MIAN SAQIB NISAR, J.---By the present, besides disposing of the captioned petition, Regular First Appeal No,804 of 2002 and Civil Revision No,475 of 1997 are also being decided, as all these matters are between the same parties, relating to the same subject-matter of the litigation and involve common questions of law and facts. Through this revision petition, the petitioners have challenged the orders of the learned. Executing Court dated 2-3-2002 and the learned Additional District Judge, dated 16-4-2002, by virtue whereof, their application under section 47 of C.P.C. Was dismissed and the appeal challenging this order, was disallowed., 3: In order to comprehend the dispute and the issues involved in the(natter, it is expedient that brief facts of the case, may be encompassed. One Salah-ud-Din. (the vendor) the predecessor of the petitioners entered into' an agreement to sell dated 23-J-1965 with Mian Muhammad Abbas (the vendee) the predecessor of the respondents, for the sale of Bungalow bearing No, I 79, Abu Bakar Block, Gardon Town, Lahore for a total consideration of Rs,.70,000, out of which an amount of Rs,20,000 was paidto the vendor as earnest money, whereas for the balance consideration of Rs,46,000, the vendee undertook to discharge the liability of the vendor towards the House Building Finance Corporation on account of which, the property mentioned above, was encumbered. Thus, on the payment of Rs,4,000, to the vendor, the vendee was entitled to seek the finalization of the sale in his favour.
4. Anyhow, the vendor allegedly, did not perform his part of the agreement, constraining the vendee to file suit for specific performance of the agreement before the Civil Court at Lahore. This suit was ex parte decreed on 1-5-1969, by the trial. Court. It may be pertinent to mention here that after recording of ex parte evidence, the case for the announcement of the judgment was fixed by the Court on 5-5-1969, but as the Presiding Officer before the aforesaid date, was transferred and was immediately directed to relinquish the charge resultantly, on 1-5-I969,.The learned Judge, pronounced the judgment and passed the decree. However, in the judgment, .a direction was given that because it is being delivered not on the date fixed, therefore, a notice to the above effect be given to the plaintiff/decree-holder and his counsel, and if they appear on 5-5-1969, they should be apprised accordingly. It appears from the record that the Court of Mr. Zameer Ahmad Bokhari, the learned Judge, seized of the matter, was abolished and the file was entrusted to another learned Judge, who on 5-5-1969, passed the order, recording the presence of none, and observing that "Mr. Zameer Ahmed Bokhari, learned Civil Judge, seized of the matter has since been transferred, he has written and announced the judgment, the matter was fixed for announcement on 5-5-1969, the cases pertaining to the Court of the transferee Judge, had been entrusted to him", therefore, he re-pronounced the judgment and directed that the plaintiff as also his counsel be issued notices informing them of the judgment and decree passed.
5. Another relevant fact which requires specific mention is that in the judgment and decree, a direction was purportedly issued to the plaintiffs/vendee for the deposit of the balance consideration amount of Rs,4,000 in the Court by 29-5-1969, and in case the needful is not done, the suit shall be deemed to have been dismissed. But erroneously instead of the plaintiffs. The word "defendant" has been mentioned in the judgment and decree. Anyhow, the plaintiffs/decree- holders on 14-7-1970, moved an application under sections 148, 151 and 152, before the District Judge, Lahore. In which it was stated that, the case was actually fixed for judgment on 5-5-1969, the Presiding Officer namely Syed Amjad Hussain Bokhari, was transferred, however, he pronounced date, judgment on 1-5-1969 instead of 5-5-1969; as the judgment was pronounced in the absence of the plaintiff/decree-holder, therefore, the Court being, conscious of the above situation, directed in the judgment that it should be notified to the plaintiff and his counsel, and the file should be consigned to the record room thereafter. But, no such notices were issued. It is only on 9-7-1970, the decree-holder after some efforts was able to locate the file and discovered the passing of the judgment and decree, in which, the error regarding the direction of deposit to the defendant instead of the plaintiff was noticed, thus accordingly, the judgment and decree was sought to be corrected and the extension in time for the deposit of Rs,4,000 was requested. The learned Civil Judge, to whom this application was entrusted, was pleased to allow the same vide order dated 14-1-1971, and the judgment and decree was accordingly corrected; the plaintiff/decree-holder was allowed to deposit the amount by 28-2-1971. It is an admitted position, that the deposit has been made by the decree-holder within the time extended by the Court, which otherwise remains within the time frame provided by the original judgment and decree, as corrected by the Court on 14-1-1971.
6. Anyhow, the petitioners on 10-4-1972, moved an application under Order 9, rule 13, C.P.C. For the setting aside of the ex parte judgment and decree against them, which was contested by the decree-holder, issues were framed, but before its final adjudication, the same was withdrawn.
During this period, the sale instrument of the property was executed and got registered by the Court in favour of the decree-holder on 2-9-1971, and the execution application for seeking the possession only remained pending. Anyhow, the petitioners on 2-5-1972, filed a suit for declaration, challenging the ex parte decree on the grounds of fraud and misrepresentation; this suit was dismissed by the learned trial Court, appeal filed by the petitioner also failed. Their revision petition before this Court, remained unsuccessful. Aggrieved of the above, the petitioners filed C.P.S.L.A.
Before the Honourable Supreme Court; the leave was granted, the petition was converted into Civil Appeal No,71 of 1999 and was dismissed on 12-10-2002. But, in paragraph 10 of the judgment, it was observed: "The present appeal has not arisen directly from the suit of specific performance of agreement of sale and any order passed in the said suit. It has limited scope for determining whether the decree of specific performance of agreement of sale obtained by the respondent, suffered from fraud and misrepresentation and nothing else, therefore, in our view any observations made by the Courts below in the judgment impugned in this appeal relating to the order of extension of time for depositing the remaining amount of consideration and its effect on the existence or excitability of the decree is beyond the scope of the present suit, for this appeal, as observed, has not arisen against any order passed in the suit for specific performance of the agreement, therefore, all those observations/ findings wherever made are hereby expunged. The appellants should seek remedy independently if available to them against the order of extension of time, to deposit the amount of consideration made in the suit for specific performance". After this judgment, as the execution application of the respondent for the delivery of possession of the suit property was yet pending, the petitioner filed an objection petition under section 47, C.P.C., challenging the excitability of the decree, primarily on the ground that, as the amount of Rs,4,000 was not deposited by the decree-holder before 29-5-1969, as required under the judgment and decree, which also provided the consequence of failure in this behalf, by deeming the dismissal of the suit, therefore, as the suit has been dismissed, the decree has been rendered in executable.
Moreover, after passing the decree, the Court had become functus officio, therefore, the extension of time granted by the learned Civil Judge, vide order dated 14-1-1971, is void ab initio. This application was resisted by the respondents and through the impugned order dated 2-3-2002, has been dismissed by the learned Civil Judge. Appeal tiled by the petitioner has also failed. Hence, this revision petition.
7. It may be pertinent to mention here that earlier on 13-5-1995,petitioner also had filed objection petition under section 47 read with Order 21, rule 94, before the Executing Court, which was dismissed by Muhammad Khalid Nawaz, Civil Judge vide order dated 18-11-1996; this order was assailed by the petitioner in appeal, which too was disallowed on 17-9-1998, resultantly the learned Executing Court in the present matter, while passing the impugned order also concluded that the second objection petition is barred under the principles of res judicata; further by giving the detailed facts and peculiar circumstance of the case, such as that the decree dated 1-5-1969 was passed in the absence of the respondent; no notice was issued to them as per the direction of the Court; because there was an error in the judgment and decree, which was corrected by the learned Civil Judge, on the application of the respondent vide order dated 14-1-1971, therefore, the learned Judge was competent to extend the time, this second objection petition thus, was dismissed. Aggrieved of the above petitioners preferred appeal, but failed. Hence this petition.
8.Kh. Saeed-uz-Zafar, Advocate, learned counsel for the petitioners, by relying upon the judgments reported as PLD 1966 SC 983; PLD 1983 SC 243; 1992 MLD 31; 1998 CLC. 55, PLJ 2002 Lah. 176 and an unreported judgment of this Court in Civil Revision No,650 of 2001, has argued that the learned Court, after passing the judgment and decree, had become functus officio, resultantly, had no jurisdiction to enlarge the time under the provisions of section 148 of C.P.C. It is also submitted that in view of the observations made by the Honourable Supreme Court of Pakistan in Civil Appeal No,71 of 1999 (reproduced above), the petitioners were given the right and a fresh opportunity to file the objections qua the non-excitability of the decree and, therefore, the earlier dismissal of the objections filed by the petitioners, would not be abar in their way to re-agitate the matter.
9.Replying to the above, learned counsel for the respondents has relied upon PLD 1994 Lah. 280; 2000 CLC 1633; PLD 1997 SC 351; PLD 1999 SC 342; PLD 2001 SC 131. And has argued that the judgment and decree in the suits for specific performance is preliminary in nature and, therefore, till the time, the title of the property qua which the decree hasbeen passed, is legally conferred and the possession has been delivered to the decree-holder, if the decree provides for the possession as well, the Court shall retain control over the litigation and thus, would be empowered and competent to extend the time. It is also submitted that the petitioners had earlier filed objections qua the execution of the decree more or less on the same grounds, which were dismissed; appeal against the said order also remained unsuccessful; these orders were not challenged by the petitioners any further, thus these attained finality, resultantly, second objection petition of the petitioners under section 47, C.P.C.Was barred by res judicata. In this regard, the learned counsel has placed reliance upon 1994 MLD 1820; 1992 CLC 1699; 1997 MLD 406; 1996 CLC 916; PLD 1987 SC 145; 1999 MLD 2140; 1999 SCMR 1633; 1997 SCMR 1796 and 2000 YLR 2760. It is further argued by him that the judgment and decree dated 1-5-1969 was erroneous, inasmuch as the direction was not given to the respondent/decree-holder for the deposit of the balance consideration of Rs,4,000.
Rather it was admissly to the defendant of the case and, therefore, until and unless, such decree was accordingly corrected, the same could not be complied with by the petitioners. The respondents, on coming to know of the decree, in the circumstances, narrated above, because the decree was passed in their absence, they accordingly moved an application primarily for the correction of the judgment and decree, with the ancillary relief for the extension in time, which was duly allowed by the Court, thus, while correcting the decree, it became imperative for the Court to extend the time, otherwise it was meaningless to grant the correction on the one hand and to refuse the extension in time on the other.
10. We have heard the learned counsel for the parties. In view of the preponderance of the case- law cited by the learned counsel for the petitioners, we have come to the conclusion that, where. a Court, while passing a decree in a suit for specific performance has directed the plaintiff/decree- holder to make the deposit of the balance consideration in the Court, by a specific date, and the judgment and the decree also provides the consequences of the dismissal of the suit, in case of the failure to comply with the decree, such decree for all intents and purposes, is final in nature and the Court does not retain any control over the litigation. Therefore the Court has no jurisdiction under section 148, C.P.C. To extend the time on the principles of becoming functus officio. We are not inclined to accept the plea of the learned counsel for the respondents. That the decree passed in a suit for specific performance is preliminary in nature, because under such decree, the Court yet has to enable the conferment of the title of the property upon the decree-holder, and in certain cases, to deliver the possession also. Resultantly, until and unless, the above objects are accomplished, the decree remains to be a preliminary. Case reported as 2000 CLC 1633, on which, reliance has been placed in this behalf, is distinguishable, because in the said judgment, the definition of he decree given in section 2(2), C.P.C. Has not been considered, which makes the proposition clear and easier to understand. The explanation to the section ibid, vividly provides that a decree shall be preliminary, when further proceedings have to be taken before the Court, before the suit can be completely disposed of, however, it shall be final when such adjudication completely disposes of the suit. In the suit for specific performance, the issues involved in the lis are finally and conclusively decided by a decree for the specific performance of immovable property, if granted to the plaintiff, and the steps for the conferment of the title and the delivery of possession, if so required under the decree, are purely in the nature of the execution and satisfaction of the decree. If the decree for specific performance is held to be preliminary in nature, then all the decrees, which require the enforcement through the process of execution, shall be rendered preliminary. For example, in the suit for simple possession of the immovable property, which according to the settled law, is a final decree, but because the possession has to be delivered to the decree-holder in pursuance thereof, shall also be a preliminary decree, which according to law is not. Therefore, we are of the firm view that, once a decree, in a suit for specific performance of an immovable property, has been passed, which is conditional in nature envisaging a direction to the plaintiff/decree-holder to make the deposit of certain balance consideration in the Court by a specific date and in case of his failure to do the needful, the suit shall be deemed to have been dismissed, this means the decree is final and conclusive for all intents and purposes, as the Court had finally disposed of the matter, and nothing is left for further determination by the Court, therefore, the Court loses its control over the lis. Resultantly, if the condition of the deposit of certain amount for the grant of decree is not fulfilled, the Court shall have no power under section 148, C.P.C. To extend the time, as being functus officio. But this rule obviously cannot be held to ,be absolute, but is subject to certain exceptions, which includes the situations beyond the control of the decree-holder to comply with the decree or the act of the Court, which impedes the compliance thereof. In the present case, there are two major factors on account of which, the respondents could not meet the condition of the deposit by the given date. Firstly, that the decree was passed in their absence, no notice as required by the judgment was issued to the respondents of the judgment and decree passed, therefore, they were unaware of the decree and it was a circumstance beyond their control; secondly, though judgment and decree purports that the deposit should be made by the respondent, but due to a conspicuous error, the direction was given to the defendant of the case, therefore, until and unless the judgment and decree was duly corrected, it was not possible for the respondent to have complied with the direction, resultantly, on the discovery of the judgment and decree, passed in their favour, the respondents moved an application for the amendment under section 152, which application as stated above, was allowed by the learned Civil Judge vide, order dated 1-4-1971 and the extension of time, which was an ancillary, but necessary consequence of the correction had to be allowed by the Court, enabling the decree-holder to ripe the fruits of the right earned by him. Thus, the respondents were permitted to make the deposit till 28-2-1971. This period of 44 days allowed to the respondent, was still within the time frame allowed under the original decree. Anyhow, irrespective of any extension B in the period of time by the Court, when the decree was corrected on 28-2-1971', the respondent was entitled to make the deposit within that period, which was fixed in the original decree. There is no dispute between the parties that this has been accordingly done.
11. The argument of the learned counsel for the respondent that the extension of time could not have been granted vide order dated 14-7-1971, without notice to the petitioners, suffice it to say that this argument would C have force, if it was not a case of the correction of judgment and decree, rather the extension of time simpliciter. But it is settled law that the Court can correct the error.In the judgment and decree at any time without notice to the other side. Thus, the Court in equity, while correcting the judgment and decree, could also extend the time waiving notice to the petitioner. In the peculiar facts of the present case, we are constrained to hold that while amending the judgment and decree, the Court could enlarge the time and was not functus officio. Moreover, the days provided in the original decree, for the deposit would start from the time, the correction in the judgment and decree was allowed, notwithstanding the extension of time, F it is an admitted position on the record that the respondent has deposited the amount within specific- time frame, set out in the original decree, he thus, cannot be said to have failed in compliance of the condition, resulting into the dismissal of his suit.
12. The other question, involved in the matter, whether the second objection application of the petitioners under section 47, C.P.C. Was incompetent and barred under the principles of res judicata or the judgment of the Honourable Supreme Court had given an independent cause of action to the petitioners to file a fresh objection petition under section 47, C.P.C., it may be held that in the earlier application, the petitioners inter alia have resisted the decree on the ground of non- deposit of the amount of Rs,4,000 by the respondent, which petition was dismissed and their appeal also failed. The matter was not further challenged and therefore, the issue attained finality.
It seems that this fact was never brought to the notice of the Honourable Supreme Court while hearing of the Civil Appeal No,71 of 1999 and the above observations found place in the judgment due to this omission. Even otherwise, the Honourable Supreme Court, while making the observation, consciously used the expression "if available", meaning thereby that, the incompetency or bar of res judicata qua such objection petition was never condoned. The argument of the learned counsel for the petitioners that in the first objection petition, the point about non-deposit of the amount of Rs,4,000 and the question of inexcusability of the decree on that ground, was not specifically decided by the Courts, suffice it to say that, in such circumstances. Where the petitioner has not further agitated against these decisions, which attained finality, the principle of constructive res judicata would be applicable. In view of the discussion made above we do not find any merit in this petition, which is hereby dismissed with costs throughout.
CIVIL REVSISION NO.475 OF 1997
13. The facts giving rise to the filing of this' petition are that in execution of decree for specific performance dated ,1-5-1969, the petitioner (decree-holder), applied to the Court for the transfer of the title of the suit property in his favour, which title was duly conferred upon the petitioner through the execution and the registration of the sale-deed by the Court dated 2-9-1971. However, the possession of the, suit property could not be, delivered to the petitioner for certain reasons and the execution in this behalf remained pending, when the respondents brought a suit for declaration challenging the ex parte decree dated 1-5-1969. The petitioner, likewise, brought a suit for recovery of an amount of Rs,27,600 against the respondents as compensation for the use and occupation of the aforesaid property for the period i,e, 5-5-1969 till 20-3-1972 at the rate of Rs,800 petition. Both the suits were consolidated. Suit for declaration filed by the respondents was dismissed, while, the suit for compensation of the petitioner, was allowed by the learned Civil Judge through the judgment' and decree dated 25-7-1995. However, on appeal filed by the respondents, this judgment and decree to the extent of allowing the suit of the petitioner was accepted and the judgment decree of the trial Court was set aside on 30-10-1996, hence this petition.
REGULAR FIRST APPEAL NO.804 OF 2002
14. The facts of this case are that the respondent for the decree-holder), filed another suit for compensation on account of use and occupation of the 'suit property at the rate of Rs,25,500 Per month for a period 17-1-1987 till 17-8'-1995 and also asked for compensation pendent lite. This suit was resisted by the appellants and after 'framing of issues and recording of evidence, the learned Court has awarded 'the decree 'for 'the recovery to the respondents at the rate of Rs,25,500 per month with effect from 14-9-1992 till 5-3-2002.
15. In both these matters, the learned counsel for the parties, have not addressed the arguments on merits of the case, including the question of quantum of compensation to which, the respondents are found entitled by the trial Courts respectively. But have confined themselves only to one legal issue i,e, the right and entitlement of the respondent .To claim the compensation. Kh. Saeed-uz- Zafar, Advocate, learned counsel for the appellants in Regular First Appeal No,. 804 of 2002, who opened the arguments, by relying upon the definition of the mesne profit given in section 2(12) of C.P.C., has submitted that such profits can only be awarded, if the possession of the appellants was wrongful in nature, whereas in the instant case, the possession of the appellants was protectedon account of the stay orders, granted by the Courts in different rounds of the litigation at different stages, resultantly, the respondents cannot legally claim compensation on account of the mesne profit. While, the learned counsel for the respondents has stated that once the title of the property was conferred upon the respondents by the Court in execution of the decree, irrespective that the appellants had challenged the decree in different proceedings at various forums, and had also obtained the stay orders qua possession, still when these proceedings were finally decided against the appellants, thus they would be deemed to be in wrongful possession right from the point of time, when the title had vested in the respondents. Therefore, the respondents in equity, would be entitled to the compensation for the use and occupation of the property, particularly in the light of the admitted position on the record, that the appellants had rented out the property to some third party and were receiving the rent from the said tenant throughout, which otherwise was the right of the respondents.
16. We have heard the learned counsel for the parties and find that once the title of the property was conferred upon the respondents by the Court through the execution and registration of the sale-deed, the respondents under the decree and on the basis of such title, were entitled to the possession of the property, however if, the appellants had agitated the matter in different proceedings and obtained the interim relief to protect their possession, but when those proceedings finally terminated against the appellants and in favour of the respondents, the possession of the former for all intents and purposes, shall be wrongful within the meaning of section 2(12), C.P.C., as against the rightful owner of the property, who was deprived of the use and occupation due to the initiation of the proceedings and the interim relief procured by the appellants, who ultimately were found not entitled to the main relief.
17. Moreover, notwithstanding the definition of section 2(12), C.P.C., the respondents in equity, were also entitled to the compensation, because it is settled principle of law that an act of the Court shall prejudice no one, therefore, when the appellants sought the protection of the Court as an interim measure to their advantage, they also took the risk of compensating the respondents, if ultimately they failed in the final decision. The above principle of equity cannot be applied to the advantage of one and the disadvantage of the other, rather a balance has to be created, which in the facts and circumstances of this case, tilts in favour of the respondents. In the light of what has been discussed above, Civil Revision No,972 of 2002 and Regular First Appeal No, 804 of 2002 are dismissed, while Civil Revision No, 475 of 1997 is allowed by setting aside the judgment and decree of the learned Additional District Judge, and upholding that of the learned trial Court.