2009 PLP 157 (SCMR)

SARDAR MUHAMMAD RAZA KHAN, J.

Farooq Imran seeks leave to appeal from the judgment dated 25-9-2000 of a learned Judge in Chambers of Lahore High Court whereby his civil revision against the order dated 1-2-1990 of learned Senior Civil Jude, Lahore, refusing the extension of time for the deposit of amount involved, was dismissed.

2. Group Captain (R.) Naeem Ahmad Siddiqui being owner of the suit property, vide deed dated 21-8-1989, agreed to sell it in favour of Farooq Imran for a sum of Rs.18,50,000, out of which an amount of Rs.2,00,000 was received as advance/earnest money. It appears that the contract was not performed and, hence Farooq Imran brought a suit for specific performance thereof. When the case came up for hearing before the trial Court on 15-1-1990 the learned counsel for the respondent/defendant made a statement in Court that the defendant had no objection to the passing of the decree, provided the balance amount of Rs.16,50,000 is deposited by the plaintiff on or before 30-1-1990.

3. A decree was granted there and then (15-1-1990) accordingly and the plaintiff was directed to deposit the required sum on or before 30-1-1990: Such amount was not deposited and instead the decree-holder filed an application on 30-1-1990 (pages 31-32) for extension of time. The trial Court refused to grant extension, against which the decree holder filed a revision before the High Court, which too, was dismissed, holding, that after the passing of decree, the Court had become functus officio and lacked jurisdiction to extend the time.

4. The only point involved in the petition and so argued by the learned counsel was, as to whether, in the circumstances, the Court had become functus officio. The learned counsel placed reliance upon Hadayatullah v. Murad Ali Khan PLD 1972 SC.69, where this Court had favoured the extension of time. The dispute involved in Hadayatullah's case (supra) is distinguishable because in there the extension of time was with regard to deposit of 1/5th of pre-emption-amount under section 22 of the Punjab Pre-emption Act, 1913. Such order is mostly passed on the very first date of hearing in order only to check bona fides of the pre-emptor, so that a vendee is not dragged into frivolous litigation. The Court all the time retains scission over the action and thus, could always extend the time in the given circumstances of the case. The problem is altogether different when the order of deposit is made while passing the decree and when such deposit is a condition precedent therefor. In the instant case, the order of deposit was made at the time and as a condition of passing the decree. It could not be extended without the consent of opposite party to whom valuable right had accrued.

5. The learned counsel further argued that the decree for specific performance of contract in question was a preliminary decree and, thus, the Court would remain cognizant of the matter and would have jurisdiction to extend the time till the passing of final decree. This argument also is not very impressive because, before the trial Court, no proceedings of final decree were pending. In final decrees, only those matters are attended to which follow the preliminary decree and, which, fall necessary as a consequence thereof. As there were no proceedings of final decree pending before the trial Court nor those are so pending till today, the compromise decree passed in the instant case on 15-1-1990 had become final, so far as the parties to the suit were concerned. One thing should not be ignored at all that it was a decree passed in a compromise between the parties and the decree-holder was absolutely clear that he was obtaining a decree under the only condition that a sum of Rs.16,50,000 would be deposited by him on or before 30-1-1990.

6. We are not unmindful of another fact that the petitioner/decree holder had not made proper arrangements for the admitted amount nor he had any future target. Needless to repeat that he should have been prepared for any such deposit even at the time of institution of suit. A perusal of condonation application would indicate that he, in the prayer clause thereof, had asked for an indefinite period for the deposit involved. Any such extension would have seriously jeopardized the rights of the defendant, who had conceded entirely to the suit against him. As to the date so fixed through compromise between the parties, its extension was' unwarranted.

7. Learned counsel for the petitioner drew our attention to our judgment in Shabbir Ahmad v. Zahoor Bibi PLD 2004 SC 790, where the extension of time was held to be within the jurisdiction of trial Court with reference to section 12 read with section 35(c) of Specific Relief Act, 1877 (hereinafter referred to as the Act, 1877). Before adverting to the case aforesaid, one may, realize that the jurisdiction of a Court to extend time as such and whether time should be extended, in the circumstances, are two different matters. We have already held, in the circumstances of the present case, that the time should not be and had rightly not 'been extended by the learned trial Court as well as the learned High Court.

8. It is to be appreciated that suits for specific performance of contracts are filed under Chapter-II of the Act, 1877 while section 35 falls under Chapter-IV. The former deals with specific performance of contracts while the latter deals with the rescission of contracts. In the former a plaintiff comes to the Court for the performance of contract, which he considers operative and enforceable. Contrary thereto section 35 of the Act, 1877, falling under Chapter-IV, contemplates of suits brought by persons, who do not rely upon contracts and pray for the rescission thereof. In our humble view, the principles of section 35(c), though sounding familiar, are not squarely attracted to suits under section 12 etcetera of the Act, 1877. The analogy for the extension of time cannot be drawn from section 35(c) of the Act, 1877, because the plaintiff/petitioner before us had never come to the Court for the rescission of contract.

9. For what has been discussed above and in the circumstances of the present case, we do not consider the extension of time as justified. It was rightly refused by trial Court as well as by the High Court. Petition is hereby dismissed and leave to appeal refused. M.B.A./F-18/SC Petition dismissed.