ABDUS SALAM KHAN BARKI vs Mian PERVAIZ AKHTAR Ss — 2022 PLD 346 ISLAMABAD

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ABDUS SALAM KHAN BARKI VS Mian PERVAIZ AKHTAR Ss. 12, 22 & 24(b)---Civil Procedure Code (V of 1908), O.XV-a & O. XVII, R. 3---Specific performance of agreement---Discretion, exercise of---Principle---appellant/plaintiff sought specific performance of agreement to sell with regard to suit property---Trial Court dismissed the suit as appellant/plaintiff failed to deposit balance sale consideration as directed by Trial Court---Validity---Discretion was vested under Specific Relief act, 1877, in Trial Court to determine whether or not a party was entitled to discretionary relief---Failure of appellant/plaintiff to seek to deposit balance consideration with Court upon filing suit, created rebuttable presumption against appellant/ plaintiff regarding his capability and willingness to perform contract at such time---In the event that appellant/plaintiff failed to seek permission to deposit balance consideration at the time of filing suit, a structured and judicious exercise of discretion by Trial Court, in terms of S.22 of the Specific Relief act, 1877, required that Trial Court order appellant/plaintiff to deposit balance consideration or financial security in lieu thereof, to determine that grant of relief of specific performance was not barred under S.24(b) of Specific Relief act, 1877, due to incapability of appellant/plaintiff to discharge his obligation under contract specific performance of which was sought---appellant/plaintiff failed to comply within time fixed without justifiable cause to satisfaction of Trial Court, the Court was vested with authority under O.XV-a, C.P.C. to pass judgment or proceed to decide suit forthwith under O.XVII, R.3, C.P.C. read with S.24(b) of Specific Relief act, 1877, without need to issue any additional warning to appellant/ plaintiff---Question of extension of time period for deposit of balance consideration did not however apply once Trial Court had issued decree coupled with condition requiring deposit of balance consideration within a certain prescribed period and had held that failing compliance with such condition suit would stand dismissed---Where contract prescribed penal consequences for failure of a contracting party to discharge his obligation within a period prescribed, it would be deemed that it was within the contemplation of parties in relation to sale of immovable property that time was of the essence for performance of obligation under the contract and penal consequences such as forfeiture of any earnest money paid by defaulting party would be given effect by Court if clearly provided in contract, performance of which was being sought---appellant/plaintiff failed to abide by Court's direction, which established that he was not only in breach of his own obligations under the agreement but also exhibited his inability and lack of intent to discharge his obligations under the agreement---High Court declined to interfere in the judgment and decree passed by Trial Court---appeal was dismissed in circumstances.

ABDUS SALAM KHAN BARKI vs Mian PERVAIZ AKHTAR Ss — 2022 PLD 346 ISLAMABAD

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