2025 PLD 21
JUDGMENT
SHAKEEL AHMAD, J.---This regular first appeal is concerned with the challenge to order dated 30.01.2023, whereby and whereunder the appellant was directed to deposit Rs. 17 crore, the remaining sale consideration, within 30 days and judgment/order dated 11/03/2023, which culminated in dismissal of the suit due to non-compliance of the said order of the Court.
2. Brief facts necessary for adjudication of this matter are that the appellant brought a suit for specific performance of contract executed between the parties on 02.02.2012 and then on 08.04.2020 in respect of properties (detail whereof was mentioned in the headnote of the plaint) seeking cancellation of mutation No. 16457 executed on 02.02.2020 and subsequent mutation No. 16497 executed on 08.04.2020. He also prayed for issuance of permanent injunction restraining the respondents from posing themselves to be owners of the property in dispute, alienating the same by way of sale etc. and making interference in it, perpetually. It was averred that the appellant/ plaintiff is a property dealer by profession. The respondents/ defendants and their deceased brother namely Muhammad Sharif Khan are the successors of Haji Khan, commonly known as Warkotay Haji, who had purchased huge immovable properties in the name of the respondents/ defendants and their step brothers. The said deceased brother of the respondents/ defendants and his partners had purchased landed properties at moza Hargoi, moza Ranogardhi and moza Sardar Garhi through mutations. The appellant/ plaintiff and his partners, on some portion of land, planned to establish a housing society with the name of "Alnamra Town" at Ring Road, Shinwari Town, Peshawar, and after plotting, plots were sold to different people. The property in dispute was purchased from the said deceased brother of the respondents/defendants (Muhammad Sharif) @ Rs.150,000/- per marla and out of total sale consideration (Rs. 24,00,00,000) Rs. 62500,000/- was paid to him as earnest money in presence of the marginal witnesses of the agreement at Alnamra property centre situated at Ring Road, Peshawar. Consequently, possession of the property in dispute was handed over to him, which is still in possession and occupation of the appellant/ plaintiff. Soon after sale of the property in dispute, the step brothers of the said Muhammad Sharif filed civil suits, which are pending adjudication in different Courts of law, due to which the appellant/ plaintiff could not materialize the sale and plotting of the said land, and till now, the suit property is in possession and occupation of the appellant and his partner namely Niaz Muhammad alias Niazbeen through their tenant namely Alamzeb. It was further averred that the remaining sale consideration was payable to the respondents/ defendants after plotting and sale of the property in dispute as is evident from the agreement and due to civil dispute and litigations over the suit property, the agreement is yet to be acted upon between the parties. On 08.04.2020, the predecessor-ininterest of the parties renewed the said contract in presence of its marginal witnesses. It was pleaded in the plaint that the respondents/ defendants were asked to accept the claim of the appellant over the suit property by acting upon the terms and conditions of the agreement, but all his efforts in this respect proved to be a wild goose chase, which necessitated to file the present case.
3. On service of summons, the respondents/ defendants put their appearance before the learned trial Court, resisted the claim of the appellant/ plaintiff on legal and factual grounds. The defendants Nos. 1, 2, 4 and 5 to 9 had submitted their separate written statements. They denied execution of such an agreement between the parties terming it to be a forged and factious document. Vide order dated 30.01.2023, the learned trial Court issued direction to the appellant/ plaintiff to deposit the remaining sale consideration i.e. Rs. 17 crore within 30 days in view of judgment reported as "Hamood Mehmood v. Mst. Shabana Ishaque" (2017 SCMR 2022), but, he could not deposit the same, then on 11.02.2023, he was again directed to deposit the same till 02.03.2023, however, despite repeated directions issued on 18.02.2023 and 20.02.2023, he failed to comply with the above orders of the Court. The appellant impugned the initial order dated 30.01.2023 of the learned trial Court, whereby and whereunder he was directed to deposit the remaining sale consideration through Constitution Petition No. 207-P of 2023, which was dismissed as withdrawn as he wanted to seek his other remedy, on 17.03.2023, for the reason that by that time, his suit had been dismissed due to failure to deposit the remaining sale consideration as per direction of the Court vide order dated 11.03.2023. The appellant being aggrieved with the orders i.e. 30.01.2023 and 11.03.2023, has preferred this appeal before this Court.
4. It was pleaded by the learned counsel for the appellant that the contracts executed between the appellant and predecessor-in-interest of the parties are based on contingent on the happening of some future or subsequent event and is enforceable till the event on which it depends has occurred, therefore, the learned trial Court has fallen into error, directing him to deposit the remaining sale consideration. It was further pleaded that the judgment reported as "Hamood Mehmood v. Mst. Shabana Ishaque" (2017 SCMR 2022), is not attracted to the present case and concluded his arguments by praying that the impugned orders of the learned Courts below be set aside and the case be remanded back to the learned trial Court for decision afresh, after recording pro and contra evidence of the parties.
5. In response, the learned counsel for the respondents submitted that in a suit for specific performance of contract, the party seeking its performance is under legal obligation to show his willingness and readiness to perform his part of obligation by depositing the remaining sale consideration and in this respect any deviation and slackness on the part of the plaintiff would result in dismissal of the suit. He next submitted that defendant No. 4 namely Muhammad Majeed Khan has not been arrayed as respondent in the memo of appeal and due to such omission on the part of the appellant, the appeal is liable to be dismissed being barred by time, even if he is impleaded as respondent at a belated stage.
6. I have heard the learned counsel for the parties at length and examined the terms and conditions incorporated in the agreements allegedly executed between the appellant and Muhammad Sharif, predecessor-in-interest of the defendants, and examined the available record minutely with the valuable assistance of the learned counsel for the parties.
7. Before dilating upon the merits of the case, I deem it appropriate to reproduce the contents of both the agreements as under: -
A plain reading of the agreements reproduced hereinabove, reflect that both these agreements are bilateral agreements and in a bilateral agreement, the contracting parties promise each other that they will perform or refrain from performing an act. It is clear from the terms and conditions stipulated therein that the remaining sale consideration has to be paid to the second party after plotting and sale of the property in dispute and that the second party will not put pressure upon the first party to transfer the property in dispute in favour of his relatives or any other person through mutation or registered deed. The said conditions were also incorporated in the renewed contract besides, other conditions, allegedly executed on 08.04.2020, but, there is nothing on the record to show that the respondents were willing to fulfill their part of obligations in this regard rather they have denied execution of above referred agreements terming them forged and fictitious documents.
8. The Hon'ble Lahore High Court, while dealing with identical situation in the case reported as "Ijaz Ahmad Choudhry v. Learned Civil Judge and others" (2020 CLC 291 (Lah) ruled as follows:-
"----S. 12---Suit for specific performance of agreement to sell immoveable property --Depositing of entire / remaining sale consideration by plaintiff in court --- Bilateral contracts --- Scope--- Question before High Court was whether plaintiff seeking to enforce agreement to sell in a bilateral contract, was required to deposit entire sale consideration in court --- Contention of plaintiff, inter alia, was that as per contract, defendants failed to perform certain obligatory acts after initial payment, therefore plaintiff could not be made to deposit entire sale consideration until the defendants performed said acts --- Validity---- In bilateral agreement/contract/settlement(s), participating parties promise each other that they will perform or refrain from performing an act and such type of contract was also known as a "two-sides contract" ---- When plaintiff had already performed first part of agreement, it was the defendants who had to perform their part as agreed between them and on refusal of the same, plaintiff approached Court to force them to perform their part --- In such a case plaintiff could not be forced to deposit whole sale consideration, especially when the agreement was bilateral as well as under certain terms and conditions and both the parties had to perform their parts step by step"
In the case in hand, after examining the terms and conditions of the agreement, I find that it has not been provided in the agreement that the remaining sale consideration will be paid in lump sum rather it has been agreed upon that the appellant would pay the remaining sale consideration after plotting and sale of the suit property. It clearly indicates that it is a commercial type of bilateral agreement in between the parties to the agreement. The agreements to sell as a whole is to be considered and read, but the learned trial Court before passing the impugned orders overlooked the whole contents of bilateral agreement relied upon by the appellant, thus failed to appreciate the controversy/ issue discussed hereinabove by construing the law on the subject and without appreciating the ratio of law laid down in the case reported as "Hamood Mehmood v. Mst. Shabana Ishaque" (2017 SCMR 2022), proceeded to issue the direction to the appellant to deposit the remaining sale consideration. In Hamood Mehmood's case, referred to above, the vendee/ plaintiff failed to deposit the remaining sale consideration despite decree in his favour. The agreement allegedly executed between the parties to the agreement is a contingent contract, it imposes pre-condition for implementing the terms of the contract, it is a qualified contract and will only come into being when the conditions incorporated therein are fulfilled. The fulfillment of the conditions is the transformation of that potentiality into actuality. Conversely, the failure of the condition is the failure of that chance to become a fact, where execution of a future contract is a condition or a term of the bargain, there cannot be an enforceable contract unless the condition or term is fulfilled. In the case reported as "Muhammad Asif Awan v. Dawood Khan" (2021 SCMR 1270), it was held as under:
----Ss. 12 & 24(b)---Civil Procedure Code (V of 1908), O. XVII, R. 3---Transfer of Property Act (IV of 1882), S. 54---Suit for specific performance of agreement to sell immoveable property filed by vendee---Balance sale consideration---Trial Court directing vendee to deposit balance sale consideration in court without providing any penal consequences for failure to do the same---Whether the suit for specific performance filed by vendee could be dismissed by the High Court on account of non-deposit of balance sale consideration in Trial Court---Held, that order of the Trial Court whereby the vendee/appellant was directed to deposit the remaining consideration did not provide any penal consequences, on the contrary the suit was fixed for the evidence of the plaintiff therefore, the suit in the circumstances could not have been dismissed on account of non-deposit---Approach of the High Court that the non-compliance of the order directing the deposit would amount to failure on the part of the vendee/ appellant to perform act necessary to the further progress of the suit and therefore, would result in dismissal of the suit under O. XVII, R. 3, C.P.C. appeared to be totally misconceived---Order of the Trial Court reflected that the matter was fixed for evidence of the plaintiff and record did not show that further progress was not possible on account of non production of vendee's evidence---In the given circumstances, unless the vendee would have been put to notice that the non-deposit of the balance sale price would be deemed to be his incapability of performing his part of the contract as envisaged under S. 24(b) of the Specific Relief Act, 1877 rendering the contract non-enforceable, the suit could not have been dismissed---Even otherwise, the language employed in O.XVII, R. 3, C.P.C. by using the word, "the Court may, notwithstanding such default, proceed to decide the suit forthwith" was permissive and discretionary and did not in all circumstances entail penal consequences and the discretion exercised by the Trial Court by extending time for deposit of balance sale price pendente lite just for few days in the face of denial of deal by the vendor was not perverse entitling High Court to interfere in it---Appeal was allowed and order of High Court non-suiting the vendee was set aside."
9. In view of the discussion made above, I am of the considered opinion that the impugned order dated 30.01.2023 whereby and whereunder the appellant was directed to despot the remaining sale consideration and order dated 11.03.2023 which culminated in dismissal of the suit of the appellant is factually and legally not sustainable.
10. Now adverting to the effect of non-impleadment of the defendant No.4 as respondent in the memo of appeal as pointed out by the learned counsel for the respondents. Order XLI, Rule 1 of the C.P.C. deals with the form of appeal which provides that an appeal is to be preferred in the form of a memorandum signed by the appellant or his pleader/ agent. It is settled that an appeal which is continuation of suit, is a document of accusation for judicial examination by higher forum and memorandum contains the grounds of examination. Rule 4 of Order XLI, C.P.C. states that when there is more than one plaintiff or defendant in a suit and the decree appealed from proceeds on any ground common to all, then all the plaintiffs or defendants or any of them can file an appeal against the whole decree and appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants. Under Rule 20, C.P.C., the appellate Court has been empowered to exercise suo motu power to direct that any person who was a party to the suit in the trial Court against whose decree appeal has been preferred and that such person has not been made a party, can direct that such person be made as respondent. The object of Rule 20, C.P.C. is that order of appeal should be made effective.
11. A question was raised by the learned counsel for the respondents that no party can be added after expiry of period of limitation, which on the face of it carries weight. In support of his contention, he placed reliance on the case laws reported as "Muhammad Suleman v. Abdul Rashid" (PLD 1987 Lah. 387), "Musmar and another v. Khair Ullah Khan and others" (PLD 1954 Peshawar 52), "Benazir Bhutto Hospital Rawalpindi through Medical Superintendent v. Khalid Pervaiz and 8 others" (2017 CLC 1381), "Haji Fazal Ghani v. Fazle Ahad and 4 others" (2021 YLR 1055) and "Maqbool Begum etc. v. Gullan and others" (PLD 1982 SC 46). Contrary to the view taken in the above quoted judgments, the august Supreme Court of Pakistan in the case reported as "Said Muhammad and others v. M. Sardar and others" (PLD 1989 SC 532) held as under:-
"The Legislature in its wisdom by enacting Order XLI, Rule 20, C.P.C. empowered the Court to allow a party to be added in an appeal already filed when none could be added after the limitation had run out. The purpose more or less is the same as that with investing the Court with the powers to condone the delay under section 5 of the Limitation Act which is not in terms applicable. The purpose is not far to seek as the Legislature must be presumed to have visualized situations where there could be an omission to implead the necessary parties either as a result of bona fide mistake or on account of no mistake of a party seeking addition of the necessary party or for some other justifiable reason"
The rigidity in the application of Order XLI, Rule 20, C.P.C. that where a party is not impleaded in appeal within the period of limitation he can never be deemed to be an interested party in the result of the appeal is not an inviolable rule.
12. In the case reported as "Mst. Sardar Begum v. Muhammad Anwar Shah and others" (1993 SCMR 363), it was ruled that where a party was omitted inadvertently the rigidity in the application of Order XLI, Rule 20, C.P.C., was discussed and was held that the High Court was empowered to act suo motu or on the behest of party irrespective of the provisions of Section 22 of the Limitation Act, 1908.
13. Section 153, C.P.C. preserves the power of the Court to amend, inter alia, any proceedings in a suit or all necessary amendments at any time for the purpose of determining the real question or issue and a party should not be denied relief on account of mere technicalities in the procedural law, which is intended and designed to foster the cause of justice and not to defeat it. This power can be exercised at any time not only during pendency of the lis and even after the passage of the decree at the appellate stage. In this context, reliance can be placed on the judgment reported as "Ghulam Nabi v. Sardar Nazir Ahmad" (1985 SCMR 824).
14. Thus, seeking wisdom from the judgments of the august Supreme Court of Pakistan, cited above, and in view of the provisions of Order XLI, Rule 20 read with Section 153, C.P.C., I, while exercising suo motu power, implead the defendant No.4 (Muhammad Majeed Khan) son of Haji Khan as respondent No. 9. The office is directed to make necessary entry in this respect in the memo of appeal as well as all other relevant documents, with red ink.
15. In the result, this appeal is allowed and the impugned order dated 30.01.2023, passed by the learned trial Court, whereby and whereby and whereunder the appellant was directed to deposit the remaining sale consideration and order dated 11.03.2023, which culminated in dismissal of the suit, are laid to rest/ set aside. Consequently, the case is remanded back to the learned trial Court for decision afresh on merits after recording pro and contra evidence and providing the parties an opportunity of hearing. No order as to costs.