Umar Farooq Azam Vs Qaisar Rasheed etc

Form No.HC.JD/C-121

ORDER SHEET

IN THE LAHORE HIGH COURT, LAHORE

JUDICIAL DEPARTMENT

Review Petition No. 35661of 2023 In C.R. No. 26600 of 2023

Umer Farooq Azam Versus Qaiser Rasheed and 2 others Sr. No. Date of Order with Signature of Judge, and that of parties of Order/ Order/ or counsel, where necessary Proceeding Proceeding 02.03.2026 Mr. Agha Abul Hassan Arif, learned Advocate for the applicant.

The applicant seeks review of the decision dated 08.05.2023 passed in C.R. No. 26600 of 2023, on the ground that decree dated 16.09.2020 prepared by the learned trial Court does not clearly specify the relief granted in judgment, which prevented the applicant from deposit of remaining consideration and to affix the Court fee.

2.On 11.09.2020, Qaiser Rasheed / respondent No. 1 made statement before the learned trial Court that he is willing to perform his part of obligation in agreement dated 19.06.2019. Upon the said statement and in presence of the learned counsel for the parties, the following order was passed by the learned trial Court:-

“...Now there is no issue between the parties about the fact and law, therefore, the suit of the plaintiff is decreed as prayed for provided that plaintiff would deposit the remaining consideration amount Rs.

42,00,000/- in the court within 15-days from today. Similarly the plaintiff has not affixed the requisite court fee on the plaint, so he is also directed to submit the requisite court fee within 15-days from today, otherwise, his plaint deemed to be rejected after expiry of

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15-days. No order as to cost. Decree sheet be drawn up accordingly. File be consigned to record room after its due completion and compilation.”

Following the above, decree dated 16.09.2020 has been prepared. The relevant extract of decree reads as under:-

“It is ordered that:- The suit of plaintiff is decreed as prayed for. There is no order as to costs.”

3.Mr. Agha Abul Hassan Arif, learned counsel for the applicant has submitted that the applicant is willing to deposit the remaining consideration but the same was not deposited because the decree was not in harmony with the judgment and the same is ambiguous. He has submitted that while deciding the civil-revision, the above escaped view of this Court and applicant may be allowed to pay the remaining consideration to show his bona fide.

4.Admittedly, the applicant remained unable to deposit the remaining consideration during the trial or appeal. No attempt was made to seek clarification or amendment in the decree by filing application under section 152 of the Code of Civil Procedure-1908 (the ‘Code’), which permits the Court to amend the decree on account of any clerical or arithmetical mistake or error arising therein from any accidental slip or omission.

5.Even otherwise, in case of ambiguity, learned executing Court was entitled to look into contents of the order or judgment to ascertain the real nature of the relief or its extent. Learned

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executing Court could have been requested to give effect to the judgment due to alleged error or discrepancy or inconsistency or ambiguity in the language of the decree. It is settled that a document is to be construed as a whole and should not be confined only to few words, in order to understand the relief sought in a suit one has to see the facts on which relief is based.

6.In case of “Muhammad Lal”1 a learned Division Bench of Balochistan High Court, in this regard has already observed as under:- “...In Bhudaram Marwari and others v. Udai Narayan and others (7) it has been held that it is the duty of the Court executing a decree, to interpret it and to find out what the decree has really granted; and for this purpose the Courts are entitled to refer to the pleadings and ascertain to what extent the decree can be executed. In order to find out whether a decree can be executed the Court must find out the basis of the decree and for this purpose they are entitled to refer to the plaint of the suit. One must construe a document as a whole and one should not confine himself only to a few words. In order to understand the relief sought in a suit one has to see the facts on which that relief is based” In F.H. Wilson and another v. Nathmull (8) it has been observed that whenever it is possible to construe a decree in two ways, one way consistent with the judgment and the other inconsistent with it, it is a duty of the Court to construe it in a way consistent with the judgment.”

7.As already discussed in detail in order dated 08.05.2023 passed by this Court in C.R. No. 26600 of 2023 that the agreement sought to be “Muhammad Lal vs. Abdul Quddus” (PLD 1975 Quetta 29).  “Bhudaram Marwari and others vs. Udai Narayan and others” (AIR 1932 Patna 12).

 “F.H. Wilson and another v. Nathmull” (AIR 1930 Madras 458).

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performed was executed on 19.06.2019 and the remaining consideration was settled to be paid by 25.08.2019. The plaint was presented by the applicant on 17.09.2019, after the cutoff date and the applicant then failed to show his capacity and willingness to perform his obligation despite the fact that he was granted fifteen (15) days vide the above re-produced order dated 16.09.2020.

8.Needless to observe that on 18.09.2019 the learned trial Court directed the applicant to affix the Court fee of Rs.15,000/-. In this regard repeated directions were given but the petitioner has not paid any heed. He was fully aware about the deficiency but his conduct remained contemptuous and he disregarded the clear directions of the Court.

9.I have also perused the contents of the appeal, filed by the applicant, under Section 96 of the Code. No ground as to the defiance of Order XX, Rule 6 of the Code is taken in the appeal. It is not pleaded before the learned Appellate Court that the applicant remained unable to pay the remaining consideration due to failure to specify the exact relief in the decree. A careful examination of grounds of appeal and judgment-in-appeal reflects that the applicant sought to set-aside the decision to pay remaining consideration and affix Court fee.

10.At the time of arguing the civil-revision the applicant made attribution to the negligence of the learned advocate who was pursuing the case before the learned trial Court. On 08.05.2023, it was argued that the applicant was not informed by

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the learned Advocate that fifteen (15) days were granted to deposit the remaining consideration. This argument was repelled due to clear view adopted by the learned Sindh High Court in case of “Master Abdul Basit and another”2 that negligence of the counsel is the negligence of party because he acts as an agent of the principal. Now the review is being sought on the ground which although is set- up in the civil-revision but hardly highlighted in course of arguments of civil-revision or taken before the learned Appellate Court.

11.Mr. Agha Abul Hassan Arif, learned counsel for the applicant remained adamant during his arguments that the permission to pay remaining consideration and grant of sought relief will have no prejudice to the other side, as the time is generally not of essence in the contracts for immoveable properties. However, in view of rapid increase in prices of immoveable properties, seller cannot be left at the mercy of the buyer to bind him and then delay the completion of contract by hiding behind an archaic legal principle that in contracts involving immoveable properties, time is generally not of the essence”3.

12.In order to maintain review-application, the error, if any, should not only be apparent but “Master Abdul Basit and another v. Dr. Saeeda Anwar and another through father” (2013 YLR 375).

“Muhammad Abdur Rehman Qureshi v.Sagheer Ahmad” (2017 SCMR Also see “Ms. Sara Bibi v. Muhammad Saleem and Others” (PLD 2021 Islamabad 236).

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must also have a material bearing on fate of case and be not of inconsequential import4.

13.Learned counsel for the applicant has failed to make out any case to review the decision dated 08.05.2023, therefore, this review- application, is dismissed.

(Sultan Tanvir Ahmad) Judge

Approved for reporting.

Announced on 12.03.2026.

Judge

Rana Zahid Bashir

“M. Naeem-ur-Rehman and another vs. State Bank of Pakistan and another” (PLD 2010 S.C. 949).

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