Mast Nasreen Bibi VS Mudasar Altaf Bhatti (Wajid Mahmood Kiani)

ORDER SHEET

IN THE ISLAMABAD HIGH COURT, ISLAMABAD

JUDICIAL DEPARTMENT

C.R.No.351/2017 Mst. Nasreen Bibi Versus Mudassar Altaf Bhatti and others S. No. of order Date of order/ Order with signature of Judge and that of parties or / proceedings Proceedings counsel where necessary. 24.01.2018 Mr. Wajid Mahmood, Advocate for the petitioner.

Through the instant civil revision petition, the petitioner, Mst. Nasreen Bibi, impugns the judgment dated 20.01.2017, passed by the learned civil Court, and the judgment dated 19.07.2017, passed by the learned appellate Court. Vide the said judgment dated 20.01.2017, the learned civil Court dismissed the petitioner’s suit for specific performance of agreement to sell dated 25.04.2016, permanent and mandatory injunction in default. Vide the said judgment dated 19.07.2017, the learned appellate Court dismissed the petitioner’s appeal against the said judgment dated 20.01.2017.

2.The record shows that on 08.11.2016, the petitioner filed a suit for specific performance of agreement to sell dated 25.04.2016, permanent and mandatory injunction. In the said suit, it was pleaded inter-alia that vide the said agreement, the petitioner agreed to purchase a single storey house built on five marlas of land in Khasra Nos.2167, 2168, 2172, and 2187 situated in Mouza Khanna Dak, Islamabad for a total sale consideration of Rs.6,00,000/-; that the said house was owned by respondent No.1’s wife

who had given an authority to respondent No.1 to sell the house; that Rs.1,00,000/- was paid in cash at the time of the execution of the said agreement and Rs.1,00,000/- was paid on 15.05.2016 to respondent No.1; that possession of the said house has been handed over to the petitioner; that the remaining sale consideration of Rs.4,00,000/- was to be paid at the time of the execution of the sale deed before the Sub-Registrar, Islamabad; and that the petitioner is ready to perform her part of the agreement, but respondent No.1 was reluctant to go ahead with the transaction.

3.The said suit was contested by respondent No.1 who filed a written statement. The position taken by respondent No.1 was that although an agreement to sell was entered into as claimed by the petitioner but since the balance sale consideration was not paid within a period of six months as mandated in clause-3 of the agreement, the earnest money has been forfeited, and that the petitioner was not entitled to a decree for specific performance of the said agreement.

4.It appears that vide order dated 10.01.2017, the learned civil Court gave a last opportunity to the petitioner to deposit the remaining sale consideration. The case was adjourned to 20.01.2017 for the payment of the first installment of Rs.2,00,000/-. It was clearly mentioned in the said order that in case, the petitioner failed to pay the said amount, the suit would be dismissed in default. On 20.01.2017, the petitioner did not show compliance with the said order dated 10.01.2017. Since the petitioner did not even

bother to appear before the Court on 20.01.2017, the learned civil Court dismissed the petitioner’s suit in default.

5.The petitioner filed an appeal against the said order dated 20.01.2017 before the Court of the learned Additional District Judge, Islamabad. It appears that the petitioner had made a commitment before the learned appellate Court to deposit Rs.4,00,000/- in the Court on 17.07.2017. The petitioner did not deposit the said amount. On 19.07.2017, the petitioner offered to pay Rs.3,00,000/- in cash to respondent No.1, and stated that the remaining sale consideration i.e. Rs.1,00,000/- would be paid by 03:00 pm. Since neither any amount was paid to respondent No.1 nor was any amount deposited in the Court, the learned appellate Court dismissed the petitioner’s appeal on account of non-fulfillment of commitment made by her.

6.Learned counsel for the petitioner did not say with any clarity as to when the remaining sale consideration would be deposited in the Court. Specific performance and injunction are equitable remedies. The petitioner breach her commitment made before the learned trial Court as well as the learned appellate Court.

7.The mere fact that the appellant did not deposit the balance sale consideration despite specific orders passed by the learned civil Court and the learned appellate Court to deposit the same by stipulated dates, disentitles the petitioner from any discretionary relief. The learned civil Court had warned the petitioner that if the

installment of the balance sale consideration was not deposited by 20.01.2017, her suit would be dismissed. The petitioner’s failure to deposit the balance sale consideration in spite of the commitment made before the learned Courts below, stripped the petitioner from all bonafides.

8.Therefore, I find the impugned orders to be just and appropriate in the circumstances of the case. Reference to case law at this stage would be apposite:-

(i)In the case of Haji Abdul Hameed Khan Vs. Ghulam Rabbani (2003 SCMR 953), it was held that where the plaintiff, in a suit for specific performance of an agreement to sell, does not deposit the balance sale consideration amount within the time fixed by the trial Court, the suit was liable to be dismissed. Furthermore, it was held that a plaintiff seeking the equitable remedy of specific performance must always be ready in willing to perform his part of the contract. If the plaintiff does not deposit the balance sale consideration amount within the time stipulated by the trial Court, the presumption would be that the plaintiff was not serious in prosecuting his remedy.

(ii)In the case of Adil Tiwana and others Vs. Shaukat Ullah Khan Bangash (2015 SCMR 828), the petitioner had failed to pay the balance sale consideration within the period specified in the agreement to sell. Even when the suit for specific performance was filed, the plaintiff did not seek to deposit the

balance sale consideration in the Court. The direction of the trial Court to the plaintiff to deposit Defence Saving Certificates for an amount equal to the balance sale consideration within a period of one month was also not complied with by the plaintiff. In the ultimate analysis, the plaintiff had failed to comply with the orders/directions of the trial Court despite several opportunities. In such circumstances, the plaintiff’s suit for specific performance was held to have been correctly dismissed. In the said judgment, the Hon’ble Supreme Court made the following observations:- “...We may also add at this stage that the remedy by way of specific performance is equitable and it is not obligatory on the Court to grant such a relief merely because it is lawful to do so. Section 22 of the Specific Relief Act expressly stipulates so. It is axiomatic that one who seeks equity must do equity. In the present case all equities are squarely in favour of the appellants/defendants and stacked high against the respondent/plaintiff.”

(iii)In the case of Muhammad Iqbal Vs. Mehboob Alam (2015 SCMR 21), a suit for specific performance of an agreement to sell was held to have been correctly decreed because the plaintiff had deposited the balance sale consideration in the Court. Even though the plaintiff in the said case had subsequently withdrawn the amount deposited in the Court, the earlier deposit of the balance sale

consideration had established his bonafides.

9.In view of the above, I do not find any merit in this petition, which is accordingly dismissed with no order as to costs.

(MIANGUL HASSAN AURANGZEB)

JUDGE

Sultan*