' This revision petition assails an order dated 25-3-2003, passed by the learned trial Court, extending time for Deposit of decretal amount of Rs,1,55,00,000 till 24-4-2003, on application of the respondents.
2. A short factual background of the case is that the petitioners' were the owners of Property No,120- A, Peoples Colony, Faisalabad, land underneath measuring 4 Kanals, 1 Marla, 130 Sq. Ft. He entered into an agreement to sell this property to respondent for an amount of Rs, 1,85,00,000, through an agreement to dated 5-1-2000 and received an amount Rs,30,00;000 as earnest money. Time for execution of the sale-deed was fixed by the agreement as 31-7-2000, at which time; the remaining amount was to be paid by the respondent NO.1. The petitioners issued a telegraphic notice to the respondent, requiring him to perform his part of the contract under the agreement dated 5-1-2000 and instead of responding to the notice, he, on 12-8-2000, filed a suit for specific performance of the agreement before the learned Civil Judge, Faisalabad. The petitioners, being defendants in the suit, on 9-9-2000 filed an application before the learned Civil Judge that the respondent be required to make remaining payment under die above referred agreement and on such payment his suit may be decreed. The respondent No,1 appears to have been delaying the payment, as he did not accept the offer of the petitioners immediately and requested for time to file a reply to the application moved by the petitioner. On the adjourned date, the respondent moved some application seeking amendment of the plaint but ultimately, his suit was decreed on 28-2-2001, in view of the confessional written statement filed by the petitioners. The learned trial Court, viewing that a huge amount is to be paid by the respondent No,1, granted him two months time and fixed the date as 30-4-2001 for the deposit of an amount of Rs,1,55,00,000 and also observed that if the respondent No,1 failed to pay the remaining sale price till the above mentioned date, his suit will be considered as dismissed.
3. One Muhammad Anwar respondent -No,4 filed an application under Order 1, rule 10, C.P.C., seeking his impleadment to the suit, in spite of the fact that he was a stranger to the agreement to sell between the petitioners and respondent No, 1 . This Muhammad Anwar based his claim of impleadment on some agreement. Allegedly executed between him and 'respondent No,
1. This application was dismissed by the learned trial Court and his revision petition (C.R. No,898 of 2001) was also dismissed by this Court vide judgment dated 27-4-2001.
4. The respondent Attiq Ahmad did not comply with the decree dated 28-2-2 .01 and did not deposit the decretal amount within the time specified by the decree and after a lapse of more than a year, opted to file an application under section 148, C.P.C. Seeking extension of time fixed by the decree passed by the learned trial Court. This application was moved on 29-3-2002 before the learned District Judge, as the learned Civil Judge, who had passed the decree. Had transferred. The application of the respondent for extension of time was taken up by the learned Civil Judge, to whom it was marked by the learned District Judge, who after obtaining written reply from the petitioners, accepted the same granted the respondent No,1, one month's time for the deposit of the decretal amount in the following words:-- "The time is finally extended for 30 days i.e, the applicant shall deposit the balance decretal amount of Rs,1,55,00,000 by 24-4-2003, failing which his suit shall stand dismissed with costs."
5. The learned counsel for the petitioners submits that due to failure of the respondent No,1 to deposit the decretal amount in terms of decree dated 28-2-2001 within the specified period, his suit had already been dismissed and there was no lis pending before the learned trial Court and thus neither provision of section 148, C.P.C. Could be invoked nor any such jurisdiction could have been exercised by the learned Civil Judge, as it had become functus officio. He further submits that the respondent No,1 was not ready to pay the money and thus was not in a position to perform his part of contract under the agreement to sell dated 5-1-2000 and that is why he instead of making the payment in response to the telegraphic notice by the petitioner, filed a suit for specific performance and then on an application, filed by the petitioner, he kept on delaying the matter of payment on one pretext or the other and ultimately, his suit was decreed on petitioner's concession. He did not comply with it and thus was not entitled to any indulgence by the Courts.
The learned counsel for the petitioners elaborated his submissions by saying that the application seeking extension of time was filed after a lapse of a period of more than a year and that too on the basis of false averments. Which do not make out a case for extension of time under section 148, C.P.C. He summarized his arguments by saying that order passed by the learned Civil Judge is absolutely without jurisdiction and thus is not sustainable at law.
6. The learned counsel for the respondent controverting the submissions of the learned counsel for the petitioners, submitted that decree in suit for specific performance is always preliminary in nature and the Court passing it retains power to extend time fixed by such decree. He referred to section 35 of the Specific Relief Act to contend that the decree in a suit for specific performance is always preliminary in nature. The learned counsel for the respondent also relied on judgments in cases of Someshwar Dayal and others v. Widow of Lalman Shah and others AIR 1958 Allahabad 488 and Amjad Malik v. Muhammad Saleem and 5 others 1992 MLD 31 in support of his contentions.
7. I have given an anxious thought to the arguments of the learned counsel for the parties and examined the record appended with this petition. Controversy regarding nature of decree passed in a suit for specific performance has been put to rest by chain of judgments and by this time there is no controversy regarding the fact that such decree is preliminary in nature. Reference can be made to the cases of Dr. Iftikhar Ahmad Zahid v. Mrs. Neelofar Akhtar and another PLD 2002 Lahore 176, Nisar Ahmad v. Muhammad Yousuf PLD 1994 Lahore 280, Maj. (Rid.) Hamid Ali Khan v. Main Muhammad Anwar 2000 CLC 1633 and Ahniad Yar v. Abdul Razzaq and 2 others 2002 MLD 1010.
8. A preliminary decree in a suit for specific performance becomes final when it mandates that suit of the plaintiff will stand dismissed, in case the amount required to be deposited, is not deposited within the time specified by it, on the date when such time expires. Till the time such decree becomes final, Court passing it, keeps seizing over the lis and can extend time but not thereafter.
9. Relevant part of the judgment and decree dated 28-2-2001 passed by the learned trial Judge reads as follows:-- "I hereby decree the suit of the plaintiff by accepting the application of the defendants and he is directed to pay the remaining sale price of Rs,15.5 million (Rs,1,55,00,000) within a period of two months i.e, till 30-4-2001. If the plaintiff fails to pay the remaining sale price till the above mentioned date, his suit will be considered as dismissed."
10. Section 35 of the Specific Relief Act shows that party committing default under the decree will have to face rescission of the contract on which specific performance had been granted or for cancellation of the decree itself. In our country it is usual that Courts, at the time of passing of decree in suit for specific performance, fix time for deposit of the amount payable under the agreement and also attach a rider to the effect that in case of failure of' the plaintiff to deposit the decretal amount, his suit will be deemed to have been dismissed. A similar situation arose in the case in hand and the learned trial Court while required respondent No,1 to deposit the amount payable under the agreement and ordered that in case of failure, his suit will be deemed to have been dismissed. This condition though was according to the provisions of section 35 of the Specific Relief Act, I will deal with it in the latter part of this judgment, yet it was a part of the decree passed and had its effect in the nature of the dismissal of the suit of the respondent No,l. It remains a fact that respondent No,1 did not appeal against the decree dated 28-2-2001 for annulment of its this part and has become final inter panics. On Court's query as to how this part of the decree can be avoided, set aside or ignored, the learned counsel for the respondent No,1 only referred to provisions of section 35 of the Specific Relief Act and contended that in spite of this direction, the learned trial Court had the jurisdiction to extend the time. I am not in a position to see an eye to eye with him, because I am clear in my mind that the suit of the respondent No,1 stood dismissed by the force of decree dated 28-2-2001 itself, and unless and until this decree was set aside by any Court of competent jurisdiction it will have its course. Now under this decree suit of the respondent stood dismissed on 30-4-2001, the last date till which he could make the deposit but failed and thereafter there was nothing pending before the learned trial Court to exercise jurisdiction under section 148, C.P.C., which provision of law is only available in the pending matters. Looking the case from another angle, I am of the view that interpretation offered by the learned counsel for the respondents, would lead to uncertainty, as these unbridled powers of extension, in spite of dismissal of suit, would put the defendants in a ditch whereas law treats both the parties at equal pedestals. Extension of time after long time, also creates hardships. As in the instant case it has been extended after a year.
10-A. Determining this case on the touchstone of section 35 of the Specific Relief Act, 1877, it is clear that this provision of law does not preclude the Court from fixing date for payment of the price payable under the agreement and simultaneously ordering that the suit, in case of default in payment, would stand dismissed. As a matter of fact by attaching rider of dismissal of the suit in case of nonpayment of decretal amount, the Court, before hand, indicates in terms of section 35 of the Act ibid, its intention to rescind agreement on the failure of the plaintiff and would entail rescission of the contract, in form of dismissal of suit. My this view is supported by two judgments in the cases of Muhammad Ismail v. Muhammad Akbar Bhatti and 5 others PLD 1997 Lahore 177 and Amjad Malik v. Muhammad Saleem and 5 others 1992 MLD 31.
11. Adverting to the application, filed by the respondent No,1 under section 148, C.P.C., I must observe that it does not at all furnish sufficient cause for extension of time. In para.4 of this application, respondent No,1 asserts that he contacted the petitioners with a request to accept the decretal amount of Rs,1,55,00,000 but they after promising to receive the amount, refused to receive the same, a day before filing of this petition. This assertion of the respondent No,1 is negated by the conduct of the parties apparent on the face of the record. The petitioners had given a telegraphic notice to the respondent No,1 requiring him to make the balance payment in terms of agreement dated 5-1-2000, but he did not respond and instead thereof filed a suit for specific performance, wherein again, they on 9-9-2000, filed an application showing their willingness to accept the payment under the agreement but respondent No,1 kept on delaying the matter of payment by requesting the Court to give him time for filing the reply to the application and then moved another application for amendment of the plaint and lastly could not make the payment under the decree dated 28-2-2001 in spite of a sufficient time of two months fixed by the decree and still awaited for another year after passing of the decree, to move application for extension of time. If at all the jurisdiction under section 148, C.P.C. Vested in the trial Court that was to be exercised judiciously by comprehending the entire dispute between the parties and could not have been invoked arbitrarily or fancifully, taking away the valuable rights, which had accrued to the petitioner by lapse of time (almost a year). On this score, as well, I am of the considered view that order extending time, which otherwise is without jurisdiction, as observed above, is not sustainable at law.
12. From what has been discussed above, I conclude that the learned Civil Judge was not equipped with any jurisdiction to extend the time for deposit of money under a decree, on the force of which, suit of the respondent had already been dismissed and there was nothing pending before the learned Civil Judge to invoke the provisions of section 148.
P.C. Order dated 25-3-2003 passed by lie learned Civil Judge, extending time for deposit of money under the decree dated 28-2-2001 is unlawful, without jurisdiction and void, thus, the ..Same is set aside. This civil revision succeeds and application, filed by the respondent on 29-3-2002, praying extension of time for deposit of remaining sale price is dismissed with costs.