2006 PLP 1161 (CLC)

MIAN HAMID FAROOQ, J.

Present first appeal, proceeds against judgment and decree dated 21-7-2005, whereby the learned trial Court, in exercise of its powers under Order VII, rule 11, C.P.C., rejected the plaint in appellant's suit for specific performance of agreement to sell.

2. Precisely stated facts of the case are that the appellant/plaintiff filed the suit for specific performance of agreement to sell, dated 13-2-2005, against the respondent, inter alia, pleading that the respondent, through the execution of agreement to sell, dated 13-2-2005, agreed to sell the questioned property (House bearing No.672, Block-B, Faisal Town, Lahore, measuring 10 Marlas) to the appellant for a consideration of Rs.56,00,000 out of which a sum of Rs.10,000 was received as earnest money and the receipt was executed. It was the case of the appellant that remaining consideration price of Rs.55,90,000 was payable on 14-4-2005, however, before the said date the respondent tried to dispose of the property, which necessitated filing of the suit for permanent injunction, wherein status quo order was passed. According to the appellant, although he was ready and willing to perform his part of the agreement, yet the respondent prolonged the matter, which resulted in filing the suit for specific performance. The respondent entered appearance and, on 16-5-2005, stated before the Court that in case the remaining consideration price is paid by the appellant within fifteen days, he has no objection for decreeing the suit. The learned trial Court, after recording the said statement, adjourned the case for recording statement of the plaintiff, who despite providing various opportunities, did not appear before the Court. The respondent, then, filed the application under Order VII, rule 11, C.P.C., seeking rejection of the plaint on the ground that the appellant failed to deposit the remaining consideration price (Rs.55,90,000) within a period of fifteen days, therefore, the plaint does not disclose any cause of action and it is liable to be rejected. The appellant resisted the said application, through filing its reply, and ultimately the learned trial Court rejected the plaint, vide impugned judgment and decree, dated 21-7-2005, hence the present first appeal.

3. Learned counsel for the appellant has contended that as soon as the respondent made the statement, thereby admitting the claim of the appellant, the learned trial Court was obliged under the law to pass a decree for specific performance, subject to deposit of remaining consideration price. He has further submitted that under the circumstances, the plaint could not have been rejected. Contrarily, the learned counsel for the respondent has submitted that offer made by the respondent by making statement, on 16-5-2005, was not accepted by the appellant, who did not deposit the remaining amount, inasmuch as he did not enter appearance before the learned trial Court, therefore, his plaint was rightly rejected by the learned trial Court. They have further submitted that statement was recorded on 16-5-2005, but up till now the appellant has not deposited the remaining consideration price.

4. We have heard the learned counsel and examined the summoned record, which has been received today. The respondent/defendant, in response to appellant's suit for specific performance, when appeared before the learned trial Court, made a statement on 16-5-2005, thereby admitting the claim of the appellant and stated that he had already received a sum of Rs.10,000 and if the remaining consideration price of Rs.55,90,000 is paid by the appellant/plaintiff, then he has no objection for decreeing the suit. The said statement was signed by the respondent as well as his learned counsel. Even otherwise, the respondent does not deny that the said statement was not made. Thereafter, the learned trial Court adjourned the case for personal appearance of the appellant. It appears appropriate to reproduce order, dated 16-5-2005, which reads as follows:-- It is evident from the aforesaid statement that the respondent did not resist the suit and while admitting the contents of the plaint, with regard to the payment of earnest money and the balance consideration price, unequivocally agreed and stated that if the appellant deposits remaining consideration price, he has no objection for decreeing the suit. It flows therefrom that when the suit was fixed before the learned trial Court, the respondent did not contest the same and the parties were not at issue on any of the questions of law and facts, therefore, under the provision of Order XV, rule 1, C.P.C., the Court should have at once, A pronounced judgment, thereby passing a decree for specific performance, favouring the appellant, subject to the deposit of the remaining consideration price within a period of 15-days. If any case-law is needed, judgments reported as Directorate of Small Industries, Government of Balochistan through Sales Manager, Karachi Airport, Karachi v. Civil Aviation Authority through Director-General and another 1993 MLD 1836 and H. Gharibullah v. Mst. Mumtaz Begum and others 1990 CLC 1609. can be referred. However, strangely enough instead of decreeing the suit, the learned trial Court called upon the appellant to appear in person for recording his statement. At that stage, there was no need to summon the appellant for recording his statement, as his suit for specific performance, verified on oath and signed by him, was before the Court, and the appellant, being the plaintiff, could not deviate or resile from the contents of the plaint. To our mind, there was no justification for adjournment of the case, on 16-5-2005, and directing the appellant to B appear in person, moreso, when he was duly represented through his learned counsel on 16-5-2005. The learned trial Court fell into a grave -legal error in further processing the suit.

5. As noted above, the learned trial Court, on 16-5-2005, recorded the statement of the respondent, called upon the appellant to appear in person and adjourned the case. The appellant at no stage was required and directed by the Court to deposit the remaining consideration price, thus, it cannot be legitimately argued or held that the appellant failed to deposit the remaining consideration price. Had there been any direction by the Court for deposit of the amount, then the respondent may have some case in case of non-compliance.

6. We have also examined impugned order and are of the view that the case as made out by the respondent, does not fall under any of the categories enumerated in Order VII, rule 11, C.P.C. The respondent neither filed the written statement nor contested the suit of the appellant and straightaway conceded the claim of the appellant by making the statement, as noted above. To our mind, under the circumstances and specially in view of the statement of the respondent, recorded on 16-5-2005, no case for rejection of the plaint was made out and exercise of powers by the learned trial Court, under the provision of Order VII, rule 11, C.P.C. was, to say the least, misconceived and the plaint was illegally rejected.

7. In the above perspective, we have examined the impugned judgment and decree and find that the same are not in consonance with the law on the subject and we are inclined to reverse the same, which we hereby do.

8. Upshot of the above discussion is that the appeal is allowed and the impugned judgment and decree dated 21-7-2005 are set aside with no order as to costs. Resultantly, appellant's suit for specific performance "shall be deemed to be pending before the learned Senior Civil Judge, Lahore, who shall decide the same, afresh, keeping in view the statement of the respondent, recorded on 16-5-2005, and provisions of Order XV, rule 1, C.P.C. within a period of three months from today. The parties are directed to appear before the learned trial Court on 15-4-2006. Office is directed to immediately transmit the record to the concerned Court. F.B./M-149/L Appeal allowed.