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Petitioner: AASHIQ MUHAMMAD VS Respondent: MUHAMMAD SHARIFHonorable Justice Khalid Mahmood MalikMian Habib-ur-Rehman,Muhammad Ashraf Qureshi
2016 M L D 284
[Lahore]
Before Khalid Mahmood Malik, J
AASHIQ MUHAMMAD---Petitioner
Versus
MUHAMMAD SHARIF---Respondent
Civil Revision No.885 of 2005, heard on 2nd July, 2015.
(a) Civil Procedure Code (V of 1908)---
----O. XXI, Rr. 1 & 2---Specific Relief Act (I of 1877), S. 12---Suit for specific performance of agreement to sell---Consent decree---Execution petition---Objection application---Payment out of court---Requirement---Consent decree was passed and plaintiff was directed to pay the remaining consideration amount within 15 days otherwise suit was ordered to have been dismissed---Decree-holder filed execution petition wherein objection application was moved that remaining consideration amount had not been paid---Contention of decree-holder was that remaining consideration amount had been paid outside the court---Objection petition was accepted concurrently---Validity---Remaining consideration amount had not been paid in the court which was allegedly paid to the judgment-debtor out of the court---Decree-holder had not fulfilled the requirement of O.XXI, R.2, C.P.C.---Where law required an act to be done in a particular manner, it had to be done in that manner alone and such dictate of law could not be termed as a technicality---No illegality, irregularity or misreading and non-reading of evidence had been pointed out in the impugned orders---Revision was dismissed in circumstances.
Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.
(b) Civil Procedure Code (V of 1908)---
----S. 115---Revisional jurisdiction of High Court---Scope---Scope of revisional jurisdiction of High Court was narrow---High Court could not disturb concurrent findings of facts in revisional jurisdiction unless same were result of misreading or non-reading of evidence or contrary to settled law.
Noor Muhammad and others v. Mst. Azmat-e-Bibi 2012 SCMR 1373 and Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad 2012 SCMR 730 rel.
(c) Administration of justice---
----Where law required an act to be done in a particular manner, it had to be done in that manner alone and such dictate of law could not be termed as a "technicality".
Muhammad Anwar and others v. Mst. Ilyas Begum and others PLD 2013 SC 255 rel.
Mian Habib-ur-Rehman for Petitioner.
Muhammad Ashraf Qureshi for Respondent.
Date of hearing: 2nd July, 2015.
JUDGMENT
KHALID MAHMOOD MALIK, J.---Through this revision petition filed under Section 115 C.P.C., petitioner has called in question concurrent findings of facts recorded by two courts below through order dated 11.5.2005 and judgment dated 14.7.2005 whereby an execution petition of petitioner in a suit for specific performance was ordered to be dismissed , while accepting objection petition of respondent and appeal filed by petitioner has been dismissed.
2. Precisely facts necessary for adjudication of lis in hand are that petitioner being plaintiff brought a suit for specific performance of an agreement dated 18.12.1998, which was resisted by respondent through written statement. The suit was decreed with the consent of parties on special oath vide judgment and decree dated 10.4.2003 and petitioner/ plaintiff was ordered to pay remaining amount of Rs.10,000/- within 15 days, otherwise the suit was ordered to have been dismissed.
3. Respondent filed an appeal, which was dismissed vide judgment and decree dated 20.11.2004. Thereafter, petitioner has made an application for execution of decree on 23.2.2005 before the Executing Court. Respondent/judgment debtor filed an objection petition with the assertion that decree-holder was bound to deposit the remaining amount of Rs.10,000/- within 15 days but said amount has not been paid, therefore suit is liable to be dismissed and decree is not executable.
4. The objection petition was contested by the petitioner/decree-holder. Learned Executing Court accepted the objection petition and dismissed the execution petition vide order dated 11.5.2005. Petitioner filed an appeal, which too was dismissed vide impugned judgment dated 14.7.2005.
5. Learned counsel for petitioner argued that impugned order and judgment are against law and facts; that learned Executing Court was under obligation to certify the amount which was paid by the decree-holder to the judgment debtor/respondent and in case of denial of respondent, the objection petition must be decided after recording of evidence of parties. Respondent has not raised any objection in respect of non-payment of Rs.10,000/- at the time of filing of appeal particularly when there was no direction for the payment of remaining amount in the court, in consequence, petitioner/decree-holder has paid the amount to the respondent outside the court. Thus, both the courts below have acted illegally and committed material regularity while passing the impugned order and judgment. Lastly he prayed that the case be remanded back to the learned trial Court by accepting the instant civil revision and objection petition be decided after recording evidence of parties.
6. Conversely, learned counsel for respondent fully supported the impugned order and judgment and pleaded that petitioner has not deposited remaining amount as per order of the court and prevailing law on the subject. There is no illegality, material irregularity or jurisdictional defect in the impugned order and judgment.
7. Arguments put forwarded by learned counsel for parties and perusal of record reveals that following are the admitted facts between the parties:--
(i) Petitioner has filed a suit for specific performance of agreement dated 18.12.1998 in respect of the disputed land situated in Chak No.38/M, Tehsil Dunya Pur, Lodhran, well described in head-note of the plaint, which was decreed vide judgment dated 10.4.2003, subject, to payment of remaining amount of Rs.10,000/- within 15 days, otherwise suit shall be deemed to have been dismissed.
(ii) The respondent/judgment debtor filed an appeal against the afore-said judgment and decree, which was dismissed on 20.11.2004. As per petitioner/decree-holder, he had paid the amount of Rs.10,000/- to the respondent outside the court on 15.4.2003, which has specifically denied.
8. Order XXI, Rule (1)(2), C.P.C. deals with the payment of decreetal amount in the Court and out of court to decree-holder, which are necessary to reproduce as wider:--
Order XXI, Rule (1), C.P.C. Modes of paying money under decree.--
(1) All money payable under a decree shall be paid as follows, namely:--
(a) into the Court whose duty it is to execute the decree; or
(b) Out of Court to the decree-holder 1[through a bank or by postal money order or evidenced by writing signed by the decree- holder or his authorized agent]; or
(c) otherwise as the Court which made the decree directs.
(2) Where any payment is made under clause (a) of sub-rule(1), notice of such payment shall be given to the decree-holder.
Order XXI, Rule (2), C.P.C. Payment out of Court to decree-holder.--
(1) Where any money payable under a decree of any kind is paid out of Court, or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decree-holder shall certify such payment or adjustment to the Court whose duty it is to execute the decree, and the Court shall record the same accordingly.
(2) The judgment-debtor also may inform the Court of such payment or adjustment, and apply to the Court to issue a notice to the decree-holder to show cause, on a day to be fixed by the Court, why such payment or adjustment should not be recorded as certified; and if after service of such notice, the decree-holder fails to show-cause why the payment or adjustment should not be recorded as certified, the Court shall record the same accordingly.
(3) 1[Any payment not made in the manner provided in rule 1 or any adjustment not made in writing shall not be recognized by the Court executing the decree.]
9. Record indicates that alleged payment of Rs.10,000/- has not been paid in court which was allegedly paid to the decree-holder by the petitioner out of court but petitioner has not fulfilled the requirement of Order XXI, Rule 2, C.P.C. Now it is settled law laid down by the Apex Court that where law required an act to be done in a particular manner, it had to be done in that manner alone and such dictate of law could not be termed as a technicality. Reliance is placed on case law titled "Muhammad Anwar and others v. Mst. Ilyas Begum and others (PLD 2013 Supreme Court 255). Learned counsel for the petitioner has not been able to point out any illegality or material irregularity or mis-reading and non-reading of evidence in the concurrent findings qua the facts of the case calling for interference in the impugned order and judgment. The scope of revisional jurisdiction of this Court is quite narrow and normally the concurrent findings of facts cannot be disturbed in revisional jurisdiction unless this Court comes to the conclusion that the findings of learned Courts below are result of misreading or non-reading of evidence available on record or contrary to the settled law. Reliance in this regard is placed upon case titled as "Noor Muhammad and others v. Mst. Azmat-e-Bibi" (2012 SCMR 1373) and "Administrator, Thal Development through EACO Bhakkar and others v. Ali Muhammad" (2012 SCMR 730). Resultantly, instant revision petition is hereby dismissed.
ZC/A-125/L Revision dismissed.