2012SCMR900 (PLP)

JAWWAD S. KHAWAJA, J.

This appeal arises from a suit for specific performance filed by the respondents-plaintiffs namely Nabi Bakhsh and Haji Shoukat Hussain. The appellants before us are the defendants in the said suit. The suit was filed on 16-5=2008. Along with the suit, the respondents-plaintiffs had filed an application for grant of interim injunction under Order XXXIX, Rules 1 and 2, C.P.C. While deciding the said application, the learned trial Court, vide order dated 27-11-2008 passed an order which in relevant part directs the respondents-plaintiffs to deposit "the remaining consideration amount into court within a period of 30 days positively otherwise this application would be deemed as rejected. "

2. Here it is necessary to note a few facts. The agreement to sell between the parties dated 28-5-2007 was for a total consideration of Rs.1,99,12,

500. An amount of Rs.6,00,000 was paid by the respondents as earnest money while the balance amount was to be paid on or before 5-12-2007 which was fixed as the date of completion of sale and the execution of a conveyance in respect of the suit land.

3. The appellants-defendants had earlier filed their own separate suit, inter alia, seeking cancellation of the agreement dated 28-5-2007. This suit was filed on 18-12-2007. In their plaint, the present appellants had expressly stated three things; firstly, that the mortgage of the land in favour of Zarai Taraqiati Bank Limited (ZTBL) had been redeemed on 19-6-2007. Secondly, an inheritance Mutation No.7756, in favour of Muhammad Arshad Javed in respect of the property, had been obtained on 24-11-2007 and thirdly, that a suit which had been filed against the present appellants by a third party and in which an interim injunction had been issued against alienation of the suit property by the appellants, stood dismissed on 14-11-2007. The counter-suit for specific performance was filed by the respondents much later on 16-5-2008. I Admittedly, the balance consideration had not been paid by then; instead in. paragraph 5 of the plaint objections were raised setting out the lack of mutation, the encumbrance/mortgage in favour of ZTBL and the pendency of a civil suit against the appellants even though these three factual aspects had been expressly dealt with by the appellants in their suit fer cancellation of agreement. The two suits have been consolidated.

4. We have heard learned counsel for both sides at some length. Learned counsel for the respondents-plaintiffs was asked as to why the amount of balance consideration had still not been paid though 5 years had elapsed since the date of the agreement to sell. His submission was that the respondents-plaintiffs are even today willing to pay the said amount. This submission appears to be quite strange because the respondents clearly, have not tendered the outstanding amount. The submission is also at odds with, and contrary to the grounds of appeal which the respondents had filed before the High Court. It is important to note ground No.8 of the appeal wherein the respondents have stated that "the learned trial court has granted very short time for the compliance of the order as the amount is very huge which cannot be managed within few days ". Another objection raised by the respondents in their. appeal before the High Court. is "that the learned trial Court has committed error of law by imposing the condition that the amount be deposited in the Court instead of some profit-bearing scheme therefore [the order is] liable to be set aside ".

5. Learned counsel for the appellants-defendants has argued with some justification that the above noted grounds disclose that the respondents are abusing the process of law and that they did not have the ability and were never ready and willing to pay the balance consideration. It is for this reason that on 11-8-2011 the following leave granting order was passed in this case: "Leave to appeal is granted in this case to consider, if the learned appellate Court was justified to set aside the judgment of the learned trial Court by which while exercising its discretionary jurisdiction, the trial Court had imposed the condition upon the respondents plaintiffs to deposit the balance amount of consideration for the grant of temporary injunction; besides, the imposition of condition by the trial Court though imposed at the time of granting the. temporary injunction yet could relate `to ready and willingness' of the respondents plaintiffs in a suit for specific performance. As short question is involved in the matter, the appeal be listed for hearing within a period of three months."

6. It is acknowledged by both sides that the remedy by way of specific performance is an equitable relief. It cannot be claimed as of right. Under section 22 of the Specific Relief Act, this remedy is discretionary and "the Court is not bound to grant such relief merely because it is lawful to do so". In the present appeal the matter before us is confined to a challenge launched by the appellants-defendants against the impugned order dated 17-5-2011 wherein the learned Judge-in-Chambers in the High Court has observed that "the merits of the case cannot be discussed so it may not prejudice the case of any party". This observation as a matter of law appears to be proper but, in view of the facts and circumstances of the case borne out from the record, the contention between the parties needs to be seen in the light of the provisions of the Specific Relief Act and the foregoing factual narration.

7. We also note that already a period of almost 5 years has elapsed 'since the date of the agreement. The respondents-plaintiffs have not paid a single rupee out of the balance outstanding sum of about Rs.1,90,00,000 (Rupees One Crore and Ninety Lakhs approximately). As discussed above even tendering of the amount, prima facie, is not borne out from the record. This brings us to an important aspect of the case. Article 37(d) of the Constitution requires the State to "ensure inexpensive and expeditious justice ". It is evident that in the present case the constitutional imperative of providing expeditious justice is not being met. Secondly, the very fact that on an interlocutory application the matter has come to the apex Court is indicative that substantial expense has been incurred by the parties. The provisions of Article 37 ibid cannot be ignored. At the same time, fair trial and due process of law has to be ensured. In the facts and circumstances of this case a balance has, therefore, to be drawn-to ensure expeditious justice without impairing the rights of the parties to a fair trial and due process. It is for this reason that Courts and in particular trial Courts should consider devoting some time to pre trial proceedings which are envisioned in Orders X to XIV, C.P.C. and to proactively use their inherent powers given in section 151, C.P.C. "to make such orders as may be necessary for the ends of justice or toll prevent abuse of the process of the Court" .

8. It is apparent from the circumstances of this case noted above, that on the basis of the various pleadings and documents briefly considered by us, it may be possible to bring an early end to this litigation on the basis of undisputed or easily ascertainable facts. In order to ensure due process and to prevent abuse of law, the trial Court could frame and decide the issue as to whether the respondents-plaintiffs are entitled to a decree for specific performance bearing in mind section 22 of the Specific Relief Act and the discretionary nature of the relief being sought by the respondents-plaintiffs. This question can be decided as a preliminary issue on the basis of available pleadings of the parties and the documents already on record in the trial Court and in the High Court. The necessity of following such a course is important because we can take judicial notice of the fact that the prices of immovable l property are on the increase and that any delay in adjudication may redound to the benefit of the plaintiff and to the detriment of the defendant vendor. Discretionary equitable remedies such as specific performance are particularly amenable to expeditious adjudication in cases such as the present one where equitable considerations are readily discernable or can be ascertained under the provisions of Order X, C.P.C. Of particular significance are the provisions of rule IA of Order X which allow the Court to "adopt any lawful procedure ... to conduct preliminary proceedings and issue orders for expediting processing of the case". This rule appears to be a legislative attempt to give effect to the command of Article 37(d) of the Constitution. Although rule IA was incorporated in Order X, C.P.C. ten years ago, not much attention appears to have been paid to it in the adjudication of cases or to the other pre-trial provisions in the C.P.C. It is time this is done.

9. The present appeal is allowed and the interim order of the learned trial Court dated 27-11-2008 is restored. This shall not, however, prevent the learned trial Court from expediting adjudication by framing and deciding a preliminary issue as to whether the respondents-plaintiffs can be granted discretionary relief by way of specific performance of the agreement dated 16-5-2008, considering the circumstances of the case.

10. The appeal is allowed in the above terms. S.A.K./M-21/SC Appeal accepted.