Javaid Mukhtar Vs Abdul Qadir etc.

Stereo. H C J D A 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT,

LAHORE.

JUDICIAL DEPARTMENT

W.P. No. 31130 of 2024 Javaid Mukhtar. versus Abdul Qadir, etc.

JUDGMENT

Date of hearing: 27.10.2026 Petitioner by: M/s Mian Muhammad Aslam Pervaiz and Sardar Muhammad Hayat, Advocates Respondents No. Tanveer Ahmad Shami, Advocate.

1 and 2 by:

In attendance: Barrister Hassan Khalid Ranjha, Additional Advocate General, Punjab. Mr. Qamar Hanif Ramay, Assistant Attorney General for Pakistan. Mr. Muhammad Abid, Civil Judge/Research Officer, Lahore High Court, Lahore.

M/s Muhammad Dilbar Ghauri, Subhan Ali, Mazhar Hussain Tahir, Malik Khalid Tanveer, Abdul Manan Sipra, Rana Athar Raza Khan, Fayyaz Sandhu, Barrister Muhammad Sohail Babar Khan, Barrister Saeed Hussain Nagra, Sh. Faisal Sikandar Iqbal, Muhammad Shahid Malik, Malik Ali Raza Khokhar, Muhammad Shehzad Malik, Sarmad Ahmad Ghani, Mahar Salman Qutab, Syed Qaiser Gillani, Faisal Anwar Minhas, Ijaz Ahmad, Muhammad Naeem Mazhar, Ch.Imtiazullah Warraich, Ch. Muhammad Naseer, Barrister Rana Khizar Hayat, Shehryar Farhan Beg, Barrister Karim Ullah Sraw, Muhammad Waleed Waheed Chaudhry, Asif Raza Rasheed, Barrister Shahid Masood Khan, Syed Imran Ehsan, Muhammad Badar Butt, Abdullah Haroon, Muhammad Saeed Bin Noman, Dr. Muhammad Azeem Raja, Syed Ali Allow-u-Din, Muhammad Afzal, Mateen ul Haq Ch., M. Haris Jutt, Shafique Ahmad Bhutta, Zahid Saeed, Omer Riaz Chaudhary, Adeel Hassan, Kamran Ahmad, Hafiz Naeem ur Rehman, Barrister Hassan Safdar Khan, Arslan Aamir Tarar, Syed Muhammad Haider Kazmi, Syed Muhammad Nazim Abbasi, Ms. Musarrat Rehman, Ms. Maryam Khan Khosa, Ms. Zubera Bashir Chaudhry, Ms. Moniba Nadeem and Ms. Asifa Ahmad, Advocates.

MUZAMIL AKHTAR SHABIR, J. The petitioner, Javaid Mukhtar, (‘the petitioner’) feeling aggrieved has filed the titled constitution petition and called in question order dated 03.01.2024 passed by learned Civil Judge, Okara, whereby the objection raised by the petitioner/defendant seeking dismissal of the suit for Specific Performance of Agreement to Sell filed by the respondents/plaintiffs (Abdul Qadir, etc.) on the ground of having no cause of action and for non- compliance of order dated 13.06.2020 passed by learned appellate court to deposit the amount of Rs.61,00,000/- (Rupees sixty one lac only) within 7 days has been turned down and has also called in question order dated 15.04.2024 passed by

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learned District Judge, Okara, whereby revision petition filed by the petitioner to challenge the said order has been dismissed (‘Impugned orders’), by claiming the same to have been passed against the facts of the case and law on the subject and prays for setting the same aside and dismissal of suit filed by the respondents.

2.Learned Counsel appearing on behalf of the petitioner maintains that the impugned orders are against facts of the case and law on the subject and are result of misreading and non-reading of record, therefore, are liable to be set aside. On the other hand, the learned counsel representing the respondents have defended the impugned orders by claiming the same to have been passed in accordance with law.

3.Brief background of this petition is that the petitioner/defendant entered into written agreement to sell dated 08.04.2017 with the respondents/plaintiffs as per the covenants settled therein but the respondents/plaintiffs did not make payment of the remaining sale consideration of Rs.61,00,000/- violating the conditions, upon which the petitioner/defendant filed suit for cancellation of agreement to sell titled “Javed Mukhtar Vs. Abdul Qadir etc.", thereafter, the respondents/plaintiffs instituted a suit for specific performance on the basis of agreement to sell 'Iqrarnama' dated 08.04.2017 alongwith permanent and mandatory injunction titled "Abdul Qadir etc. Vs. Javed Mukhtar" and both the suits were consolidated in the court of Mr. Abdul Hafeez, learned Civil Judge 1st Class, Okara; the learned court seized of the matter dismissed the application Under Order XXXIX Rule 1&2 CPC moved by the respondents/plaintiffs in the suit for specific performance alongwith permanent and mandatory injunction vide order dated 17.02.2020, upon which the respondents/plaintiffs filed an appeal titled "Abdul Qadir etc. vs Javed Mukhtar" and the learned appellate court passed the order dated 13.06.2020, whereby the appeal was allowed and application for interim relief was accepted with the direction to the respondents/plaintiffs to furnish the bank guarantee of the remaining sale consideration of Rs.61,00,000/- within 45-days but the same was not deposited in compliance of the said order; the petitioner/defendant moved an application Under Order VII Rule 11 CPC in the suit for specific performance alongwith permanent and mandatory injunction with the prayer that the suit is liable to be dismissed due to non-furnishing of the surety bond of Rs.61,00,000/- and having no cause of action and the petitioner/defendant had already taken such a legal objection in the written statement and due to the amendment in the Civil Procedure Code, 1908, the petitioner/defendant withdrew his application filed Under Order VII Rule 11 CPC

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and raised oral/verbal objection that the suit of the respondents/plaintiffs is liable to be dismissed due to non-compliance of the order passed by the learned appellate court to deposit the bank guarantee of Rs. 61,00,000/- and after hearing the parties to the proceedings, the learned trial court vide its order dated 03.01.2024 turned down the objection and extended the time for the compliance and deposit of bank guarantee by 07-days, which was complied with by the respondents within the extended time. The petitioner challenged the said order by filing revision petition before this Court and the same has been dismissed through the impugned order dated 15.04.2024. Both the said orders are under challenge before this Court through the instant petition.

4.The claim of the petitioner is that on the first date of hearing the respondents-plaintiffs were required to deposit the remaining sale consideration, which had not been done, hence, the suit for specific performance was liable to be dismissed. He has narrated back ground of the case that dispute relates to property owned by the petitioner measuring 63-Marlas 151-Sqft (details of which are mentioned in the plaint). The petitioner had agreed to sell the said property to the respondents for Rs.2,02,00,000/- vide agreement dated 08.04.2017 and earnest money of Rs.50,00,000/- was received and payment of remaining amount was to be made in installments i.e. Rs.60,00,000/- was payable on 01.07.2017 and the target date for making payment of remaining sale consideration was fixed as 15.10.2017, till which date although another amount of Rs.91,00,000/- was paid i.e. Rs.1,41,00,000/- in total and the portion of land corresponding to the value of partial consideration received by the petitioner had been transferred to the respondents, yet amount of Rs.61,00,000/- was still outstanding, hence, the petitioner filed a suit for cancellation of agreement on 15.10.2017 and as a counterblast the respondents on 29.01.2018 filed suit for specific performance of agreement to sell, whereupon the court directed the respondents to deposit remaining sale consideration within 30- days i.e. till 20.02.2018, which was not complied with and the respondents on 03.03.2018 withdrew the said suit with permission to file afresh. It is claimed that by then a vested right had been created in favour of the petitioner and the respondents were precluded to claim specific performance of contract. The respondents filed the instant suit i.e. second suit for specific performance of agreement to sell on 16.11.2019, which has been filed one year and eight months after the first suit was withdrawn. The petitioner filed written statement and claimed that the respondents

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had not deposited remaining sale consideration of Rs.61,00,000/-, whereupon the said court observed that the stance of the plaintiffs-respondents was that they had deposited the remaining sale consideration outside the court, which required recording of evidence and dismissed the application for interim relief vide order dated 17.02.2020 and issues were framed, which also included issue No.2, which was related to payment of sale consideration. For clarity the same is reproduced below:

‘2. Whether plaintiffs paid total consideration amount of Rs.2,02,00,000/- to the defendant? OPP.’

5.The said order was challenged by the respondents by filing an appeal, which resulted in passing of order dated 13.06.2020 granting interim relief along with direction for deposit of bank guarantee for remaining sale consideration of Rs. 61,00,000/- within 45-days of passing of the said order, which was not complied within prescribed time frame. The main dispute between the parties is the effect of non-compliance of order dated 13.06.2020 within time prescribed by the appellate court and its effect. Both the courts while turning down the objection of the petitioner for dismissal of the suit for non-compliance have observed that no penal consequences had been prescribed by the order dated 13.06.2020 passed by the appellate court. The operative part of the said order is reproduced below:- ‘In view of above, the appeal filed by the respondent is accepted and the impugned order being arbitrary in nature is hereby set-aside. Resultantly, application U/O XXXIX rules 1 & 2 CPC filed by the appellants/plaintiffs stands accepted. However, the appellants are directed to furnish Bank guarantee of Rs. 61,00,000/- before the learned trial court which should be deposited in some profitable scheme/account of bank within a period of 45 days from today which shall not be drawn till conclusion of the trial.’

6.The aforementioned order was passed on an appeal filed by the respondents through which they had called in question order dated 17.02.2020 passed by the trial court, whereby their application for interim relief filed under Order XXXIX Rule 1 & 2 CPC in suit for Specific Performance of contract had been dismissed and prima facie the said direction to deposit the bank guarantee was issued independent of the order for the grant of interim relief and consequences of non- compliance were not mentioned and the merits of the main suit were not under consideration at the said stage for the reason that the parties were at variance relating to payment of remaining sale consideration as the claim of the petitioner is that remaining sale consideration had not been paid, whereas the respondents claim that the same had been paid outside the court and to resolve the same, Issue No.2

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mentioned above has already been framed and both the courts below have already observed that controversy regarding payment of remaining sale consideration shall be determined after recording of evidence. In view thereof due to the non- compliance of order for deposit of bank guarantee for remaining sale consideration passed in order along with the order for grant of interim relief did not apparently have any effect upon the merits of the main case for the reason that issues relating the said dispute in the main case had been framed and consequently there appeared to be no reason to dismiss the main suit for non-compliance of said order within 45- days provided by the appellate court and merits of suit have to be decided after trial of the suit. Reliance in this regard may be placed on Ghulam Hussain versus Manzoor Hussain (2024 MLD 667 Lahore), wherein it has been held as under:- ‘5. The perusal of the said order shows that while deciding the applications for interim relief in the afore-referred consolidated suits, wherein respondent was restrained from alienating the suit property and the petitioner was directed not to interfere in his possession, the Court directed the petitioner Ghulam Hussain to deposit the remaining unpaid consideration amount of Rs.1,27,50,000/- in the Court, however, neither the order of interim relief was made subject to deposit of afore-referred amount nor any consequences of its non-deposit were provided in the said order as it was not mentioned that in case of non-deposit of the said amount either the stay order shall be recalled or the suit shall be dismissed, thus, the order of deposit was independent of the portion of order relating to interim relief and at this stage does not apparently have any adverse effect on the main case as well for the reason that through the same order issues relating to merit of case were framed and the parties were directed to lead evidence on said issues, where-after the matter is to be decided after recording of evidence, therefore, prima facie no prejudice has been caused to petitioner by said order and the same cannot be treated as adversely affecting the rights of the petitioner, hence, the order by trial court for deposit and judgment passed by the Appellate Court whereby said order was upheld, both being based on proper appreciation of facts of the case available on the record as to the amount of remaining payment and well within discretionary jurisdiction of said courts are even otherwise in consonance with principles laid down in judgments reported as "Irfan Rasheed v. Muhammad Muazim and others" (PLD 2022 Lahore 372), "Messrs Kuwait Nation Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd. and another" (2020 SCMR 171), "Mst. Samina Riffat and others v. Rohail Asghar and others" (2021 SCMR 7), "Inayatullah Khan and others v. Shabbir Ahmad Khan" (2021 SCMR 686), "Muhammad Shafiqullah and others v. Allah Bakhsh (Deceased) through L.Rs. and others" (2021 SCMR 763), "Muhammad Jamil and others v. Muhammad Arif" (2021 SCMR 1108), "Muhammad Yousaf v. Allah Ditta and others" (2021 SCMR 1241) and "Muhammad Asif Awan v. Dawood Khan and others" (2021 SCMR 1270). In view of the foregoing as the discretionary order for deposit of remaining sale consideration without providing for any consequence for non- deposit of same does not adversely affect or prejudice the case of the petitioner, consequently, the well-founded order and judgment passed by the courts below cannot be said to be suffering from any illegality, jurisdictional defect, misreading and non-reading of record for this Court to interfere in the same.’

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7.As regards the claim of the petitioner that both the courts below have not taken into consideration the effect of non-compliance of order for deposit of remaining sale consideration and withdrawal of earlier suit for its non-compliance has not been considered by the said courts while turning down the objection filed by the petitioner and the observation recorded by both the forums below that penal consequences had not been provided by the order of appellate court for non-deposit of remaining sale consideration is adversely affecting his rights, suffice it to observe that the said apprehensions of the petitioner are misconceived as all the questions arising in the matter may be raised before the learned trial court, which is expected to decide all the said issues and grounds raised by the petitioner after appreciation of evidence in detail while finally deciding the suits filed by the parties and any adverse observation recorded by the courts below at the stage of interlocutory proceedings, which were tentative in nature, would not preclude the trial court from passing any appropriate order on the basis of evidence available on the record.

8.For what has been discussed above, this Court is of the opinion that as prima facie the observations recorded by the courts below relate to the present position of the suit pending before the trial court and the matter relating to difference of stance of the parties about payment of remaining sale consideration is required to be decided after due appraisal of evidence, therefore, the impugned orders could not be held to be suffering from any illegality or jurisdictional defect and misreading or non-reading of record for this Court to warrant interference at this stage, hence, no prejudice shall be caused to the rights of any party if the same remain in the field subject to observation that the main suit shall be decided without being prejudiced by any observations recorded therein.

9.In view of what has been discussed above, the titled constitution petition is disposed of in the aforementioned terms. However, the observations recorded in the instant judgment are tentative in nature and shall not prejudice the trial court while finally deciding the matter.

(MUZAMIL AKHTAR SHABIR)

JUDGE

Naveed/Zeeshan Khan*

APPROVED FOR REPORTING

JUDGE