2022 PLP 569 (CLC)

RASHIDA ASAD, J.

The instant High Court Appeal has been filed against the impugned order dated 04.06.2021, whereby the learned single Judge in Suit No.17 of 2021, dismissed the C.M.A. No.6832/2021, moved by the appellant/defendant, under Section 151 of C.P.C., wherein she has prayed that since the respondent No.1/plaintiff had failed to deposit the balance sale consideration in pursuance of the order of the Court, hence the suit is liable to be dismissed.

2. The brief facts necessary for disposal of the instant Appeal are that respondent No.1 had filed a Suit against appellant and other respondents for Specific Performance of Contract and Permanent Injunction, whereas, the appellant claimed herself to be the owner of house No.B-10, Saima Luxury Homes, Millat Town, Korangi. Karachi admeasuring 160 sq. yards (hereinafter referred to as the subject property). According to the appellant, subject property was rented out to the son of respondent No.1 in November, 2019 and a Rent Agreement was also executed between appellant and the son of respondent No.1. It is further averred that son of respondent No.1 first adopted delaying tactics in payment of monthly rent and then stopped the payment from September, 2020. Therefore, the appellant sent a notice for vacating the subject property, which was never replied. Thereafter, appellant filed Rent Case No.29/2021 before the Rent Controller.

3. In the month of March, the appellant came to know about the filing of Suit for Specific Performance of Contract by the respondent and obtaining stay order. He immediately moved an application (CMA No.6832/2021) seeking dismissal of the suit on the ground that the respondent No.1/ Plaintiff had failed to comply with the order passed in the suit, in view of directives contained in the judgments of the Honourable Supreme Court reported as Hamood Mehmood v. Mst. Shabana Ishaque and others (2017 SCMR 2021) and Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another (2020 SCMR 171).

4. Learned Single Judge, after hearing the learned counsel for the parties, while holding that the suit is maintainable, dismissed CMA No.6832/2021, filed by the appellant vide order dated 04.06.2021, which has been impugned in this appeal.

5. The main contention raised by the learned counsel for the appellant is that the judgments, as referred to hereinabove, are fully applicable in the instant case and the findings recorded in the impugned order by the learned single Judge are misconceived. He further contended that the law requires the plaintiff seeking Specific Performance to deposit the (alleged) balance of sale consideration within the time allowed by the Court and such non-deposit would disentitle the plaintiff from seeking such relief. In the instant matter, the respondent No.1/ plaintiff had failed to deposit the amount within the time granted by the Court, hence, the suit is liable to be dismissed.

6. The arguments advanced by learned counsel for the appellant were strongly repudiated by the learned counsel for the respondent No.1/ plaintiff while arguing that Suit filed by the Respondent No.1/Plaintiff is maintainable and the judgments of the Honourable Supreme Court relied upon by the learned counsel for the appellant are not applicable in the instant case as the Respondent No.1/Plaintiff has already deposited the sale consideration in Court and thus he has prima facie shown his readiness, willingness and capability to perform the contract. He nevertheless, emphasized that the Honourable Supreme Court has only held deposit of sale consideration in the Court essential, while seeking Specific Performance of Contract, however, no time frame for such deposit has been prescribed therein nor it was held that deposit of sale consideration is mandatory in such like cases at the time of institution of suit or on the first appearance before the Court. He further contended that a plaintiff might disentitle himself for such relief if he fails to deposit the amount. It was lastly emphasized that since the respondent No.1/plaintiff has deposited the amount in Court, as such the decisions of the Honourable Supreme Court are distinguishable and not applicable in the instant case.

7. We have examined the case in the light of the arguments of the learned counsel and have minutely perused the cited case law with their able assistance.

8. It is pertinent to mention here that specific performance is a discretionary relief, and the Courts are not bound to grant such relief mechanically merely, because it is lawful to do so. The discretion to grant relief of specific performance or otherwise, by the Court is not something mechanical or arbitrary exercise of jurisdiction but, is structured on sound and reasonable judicial principles, amenable to judicial review and correction by the court of appeal. Foremost requirement to seek specific performance, for a party is to demonstrate his readiness, willingness and capability to perform his agreed part of contract. In the present case, the learned Single Judge vide order dated 13.01.2021, directed that the respondent No.1/plaintiff shall not be dispossessed from the subject property till next date of hearing subject to deposit of the balance sale consideration of Rs.3,000,000/- with the Nazir of this Court within two weeks. However, appellant was never put to notice that non-compliance of order would be deemed to be his incapability of performing his part of the contract and it would entail dismissal of the suit. In the case of Muhammad Asif Awan v. Dawood Khan and others (2021 SCMR 1270), the Honourable Supreme Court has held that unless the appellant is put to notice that non-deposit of the balance sale price would be deemed to be his incapability of performing his part of contract as envisaged under Section 24(b), the suit cannot be dismissed. The relevant portion of the judgment is reproduced as under: "......In the given circumstances, unless the appellant would have been put to notice that the non-deposit of the balance sale price would be deemed to be his incapability of performing his part of the contract as envisaged under section 24(b) rendering the contract non-enforceable, the suit could not have been dismissed. Even otherwise, the language employed in Order XVII. Rule 3 by using the word, "the Court may, notwithstanding such default, proceed to decide the suit forthwith" is permissive and discretionary and does not in all circumstances entail penal consequences "

9. In the present case not only the suit was alive but the order directing deposit of balance sale consideration did not stipulate the consequences for non-deposit. The respondent No.1/plaintiff deposited the balance sale consideration of Rs.3,000,000/-in the Court and as such he has shown his willingness, readiness to perform his agreed part of contract, alleged to have been entered into between him (the respondent No.1) and appellant. In any event, it is observed that the relief of specific performance cannot be claimed as a right and its grant is discretionary depends upon the facts and circumstances of the case. The question whether plaintiff is entitled for grant of specific performance, would be decided by the Court after evaluating the evidence produced by the parties in support of their submissions.

10. Regarding the applicability of the Hon'ble Supreme court's judgment in the case of Hamood Mehmood (2017 SCMR 2021), relied by the learned counsel for the appellant, it was stated to be mandatory for the person whether plaintiff or defendant who seeks enforcement of the agreement under the Specific Relief Act, 1877, that on first appearance before the Court or on the day of institution of the suit, it shall apply to the Court getting permission to deposit the balance amount and any contumacious omission in this regard would entail in dismissal of the suit or decretal of the suit, if it is filed by the other side. With utmost respect the case of Hamood Mehmood (supra) is a leave refusing order and cannot be held to be an enunciation of law. The Honourable Supreme Court in the case reported as Karachi Development Authority through Director General, Civic Centre, Gulshan-e-Iqbal, Karachi v. Mst. Hawa Bai and 6 others (2017 SCMR 1801) has held that leave refusing order passed by the Supreme Court is not law enunciated by the Supreme Court and has no binding effect.

11. Now coming to the next reliance placed by the learned counsel for the appellant on the judgment of the Hon'ble Supreme Court in Messrs Kuwait National Real Estate Company (Pvt.) Ltd. (2020 SCMR 171), wherein the Civil Judge had specifically directed the respondent No.1/ purchaser to deposit the purchase price in Court within thirty (30) days, with a caution that in case it fails to comply, the suit shall be dismissed. However, in the present case no such direction was issued by the learned Single Judge, as such the case law relied upon by the learned counsel for the appellant are distinguishable and are not applicable in the facts and circumstances of the case.

12. For the foregoing reasons, we have found the order passed by the learned Single Judge to be legally unexceptionable and requiring no interference by this Court.

13. In consequences thereof this High Court appeal being without merits is dismissed.

14. These are the reasons for the short order announced on 9-11-2021. ZH/S-81/Sindh Appeal dismissed.