2007 SCMR 983 (PLP)

CH. IJAZ AHMED, J.

Brief facts out of which the present petition arises are that predecessor-in-interest of the petitioners filed a suit for specific performance of the contract dated 1-10-1971 in respect of the agricultural property measuring 120 Kanals along with Ihata in the Court of Civil Judge, Bhakkar against Khushi Muhammad predecessor -in-interest of the respondents. The suit was dismissed on 12-10-1985. Petitioners being aggrieved filed appeal in the Court of Additional District Judge, Bhakkar who accepted the same vide its judgment and decree, dated 21-9-1986 and set aside the judgment of the trial Court. The First Appellate Court directed the petitioners to deposit the remaining amount of Rs.17,000 within one month. Petitioners deposited the balance amount in terms of the judgment of the First Appellate Court on 1-10-1986. Respondents being aggrieved filed civil revision in the Lahore High Court which was dismissed. Thereafter the respondents filed petition for leave to appeal before this Court which was also dismissed on 11-1-1994. Petitioners filed execution petition on 29-9-1999 under Order XXI, rule 32, C.P.C. in the Court of Civil Judge, Bhakkar. Respondents/judgment-debtors filed objection that execution petition was filed by the petitioners after more than three years and was barred by limitation in view of the Article 181 of Limitation Act. The executing Court dismissed the objection petition vide order, dated 10-1-2003. Respondents being aggrieved filed appeal in the Court of Additional District Judge, Bhakkar who dismissed the same vide judgment dated 17-5-2003. Respondents being aggrieved filed Civil Revision No.199 of 2003 in the Lahore High Court which was accepted vide impugned judgment dated 9-12-2003. Hence, this petition.

2. The learned counsel for the petitioners submits that learned High Court had erred in law to accept the revision petition of the respondents without adverting to the judgment of the First Appellate Court dated 21-9-1986 wherein the appeal filed by the petitioner was accepted and suit was decreed subject to payment of balance amount of Rs.17,000 within one month. Petitioners had deposited the balance amount on 1-10-1986 and this fact was not considered by the learned High Court in its true perspective. He further submits that petitioners had deposited the balance amount on 1-10-1986 within prescribed period, therefore, petitioners' execution petition was within time in terms of section 48 of C.P.C. In support of his contentions he relied upon Muhammad Nazir's case 2003 SCMR 436, Maj. (Retd.) Hamid Ali's case 2006 SCMR 735 Rahim Ali's case 2006 CLC 1824 and Anjum's case PLD 1989 Lah. 103.

3. The learned counsel for the respondents submits that learned High Court was justified to accept the revision petition of the respondents as the petitioners did not file execution petition within prescribed period of three years in terms of Article 181 of the Limitation Act. He further maintains that petitioners had filed first execution petition after five years 8 months and 9 days which was clearly barred by time and section 48 of the C.P.C. was not attracted in the case in hand as observed by the learned High Court in the impugned judgment. He further submits that judgment of the learned High Court is in accordance with the dictum laid down by this Court in Matloob Khan's case PLD 1990 SC 778.

4. We have considered the submissions made by learned counsel for the parties and perused the record. It is better and appropriate to reproduce operative part of the judgment of the First Appellate Court dated 21-9-1986 and basic facts in chronological order to resolve the controversy between the parties: Operative part of judgment of First Appellate Court "As a result of my discussion above the appellants have made out a clear case of specific performance of the contract. The respondent having received a sum of Rs.8,000 earlier is only to get the remaining amount of Rs.17,

000. I accordingly accepted appeal on behalf of Hakim Bibi and others and set aside the judgment of the Court below. Suit of the appellants is accordingly decreed subject to a payment of Rs.17,

000. The appellants shall deposit this amount in the Court below within one month from today failing which their suit shall be treated to have been dismissed. The amount being deposited in the Court, the respondent shall be bound to get the proprietary deed completed in his favour and then to get the registered deed executed in favour of the appellants. If he fails to do so within 3 months from today. Ahlmad of the Court of the Civil Judge concerned will be directed to get the registration deed completed in favour of the appellants according to law on their own costs." Basic facts in chronological order (i) Land in question was allotted to the predecessor-in-interest of the respondents Khushi Muhammad under Abadkari Scheme who had fulfilled the condition of allotment. He had not yet been granted proprietary rights when he entered into an agreement with Ali Muhammad predecessor-in-interest of the petitioners on 1-10-1971 for consideration of Rs.25,000. (ii) According to the contents of the agreement an amount of Rs.8,000 was received by the predecessor-in-interest of the respondents vide agreement dated 2-10-1971. (iii) The agreement to sell was executed by the predecessor-in- interest of the petitioners and respondents namely Ali Muhammad and Khushi Muhammad respectively on 2-10-1971. The agreement contains the following clauses: (a) Predecessor-in-interest of the respondent Khushi Muhammad agreed to sell the land in question to Ali Muhammad for a consideration of Rs.25,000. (b) Khushi Muhammad received Rs.8,000 on 2-10-1971. (c) Predecessor-in-interest of the respondents have not been granted proprietary rights of the land in question, therefore, he agreed to transfer the land in question in the name of the deceased All Muhammad subject to receipt of Rs.17,000 and agreed to execute agreement to sell in favour of the predecessor-in-interest of the petitioners after securing proprietary rights. (d) Possession was also delivered to the deceased Ali Muhammad predecessor-in-interest of the petitioners at the time of execution of the agreement to sell. (e) Suit filed by Ali Muhammad for specific performance was dismissed by the trial Court on 12-10-1985. His appeal was accepted vide judgment, dated 21-9-1986, he deposited the remaining amount on 1-10-1986. Finally the controversy between the parties with regard to the suit for specific performance was finalized by this Court vide judgment dated 11-1-1994. Petitioners filed execution petition before the executing Court on 29-9-1999 under Order XXI, rule 32, C.P.C. (f) Respondents filed objection petition that execution petition was liable to be dismissed as time-barred. (g) Application of the respondents was dismissed by the executing Court vide order, dated 10-1-2003. Appeal of the respondent was also dismissed by the First Appellate Court vide judgment, dated 17-5-2003. Revision petition of the respondents was accepted by the learned High Court vide impugned judgment, dated 9-12-2003.

5. In case the aforesaid operative part of the judgment of the First Appellate Court and facts are put in a juxtaposition, then it is crystal clear that petitioners had deposited the amount within prescribed period of one month on 1-10-1986 coupled with the fact that petitioners had taken the possession of the land in question at the time of execution of the agreement to sell on 2-10-1971, therefore, petitioners had fulfilled the condition prescribed by the First Appellate Court in its judgment dated 21-9-1986 within the prescribed period. Hence, the petitioners did not require to file execution petition to the extent of first part of the judgment and decree of the First Appellate Court dated 21-9-1986. It is pertinent to mention here that as to the specific relief, following are the salient features of Specific Relief Act, 1877:-- (i) Recovery of possession of immovable and movable property (sections 8 to 11); (ii) Performance of contracts (sections 12 to 20); (iii) Rectification of instruments (sections 31 to 34); (iv) Rescission of contracts (sections 35 to 38); (v) Cancellation of instruments (sections 39 to 41); (vi) Declaring the rights of parties otherwise than by an award of compensation (sections 42 to 43); (vii) Appointing a receiver (section 44); (viii) Enforcement of public duties (sections 45 to 51); (ix) As to preventive relief, the Act deals with temporary and perpetual injunctions (sections 52 to 57).

6. It is a settled law that suit for specific performance is always suit for possession. In the present case as mentioned above the possession has already been with the petitioners since execution of agreement to sell since 1971, therefore, as mentioned above, petitioners do not require to file execution petition for possession of the property in question from the respondents. It is also a settled' law that petitioners can file execution petition on the refusal of the respondents for the remaining part of the decree. The basic foundation of the case in hand was not pointed out by the learned counsel for the parties before the High Court as evident from impugned judgment. It was not in the knowledge of the learned High Court that petitioners had deposited the balance amount on 1-10-1986. The judgment of the learned High Court is, therefore, judgment per incurrium on account of failure of counsel for the parties qua the deposit of balance amount within the prescribed period and this fact was also not denied by the learned counsel for the respondents. The judgment in favour of the petitioners is conditional subject to payment of the balance amount which had been deposited by the petitioners within the prescribed period, therefore, petitioners could be awarded relief in terms of Order XX, rule 14, C.P.C., wherein after specifying the decree qua the payment to the decree-holder is not required to file execution petition. See Ch. Abdul Qayyuum's case 1992 SCMR

241. Sale under specific relief is entirely different from a voluntary sale. See Muhammad Wazir's case PLD 1949 Lah.

1. It is now settled law that after enforcement of Law Reforms Ordinance (XII of 1972) first application for execution of a decree would be governed by residuary Article 181 of the Limitation Act and rest of the application made, thereafter, would be governed by the six years period of limitation prescribed by section 48 of C.P.C. See National Bank of Pakistan's case 1996 SCMR 759, Mahboob Khan's case PLD 1990 SC 778 and Maqbool Ahmad's case 1995 CLC

358. In the case in hand decree was passed in favour of petitioners on 21-9-1986. The petitioners had deposited the amount in terms of decree on 1-10-1986. This fact shows that this is a case of its own nature. In somewhat similar circumstances, this Court has laid down following principle in Maulvi Abdul Qayyum's case 1992 SCMR 241:-- "It will be material to bear in mind that a decree in a pre-emption suit is of a peculiar nature. Under Order XXI, rule 14, C.P.C., the title of the property accrues to the decree-holder on payment in the Court of purchase money together with costs, if any. It has not been controverted before in that the requirements of rule 14 have already been complied with by the appellant. Thus, irrespective of the fact whether the possession is delivered to him or not, title in the property has vested in the appellant and he is owner of the land in dispute. Viewed in this context, the respondents' opposition to the execution of the decree becomes all the more ethereal."

7. Rights accrued to the petitioners after depositing amount on 1-10-1986 is not fair to deprive them from the benefit of the decree as law laid down by this Court in Syed Phul Shah's case PLD 1991 SC 1051. The relevant observation is as follows:-- "It is also a well-known principle in Islamic justice, that one who succeeds in a litigation unjustly must not retain the benefit. It has been equated with burning charcoal in one's pocket; which, burns and eats away the winner's belongings including the retaining pocket also. Thus, while trying our best to do justice in accordance with the law, the principles in our own jurisprudence governing just dispensation shall have to be kept in view. In other words while adhering to the principle; justice in accordance with law, we will have to keep in mind that it is the birth right of every citizen in an Islamic State to seek and obtain justice. In this exercise of keeping balance between the undiluted justice and justice only in accordance with law, the general directional principles in Islam come to the aid when, one exerts."

8. It is a settled law that each and every case is to be decided on its own peculiar circumstances and facts of the case as law laid down by this Court in Muhammad Saleem's case 1994 SCMR 2213. The judgments cited by the learned counsel for the parties are distinguished on facts and law.

9. For what has been discussed above, the petition is converted into appeal and is allowed. The impugned judgment of the learned High Court is set aside with no order as to costs. M.H./H-2/SC Appeal allowed.