Briefly stated the facts of the case are that respondent Messrs Hussain Industries (Pvt.) Ltd. Filed a suit for possession through specific performance of an agreement to sell dated 28-2-1991, against the petitioner. Learned Civil Judge, Sheikhupura, on 15-12-2000, decreed the suit in the following terms:-- "In the light of my findings on Issue No.5, the suit stands decreed with costs, subject to payment of remaining sale consideration within one month otherwise suit shall stand dismissed automatically."
2. The respondent/decree-holder, did not pay the balance consideration within one month, as directed by the decree, however, on 1-2-2001, after expiry of the aforesaid period, moved an application under sections 148/151, C.P.C., for extension of the time. Learned Civil Judge, without issuing notice to the petitioner vide order dated 3-2-2001, granted extension till 10-2-2001. It has been admitted by counsel for the petitioner that deposit has been made within time so extended by the Court. Anyhow, petitioner assails the aforesaid order mainly on the ground of being without jurisdiction.
3. Learned counsel for the petitioner contends that after passing of the decree, the learned trial Court has become functus officio and the provisions of section 148, C.P.C. Could not be resorted to; the provisions of section 35 of Specific Relief Act, has no application where the decree itself provides the consequences of automatic dismissal of the suit in case of failure of the decree- holder to pay the purchase price, within the time, specified in the decree, because such decree entails rescission of the contract; the impugned order has been passed without issuance of any notice or giving opportunity of hearing to the petitioner. In support of his contention, the learned counsel has relied upon the judgments reported as Shah Wali v. Ghulam Din PLD 1966 SC 983, Sultan Ali v. Khushi Muhammad PLD 1983 SC 339, Ilam Din v. Abdul Hanud 1980 CLC 807, Inayat Hussain v. Fazal Dad PLD 1981 Azad 1&K 36, Amir Ali v. Gul Muhammad PLD 1968 Pesh. 106, Iftikhar Ahmed, v. Nilofer PLD 2002 Lah. 176, Jaya Div v. Latlta Parshad AIR 1936 All. 477, Beni Parhsad v. Om Parkash AIR 1938 All. 497, Bengal Central Bank v. Bezone AIR 1951 Cal. 299, Narayanan v. Govindan AIR 1952 Tr.-Co. 440, Sita Raman v. Patia AIR 1958 Mad. 453.
4. According to the judgment reported as Shah Wali v. Ghulam Din PLD 1966 SC 983, it has been held "section 148 of the C.P.C., gives the Courts powers to extend time previously fixed or granted by it for the doping of any act prescribed or allowed by the Code of Civil Procedure and this they can do even after the period originally fixed or granted has expired. But this section, it is now well- settled, does not apply where the period is fixed by a decree in a suit unless the decree is in the nature of a preliminary decree and the Court still retains seisin over the action. The principle upon which it has been so held is that since a decree normally puts an end to suit the power of the Court to pass any other order with respect to that particular suit, thereafter also comes to an end and the Court becomes functus officio with regard thereto. The exception made in the case of a preliminary decree is also on the same basis that in case of such decree the Court does not become functus officio but still retains control over the action and, therefore, has full power to have make necessary order therein including an order for execution of time. This also is the ratio of other judgments, cited by the learned counsel for the petitioner.
5. Learned counsel for the respondent has not been able to rebut the above legal position.
However, by relying upon Muhammad Ismail v. Muhammad Akbar Bhatti PLD 1997 Lah. 177, states that the decree passed in the suit for specific performance is preliminary in nature and therefore, as per the case-law, relied upon from the petitioners' side, the trial Court, retains control over the proceedings and thus had jurisdiction to enlarge the time under section 148, C.P.C. It is also submitted that under the provisions of section 35 of the Specific Relief Act, in case of a decree for specific performance, allowing the suit, judgment-debtor still could apply to the same Court, for seeking the rescission of the agreement to sell, in case the condition of the decree, has not been met by the decree--holder, therefore, the trial Court, for all necessary purposes retains the control over the lis for the purposes of the final disposal of the application filed under section 35 (ibid). He has relied upon the judgments reported as Asim Hussain Qadri v. Muhammad Umar 1999 MLD 1466, Nasir Ahmed v.. Muhammad Yousaf PLD 1994 Lah. 280, Muhammad Riaz Qamar v. Umar Din and 3 others 1995 CLC 474 and Muhammad Ismail v. Muhammad Akbar Bhatti and 5 others PLD 1997 Lah.
177.
6. I have heard learned counsel for the parties. There is neither any provision in the Civil Procedure Code nor any pro forma in the appendix attached thereto, providing for a specific form for drawing of a decree in the suit for specific performance. The first question, therefore, which arises for consideration is, whether the decree for specific performance allowing or disallowing a suit is in the nature of a preliminary decree or it is final. The decree has been defined in section 2(2) of the C.P.C.
As follows:-- "decree" means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final ....
(b)
Explanation. ---A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final.
7. In view of above, there can be no cavil that where a suit for specific performance is dismissed, the decree undoubtedly is in the nature of a decree, because such adjudication completely disposes of the suit by determining the rights of the parties with regard to all the matter in controversy in the suit; nothing is left outstanding for further adjudication by the Court and the lis between the parties terminates at the trial stage. In my considered view same shall be the position, in the eventuality where the decree allowing the suit has been passed.
8. The words "matter in controversy in the suit" appearing in the aforesaid definition I are synonymous and interchangeable with the expression "matters in issue", which according to Black's Law Dictionary, 6th Edition, has the following meaning:- "That matter on which plaintiff proceeds by his action, and which defendants controverts by his pleadings."
This clearly elucidates that whatever the issues of law and fact are involved in a suit, upon which the verdict of the Court is sought and predicated, are the matters in controversy and when a final adjudication thereupon has been made by the Court which completely disposes of the suit, the decree is final.
9. I am unable to subscribe the argument of the learned counsel for the respondent and the view expressed in the judgment reported as PLD 1997 Lah. 177, that because under a decree for specific performance allowing the suit as the decree-- holder has to deposit the purchase price; supply the requisite stamp papers for the execution of the deed of conveyance, and such deed has to be executed by the judgment-debtor or the Court, as the case may be, therefore, the decree is preliminary in nature. To my mind, all these steps are the follow up in pursuance of the decree and falls within the domain and realm of the execution process. None of the steps indicated above remains a matter of controversy between the parties in the suit, but are the questions and propositions for the effective enforcement, execution, satisfaction and discharge of the decree. If the contention of the learned counsel for the respondent is upheld, it would mean the every decree which has been made executable under the law, such as a decree for possession, simpliciter would be preliminary decree, but this approach shall be directly in conflict with the definition of the decree.
10. Coming to the other question, if on account of section 35 of the Specific Relief Act, the trial Court, still retain seisin, over the list, because of the decree-holder of the case has defaulted in making the payment of purchase money, which the Court has ordered him to pay in the decree and the judgment --debtor of the case could seek rescission of the contract, suffice it to say that such provisions would only be applicable if no time in the decree has been fixed and the decree-holder within reasonable time, fails to make the payment, the judgment-debtor has a right under section 35 to seek the rescission of the contract on the equitable principles that the vendee being not ready and willing to perform his part of the agreement, without awaiting the lapse of the period provided for the execution But where it has been commanded in the decree itself, the suit shall automatically stand dismissed, if the payment is not made within the stipulated period; the agreement to sell per se stands rescinded by the Court, without requiring the judgment- debtor to seek the rescission independently. In forming this view, I am fortified by the judgment reported as PLD 1997 Lah. 177 cited by the counsel for the -respondent himself.
9. Besides the above, as the impugned order dated 3-2-2001, has been passed by the learned Court, without issuing notice to the petitioner, calling upon the petitioner, or enabling him to file any reply to the application for the execution of time, on this account also the impugned order being violative of the principles of natural justice is void and liable to be set aside. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.