2002 PLP 2776 (YLR)

Abdus Qadoos Khan Tareen for Respondents. Date of hearing: 12th November, 2001. MUHAMMAD KHALID ALVI, J.‑‑ Brief facts of the case are that the appellant filed a suit for specific performance against the respondents for land detailed in head-note of the plaint situated in Chak No.67/10R Tehsil and District Khanewal for a sum of Rs.18,93,875.

2. On 5‑6‑1995 better statements of the parties were recorded by learned trial Court and the case was adjourned to 12‑6‑1995 for arguments on the stay application. On 12‑6‑1995 learned counsel for the respondents/defendants made a statement whereby he conceded the suit of the appellant/plaintiff and claimed that Rs.1,00,000 had already been received by the respondents and that they are further entitled to Rs.17,93,

875. Consequent upon this statement learned trial Court on the same day Le 12‑6‑1995 decreed the suit of the appellant and directed him to deposit Rs.17,93.875 within one month i.e. till 12‑7‑1995. It was further observed that in case of failure to deposit the said amount, the suit of the appellant shall be deemed to have been dismissed. On 12‑7‑1995 the appellant filed application before learned trial Court for extension of time, contending therein that he is resident of a far‑off District and his learned counsel had failed to communicate him the order of the Court dated 12‑6‑1995 and today when he came to inquire about next date of hearing he came to know from clerk of his counsel that today is last day for deposit of decretal amount. He pleaded that such a huge amount cannot be arranged by him and prayed for extension of time. This application was replied by the respondents on the same day as they happened to be present in the Court premises in connection with withdrawal of decretal amount. The application was dismissed by learned trial Court the same day i.e. 12‑7‑1995.

3. The appellant has challenged the original judgment and decree dated 12‑6‑1995 and also order dated 12‑7‑1995 through this, appeal.

4. It is contended by learned counsel for the appellant that the application filed by the appellant for extension of time on 12‑7‑1995 was well in time and the Court was still having seisin over the matter and had not become functus officio, therefore, for the reasons given in the application learned trial Court should have extended time for depositing the decretal amount. It is also argued that since the appellant has challenged the original judgment and decree dated 12‑6‑1995 as well, therefore, this Court in appeal can also extend the time for deposit of decretal amount.

5. Learned counsel for the respondents on the other hand has opposed the arguments of learned counsel for the appellant.

6. We have considered the arguments of learned counsel for the parties.

7. There is no cavil to the proposition that unlike pre‑emption cases the Court retained seisin over the lis even after having passed a final conditional decree, because a decree for specific performance is in the nature of a preliminary decree, as certain further steps are yet to be taken and performed by the Court for final settlement of the rights of the parties and Court does not become functus officio after passing the conditional decree for specific performance. Reliance can be placed on Naseer Ahmad v. Muhammad Yousaf (PLD 1994 Lahore 280) and Muhammad Ismail v. Muhammad Akbar Bhatti and 5 others (PLD 1997 Lahore 177).

8. Although the appellant has assailed the original judgment and decree as well, but learned counsel has only challenged the time frame fixed by the learned trial Court. We are unable to agree with the arguments of learned counsel for the appellant that the time of one month given by the learned trial Court for the deposit of decretal amount was unreasonable by any stretch of reasoning, particularly when the time was fixed in the presence of learned counsel for the appellant and was not objected to, at the relevant time.

9. Now the only question left for consideration is whether application moved by the appellant for extension of time before the learned trial Court had sufficient reason. The only reason advanced by appellant in the said application is that the appellant was residing at a distant place from Khanewal i.e. in Gujranwala, he fell sick and his learned counsel failed to communicate the order or the Court for deposit of decretal amount. This reason in our view is not sufficient for extension of time inasmuch as both the appellant and his learned counsel had failed to perform their part of duty i.e. the appellant failed to remain in touch with his counsel to know further progress of his case and on the other hand his counsel failed in his duty to inform the appellant about the order of the Court, therefore, if there is a lapse the same is between the counsel and client due to which certain right has accrued in favour of other party i.e. respondents and they cannot be deprived of their right for such a flimsy ground taken by the appellant in his application.

10. Consequently this appeal is dismissed and the order of learned trial Court dated 12‑7‑1995 is also maintained. No order as to costs. H.B.T./A‑383/L Appeal dismissed.