2025 PLP 1660 (CLC)

ABID HUSSAIN CHATTHA, J.

This Civil Revision is directed against the impugned Order and Judgment dated 19.09.2017 and 18.01.2018 passed by Civil Judge and Additional District Judge, Pasrur, respectively.

2. Precisely, the Petitioner instituted a suit for possession through specific performance based on an agreement to sell dated 13.01.2016 (the "Agreement") averring therein that against the total Sale consideration of Rs. 5,036,250/-, Rs. 2,140,625/- has been paid to the Respondents and Rs. 2,895,625/- is remaining which the Petitioner is ready to pay against execution of the registered sale deed. The Respondents filed conceding written statement with the prayer that they have no objection if the suit of the Petitioner is decreed subject to payment of remaining sale consideration amounting to Rs. 2,895,625/- within seven days. At the same time, the Respondents also filed an application under Order VII, Rule 11 of the Code of Civil Procedure, 1908 (the "C.P.C.") for rejection of plaint on the ground that upon making conceding statement, the cause of action in favour of the Petitioner has ceased to exist. The said application was resisted by the Petitioner on the ground that subsequent to the institution of the suit, he has paid further Rs. 500,000/- to the Respondents which was denied by the Respondents. As such, since the question regarding payment of further consideration amount requires recording of evidence, therefore, application under Order VII, Rule 11 of the C.P.C. is liable to be dismissed.

3. Despite several opportunities granted by the Trial Court, learned counsel for the Petitioner did not advance arguments on the said application which constrained the Trial Court to decide the same as per law on the basis of available record. The Trial Court opined that it is settled principle of law that an application under Order VII, Rule 11 of the C.P.C. is required to be decided with respect to the contents of the plaint. As the Respondents have conceded the claim of the Petitioner as stated in the plaint, therefore, this application under Order VII, Rule 11 of the C.P.C. is dismissed and the suit of the Petitioner is decreed in his favour and against the Respondents subject to payment of remaining sale consideration of Rs. 2,895,625/- within thirty days from the date of the said Decree, failing which, the suit shall stand dismissed.

4. The Petitioner instead of complying with the said Decree preferred an Appeal which was dismissed by the Appellate Court on the grounds that after the conceding statement of the Respondents, repeated adjournments were granted by the Trial Court on the application under Order VII, Rule 11 of the C.P.C. i.e. on 06.03.2017, 29.03.2017, 06.04.2017, 24.04.2017, 03.05.2017, 15.05.2017, 25.05.2017, 06.06.2017, 14.06.2017, 21.07.2017, 29.07.2017, 31.07.2017 and 17.09.2017 but the Petitioner never showed any inclination for completion of transaction by paying remaining sale consideration. Finally, the application of the Respondents was dismissed and the suit was decreed in terms as stated above. The Appellate Court further observed that in terms of penalty clause stipulated in the Agreement, it was stated that if the remaining sale consideration is not paid by the Petitioner till 12.09.2016, the earnest money shall stand forfeited. As such, as it has been established that female Respondents are not in breach of the Agreement, rather, the Petitioner has breached the Agreement having failed to pay the balance sale consideration within stipulated period, therefore, earnest money would stand forfeited. In this context, additional passing observations were made that the Petitioner is reaping the fruits out of the property being in possession and that since Court fee of Rs. 15,000/- was not paid before filing the appeal despite knowledge and adjournments, therefore, the Appeal is liable to be dismissed on this score.

5. Learned counsel for the Petitioner contended that the impugned Order and Judgment are not sustainable in the eyes of law for the reason that the alleged subsequent payment of Rs. 500,000/- was required to be adjudicated on merits by production of evidence; the Appellate Court made an erroneous observation that possession of the suit property was with the Petitioner; and that Appeal of the Petitioner would not have been dismissed due to non-payment of Court fee.

6. It is noted that non-payment of Court fee was not the basis for dismissal of Appeal of the Petitioner. It is merely an observation of the Appellate Court that the Petitioner was bound to pay the same who had not paid despite repeated opportunities which does not otherwise affect the outcome of the Appeal on merits. Further, observation of the Appellate Court that possession of the suit property was with the Petitioner was; merely an additional observation which also does not affect the outcome of the suit inasmuch as it was explicitly stated in the plaint that Rs. 2,895,625/- was remaining sale consideration and the said claim was conceded by the female Respondents, whereafter, the Trial Court rightly decreed the suit of the Petitioner directing him to pay the said remaining sale consideration within thirty days but he did not pay the same on the pretext that he had paid Rs. 500,000/- to the Respondents on account of marriage of a daughter which had nothing to do with the transaction alleged by him in the plaint. This was merely an afterthought and it has been established on record that the Petitioner was never ready and willing to pay the remaining sale consideration within the stipulated period mentioned in the Agreement and even remained fail to do so pursuant to the Decree passed in his favour. Hence, there is no illegality or infirmity in the impugned Order and judgment and the earnest money paid by the Petitioner to the Respondents surely stands forfeited under the forfeiture clause of the agreement executed between the parties.

7. In view of the above, there is no merit in the instant Civil Revision and the same is dismissed. MQ/M-92/L Revision dismissed.