dated 12-12-1972.
(ii) Respondent filed suit for Specific Performance of agreement against the appellant on 28-2- 1973.
(iii) Suit was decreed on 22-3-1980 and respondent was directed to deposit the remaining amount up to 20th of April, 1980.
(iv) Respondents deposited the amount before 20th of April, 1980.
(v) Appellant filed R.F.A. 75 of 1980 which was admitted for regular hearing on 14-4-1980 and the operation of the impugned judgment was also suspended.
(vi) Respondent filed C.M. 2864/C of 1980 to withdraw the amount deposited by the respondent which was allowed vide order, dated 4-10-1980 with the consent of the learned counsel for the appellant.
(vii) Respondent withdraw the amount. R.F.A. 75 of 1980 was dismissed by this Court vide judgment, dated 3-7-1988 without directing the respondent to deposit the remaining amount. Appellant filed C.P.S.L.A 9181 of 1988 which was also dismissed on 24-6-1990.
(viii) The Supreme Court did not also fix any time for redepositing of the decretal amount.
(x) Appellant filed application for grant of permission to deposit the amount on 17-7-1990 which was accepted and the respondent deposited the remaining amount on 18-7-1990. The respondent filed execution petition on 19-7-1990.
(xi) The appellant filed application under section 47, C.P.C. On 19-7-1990 with the prayer that the respondent failed to deposit the remaining consideration amount, agreement to sell and decree automatically ceased to exist. Application was dismissed on 29-1-1991. Appellant filed R.F.A. No,54 of 1991 which was withdrawn on 3-6-1991.
(xii) Appellant filed application under Order 7, Rule 11, C.P.C. For rejection of the plaint which was accepted on 29-3-1992.
16. It is pertinent to mention here that original decree, dated 22-3-1980 is conditional. Therefore, the original decree is in the nature of preliminary decree, in such situation, the original Court keeping control over the action and having full power to make any just necessary order therein, including in appropriate cases, the extension of the time. It is settled proposition of law that Court which passes the decree for specific performance retains control over the decree after the decree has been passed. We are fortified by the following judgments:-- ' Abdul Shaker's case AIR 1923 Mad. 284, Sindh Road Transport Corporation's case 1989 ALD 399, Kisan Dawoloo Mali's case AIR 1939 Nag. 279, PLD 1967 Dacca 557 and Amjad Malik's case 1992 MLD 31.
17. The ratio of the aforesaid judgment is that in case of preliminary decree the original Court would not become functus officio and retain control over the action even after the decree. The aforesaid proposition of law is also considered in AIR 1946 Nag. 29 and observed as under:-- "It is open to the lower Court to extend time for payment fixed in a decree for specific performance, that the decree is in the nature of a preliminary which rests on the contract between the parties untill it is rescinded by the formal order."
18. ' We are also fortified by the following judgments:-- ' Nisar Ahmad's case PLD 1994 Lah. 280, Nizamud Din's case 1987 CLC 1682, Fazal Hussain's case 1998 MLD 974, Muhammad Riaz Qamar's case 1985 CLC 474.
19. ' We have to see on the basis of the aforesaid precedents what is the meaning of preliminary decree. The explanation of section 2(2), C.P.C. Lays down that a decree is preliminary when further proceedings being to be taken before the .Suit can be completely disposed of. The aforesaid proposition of law is considered by the Peshawar High Court in PLD 1960 Pesh. 37 and observed as under:-- "Preliminary decrees in cases where the statute makes a provision for them stand on an independent footing as independent entities and there is no question of merges of these decrees in the final decrees that follow them. In fact under section 97, C.P.C. a party aggrieved by a preliminary decree not filing an appeal against it, will be precluded from disputing its correctness in any appeal, which may be filed against a final decree. A preliminary decree does not become extinct after the passing of the final decree, nor does the latter effect the maintainability of an appeal against the former and this will be so even if the appellant has not asked for stay of proceedings after the institution of his appeal or has not filed an appeal against the final decree.
20. The final decree is in fact dependent on the preliminary decree stating and applying with precision what the preliminary decree has ordained and if the latter is set aside on appeal, the former falls with it.
21. ' Similarly the word preliminary decree is defined by the Dacca High Court in Ashraf Ali's case PLD 1967 Dacca 557 and ooserved as under:- "It is, thus, clear 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 where 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 said default clause."
22. ' It is admitted fact that the respondent deposited the remaining amount before the target date or specific date by the trial Court in original judgment and decree. Subsequently, respondent has withdrawn the amount with the permission of the Court and consent of the learned counsel for the appellant. It is also admitted fact that this Court did not fix time to redeposit the amount in question at the time when the R.F.A. 75 of 1980 filed by the appellant was dismissed. Similarly at the time of refusing leave the Honourable Supreme Court did not fix any time within which the respondent has to deposit the remaining amount. This fact brings the case in the area where the action/omission of the Courts has come in the field. It is settled proposition of law that nobody should be penalised by the act of the Court. We are fortified by the following judgments:-- ' Ch. Abdul Rashid's case PLD 1959 Lah. 224, Mian Irshad Ali's case PLD 1975 Lah. 7, Rashid Ihsan's case PLD 1989 SC 146 and Inatullah Begum's case PLD 1996 Lah.
23. 582.
24. The substance of the aforesaid precedent is that in case of preliminary decree the trial Court has ample jurisdiction to extend the time. Therefore, order of the trial Court to extend the time for depositing the remaining amount in favour of the respondent is valid in accordance with law laid down by the superior Courts. We are also fortified by the Full Bench judgment of this Court in R.F.A.
25. 13 of 1999. The judgments cited by the learned counsel for the appellant Messrs Ansari Brothers PLD 1971 SC 700 is not applicable to the facts of the present case. In the cited case the tenant was required to deposit the amount within a specific period but he did not do so and instead obtained a stay order from the appellate Court. Similarly the other judgments cited by the learned counsel for the appellants awe distinguished on facts and law. Similarly the case cited AIR 1923 Mad. 284 by the learned counsel for the appellant which does not support the case of the appellant as is evident from the following observations in the cited judgment: "In my judgment this decree is in the nature of a preliminary decree."
26. ' The judgment cited by the learned counsel for the appellant PLD 1966 SC 983 and 1987 CLC 1682 are not helpful to the appellant as is evident from the following observation of the Honourable Supreme Court:-- "But this section it is now well-settled, does not apply where the period is fixed by a decree unless the decree is in the nature of a preliminary decree and the Courts still retains seisin over the action."
27. ' It is pertinent to mention here that all the cases cited by the learned counsel for the appellant almost related to pre-emption matters. Therefore, the cases cited by the learned counsel for the appellant are not relevant to resolve the present controversy. Only case of Muhammad Riaz Qamar 1985 CLC 474 was cited by the learned counsel for the appellant which is not arising out of pre- emption suit and also has no nexus to resolve the present controversy between the parties. Once the order of extention of time to deposit the remaining amount in favour of respondent then there is no default committed by the respondent and the decree is valid and intact in favour of the respondent. The condition precedent to entertain the suit under section 35(c) of the Specific Relief Act is not available to the appellant. The judgment impugned is valid as the principle laid down by the Honourable Supreme Court in Mansab Ali's case PLD 1971 SC 124. Learned counsel for the appellant failed to point out any illegality committed by the trial Court. It is also settled proposition of law where the appellant/plaintiff concealed the material facts from the Court in the contents of the plaint. In that events material produced in evidence/documents by way of filing written statement or alongwith application under Order 7, Rule 11, C.P.C. Could also be kept in mind for rejecting the plaint. We are fortified by the following judgments: ' Muhammad Akhtar's case 1981 SCMR 878, Mian Muhammad Akram's case 1989 CLC 15 and Muhammad Yasin's case 1991 MLD 2295.
28. In view of the aforesaid discussion we are of the view that the learned counsel for the appellant failed to point out any material irregularity orl illegality committed by the, trial Court. Therefore, appeal has no merits. There is yet another angle that the respondent deposited the amount on 20- 4-1980 as directed by the trial Court vide judgment and decree, dated 22-3-1980 and withdraw the same with the permission of the Court on 4-10-1980 and redeposit the same on 18-7-1990 with the permission of the Court. Meaning thereby the respondent utilized Rs,1,80,000 from 4-10-1980 to 18- 7-1990 and the price of land in question also increased on higher side during this period.
29. ' Keeping in view the principle of equity we direct the respondent to pay profit on the remaining amount of Rs:1,80,000 for 10 years to the appellant at the rate of Rs,15% per annum. In view of the above circumstances, the appeal is disposed of with the aforesaid observation.