2008 PLP 866 (CLC)

ALI AKBAR QURESHI, J.

The petitioners assail legality of order, dated 24-5-2006, whereby, learned Additional District Judge, Lahore, by accepting the revision petition of the respondents, set aside order, dated 10-6-2005, passed by the learned trial Court declining further time to deposit the balance amount with reference to the correction of the judgment and decree of the said Court.

2. Precise facts of the case are that on 24-4-1996, respondent/ plaintiff filed a suit against the petitioners for specific performance of contract with regard to Plot No.87, Block G-II (now Block G-III) measuring 422 sq.mts. situated in Muhammad Ali Johar Town, Lahore, which was decreed by the trial Court on 21-1-2003 with direction to the plaintiff to deposit the balance amount of Rs.6,25,000 within one month. It was the case of the plaintiff/respondent that on obtaining certified copy of judgment and decree, it transpired that suit property was wrongly enumerated in the judgment, as Plot No.81 instead of Plot No.87. Additionally, the decree-sheet did not fined mention as to the description of the suit property.

3. In these circumstances, plaintiff/respondent approached the trial Court seeking rectification of two-fold material errors. Eventually, correction qua description of the suit property was allowed in the judgment, but not in the decree-sheet, while plaintiff's request for extension in time for deposit of balance amount was declined. Thus, plaintiff/respondent invoked the revisional jurisdiction of the learned District Judge and the learned Judge of the revisional Court by accepting the same granted ten days' time to the plaintiff/respondent for deposit of the balance amount. Hence, this petition.

4. Learned counsel for the petitioner has contended that sufficient time was granted to respondent No.1 to deposit the remaining sale price by the learned trial Court while decreeing the suit, but respondent No.1 instead of depositing the remaining amount within one month i.e. till 21-2-2003, filed an application on 19-2-2003 just on the second last day before the termination of period for depositing the balance amount on the grounds that the description of the plot has wrongly been mentioned in the judgment so the time be extended to deposit the balance amount. It is further contended, that respondent No.1, who was required to deposit the balance amount within one month, did not deposit the same at the time of filing of application for extension of time to show his bona fide and in fact respondent No.1 had no money to perform his part of the contract and the learned trial Court has rightly refused to extend the time by dismissing the application, whereas the learned revisional Court wrongly extended the time ignoring the conduct of respondent No.1.

5. Malik Amjad Pervaiz, one of the learned counsel for the petitioners, also argued that only the decree is to be executed and not the judgment, so no description of property is given in the decree-sheet and further, the respondent No.1 has not showed his bona fide by depositing the balance amount within the stipulated period. It was also contended by the learned counsel that correction, if required and necessary, could have been sought even after depositing the balance amount and mala fide of respondent No.1 is also on the record that the application for extension in time drafted on 15-2-2003 but was submitted on 19-2-2003, so respondent No.1 is not entitled for any discriminatory relief. The learned counsel has placed reliance on the cases reported as Muhammad Nawaz and others v. Muhammad Sadiq and another 1995 SCMR 105, Bashir Ahmad and another v. Hussain Industries (Pvt.) 2003 YLR 55, Mst. Sultana Begum v. Mst. Sadiqa Begum 2003 CLC 1705, Haji Abdul Latif v. Ateeq Ahmad YLR (Lah.) 985(c) and Shujat Ali v, Muhammad Riasat and others PLD 2006 SC 140.

6. Arguments heard. Record perused.

7. It is admitted on record that at the time of decreeing the suit on 21-1-2003, in favour of respondent No.1, the learned trial Court granted one months' time which was to be expired on 21-2-2003 but respondent No.1 instead of complying with the order and perform his part of the agreement, filed an application on 19-2-2003 on the ground that the suit property has wrongly been mentioned as Plot No.81 in place of Plot No.87, Block-G-II, M.A. Johar Town, Lahore, and the time be extended to deposit the remaining amount. Respondent No.1 filed the said application just, before the second last day before the termination of the period for depositing the balance amount but without depositing the remaining amount as ordered by the learned trial Court, which is sufficient to observe that respondent No.1 filed the said application with mala fide simply to prolong the matter without any reason. Respondent No.1 could have sought correction of the description of the property in the judgment even after depositing the remaining price just to show his bona fide and also that respondent No.1 had a sufficient amount to purchase the said property. Whereas, the conduct of respondent No.1 is totally otherwise. It is also admitted proposition of law, that only the decree is to be executed and not the judgment, whereas in this case no description of property is given in the decree so the filing of the application for correction of the description of the property and also extension in time for depositing the amount is based on mala fide and respondent No.1 had no money to purchase the suit property. By not depositing the remaining amount, as ordered by the learned trial Court obviously the petitioner had accrued valuable right in the property in question so the learned revisional Court wrongly exercised the jurisdiction by extending the time to deposit the remaining amount. In the matter of specific performance of the contracts/agreements, only the intention of the parties is to be seen whereas in this case, respondent No.1 has proved himself otherwise and not in accordance with requirements of law so I am not inclined to exercise the constitutional jurisdiction, therefore, the order dated 24-5-2006, passed by the learned Additional District Judge, while accepting the revision petition of respondent No.1 is set aside and the order, dated 10-6-2005, passed by the learned trial Court is restored.

8. With these observations, this constitutional petition is allowed with no order as to costs. M.H./W-4/L Petition allowed.