MUHAMMAD ASIF AWAN vs DAWOOD KHAN Ss — 2021 SCMR 1270 SUPREME-COURT

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MUHAMMAD ASIF AWAN VS DAWOOD KHAN 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---Appeal was allowed.

MUHAMMAD ASIF AWAN vs DAWOOD KHAN Ss — 2021 SCMR 1270 SUPREME-COURT

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