Haji ABDUL HAMEED KHAN vs GHULAM RABBANI

' RANA BHAGWANDAS, J.---Petition for leave to appeal arises out of Lahore High Court, Bahawalpur Bench judgment, dated 9-3-1999 whereby appeal from the judgment and decree of the Trial Court, dated 6-4-1994 was disposed of.

2. Respondent filed a suit for possession of the disputed plot "measuring 1518 sq. Ft. Against the petitioner on the ground that the petitioner had purchased land measuring 4550 sq. Ft. From him through registered sale-deed, dated 7-5-1975. It was alleged that petitioner apart from, the said land Measuring 4550 sq. Ft. Also forcibly occupied plot measuring 1518 sq. Ft. Belonging to the respondent without any lawful authority. The suit was contested by the petitioner on the ground that respondent had agreed to sell the said plot in his favour for a consideration of Rs.4,000.

3. On his part, petitioner also filed a suit for specific performance against the respondent qua the suit plot on the averment that after sale of plot measuring 4550 sq. Ft. Respondent also agreed to sell the suit plot, being adjacent to the aforesaid plot, in his favour for a consideration of Rs.4,000 which was resisted by the respondent on variety of grounds.

4. Both the suits were consolidated and common issues were struck. During the pendency of suits, respondent made a statement offering sale of the suit property in consideration of market value, which was accepted by the petitioner subject to respondent's taking oath on Holy Quran to the effect that he had not entered into any agreement to sell previously regarding the suit plot and he would pay market price prevailing in the year 1999. Respondent took special oath on Holy Qur'an to the effect that there was no contract of sale between the parties regarding the suit plot. In this view of the matter, controversy between the parties was narrowed down by settling Issue No.8-A as to what was the market value of the disputed property in the year 1990?

5. On assessm ent of evidence, adduced by both the parties, learned Civil Judge Second Class, Bahawalpur, who was seized of the suits determined market value of the disputed suit property to be Rs. 223,234 in 1990.. However, after recording this finding , he referred the suits to the learned District Judge for want of pecuniary jurisdiction, which were heard by Civil Judge First Class, who vide judgment and decree, dated 6-4-1994 directed both the parties to make up the deficiency of court-fee in the sum of Rs.15,000 each in their . Respective suits till 6-6-1994, failing which plaints would stand rejected under Order VII, Rule 11, C.P.C. With costs. It was directed that if the petitioner made up the deficiency of court-fee as directed, a decree for specific performance of contract against the consideration of Rs,2,23,234 shall stand passed in his favour with a further direction that he shall deposit the aforesaid sale consideration in the Court up to .5-9-1994 otherwise his suit shall stand dismissed with costs and decree for possession of the disputed property shall stand passed in favour of the respondent provided he makes up the deficiency of court-fee within stipulated period.

6. While the respondent deposited the court-fee as directed within the stipulated period in the Court, petitioner assailed the judgment and decree in R.F.A. No.36 of 1994, which was disposed of with the direction to the petitioner to pay court-fee of Rs.15,000 on his suit up to 10-5-1999, failing which his plaint shall stand rejected under Order VII, Rule 11, C.P.C. With a further direction that he shall deposit the consideration amount till 10-6-1999, failing which, his suit shall stand dismissed.

Since the respondent had already paid court-fee within time, it was served that in case the petitioner failed to pay requisite court-fee and deposit the sale consideration within time, suit for possession brought by respondent shall stand decreed against the petitioner.

7. In the perspective of the aforesaid background, we asked learned counsel whether the petitioner had deposited the requisite .Court-fee within the prescribed time, he answered in affirmative. With regard to the deposit of the sale consideration, as affirmid by the High Court, learned counsel admitted that the amount of sale consideration has not been deposited by the petitioner. Learned counsel sought shelter behind the interim order passed on the stay application by a Single Judge of this Court, which, in our view, does not have the effect of exonerating the petitioner from the deposit of the sale amount. By the interim order passed on petitioner's C.M., it was not intended to prevent him from performing his part of the contract, which he was seeking to enforce for the last about two decades. In a suit for specific performance, it is always of paramount consideration that the plaintiff, seeking equitable remedy of specific performance must be always willing and ready to perform his part of contract. Conduct of the petitioner unequivocally tends to reflect that he has been protracting the litigation on one or the other ground and has been successful so far on untenable grounds. Since the petitioner did not deposit the sale amount in compliance with the trial Court judgment as well as within the extended period, as permitted by the High Court, we would be legitimately justified in presuming that the petitioner is not serious in the prosecution of his remedy. He appears to be rather unwilling to perform his part of contract. This ground alone, in our view, is sufficient to disentitle him to a decree for specific performance.

8. Since the petitioner has intentionally and deliberately omitted to perform his part of contract, expected of him under the law, we are not called upon to dilate upon the hypertechnical argument that the learned Civil Judge Second Class was not competent to determine the market price of the suit-land prevailing in 1990. Suffice it to say, findings of the two Courts below do not suffer from any legal infirmity or error of jurisdiction. Accordingly, this petition must fail and is hereby dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.