PLJ 2007 Lahore 639 (DB)

Present: Mian Saqib Nisar & Fazal-e-Miran Chauhan, JJ.

COL. JAVED IQBAL LODHI--Appellant

versus

Lt. Col. NADEEM AHMAR and another--Respondents

R.F.A. No. 377 of 2004, heard on 12.12.2006.

(i) Civil Procedure Code, 1908 (V of 1908)—

----Preamble--Scheme and scope--An exhaustive law providing a comprehensive mechanism for the disposal of lis--Held: Civil Procedure Code which is quite an exhaustive law, providing a comprehensive mechanism for the disposal of lis from the time of its commencement, till its conclusion. [P. 646] A

(ii) Civil Procedure Code, 1908 (V of 1908)—

----O. VII, R. 10--Return of plaint--Lack of jurisdiction--No issuance of summons on pecuniary and territorial jurisdiction--Court's duty to see valid institution of suit inherent jurisdiction of Court--Contents of plaint are basis of pecuniary and territorial jurisdiction--Lack of jurisdiction entails return of plaint--Held: It was required of a Court to see, if, the suit had been validly instituted, the Court had inherent jurisdiction to try the case, it has jurisdiction over the parties and subject matter of suit, whether on the basis of contents of the plaint, the Court is possessed of the territorial and pecuniary jurisdiction--If such jurisdiction is lacking, the Court would refuse to issue summons and would return the plaint to the plaintiff under O. VII, R. 10 CPC to be filed before appropriate forum. [P. 646] B

(iii) Civil Procedure Code, 1908 (V of 1908)—

----O. VII, R. 11--Rejection of plaint--Invalid institution of suit--No cause of action-Suit barred by any law--Proper reason for rejection--Held: Court can reject the plaint in cases where either it is not validly instituted or it does not disclose cause of action or suit is barred by any law or Court fee is not paid within the time as required by the Court--Provisions of Order 7 Rule 11 are not exhaustive and there may be other instances justifying the rejection of plaint after summoning of defendant and even during the course of trial in appropriate cases--Court may exercise the power in a proper and legal manner at any stage of the proceedings. [P. 647] C

(iv) Civil Procedure Code, 1908 (V of 1908)—

----O. VIII, R., 1--Presentation of written statement--Period of 30 days--No action against plaintiff at preliminary stage--Defendant summoned--Defendant's right to file written statement--Held: Where the Court does not take the action against the plaintiff at the preliminary stage and has summoned the defendant, who has chosen to contest the matter, the defendant would have the right to file the written statement in order to join the trial--On the completion of the pleadings of the parties, the Court would frame the issues and require the parties to prove or disprove each others case by producing evidence. [P. 647] D

(v) Civil Procedure Code, 1908 (V of 1908)—

----O. XII, R. 6--Compromise between parties--Admission by defendant of plaintiff's claim--Scope--On account of admission of plaintiff's claim by the defendant, the plaintiff becomes entitled to the decree--Suit may apply for the appropriate judgment/order on the basis of admission of other side either made in pleadings or otherwise.

[P. ] E & F

(vi) Civil Procedure Code, 1908 (V of 1908)—

----O. XV, R. 1--Disposal of suit at the first hearing--Parties are not variant at any question of law or fact--Principle--If the parties are not at issue on any question of law or fact, the Court may also pronounce the judgment at the first date of hearing. [P. 647] I, G

(vii) Civil Procedure Code, 1908 (V of 1908)—

----O.VI, R. 18 r/w S. 148--Discretionary powers--Extension of time by Court--Condition precedent--Extension be seeked for an act prescribed or allowed by Code and not for other Acts--Held: Court has the power to extend time only for doing the act prescribed or allowed by the Code"--If act is not prescribed or allowed by the Code, the provisions of Section 148 CPC would not be applicable--Under Section 149 CPC for making of the deficiency in the payment of Court fee--Court has discretion under Section 148 CPC to extend the time likewise the time fixed in terms of O. 6, R. 18 CPC for the purpose of filing the amended pleadings can be extended under S. 148.

[Pp. 648 & 649] H

(viii)Civil Procedure Code, 1908 (V of 1908)—

----Ss. 148 & 151--Discretionary powers of Court--Extension of time--Condition precedent--Extension be seeked for an act prescribed or allowed by Code--No extension of time by Court where time has been stipulated by the consent of parties--Held: Where one party has made an offer to the other for the performance of an act within a particular period of time, and such act is not performed, the Court without the consent of the parties, making offer, cannot enlarge time while exercising its powers u/Ss. 148 & 151 of C.P.C. [P. 649] I & J

1979 SCMR 593; 1983 SCMR 836; 1985 SCMR 1719 & PLD 1988 Karachi 429.

Mr. Ahmad Awais, Advocate for Appellant.

Mian Zafar Iqbal Kalanauri, Advocate for Respondent.

Date of hearing: 12.12.2006.

Judgment

Mian Saqib Nisar, J.--The suit for the specific performance brought by Respondent No. 1 against the appellant has been decreed by the learned trial Court on 24.7.2004, on the basis that the appellant/defendant has made an offer to decree the suit provided the plaintiff/respondent makes the deposit of the balance amount of consideration in the Court, which has been so deposited within the time, allowed by the Court.

2. Brief facts of the case are that on 30.10.2002 Respondent No. 1/vendee (hereinafter called the respondent) brought a suit for the specific performance against the appellant (vendor) stating in the plaint that the parties through an agreement dated 11.9.2002 have agreed for the sale/purchase of a plot measuring 1 kanal bearing No. 00229/2 Sector-F Phase V situated in Defence Housing Authority Lahore Cantt for a consideration of Rs. 42,00,000/-, out of which the vendee paid Rs. 5,00,000/- to the vendor and for payment of balance consideration and the finalization of the transaction 23.10.2002 was fixed as the target date. The suit was filed without affixing the Court fee of a single rupee on the plaint, though in view of Paragraph No. 3 thereof, the maximum Court fee of Rs. 15,000/- was payable.

3. The suit was presented before the Court on 30.10.2002 and it was directed to the plaintiff to make up the deficiency of Court fee. There are repeated orders of the Court in this behalf but the Court fee was not paid till 9.9.2003. Another important feature of the case is that on 1.1.2003 the appellant through an application in writing made an offer that if the plaintiff, makes the payment of the balance consideration of Rs. 37,00,000/- within one week he has no objection for the decree of the suit. In this behalf Paragraph No. 4 of the application is re-produced.

"That to expedite disposal of the case the petitioner is still willing to execute the sale-deed and to complete necessary documents under the agreement to sell, subject-matter of the suit provided the respondent deposits a sum of Rs. 37,00,000/- in Court within one week failing which the suit of the plaintiff be dismissed."

4. While replying the aforesaid application, the corresponding Para reads:--

"Denied being incorrect. "Simultaneous payment and execution of sale-deed is in the benefit of both the parties."

However, in reply to this offer, for the first time, a plea was raised by the respondent that against the suit plot, certain dues are outstanding towards the DHA, the payment whereof under the sale agreement is the responsibility of the appellant. It may be pertinent to mention here that this plea was not set out in the plaint, rather from the contents of the plaint, it seems clear that the respondent was ready to pay the full amount of Rs. 37,00,000/- as the balance consideration and for this purpose, he also claims to have got prepared a bank draft. Anyhow, no attempt was made by the vendee to request the Court that he is prepared to deposit the amount minus the dues of DHA or that the full amount shall be paid by the plaintiff while reserving his right for the adjustment, subject to the determination by the Court regarding the obligation of either party to pay such dues. Rather the respondent for no valid reasons, insisted for the personal appearance of the appellant, who at that time was abroad, making it a condition for the deposit of the amount.

5. Again on 8.7.2003, learned counsel for the appellant made an offer that if the balance amount of Rs. 37,00,000/- is deposited by the respondent by the next date of hearing, the appellant has no objection if the suit is decreed. Upon the above, the Court directed the respondent/plaintiff as under:--

It was further observed by the Court in the order, that from the record it transpires that the respondent has not yet provided the Court fee of the amount of Rs. 15,000/- therefore, he was also directed to make up the deficiency; the case was adjourned to 09.9.2003 and by/before that, the respondent furnished the Court fee, but he did not deposit the amount of the balance consideration as was directed by the Court till then. The appellant, therefore, moved another application praying for an action to be taken against the respondent in terms of the order dated 8.7.2003 for non-compliance of the above order; whereas the respondent on 10.9.2003 moved an application for seeking the review of the order dated 8.7.2003. The Court adjourned the matter to 25.9.2003 for arguments on the review application. The appellant again repeated an application under Section 151 CPC for enforcing the consequences of the respondent's failure to comply with the said order, which was resisted to by the respondent on unfounded grounds.

6. Thereafter, the matter, either for the consideration of the above applications or due to the absence of the Court, was adjourned to the following dates:-

27.09.2003, 8.10.2003, 13.10,2003,

14.10.2003, 16.10.2003, 17.11.2003,

10.12.2003, 22.12.2003, 10.1.2004,

11.2.2004, 18.3.2004 and finally to 15.4.2004.

On 15.4.2004, the arguments upon the application under Section 151 CPC filed by the appellant for the dismissal of the suit for non-compliance of the order dated 8.7.2003 were heard and the Court, without there being any request on behalf of the respondent either in writing or oral for the extension of time, passed the following order:--

"The plaintiff/respondent though admitting the order dated 8.7.2003 but has not deposited the arrears Rs. 3.7 millions in the Court as the balance consideration in respect of the agreement to sell of the disputed property. In view of the order dated 8.7.2003, the respondent/plaintiff is directed to deposit the arrears of consideration amounting to Rs. 3.7 million in the Court by the next date of hearing, failing which; the suit would be considered to have been dismissed. Now to come up for 17.5.2004".

7. Before 17.05.2004, the respondent has deposited the amount of Rs. 3.7 Million without raising any objection as earlier raised by him, that under the agreement, it is the duty of the appellant to clear the DHA dues. The appellant, however, filed a review of the order dated 15.4.2004, which was dismissed vide order 24.7.2004 and the trial Court decreed the suit holding that:--

"The suit is hereby decreed in favour of the plaintiff and against the defendant. No order as to costs."

8. Learned counsel for the appellant contends, that the conduct of the respondent by not affixing the Court fee initially and thereafter when specifically required by the learned trial Court repeatedly, reflects upon his conduct and in such circumstances the plaint should have been rejected under Order 7 Rule 11 CPC as has been enunciated by the law laid down in cases Siddique Khan and 2 others vs. Abdul Shakur Khan and another (PLD 1984 SC 289), Mubarak Ahmad and 2 others vs. Hassan Muhammad through Legal Heirs (2001 SCMR 1868), Assistant Commissioner and Land Acquisition Collector Badin vs. Haji Abdul Shakoor and others (1997 SCMR 919) and Ch. Javed Iqbal vs. Mst. Zainab Bibi and 8 others (2005 CLC 197). It is further submitted that in order to avoid the delay in the matter and save the appellant from the loss in the value of money, he without in any manner admitting the claim of the respondent, at the very outset, made an offer that if the latter deposits the balance amount of consideration within a specified period, he shall have no objection to the decree of the suit, but the respondent neither accepted the offer nor deposited the amount, rather he raised frivolous and vexatious pleas to elude the payment and in this manner, was able to linger on the matter for a period of about one year, therefore, the respondent was not ready and willing to perform his part of the agreement; resultantly in terms of Section 22 of the Specific Relief Act he was/is not entitled to the grant of discretionary relief. It is also argued that the offer of the deposit and the decree of the suit was conditional; initially it was restricted to the period of one week only and the second time it was till the next date. Such offer for a limited period could not be extended by the Court, under Section 148 CPC and that too without there being any application or verbal request of the respondent for the extension of the time, and also without the consent of the appellant; especially in the situation, when the respondent was seeking the review of the order dated 8.7.2003, thus in the circumstances, the Court should have allowed, the appellant to contest the matter on merits and to decide the case in accordance with law. The learned counsel submits that in the above facts and circumstances, the respondent was not entitled to the discretionary relief. Reliance in this regard is placed on Mehmood Arshad vs. Ali Malik and 3 other (2005 YLR 2866) and Syed Ahmad Shah and 2 others vs. Muhammad Yar and 6 others (1974 SCMR 191).

9. The learned counsel for the respondent submits that the said respondent throughout was ready and willing to perform his part of agreement. According to various clauses of agreement to sell, it was the duty of the appellant to clear all the dues and the charges of DHA and also to transfer the plot in favour of the respondent free from all encumbrance/charges. But as the appellant failed to discharge his liability to the tune of Rs. 7,32,000/- towards DHA, thus, he could not validly transfer the plot; in this view of the matter, the respondent was under no obligation to make deposit of the amount of Rs. 37,00,000/- in the Court. It is also argued that the respondent was ready to make the payment, as he even before the target date, stipulated between the parties for the finalization of the sale transaction, got prepared the demand draft of the total balance consideration on 22.10.2002. It is lastly submitted that for the purpose of ascertaining if any dues against the appellant were outstanding, the Court had verified it from the DHA. About the Court fee it is submitted that the omission of the respondent to deposit the Court fee is not contumacious and therefore no penal action could be taken against him. In support of his contentions, the learned counsel has relied upon Siddique Khan and 2 others vs. Abdul Shakur Khan and another (PLD 1984 SC 289), Shah Nawaz and 6 others vs. Muhammad Yousaf and 3 others (1972 SCMR 179), Malik Allah Dad and others vs. Yasin and another (1990 SCMR 1638), Muhammad Nawaz and others vs. Muhammad Sadiq and another (1995 SCMR 105), Sultan Ahmad and others vs. Khuda Bux and others (1986 SCMR 1005), Ghulam Murtaza etc. vs. Ghulam Jillani etc. (NLR 2000 Civil 510) and Khan Muhammad vs. Barkat Ali and another (1984 CLC 582).

10. We have heard the learned counsel for the parties. The appellant had twice made an officer that if the respondent makes the deposit of the balance consideration of Rs. 37,00,000/-, he has no objection for the decree of the suit. In this behalf, firstly an application on 1.1.2003 was moved and this offer was restricted for a period of one week only. The respondent did not accept the offer or made the deposit and took up the plea that it cannot be so done, because the appellant has failed to discharge his liability regarding outstanding dues of the DHA. Again on 08.7.2003, the appellant repeated the offer and the period this time was till the next date of hearing. The Court adjourned the matter to 9.9.2003 and it was clearly directed in the order that in case the respondent/plaintiff by the next date fails to deposit the amount, his plaint shall be rejected. This offer too was not accepted by the respondent and the order of the Court was also not complied with, rathar he moved an application on 10.9.2003 seeking the review of the order dated 8.7.2003. It may be pertinent to state here that the appellant by that time had moved an application for the dismissal of the respondent's suit for his failure to make the deposit thus, it is clear that on both the occasions, the offers were time bound/restricted; these were never made for an indefinite period of time and were never accepted by the respondent. The offers thus, automatically stood withdrawn on the expiry of the time given by the appellant. And in any case, the offer was never perfected through acceptance by the respondent, in terms of Section 2(b) of the Contract Act, 1872 and therefore, it never culminated into a binding contract between the parties. Besides, there was no offer when the appellant moved an application under Section 151 CPC for enforcing the consequences of the default on the part of the respondent in making the deposit within the time given in the second offer and in terms of the order dated 08.07.2003.

11. It is clear from the record that the appellant thereafter, never has given any consent for the extension/enlargement of the time, rather throughout has been insisting for the dismissal of the suit because of the respondent's failure to make the deposit within the time offered. Still, the Court on its own, has granted the extension to the respondent perhaps by exercising its power under Section 148 or 151 of the Civil Procedure Code. But from the record it transpires that neither in this behalf any application was moved by the respondent nor an oral request was made and it looks to be a suo motu exercise of the discretion by the Court. Therefore, the key question, which arises for the consideration by this Court is, if the time under Section 148 or 151 CPC can be extended by the Court in the given circumstances of the case?

12. In order to answer the above question, we feel expedient to briefly touch upon the scheme and the scope of the Civil Procedure Code, which to our mind is quite an exhaustive law, providing a comprehensive mechanism for the disposal of the lis from the time of its commencement, till its conclusion. In this behalf it may be stated that even before issuing the summons of a case to the defendant, which can be termed as preliminary stage, it is required of a Court to see if, the suit has been validly instituted; the Court has the inherent jurisdiction to try the case; it has the jurisdiction over the parties and the subject matter of the suit; whether on the basis of the contents of the plaint, the Court is possessed of the territorial and the pecuniary jurisdiction, as the case may be. However, if such a jurisdiction is lacking, the Court shall refuse to issue the summons and shall return the plaint to the plaintiff under Order 7 Rule 10 CPC to be filed before the appropriate forum. The Court at this very stage can also reject the plaint in the cases where either it is not validly instituted or it does not disclose a cause of action or a suit is barred by any law or the Court fee is not paid within the time as required by the Court. It may also be mentioned that as the provisions of Order 7 Rule 11 CPC are not fully exhaustive and there may be other instances justifying the rejection or the plaint after summoning of the defendant and even during the course of the trial in appropriate cases, the Court may, therefore, exercise the above power in a proper and legal manner at any stage of the proceedings. But where the Court does not take the action against the plaintiff at the preliminary stage and has summoned the defendant, who has chosen to contest the matter, the defendant shall have a right to file the written statement in order to join the trial issues, thus, on the completion of the pleadings of the parties, the Court shall frame the issues and require the parties to prove or disprove each others case by producing evidence.

13. The above exercise, however, shall not be undertaken if at the preliminary stage or during the trial, either through the compromise between the parties the lis is settled by them, or on account of the admission of the plaintiff's claim by the defendant, the plaintiff becomes entitled to the decree. In this behalf, we feel expedient to specifically refer to the provisions of Order 12 Rule 6 CPC on account of which, any party to the suit may apply for the appropriate judgment/order on the basis of the admission of other side either made in the pleadings or otherwise.

14. It may also be mentioned that in terms of Order 15 Rule 1 CPC, if the parties are not at issue on any question of law or fact, the Court may also pronounce the judgment at the first date of hearing. But in all other cases where the parties have joined the issues, the lis (except in the case of dismissal for the non-prosecution or ex-parte, or on account of the application of Order 17 Rule 3 CPC) has to be decided by the Court on the basis of holding of the regular trial, through a judgment and decree. But this does not mean that the power of the Court to return the plaint or its rejection, as has been elucidated above, shall be circumvented after the preliminary stage has passed, and the matter is fixed at the pretrial stage or in the course of the trial.

15. Testing the present case on the above stated criteria, it is clear from the contents of the application dated 01.01.2003, that the appellant in order to avoid any delay in the matter, had offered for the deposit of the balance consideration amount by the respondent and never admitted his claim. Because in Paras No. 3 & 5 of the said application, it is stated that:--

"3. That the respondent never tendered any amount, rather he requested the petitioner for extension of time as money was not available with him. The petitioner was always ready to execute the sale-deed or any other document for completion of transaction, subject-matter of the agreement to sell but the respondent failed to honour his commitment under the agreement and as such as per agreement his earnest money stands forfeited.

5. That the petitioner fulfilled all conditions mentioned and agreed in the agreement to sell and never defaulted as wrongly alleged in the plaint."

Therefore, the instant case is not covered by Order 12 Rule 6 of the Civil Procedure Code, and the respondent also never asked the Court to pass the decree in terms of the offer of the appellant, rather joined the issue about the liability qua the DHA dues. The case also does not fall within the purview of Order 15 Rule 1 CPC. Resultantly, in the light of the scheme of the law, the Court should have permitted the appellant to exercise his right of contesting the matter by filing the written statement, rather than decreeing the suit of the respondent in the fashion it has been done.

16. Furthermore, it obviously is quite expedient for us to examine, whether in the facts of the case, Section 148 CPC was at all attracted and the Court had any jurisdiction to extend the time by exercising its discretion under the above provision. For facility of reference, the section is reproduced below, which reads:--

"Where any period is fixed or granted by the Court for the doing of any act prescribed or allowed by this Code, the Court may, in its discretion, from time to time, enlarge such period, even though the period originally fixed or granted may have expired."

From the clear language of the Section, there is no room for ambiguity or doubt that the Court has the power to extend the time only "for the doing of any act prescribed or allowed by the Code". And if the act is not prescribed or allowed by the Code, the provisions of Section 148 CPC shall not be applicable. For the purposes of explaining, it may be mentioned that under Section 149 CPC for the making up of the deficiency in the payment of the Court fee, the Court has the discretion under Section 148 CPC to extend the time originally fixed for that purpose; likewise, the time fixed in terms of Order 6 Rule 18 CPC for the purpose of filing the amended pleadings can be extended under the said Section. There are some other instances where the Court may allow extension of time under Section 148, for doing of the acts, which all are "prescribed or allowed by the Code"; such as:--

Order 8 Rule 9, Order 9 Rule 9, Order 11 Rule 9 and 17, Order 17 Rule 4, Order 16 Rule 2, Order 21 Rule 17 and 33, Order 25 Rule I, Order 41 Rule 10, 19, 21, 22, 26, Order 43 Rule 3 and Order 47 Rule 7.

In all the above cases, even if the time originally fixed by the Court has elapsed, the Court obviously by adhering to the rules for the exercise of the discretion may enlarge the time and there can be no cavil or the grouse about the authority of the Court in this behalf.

17. But if the time for the doing of any "act", which is not provided by the Code and has been fixed with the consent of the parties during the course of the trial or in the nature of the consent decree, such time for the performance of the "act" cannot be considered to be the one "prescribed or allowed by the Code" and, therefore, the Court shall have no power to extend the same under Section 148 CPC. Even this cannot be done by invoking the provisions of Section 151 CPC; this shall also be true for the time which has been fixed by the Code or any other law for the performance of an act within a specified period of time. Because, the Court while exercising its discretionary power under Section 148 has no authority and jurisdiction at all to override the command of the law.

If any judgments we required upon the point that the time fixed by the Court with the consent of the parties cannot be extended, reference can be made to the cases reported as Saat Malook vs. Rozi Khan (1979 SCMR 593), Sirajud Din Banjmin through his legal heirs and another vs. Haji Abdul Latif and 4 others (1983 SCMR 836), Mushtaq and others vs. Rabian Bibi and others (1985 SCMR 1719) and Synthetic Chemicals Company Ltd. (Judicial Miscellaneous No. 40 of 1979) PLD 1988 Karachi 429.

18. In the present case, there was even no consent ever given by the respondent to deposit the amount as offered by the appellant so as to constitute a valid contract between the parties as mentioned above, rather it was one sided offer, which was made by the appellant and that too for a specific period of time. For the first occasion it was for one week and on the second till the next date of hearing, but on both the occasions, the respondent did not accept the offer; And on one pretext or the other, resisted to make the deposit; even despite the order by the Court i.e. "plaint shall stand rejected if the deposit is not made" the deposit was not made. Therefore, we are constrained to hold that in such like cases, where one party has made an offer to the other for the performance of an "Act" within a particular period of time, and such Act is not performed, the Court without the consent of the party, making an offer, cannot enlarge the time while exercising its power under Section 148 or Section 151 of the Civil Procedure Code. It is only with the consent of the party offering that the time can be further granted. In the instant case, as has been specifically mentioned above, the appellant had moved an application immediately after 9.9.2003 that an action be taken against the respondent for his failure to comply with the order. This means that there was an express revocation of the offer by the appellant before it was accepted by the respondent, in the light whereof, the Court was left with no authority or the jurisdiction to grant the extension.

19. It may be pertinent to state here that even while depositing the amount of Rs 37,00,000/-, the respondent never again took up the plea that any amount is outstanding to the DHA, which should be paid by the appellant; this means that it was accepted to be the responsibility of the respondent, leading to an inference that earlier the respondent has been raising the plea with the purpose to avoid the deposit and in this manner, was able to buy time for about a year. We, therefore, are of the considered view that the judgment and decree of the Court below based upon the deposit of Rs. 37,00,000/- by the respondent after the expiry of the time offered by the appellant, which could not be enlarged by the Court under Section 148 and Section 151 CPC, is absolutely illegal and untenable, which is hereby set aside. The matter is remanded to the learned trial Court; the Court shall issue notice to the parties for their appearance before it, where the appellant shall be enabled to file his written statement and the Court shall decide all the issues joined by the parties, in accordance with law. Before parting we may state that the Court below shall decide the matter without being influenced by any observation or inference made/drawn in this judgment. The appeal is accordingly allowed.

(W.I.B.) Appeal allowed.