2022LHC3541

StereoHCJDA 38
Judgment Sheet
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
Civil Revision No. 49002 of 2021.

(Nasir Mahmood. v. Zafar Iqbal and another.)
JUDGMENT
Dates of hearing: 18.05.2022.
Petitioner by: Sh. Usman Karim-ud-Din, Advocate.
Respondents by: Mr. Imran Raza Chadhar, Advocate for

respondent No.1.
Mr. Imran Ahmad Malik, Advocate for
respondent No.2.
Shujaat Ali Khan, J: - Succinctly, respondent No.1 filed
suit for cancellation of agreement to sell, dated 14.06.2014,
against respondent No.2 whereas the petitioner filed suit for
possession through specific performance of agreement to sell,
dated 16.06.2014, alongwith permanent injunction, against the
respondents. The learned trial court consolidated both the suits.
During pendency of suits, respondent No.1 filed an application
for dismissal of the suit, filed by the petitioner, due to non-
deposit of remaining sale consideration whereas the petitioner
filed an application seeking permission to deposit
Rs.6,35,00,000/- viz. the remaining sale consideration. Learned

Civil Revision No.49002/2021
Nasir Mehmood v. Zafar Iqbal etc.
2
Trial Court, vide order, dated 15.07.2021, while dismissing the
application filed by respondent No.1 for dismissal of suit of the
petitioner, allowed that of the petitioner seeking permission to
deposit the remaining sale consideration directing him to
deposit remaining sale consideration within a period of fifteen
days with the observation that in case of his failure to deposit
said amount within the stipulated time the suit filed by him
would stand dismissed on account of non-compliance of order
of the court. The petitioner, in compliance with the order passed
by learned Trial Court, deposited an amount of Rs.2,35,00,000/-
on 27.07.2021 and Rs.1,00,00,000/- on 28.07.2021 and to the
extent of remaining amount of Rs.3,00,00,000/- he filed an
application seeking extension of time fixed by the learned Trial
Court. The learned Trial Court, vide order, dated 30.07.2021,
while rejecting the application filed by the petitioner seeking
extension in time, dismissed his suit due to non-compliance of
order, dated 15.07.2021; hence this petition.
2. Learned counsel for the petitioner submits that bona fide
on the part of the petitioner is manifest from the fact that in
compliance with order, dated 15.07.2021, passed by learned
Trial Court, he deposited Rs.3,35,00,000/- and further moved
application seeking extension of time to deposit the balance

3
amount, hence, the observation of learned Trial Court that the
petitioner was not serious to get enforced the subject agreement
to sell is against the record; that according to Order XVII rule 3
CPC decree was to be drawn pursuant to the order passed by
the learned Trial Court but since no decree followed the
impugned order, the same is not sustainable; that even while
invoking the provisions of the Order XVII rule 3 CPC ibid
findings on every Issue are to be given by the court but the
impugned decision being contrary to the said principle is not
sustainable; that as per section 148 CPC learned Trial Court
was fully empowered to extend time enabling the petitioner to
deposit the balance amount but non-exercise of jurisdiction by
learned Trial Court speaks volumes about its non-judicial
approach; that since matter was fixed for recording evidence of
plaintiff, the suit could not be dismissed at that stage and that
since the petitioner deposited the balance amount on
30.07.2021, lenient view was to be adopted by learned Trial
Court. Relies on Muhammad Asif Awan v. Dawood Khan and
others (2021 SCMR 1270).
3. Conversely, learned counsel appearing on behalf of
respondent No.1, while defending the impugned decision, states
that since the petitioner failed to deposit balance amount in

4
court, despite the fact that agreement to sell between the parties
was executed in the year 2014, no illegality has been committed
by learned Trial Court while passing the impugned order; that
the petitioner himself filed application in the year 2016 seeking
permission to deposit the balance amount which was allowed
but he did not deposit the same despite lapse of many years
which shows his negligence to perform his part of the contract;
that respondent No.1, who is an expatriate, on the one hand, has
been deprived of his valuable land without payment of balance
amount and on the other is being blackmailed by the petitioner
and respondent No.2 by lodging criminal case against him and
that a learned Division Bench of this Court, while discussing all
the case-law on the subject, in the case of Irfan Rasheed v.
Muhammad Muazim and others (PLD 2022 LHR 372), has
held that in the event of failure of plaintiff to deposit balance
consideration, in a suit for specific performance, his suit should
be dismissed on that score alone.
4. Learned counsel representing respondent No.2, while
supporting the petitioner, submits that technicalities apart, since
the suit filed by respondent No.1 is also sub judice before
learned Trial Court, it is in the fitness of things that while
setting aside the impugned decision, matter be referred to the

5
said forum as entire balance amount has already been deposited
by the petitioner.
5. In furtherance of his above arguments, learned counsel
representing respondent No.1 contends that since the petitioner
is a real estate developer he intends to usurp land of respondent
No.1 without payment of balance amount, hence, no leniency
can be shown to the petitioner.
6. While exercising his right of rebuttal, learned counsel for
the petitioner submits that since the petitioner himself filed
application seeking permission to deposit the balance amount
and no direction was issued by the court in the year 2016, the
order passed by learned Trial Court, on 21.12.2016, cannot be
used to the disinterest of the petitioner; that though the
petitioner deposited remaining amount of Rs.3,00,00,000/-, on
28.07.2021, but its effect could not be incorporated in the
relevant record till 30th July, 2021 and that since respondent
No.1 denied execution of agreement to sell out-rightly, the
petitioner could not be compelled to deposit the balance amount
forthwith.
7. I have heard learned counsel for the parties at
considerable length and have also gone through the documents,

6
annexed with this petition as well as the case-law cited at the
bar.
8. Firstly, taking up the point raised by learned counsel for
respondent No.1 that since the petitioner did not deposit the
balance amount despite the fact that his application in that
regard was allowed way back in the year 2016, I am of the view
that when the learned Trial Court invoked the penal provisions
of Order XVII rule 3 CPC ibid due to non-compliance of order,
dated 15.07.2021, no reference can be made to any previous
omission or commission, if any, on the part of the petitioner.
Reliance in this regard is placed on Sultan Ahmad and others v.
Khuda Bux and others (1986 SCMR 1005) wherein the august
Supreme Court of Pakistan responded the query, under
discussion, in the following manner: -
“7. The main contention in support of these petitions

urged by the learned counsel is that the second order
prescribing time for making up deficiency of court-fees
and filing the statement of net profits, was passed without
application of mind and ignorance of the orders passed
earlier under which the time allowed had already
expired. In other words the submission was that upon
expiry of the period earlier fixed as the plaintiffs had
failed to comply therewith the plaints were liable to be
rejected under Order VII rule 11(d), C.P.C. It was
further urged that the conduct of the plaintiffs in not
complying with the first order by making up a proper
application to the revenue authority for obtaining the
statement of net profits the plaintiffs were guilty of
contumacy and negligence and accordingly were not
entitled to the exercise of discretion in their favour
7
extending the time. The power of the Court to pass a

fresh order after the expiry of the period prescribed
under the first order was also challenged. We have
carefully considered these contentions and find no
substance therein. The plaints were not liable to be
rejected under Order VII, rule 11 (d) , C . P . C . unless
the Court had first made an order calling upon the
plaintiffs to make up the deficiency in court-fees by
specifying the amount thereof. In this case no such order
was passed directing the plaintiffs to pay a specific
amount by way of deficiency in the court-fees. In the
circumstances the plaints originally filed by the plaintiffs
were still before the Court' on the date of the subsequent
order and the Court was amply empowered to extend the
time for doing the needful as earlier ordered or even
pass a fresh order to the same effect by a specified
future date. It is well-settled that the power vesting in
the Court under section 148, C.P.C. can be exercised
successively and even after the time under previous
such order has expired. Therefore, nothing turns on the
fact that there was a gap between the period covered by
the two orders. So far as the justification for extension of
time under section 149. C.P.C., the first appellate Court
applied its mind and came to the conclusion that the
plaintiffs in the two suits were entitled to the grant of
time in the circumstances of the case. This is a
discretionary order and there is nothing to hold that the
discretion was perversely exercised. The Courts below
have acted upon the rule laid down by this Court in
Siddique Khan v. Abdul Shakur Khan PLD 1984 SC 289
and there is no legal infirmity in the impugned orders in
these two petitions. Both petitions are accordingly
dismissed.” (emphasis provided)
If the contention of learned counsel for respondent No.1, under
discussion, is appreciated in the light of the afore-quoted
judgement of Apex Court of the country it becomes vividly
clear that since no direction was passed by the learned Trial
Court asking the petitioner to deposit the balance amount within
specified period, the order passed by the learned Trial Court on

8
the application of the petitioner, in the year 2016, cannot be
used to his disinterest.
Considering from another angle, undeniably, the
application filed by respondent No.1 seeking dismissal of the
suit file by petitioner on account of non-compliance of order
dated 21.12.2016 was dismissed by the learned trial court on
15.07.2021 by holding that since no direction was issued by the
court, non-compliance on the part of the petitioner did not entail
any penal action and the said order having not been challenged
by respondent No.1 has attained finality. In this background,
respondent No.1 cannot be allowed to re-agitate the said ground
before this Court.
9. It is admitted position that after filing of suit the
petitioner himself filed an application seeking permission to
deposit the balance amount wherein notices were issued but
respondent No.1 did not opt to file reply to the said application.
On the other hand, while filing written statement he denied the
very execution of agreement to sell with the petitioner rather his
stance was that he entered into an agreement to sell with Hassan
Nazir (respondent No.2), on 14.06.2014, but due to non-
fulfilment of the conditions stipulated therein, the said
agreement to sell automatically stood rescinded, however, as a

9
matter of abundant caution he filed a suit seeking cancellation
of agreement to sell prior to filing of suit by the petitioner
seeking specific performance of Agreement to Sell entered
between the petitioner and respondent No.2. In the wake of
such outright denial of execution of the agreement to sell,
subject matter of the suit out of which present revision petition
has stemmed, the petitioner could not be made to suffer
especially when he has deposited the entire consideration
amount.
10. Admittedly, the petitioner filed application seeking
extension of time to deposit the balance consideration amount,
before expiry of the period stipulated by the learned trial court
vide order, dated 15.07.2021. It is of common knowledge that
established businesses stood toppled due to pandemic Covid-19
and for that reason in addition to certain steps at government
level, even the individuals at their own relaxed/deferred due
payments just for the reason that all and sundry were adversely
affected by the said disease. Undeniably, only one chance was
given by the learned Trial Court to the petitioner to deposit the
balance amount. While dealing with powers of the court to
extend period for compliance of an order passed by a court, the
Apex Court of the country in the case reported as Malik

10
Hadayat Ullah and 2 others v. Murad Ali Khan (PLD 1972 SC
69) has inter-alia held as under: -
“The Punjab Pre-emption Act does not prescribe

any procedure for obtaining such extension of time but
upon general principles a Court has normally to be
moved by an application of some kind, either oral or
written. This does not, however, mean that the Court has
no jurisdiction, in the absence of any such application, to
grant a discretionary relief where the justice of the case
so requires. In the absence of any provision in the Statute
or in the rules made under the Statute expressly
providing that the Court shall act on the application: of a
party it cannot be said that such an application is a
condition precedent to the exercise of the power. The
power does not become nugatory, if no application is
made for invoking that power. If the Court could we-are
clearly of opinion that it could under subsection (4) of
section 22 extend time, then it could do so either on the
application, written or oral, of a party or even suo motu
where the justice of the cause so demanded.
In the present case, the learned Judge of the High

Court thought that there was no ground at all for
granting such an extension although it was argued before
him that in the present case the Court had made it
practically impossible for the appellants, who were
plaintiffs in the pre-emption suit, to comply with the
order for making the deposit within the time originally
fixed by the Court by its own action, namely, the
adjournment of the application for furnishing security
instead of making the deposit in cash from the 6th of
December 1967, to the 6th of January 1968, on which
date the pre-emption suit itself was fixed for hearing. If
the Court had not done so but had disposed of the
application soon after it was filed the present difficulty
would not have arisen. The pre-emptors would have had
sufficient time to make the deposit in cash.
The extension of time in the present case was

granted before the time originally fixed for making the
deposit had expired and before the disposal of the suit.
No objection could, therefore, be taken on this ground
either. If the Court had the power to extend time it
could do so even after the expiry of the period originally
11
fixed unless the statute prohibited this or unless the

order had become final and rendered the Court functus
officio. The general principle is that where by an order
time is fixed by a Court for doing any act the Court can
grant extensions from time to time till it ceases to have
jurisdiction over the matter or loses seisin of the matter.
In the circumstances, we are clearly of the view

that the High Court grievously erred in holding that the
Civil Judge had no jurisdiction at all to grant the
extension of time. At worst, all that could be said was
that perhaps the Civil Judge had not exercised his
discretion in a proper manner in granting the extension
but then the matter would not have been revisable by
the High Court under section 115 of the Civil
Procedure Code. Before the High Court could interfere
under this latter section, it had to be satisfied that the
Court below had acted illegally or with material
irregularity in the exercise of its jurisdiction or
exercised a jurisdiction not vested in it by law or failed
to exercise a jurisdiction so vested.
Obviously, the learned Judge in the High Court

was conscious of this difficulty and hence it appears to
us, unnecessarily went out of his way to hold that in the
present case the Civil Judge had no jurisdiction to extend
the time, notwithstanding the provisions of subsection (4)
of section 22 of the Punjab Pre-emption Act.
There was, as we have already pointed out, a very

good and substantial reason for the extension of time,
because, even assuming that no application was made by
the appellants for such extension of time, the Court, in
the interest of justice, was fully competent suo motu to
extend the time when it had by its own act made it
practically impossible for the appellants to comply with
its original order by adjourning the application for
furnishing security to the 6th of January 1968.
We are thus fully satisfied that this appeal must be
allowed and we, accordingly, allow the same with costs,
set aside the order of the High Court and restore that of
the trial Court. The suit should now be taken up for
hearing and disposed of as expeditiously as possible. Let
the records be sent down immediately.” (emphasis
provided)
12
A similar view was taken by Hon’ble Supreme Court of
Pakistan in the case reported as Sultan Ahmad and others
(Supra) by inter-alia observing as under: -
“7. *****In this case no such order was passed

directing the plaintiffs to pay a specific amount by way of
deficiency in the court-fees. In the circumstances the
plaints originally filed by the plaintiffs were still before
the Court' on the date of the subsequent order and the
Court was amply empowered to extend the time for doing
the needful as earlier ordered or even pass a fresh order
to the same effect by a specified future date. It is
well-settled that the power vesting in the Court under
section 148, C.P.C. can be exercised successively and
even after the time under previous such order has
expired……” (emphasis provided)
Likewise, the Apex Court of the country in the case reported as
Muhammad Nawaz and others v. Muhammad Sadiq and
another (1995 SCMR 105) has dealt with the proposition of
law, under discussion, in the following manner: -
“10. From the above-referred case, inter alia, it is

evident that the consistent view of this Court is that an
appellate Court is competent to extend time for deposit of
the pre-emption money either during the pendency of an
appeal before it or at the time of disposing of the same
notwithstanding that the time mentioned in the
pre-emption decree for the said purposes may have
expired. Furthermore, an appellate Court may extend
time for the above purpose at the stage when an appeal is
not admitted for regular hearing by it or a petition for
leave to appeal is not granted and such an extension of
time will not be nullified by the factum that the appeal or
the petition for leave to appeal is subsequently dismissed
summarily. However, neither a trial Court nor an
appellate Court can extend time for deposit of
pre-emption money once the matter stands disposed of
and it is no-longer pending before it. In such an event,
13
the direction contained in the original decree to the effect

that in case of failure to deposit the pre-emption money
the suit shall stand dismissed. becomes effective.
However, the above rule seems to be subject to one
exception, namely, that if an appellate Court varies the
finding of the Court below on the quantum of the
pre-emption money, in other words it either increases or
reduces the same, in that event, it should fix fresh
reasonable time for deposit of the pre-emption money
and in the absence of any such fixation, the pre-emptor
may deposit the same within reasonable time as has been
held by Cornelius, C.J. and Hamoodur Rahman, J. in the
case of Shah Wali v. Ghulam Din alias Gaman and
another (supra). It is also evident from the above reports
that an appellate Court is not bound to grant extension of
time in every case: The conduct on the part of a
pre-emptor may disentitle him from pressing into service
exercise of the above discretionary power by an
appellate Court in his favour. It may be observed that it
is difficult to categorize all the cases in which a
pre-emptor will not be entitled to seek exercise of the
above discretionary power in his favour by an appellate
Court. It will depend on the facts of each case. If the sole
object of a pre emptor in filing of an appeal is to delay
deposit of the pre-emption money, about the correctness
of which, there cannot be any reasonable doubt, to a
reasonable man, in such a case an appellate Court may
decline to extend the time.”
Following the above verdicts of the Apex Court of the country,
a learned Division Bench of this Court in the case of
Muhammad Asghar v. Mian Muhammad Hussain (2010 CLC
22) has resolved as under: -
“12. *****The provisions of section 148, C.P.C. were

consciously invoked by the learned trial Court whereby
delay was condoned on the application of the
defendant/respondent. The said provisions could be
brought into consideration either suo motu by the Court
in the interest of justice or on the application of the party
concerned……”
14
The aforesaid view was also authenticated by the Supreme
Court of Azad Jammu & Kashmir, in the case of Ghulam
Rabani v. Muhammad Fiaz and another (2016 CLC 1547) in
the following manner: -
“8. The right of appeal is a statutory right of a party.

Under the provision of section 107, C.P.C., the powers
vested in the Courts of original jurisdiction are also
available with the appellate Courts. The time for
depositing the decretal amount is fixed by the Court
under the provisions of Order XX, Rule 14 of Civil
Procedure Code, whereas according to the provisions of
section 148, C.P.C., any period fixed or granted by the
Court for doing of any act prescribed or allowed by this
Code including the period for depositing the decretal
amount can be enlarged from time to time. On the legal
proposition of enlargement of time, we have benefited
from an authoritative judgment of the apex Court of
Pakistan in the case reported as Muhammad Nawaz and
others v. Muhammad Sadiq and another [1995 SCMR
105], wherein the comprehensive appreciation of the
statutory provision of section 148, C.P.C. has been made
in the following terms:-
"10. From the above referred case, inter alia, it

is evident that the consistent view of this Court is
that an appellate Court is competent to extend time
for deposit of the pre-emption money either during
the pendency of an appeal before it or at the time
of disposing of the same notwithstanding that the
time mentioned in the pre-emption decree for the
said purpose may have expired. Furthermore, an
appellate Court may extend time for the above
purpose at the stage when an appeal is not
admitted for regular hearing by it or a petition for
leave to appeal is not granted and such an
extension of time will not be nullified by the factum
that appeal or the petition for leave to appeal is
subsequently dismissed summarily. However
neither a trial Court nor an appellate Court can
extend time for matter stands disposed of and it is
no longer pending before it. In such an event, the
15
direction contained in the original decree to the

effect that in case of failure to deposit the pre-
emption money the suit shall stand dismissed,
become effective. However, the above rule seems
to be subject to one exception, namely, that if an
appellate Court varies the finding of the Court
below on the quantum of the pre-emption money,
in other words it either increases or reduces the
same, in that event, it should fix fresh reasonable
time for deposit of the pre-emption money and in
the absence of any such fixation the pre-emptor
may deposit the same within reasonable time as
has been held by Cornelius C.J. and Hamoodur
Rahman , J., in the case of Shah Wali v. Ghulam
Din alias Gaman and another (supra). It is also
evident from the above reports that an appellate
Court is not bound to grant extension of time in
every case. The conduct on the part of a pre-
emptor may disentitle him from pressing into
service exercise of the above discretionary power
by an appellate Court in his favour. It may be
observed that it is difficult to categorize all the
cases in which a pre-emptor will not be entitled to
seek exercise of the above discretionary power in
his favour by the appellate Court. It will depend on
the facts of each case. If the sole object of a pre-
emptor in filing of an appeal is to delay deposit of
the pre-emption money, about the correctness of
which, there cannot be any reasonable doubt, to a
reasonable man, in such a case an appellate Court
may decline to extend the time."
In the referred case, the apex Court of Pakistan has also

held that the application for extension of time can even
be entertained by the appellate Court after expiry of the
time allowed by the trial Court.
9. The case law referred to and relied upon by the

learned counsel for the appellant being based upon
distinguishable factual proposition hardly applies to the
case in hand according to its peculiar facts. Whereas, the
case law cited by the learned counsel for the respondent
regarding power of attorney is not required to be
discussed as the point agitated is not convincing one.
Even, otherwise, we have decided the appeal on merits.
16
The Courts below have rightly passed the orders

and no illegality has been committed, hence, finding no
force, this appeal stands dismissed. No order as to
costs.”
The conclusion from the above case-law is that the question
relating to extension of time to comply with an order of the
court depends upon the facts and circumstances of each case.
As far as the case in hand is concerned, the petitioner was
entitled for extension of time to comply with order, dated
15.07.2021 for the reasons that firstly he was given only one
opportunity and secondly when he deposited the entire
outstanding amount by 30.07.2021 the learned Trial Court was
supposed to show grace by extending period for deposit of
outstanding balance amount.
11. At the cost of repetition it is observed that since the suit
was fixed for recording of evidence of plaintiff same could not
be dismissed due to non-deposit of balance amount as held by
Hon’ble Supreme Court of Pakistan in the case of Muhammad
Asif Awan (Supra) in the following words: -
“12. Coming to the second limb of submission, the

record reflects that the order dated 15.07.2018 of the
trial Court whereby the appellant in the light of Hamood
Mehmood case (supra) 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, in our opinion, the
suit in the circumstances could not have been dismissed
17
on account of non-deposit. The approach of the High

Court that the non-compliance of the order directing the
deposit would amount to failure on the part of the
appellant to perform act necessary to the further
progress of the suit and therefore, would result in
dismissal of the suit under Order XVII, Rule 3, C.P.C.
appears to be totally misconceived. The Order dated
15.07.2018 reflects that the matter was fixed for evidence
of the plaintiff and record does not show that further
progress was not possible on account of non-production
of plaintiff evidence. In the given circumstances, unless
the appellant 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 section 24(b) rendering the contract
non-enforceable, the suit could not have been dismissed.
Even otherwise, the language employed in Order XVII,
Rule 3 by using the word, "the Court may,
notwithstanding such default, proceed to decide the suit
forthwith" is permissive and discretionary and does 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 its writ
jurisdiction.” (emphasis provided)
12. There is no cavil with the proposition that in the event of
non-compliance of a court’s order, court can invoke penal
provisions of Order XVII rule 3 CPC but prior to resorting to
such penal action the court should satisfy itself that the party
concerned has failed to comply with its order despite availing
reasonable time. Reference in this regard can be made to the
cases reported as Zahoor Ahmed v. Mehra through Legal Heirs
and others (1999 SCMR 105), Jind Wadda and others v. Abdul
Hameed and another (PLD 1990 SC 1192), Haji Shamsur

18
Rehman and another v. Nadar Khan and 6 others (2005 CLC
215) and United Bank Ltd. v. Haji Muhammad Rahim Khan
(1994 MLD 2312). While dealing with the issue, under
discussion, the Apex Court of the country in the case of Jind
Wadda and others (Supra) has inter-alia held as under: -
“Accordingly, the revision petition was dismissed. It is

remarked with regret that the learned Judge did not read
the record with care. It is an obvious case of misreading
as dismissed above. It was not a case of application of
Order WIT, Rule 3, C.P.C. Otherwise too it is not correct
that the appellants had obtained more adjournments as
compared to the large number of adjournments granted
for the sake of the respondents' side. The suit was
instituted in 1985 and it was adjourned for more than a
dozen times for the sake of the defendants/respondents.
However, be that as it may the fact remains that there
was absolutely no justification for application of Order
XVII, Rule 3, C.P.C. The impugned judgment,
accordingly, is liable to be set aside on this ground
alone.”
Similar view was taken by the Apex Court of the country in the
case of Zahoor Ahmed (Supra) in the following terms: -
“4. We have heard the learned counsel for the parties

and perused the material on record. We find that the
Trial court had acted illegally and/or with material
irregularity in not giving sufficient time to the
appellant/defendant to produce his evidence in the facts
and circumstances of the present case. The order passed
by the Trial Court in the purported exercise of its power
under rule 3, Order XVII, C.P.C. was not conformity with
the well-accepted principles laid down by the Superior
Courts. The Trial Court should have adjourned the case
to ascertain the market value of the suit land. The
learned Judge in Chambers was also wrong in holding
that the appellant was employing delaying tactics. In
such matters, the law favours the decision on merits
rather than on technicalities unless the party concerned
19
is guilty of gross negligence, within the contemplation of

rule 3, Order XVII, C. P.C.
5. In view of the above, the appeal is allowed. The

impugned judgments of the Courts below are set aside
and the case is remitted to the Trial Court for recording
evidence of the appellant/defendant to ascertain the
market value of the suit land and that of the
respondent/plaintiff, in rebuttal thereof, on 13-5-1998.
The resolution of the other issues by the Trial Court is
upheld. The parties shall bring their witnesses along,
without any process of the Court, on the said date. The
Trial Court shall finalize the matter within a week of 13-
5-1998, under intimation to the Additional Registrar of
this Court. There shall be no order as to costs.”
(emphasis provided)
Likewise, a learned Division Bench of Peshawar High Court in
the case of Haji Shamsur Rehman and another (Supra) while
deprecating invocation of penal provisions of Order XVII rule 3
CPC without giving sufficient time to the party concerned, has
inter-alia resolved as under: -
“11. Now coming to the revision petition, we find that

the learned trial Court has given only one full
opportunity to the petitioner for producing evidence and
on his failure has closed his evidence under Order 17,
rule 3, C.P.C. which is not justified, as such, the
impugned order, dated 8-3-2001 is set aside.”
13. It is important to mention over here that the suit filed by
the petitioner was consolidated with that of respondent No.1
seeking cancellation of agreement to sell in favour of
respondent No.2. It is well settled by now that when different
proceedings are consolidated by a court of competent
jurisdiction, they are to be decided jointly until and unless they

20
are unconsolidated by the same forum with tangible reasons.
The Apex Court of the country in the case of Sheikh Khurshid
Mehboob Alam v. Mirza Hashim Baig and another (2012
SCMR 361), while dealing with question as to whether court
can invoke penal provisions of Order XVII rule 3 CPC to the
extent of one suit, especially when it was consolidated with
another suit, has laid law to the following effect: -
“6. As to the fact of the decree in favour of the appellant

the High Court had rightly placed reliance upon the case
QUTUB-UD-DIN v. GULZAR (ibid) and it would not
make any difference whether or not the decree in favour
of the appellant came under challenge. The suits filed by
the plaintiff and the respondent were consolidated and
thus the same ought to have been decided together, as
both plaintiffs prayed for decree on similar basis
regarding the same subject matter.” (emphasis provided)
If the validity of the impugned decision is considered in the
light of afore-referred judgment of Hon’ble Supreme Court of
Pakistan, it becomes crystal clear that the suit of the petitioner
could not be dismissed in isolation without deciding the fate of
the suit filed by respondent No.1 which was consolidated with
that filed by the petitioner.
14. Seemingly, undue haste on the part of the learned Trial
Court looks to be due to its misconception about word
“forthwith” with reference to Order XVII rule 3 ibid. The
Hon’ble Supreme Court of Pakistan, in the case of Maulvi

21
Abdul Aziz Khan v. Mst. Shah Jahan Begum and 2 others (PLD
1971 SC 434) defined the said word in the following manner:-
“Thus it is quite clear that the word "forthwith"

does not mean on the same day. The reasonable meaning
of this word in the context of Order XVII, rule 3, C. P. C.,
is that the Court should proceed to decide the suit within
a reasonable time under the circumstances of the case. In
our opinion, the view expressed in above decision that
the suit should be decided on the same day is not in
accordance; with law.
In view of the above conclusion, we are satisfied

that the trial Court was perfectly justified in adjourning
the case for argument so as to enable him to proceed
with the suit forthwith. We, therefore, find no fault with
the order of the trial Court and are satisfied that it is a
perfectly legal order. There is, therefore, no force in this
appeal which is dismissed with costs.”
Moreover, the Hon’ble Supreme Court of Pakistan in the case
of Muhammad Aslam v. Nazir Ahmed (2008 SCMR 942) has
defined the said term as under: -
“It may be pointed out here that though under Order

XVII, rule 3, C.P.C. it has been provided that where
sufficient cause is not shown for the grant of adjournment
the Court may proceed to decide the suit forthwith but
the words used in the provision in question "proceed to
decide the suit forthwith" do not mean "to decide the suit
forthwith" or "dismiss the suit forthwith". The said rule
simply lays down that the Court may proceed with the
suit notwithstanding either, party fails to produce
evidence etc. meaning thereby that in case of default to
do a specific act by any party to the suit, he next step
required to be taken in the suit should be taken. Though
the word "forthwith" means without any further
adjournment yet, it cannot be equated with the words "at
once pronounce judgment, as used in Order XV, rule 4,
C.P.C. where, on issuance of summons for final disposal
of the suit either party fails, without sufficient cause, to
produce the evidence on which he relies".
22
7. Since in the instant case it appears from record that on

7-9-2006 the plaintiff himself was in attendance when the
case was adjourned for the next day i.e. to 28-9-2006 for
orders, otherwise recourse to Order XVII, rule 2 could
have been made, therefore, the trial Court, despite non-
production of witnesses by the plaintiff, ought to have
asked the plaintiff to come in the witness-box instead of
dismissing the suit forthwith.”
Further, a learned Division Bench of Peshawar High Court in
the case of Government of N.-W.F.P. and others v. Fazal Maula
and others (PLD 1993 Peshawar 192) has defined the said
term in the following manner: -
“2. During the course of hearing the learned counsel for

the plaintiffs respondents was confronted with. a legal
position that Order XVII, rule 3, C.P.C. was permissive
and not mandatory and further Court was supposed to
proceed to decide the suit forthwith on merits that in the
process he was to hear the arguments of the parties and
give judgment on each and every issue in the light of the
evidence brought on record and that he was not supposed
to summarily decide the case in the manner as to grant a
decree to the plaintiffs as against the defendants without
discussion and decision on each issue……”
The accumulative study of the afore-quoted judgments leads to
irresistible conclusion that it is not mandatory to decide the lis
on the same day when a party fails to comply with the order of
a court rather the court should adjourn the proceedings to the
decide the same on merits or having regard to the peculiar facts
and circumstances of the case should extend the period for
compliance of its own order suo moto or on the application of
the party concerned. Insofar as the case in hand is concerned,
admittedly, the petitioner filed application seeking extension in

23
time for compliance of order dated 15.07.2021 prior to expiry
of the period fixed by the learned Trial Court for deposit of
outstanding amount of difference.
15. It has not been denied by learned counsel representing
respondent No.1 that entire outstanding amount has already
been deposited by the petitioner with the only difference that
Rs.3,00,00,000/- was deposited beyond the cut-off date fixed by
learned Trial Court. There exists no provision in the Specific
Relief Act, 1877 compelling plaintiff in a suit for Specific
Performance of Agreement to Sell to deposit the balance
amount of consideration rather the courts order so to adjudge
the readiness of the plaintiff to perform his part of the contract.
Reference in this regard can be made to the case of Muhammad
Asif Awan (supra) wherein the question, under discussion, has
been dealt with in the following manner:-
“7. Admittedly, unlike section 24 of the Pre-emption

Act, which caste a duty upon the Court in a suit for pre-
emption to require the plaintiff to deposit in Court 1/3rd
of the sale price, there is no provision in the Specific
Relief Act which upon filing of the suit seeking specific
performance of an agreement in respect of an immovable
property cast any duty on the Court or requires the
vendee to first deposit the balance sale consideration,
however, since the law of Specific Relief is based on the
principles of equity and further that the relief of specific
performance is discretionary and cannot be claimed as a
matter of right, therefore, the Court in order to ensure
the bona fide of the vendee at any stage of the
proceedings may put him to terms.”
24
If the conduct of the petitioner is adjudged in line with the
above quoted decision of the Apex Court of the country, upon
deposit of the entire balance amount of consideration it cannot
be doubted that he not willing to perform his part of the
contract.
16. This Court is fully cognizant of the fact that vendors are
entitled to the consideration amount as per schedule stipulated
in the agreement to sell and Overseas Pakistanis deserve special
treatment as they invest their hard earned savings with the hope
that they would get something out of it but at the same time
while dealing with a matter Court has to strike a balance
between the parties irrespective of their stature. Reliance in this
regard can be placed on the cases reported as Service Industries
Limited through Chief Financial Officer v. Government of
Pakistan through Secretary and others (2020 CLD 562),
Shaikh Aijazur Rehman v. The State (NAB) through Director
General (NAB) and another (PLD 2006 Karachi 629) and M.Z.
Khan v. Aziz-Ud-Din Ahmad Khan and others (2004 YLR 84).
17. As per section 148 ibid, a court enjoys power to extend
period fixed by it for performance of an act by a party to the lis
upon showing sufficient cause for non-compliance of its order
within the stipulated period. Admittedly, the learned Trial Court

25
failed to exercise its powers in violation of the above provision
despite the fact that the petitioner filed application for extension
of time to comply with order dated 15.07.2021 prior to
expiration of the period fixed by the Trial Court which amounts
to failure on its part to exercise the power vested in it which
calls for interference by this court in exercise of its revisional
jurisdiction vested under section 115 CPC. Reliance in this
regard can be placed on the case reported as Ahmad Yar and 6
others v. Ghulam Rasool and 5 others (2016 CLC NOTE 42)
wherein this Court while dealing with its powers to correct any
illegality by a subordinate court in respect of misuse of the
jurisdiction vested in it or its failure to exercise the jurisdiction
vested in it has inter alia concluded as under:-
“10. So far as case law relied by the learned counsel for

the respondents with regard to the concurrent findings of
the courts below while dealing in the civil revision is
concerned, as the discussion above noted shows that both
the courts below failed to exercise jurisdiction vested in
them by law and have misinterpreted the evidence on the
file and failed to consider the real question in
controversy between the parties and take note of the legal
position involved in the case and reached to a wrong
conclusion, therefore there is no hurdle in the way of this
court while exercising jurisdiction under section 115 of
the C.P.C. to correct a wrong committed by the courts
below. In this view of the matter, the case law relied by
the learned counsel for the respondents is not applicable
to the facts of this case. For what has been discussed
above, this revision is accepted. Judgments and decrees
passed by the learned courts below dated 25.10.1995 and
25.7.2002 are set aside. Resultantly, suit filed by the
26
plaintiffs-respondents stands dismissed with costs

throughout.”
18. Now coming to the case-law, referred by learned counsel
for respondent No.1, I am of the view that though it has been
held in the said case that non-deposit of balance amount in suit
for specific performance is fatal but in the light of judgment of
Hon’ble Supreme Court of Pakistan in the case of Asif Awan
(Supra) no reliance can be placed on the judgment passed by a
learned Division Bench of this Court. Even otherwise, the
learned Division Bench of this Court formulated certain points
to be considered by the subordinate judiciary while dealing with
question relating to deposit of balance amount by inter-alia
observing as under: -
“2. At the time of taking cognizance of the suits by the

civil courts, while issuing notice to the defendants, an
order shall be made for the deposit of the balance sale
consideration by the vendee (if he is a plaintiff in the suit)
within a stipulated time. In sum, not more than two
opportunities for making the deposit shall be given by
the court. At the time of granting the second and last
opportunity (if requested by the vendee), the civil court
shall specifically mention the consequences that will visit
the failure to deposit viz. that the suit shall be dismissed
on that account. It is made clear that this order shall be
passed separately and will not be made part of any other
order passed for a different purpose. The amount so
deposited as balance sale consideration shall be
invested, pendente lite, in a profit bearing scheme with a
high rate of return.” (emphasis provided)
Admittedly, only single chance was given to the petitioner to
comply with the order passed by learned Trial Court, hence,

27
instead of lending any support to respondent No.1, the referred
case goes in favour of the petitioner.
Viewing from another angle, in none of the cases referred
by the learned Division Bench in its above referred judgment,
the Hon’ble Supreme Court has forbade the Trial Court to
exercise its power to extend period already fixed to perform an
act. Moreover, since every case has to be decided in the light of
its peculiar facts and circumstances, in my humble opinion, the
present case is quite distinguishable from cases referred in the
judgment of the learned Division Bench of this Court, referred
supra, inasmuch as in none of the referred cases the suit, which
otherwise was consolidated with other suit(s), was decided in
isolation in exercise of the powers vested under Order XVII
rule 3 CPC.
19. For what has been discussed above, instant petition is
accepted and impugned order, dated 30.07.2021, passed by
learned Trial Court is set-aside. As a result, the suit filed by the
petitioner shall be deemed to be pending and learned Trial
Court shall decide the same alongwith suit filed by respondent
No.1 by or before 30th June, 2022, positively, under intimation
to this Court through the Deputy Registrar (Judicial). No order
as to cost.
28
20. Before parting with this judgment it is observed that to
comply with the above direction learned Trial Court would be
at liberty to proceed with the matter on day-to-day basis.
21. Office is directed to transmit a copy of this judgment to
the learned District & Sessions Judge, Gujranwala, through
fax, for its onwards information and compliance by the learned
Trial Court.
Judge
APPROVED FOR REPORTING
Judge
G.R.*

2022LHC3541

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StereoHCJDA 38

Civil Revision No. 49002 of 2021.

Dates of hearing: 18.05.2022.

Petitioner by: Sh. Usman Karim-ud-Din, Advocate.

Respondents by: Mr. Imran Raza Chadhar, Advocate for

Shujaat Ali Khan, J: - Succinctly, respondent No.1 filed

suit for cancellation of agreement to sell, dated 14.06.2014,

against respondent No.2 whereas the petitioner filed suit for

possession through specific performance of agreement to sell,

dated 16.06.2014, alongwith permanent injunction, against the

respondents. The learned trial court consolidated both the suits.

During pendency of suits, respondent No.1 filed an application

for dismissal of the suit, filed by the petitioner, due to non-

deposit of remaining sale consideration whereas the petitioner

filed an application seeking permission to deposit

Rs.6,35,00,000/- viz. the remaining sale consideration. Learned

Trial Court, vide order, dated 15.07.2021, while dismissing the

application filed by respondent No.1 for dismissal of suit of the

petitioner, allowed that of the petitioner seeking permission to

deposit the remaining sale consideration directing him to

deposit remaining sale consideration within a period of fifteen

days with the observation that in case of his failure to deposit

would stand dismissed on account of non-compliance of order

of the court. The petitioner, in compliance with the order passed

by learned Trial Court, deposited an amount of Rs.2,35,00,000/-

on 27.07.2021 and Rs.1,00,00,000/- on 28.07.2021 and to the

extent of remaining amount of Rs.3,00,00,000/- he filed an

application seeking extension of time fixed by the learned Trial

Court. The learned Trial Court, vide order, dated 30.07.2021,

while rejecting the application filed by the petitioner seeking

extension in time, dismissed his suit due to non-compliance of

order, dated 15.07.2021; hence this petition.

2. Learned counsel for the petitioner submits that bona fide

on the part of the petitioner is manifest from the fact that in

compliance with order, dated 15.07.2021, passed by learned

Trial Court, he deposited Rs.3,35,00,000/- and further moved

application seeking extension of time to deposit the balance

amount, hence, the observation of learned Trial Court that the

petitioner was not serious to get enforced the subject agreement

to sell is against the record; that according to Order XVII rule 3

CPC decree was to be drawn pursuant to the order passed by

the learned Trial Court but since no decree followed the

impugned order, the same is not sustainable; that even while

invoking the provisions of the Order XVII rule 3 CPC ibid

findings on every Issue are to be given by the court but the

impugned decision being contrary to the said principle is not

sustainable; that as per section 148 CPC learned Trial Court

was fully empowered to extend time enabling the petitioner to

deposit the balance amount but non-exercise of jurisdiction by

learned Trial Court speaks volumes about its non-judicial

approach; that since matter was fixed for recording evidence of

since the petitioner deposited the balance amount on

30.07.2021, lenient view was to be adopted by learned Trial

Court. Relies on Muhammad Asif Awan v. Dawood Khan and

others (2021 SCMR 1270).

3. Conversely, learned counsel appearing on behalf of

respondent No.1, while defending the impugned decision, states

that since the petitioner failed to deposit balance amount in

was executed in the year 2014, no illegality has been committed

by learned Trial Court while passing the impugned order; that

the petitioner himself filed application in the year 2016 seeking

permission to deposit the balance amount which was allowed

which shows his negligence to perform his part of the contract;

that respondent No.1, who is an expatriate, on the one hand, has