Law: Civil Procedure Code (V of 1908)

Section: 3

Law: Specific Relief Act, 1877

Section: 9,12,39,54

Civil Procedure Code, 1908 (V of 1908)--

----O.XVII, R. 3--Specific Relief Act, (I of 1877), Ss. 9, 12, 39 & 54--Suit for cancellation of agreement to sell by respondent while petitioner was filed suit for possession, through specific performance and permanent injunction--Consolidation of suit--Respondent was filed application for dismissal of suit while petitioner was application for depositing of remaining sale consideration--Respondent’s application was dismissed white petitioner’s application was allowed--Some remaining amount was deposited--Non-compliance of trial Court’s order--Dismissal of suit--One chance for depositing of balance was granted to petitioner--When trial Court invoked penal provisions of Order XVII Rule 3, CPC due to non-compliance of order, no reference could be made to any previous omission or commission, if any, on part of petitioner--Only one chance was given by trial Court to petitioner to deposit balance amount--The question relating to extension of time to comply with an order of Court depends upon facts and circumstances of each case--The petitioner was entitled for extension of time to comply with order, for reasons that firstly he was given only one opportunity and secondly when he deposited entire outstanding amount trial Court was supposed to show grace by extending period for deposit of outstanding balance amount--The suit was fixed for recording of evidence of plaintiff same could not be dismissed due to non-deposit of balance amount--In 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 Court should satisfy itself that party concerned has failed to comply with its order despite availing reasonable time--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 are unconsolidated by same forum with tangible reasons--Undue haste on part of Trial Court looks to be due to its misconception about word “forthwith”--Civil revision accepted.

PLD 1972 SC 69; 1995 SCMR 105; 2010 CLC 22; 2016 CLC 1547;
1999 SCMR 105; 1994 MLD 2312; PLD 1971 SC 434 &
2008 SCMR 942 ref.

 

ORDER

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 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.