2021 PLP 431 (SCMR)

UMAR ATA BANDIAL, J.

The suit for specific performance by the respondent-plaintiff was decreed upon the appellant-defendant's consent vide order dated 18.01.2012 passed by the learned Civil Court. That decree for specific performance directed the respondent-plaintiff to deposit a sum of Rs.15.2 Million within a period of 30 days from the date of the judgment. This gave the respondent-plaintiff time until 17.02.2012 to make the requisite deposit. The respondent-plaintiff did not file any application for extension of time to the learned Trial Court but instead filed an appeal before the learned Appellate Court on 14.02.2012. The memorandum of appeal challenged the decree on several grounds pertaining to the merits of the dispute, in particular with respect to the amount paid to the appellant-defendant and the defects in his title and possession of the land which was agreed to be sold to the respondent-plaintiff. The respondent-plaintiff's appeal was dismissed on 23.12.2016 by the learned Additional District Judge who granted the respondent-plaintiff 15 days' time to make the requisite deposit. Rather than challenging the said judgment and decree before the learned High Court the respondent-plaintiff abandoned his pleas and complied with the appellate judgment by making the requisite deposit within 15 days on 06.01.2017. The learned High Court on 16.03.2017 dismissed the civil revision petition filed by the appellant-defendant on the ground that the Appellate Court was competent to grant extension of time.

2. Before us learned counsel for the appellant-defendant made three submissions. Firstly, he contended that the respondent-plaintiff failed to comply with the decree of the learned Trial Court within 30 days in which event the suit for specific performance filed by him stood dismissed. Secondly, he argued that the respondent-plaintiff had assailed the decree of the learned Trial Court on the merits when in fact it was not legally permissible to file such an appeal against a consent order (ref: Section 96(3) of the C.P.C.). Thirdly, he submitted that upon the dismissal of his appeal on 23.12.2016, the respondent-plaintiff conveniently abandoned his grievances against the decree dated 18.01.2012 passed by the learned trial Court and instead he complied with the direction of the learned Appellate Court. This disclosed that his clear intention was to file the appeal solely for gaining time. As a result, the balance consideration amount which was payable on or before 12.05.2008 under the sale agreement dated 12.03.2008 was actually deposited in Court on 06.01.2017 after a delay of nearly nine years. It was urged that the appellant-defendant is deeply prejudiced by such delay and that it was inequitable for the learned Appellate Court to have granted extension of time to the respondent-plaintiff in the above circumstances. In this regard, reliance was placed on the decisions in Muhammad Wahid and another v. Nasrullah and another (2016 SCMR 179) and Haji Abdul Hameed Khan v. Ghulam Rabbani (2003 SCMR 953).

3. On the other hand, learned counsel for the respondent-plaintiff submitted that his client did not challenge the appellate judgment and decree in the learned High Court because it would have led to further delay; therefore compliance was made forthwith so that the transaction could be finalised and litigation could be concluded.

4. We have heard the arguments of the learned counsel and have perused the record with their assistance. In our considered view, it is by now well-established that the remedy of specific performance is discretionary and cannot be claimed as of right by a party [ref: Mrs. Zaika Hussain v. Syed Farooq Hussain (PLD 2020 SC 401) at para 17]. Such a nature of specific performance has also been reiterated in section 22 of the Specific Relief Act, 1877 ("the Act"): "

22. Discretion as to decreeing specific performance. The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal." (emphasis supplied) It may be noticed from the above quoted provision that the grant of specific performance is not mandatory and can be refused by a Court where the circumstances so require. Reliance is also placed on the judgment of this Court in the case of Liaqat Khan v. Falak Sher (PLD 2014 SC 506): "18: A plain reading of above reproduced statutory provision [section 22] leads to a definite conclusion that the relief of specific performance claimed by respondents Nos.1 to 4 in their suit is, purely discretionary in nature and the Court is not bound to grant such relief merely as it is lawful to do so. At the same time, the discretion to be exercised by the Court shall not be arbitrary, but it should be based on sound and reasonable analysis of the relevant facts of each case, guided by judicial principles and capable of correction by a Court of appeal... When the above reproduced provision of law [section 22] is read in conjunction with the case-law cited at the Bar by both the learned Senior Advocate Supreme Courts, the things as regards powers of the Court in exercising its discretion, become even more clear that there is no two plus two, equal to four formula available with any Court of law for this purpose, which can be applied through cut and paste device to all cases of such nature. Conversely, it will be the peculiar facts and circumstances of each case, particularly, the terms of the agreement between the parties, its language, their subsequent conduct and other surrounding circumstances which will enable the Court to decide whether the discretion in terms of section 22 (ibid) ought to be exercised in favour of specific performance or not. Besides, some well articulated judgments on the subject, have further broadened the scope of exercise of such discretion of the Court by way of awarding reasonable compensation to the parties, keeping in view the other surrounding circumstances, such as rate of inflation, having direct bearing the value of suit property, inordinate delay/passage of time, and change in the circumstances or status of the subject property etc." (emphasis supplied)

5. It therefore becomes clear from the above cited passage that rather than mechanically granting the relief of specific performance to every party, Courts should examine the circumstances of each case to ascertain whether such relief is equitable on the facts. However, in the present case this important aspect of specific performance went unnoticed by the two learned Courts below who conferred a benefit on the respondent-plaintiff by allowing him to discharge his financial obligation nine years after the agreed date. Moreover, both the learned Courts failed to appreciate the subsequent conduct of the parties once the sale agreement dated 12.03.2008 was finalised between them. For convenience, the relevant facts are listed below: i. The respondent-plaintiff failed to pay the balance consideration amount of Rs. 15.2 Million to the appellant-defendant by 12.05.2008 as recorded in the sale agreement; ii. The respondent-plaintiff only filed a suit for specific performance on 09.03.2011 in response to the suit of rescission of contract filed by the appellant-defendant on 30.06.2009; iii. Learned counsel for the respondent-plaintiff did not raise any objection to the contents of the consent order recorded on 18.01.2012; iv. The decree issued by the learned Trial Court explicitly stated that the suit for specific performance filed by the respondent-plaintiff will stand dismissed if the balance consideration amount is not paid within 30 days from the date of judgment; v. After the respondent-plaintiff's appeal was dismissed by the learned Appellate Court he did not challenge the same before the learned High Court; and vi. The respondent-plaintiff submitted the balance consideration amount of Rs. 15.2 Million, without raising any objection, in Court within 15 days of the learned Appellate Court's judgment.

6. On an examination of this factual matrix, it becomes plain that the respondent-plaintiff was not interested in performing his obligations under the sale agreement. In fact, he was only moved to act when the appellant-defendant filed a suit for rescission of the sale agreement. His failure to assail the appellate decree before the learned High Court demonstrates that he accepted the decree passed by the learned Trial Court. It also makes apparent his intention for challenging the learned Trial Court's decree, namely, to gain further time for the balance payment of Rs.15.2 Million. This indicates that when he consented to the learned Trial Court's decree he was not ready and willing to perform his obligations thereunder. In such a situation, both the learned Courts below ought not to have exercised their discretion to grant the respondent-plaintiff the remedy of specific performance which was inequitable in the circumstances of the case.

7. It is also pertinent to mention here that an appeal from a consent decree is governed by section 96(3) of the C.P.C. For ease of reference, it is produced below: "

96. Appeal from original decree.

(3) No appeal shall lie from a decree passed by the Court with the consent of parties." A perusal of this provision reveals that consent decrees are not appealable. However, where a party either disputes the very fact that an order was passed by consent or contests the validity of a consent order, Rule (1)(m) of Order XLIII allows a challenge to such an order: "ORDER XLIII APPEALS FROM ORDERS

1. Appeal from Orders. An appeal shall lie from the following orders under the provisions of section 104, namely:- (m) an order under rule 3 of Order XXIII recording or refusing to record an agreement, compromise or satisfaction;" This view has been affirmed in Fazal Mehdi v. Allah Ditta (PLD 2007 SC 343) at para-17.

8. In the present case, the respondent-plaintiff filed an appeal against the consent decree of the learned Trial Court on its merits which is not permissible under section 96(3) of the C.P.C. In reality he had no issue with the order recording the consent of the parties. He merely wanted to obtain an extension of time to pay the balance consideration amount of Rs. 15.2 Million. Indeed, he complied with the terms of the consent order after the appellate decree was issued. Accordingly, the appeal was not maintainable under Order XLIII, Rule 1(m) of the C.P.C. and should have been dismissed at the outset. In these circumstances, the grant of further time by the learned Appellate Court conferred an unfair advantage on the respondent-plaintiff and constituted a wrongful exercise of discretion. Even the learned High Court overlooked this crucial point in the impugned judgment. 8(sic.) Therefore, in the light of our discussion we are not satisfied with the view adopted by the impugned judgments of the learned Appellate Court and learned High Court. Accordingly, the same are set aside. Consequently, this appeal is accepted and the suit out of which these proceedings arise stands dismissed. As a result, the amount of Rs.15.2 Million deposited by the respondent-plaintiff in Court shall be refunded to him.

9. Insofar as the earnest money paid by the respondent-plaintiff to the appellant-defendant is concerned, there is a dispute between the parties whether it is refundable in the circumstances of the case. Since that matter has not been adjudicated by the brief consent order recorded by the learned Trial Court, the respondent-plaintiff is at liberty to avail the remedies available under the law for claiming and recovering the said amount in accordance with law. The parties shall be entitled to take all such pleas and defences as are available to them under the law. MWA/M-6/SC Appeal allowed.