1989 PLP 252 (MLD)

5. The following issues were framed:‑ (1) Whether the suit is undervalued for the purpose of court‑fee? If so, to what effect? OPD (2) Whether the plaintiffs have no cause of action? (3) Whether the plaintiffs have paid Rs. 53,642 as earnest money to defendant No. 1? (4) Whether the defendants No. 2 to 5 are bona fide purchasers with consideration and without notice? (5) Whether the plaintiffs have performed their part of the contract? (6) Whether the plaintiffs are entitled to specific performance of the contract? If so, in what terms? (7) Relief. The trial Court disbelieved the appellants' version and consequently dismissed the suit.

6. Mr. Bashir A. Mujahid for the appellants urged firstly, that there was no provision in the agreement Exh. P. 1 if the time was of the essence of the contract; the law as per para. 2 of section 55 of the Contract Act, time was not of the essence of the contract in sales of immovable property; thirdly, the respondents having not earlier indicated either in the agreement or subsequently that she would appoint an attorney for receipt of such a huge amount and execution of the sale‑deed, they were well within their right to insist that she should personally come; fourthly, their averment made in the plaint that she had been even earlier appointing attorneys and cancelling their appointments through issuance of press notices was not categorically denied in the written statement, ,end fifthly, it was not the stance of her attorney Abdul Ghafoor either in his Application Exh. D. 3 made before the Sub‑Registrar, or his statement Exh. D. 4 recorded by him that they had no money to pay to her for completion of the sale-deed lastly that even in her written statement she did not plead if she had made hem known that she needed money for purchase of land from Fazal Din Gujjar. He argued that she entered into the so‑called agreement with Fazal Din Gujjar on 22‑7‑1979, that is much after the impugned agreement dated 4‑2‑1979, arid that thus there was no nexus between the two.

7. Opposing the appeal Mr. Jari Ullah for the respondents urged that the plea taken up in the written statement that she needed money for the purchase of land from Fazal Din Gujjar was enough to establish that time was of the essence of the contract, and that m any event it lay upon the appellants to have abided by the terminal date, namely 17‑8‑1979 by paying the remaining consideration in order to get the sale completed from her. He supported the view of the trial Court that there was no justification to doubt the credentials of her attorney Abdul Ghafoor who was associated with the bargain even earlier and that the excuse was adopted only to cover up the appellants' failure to make payment of the consideration amount. He stressed that the appellants should have made it known to the Sub‑Registrar that they were carrying on the amount either in cash or by a Bank draft and that failure on their part in this behalf was a material circumstance to augment the contention that they were making subterfuges to cover up their inability to pay the amount in time, 7‑A. It was conceded that the agreement Exh. P. 1 did not contain any specific stance of urgency to make the time of the essence of the contract. The mere fact oat a terminal date was fixed for finalisation of the sale would not by itself suffice hat time was intended to be of the essence of the contract. There was no reference in the agreement Exh. P. 1 making it clear that the respondent‑lady needed the money for purchasing land from Fazal Din Gujjar. In fact the latter agreement being dated 22‑7‑1979 was of much later origin, and if it was under contemplation, ordinarily there should have even a cross reference in the former agreement dated 4‑2‑1979 executed by the lady in favour of the appellants. The corollary was that the two had no nexus between themselves. The plea taken up in the written statement in this behalf was equally not clear. All that was stated i here was that her own bargain with Fazal Din Gujjar fell through because of non‑payment of sale proceeds to her by the appellants. But she never stated in a fashion that this had already been made known to the appellants as a condition precedent for observing the time limit. It, therefore, appears that she entered into the agreement with Fazal Din Gujjar subsequently and was trying to employ it as an excuse for avoiding execution of the sale‑deed in favour of the appellants. Conversely she appeared to be in hurry to sell away the land in favour of other respondents, probably for higher return. The appellants brought the suit without Much delay in a matter of month or so after the terminal date, and despite it the lady sold away the land to other respondents during pendency of the suit. It Looked as if she had decided conceptually not to be bound by the present agreement and was trying to make it up by pleading that the appellants had breached the contract.

8. The contention, that the appellants had no money on them before the Sub‑Registrar, was equally not inspiring. This was not the plea taken up by the respondents' attorney Abdul Ghafoor m his application Exh. D. 3 made before the Sub‑Registrar nor did he so disclose in his detailed statement Exh. D. 4 made before him. His stance in the said statement was that the appellants had refused to pay him the remaining consideration amount. Obviously the narration did not disclose if the appellants had no money with them. Conversely, the latter in their own statement Exh. D. 6 made at that very time before the Sub‑Registrar maintained that they had reason to doubt the veracity of the power of attorney held by Abdul Ghafoor on behalf of the lady. They disclosed their intention that they would pay up the whole amount if, the respondent herself could turn up. Since these documents were prepared impromptu, without much of machination they would be taken to be true in their import. They did not point out if the reason for non‑completion of the sale‑deed was inability of the appellants to pay the remaining consideration amount. The bogey raised in this behalf by the respondent‑lady was manifestly an after‑thought...

9. The lower Court did refer to the fact whether the time was of the essence of the contract or not, but did not discuss it appropriately. It appeared to have been obsessed by the fact that the appellants failed to pay the remaining sale price including Rs. 23,642 lying in the treasury to the attorney of the respondent- lady and thereby had breached the contract. This was no answer to the proposition of law based upon the time being or not of the essence of the contract. Such a terminal date is invariably provided in contracts for the sale of immovable property, but as per para. 2 of section 55 of the Contract Act, it is not enough by its own force to be of the essence of the contract. Some additional grounds had to be stated so that the appellants should have been aware of their obligation to pay up the sale price so that the vendor's need for which the sale may have been made by him was adequately met. As already pointed out, the agreement is completely silent in this behalf. Ashfaque Ahmad Sheikh v. The State (PLD 1972 SC 39) was rightly invoked by the appellants before the trial Court. The same view was adopted in Lai Bhagwat v. Hari (AIR 1942 Oudh 1), Muhammad v. Jahangir (AIR 1949 Lah. 72), Krishana v. Khan (AIR 1963 Calcutta 804) and Abdul v. Brown (57 IC.485).

10. The lower Court in its own way thought that the appellants should have given a prior notice to the respondent‑lady not to get herself represented by any attorney before the Sub‑Registrar. This was an extremely unusual poser. How could the appellants know beforehand that the respondent would get herself represented through an attorney? Any pre‑supposition m this behalf on their part would have been absurd. On the other hand if the respondent needed an attorney to act on her behalf, she should have made it clear either in the agreement Exh. P. 1 itself or subsequently through a formal notice. The failure, if any, lies on her part. The agreement was signed by herself suggesting that she was a literate lady. If she could make herself available to execute the agreement by signing it, she should have ordinarily made herself available to sign the sale‑deed also, and if at all she required an attorney, she should have informed the appellants well in time. The appellants pleaded that there were instances attributable to her for appointing or cancelling such powers of attorney and there was even a press note. She did not contradict this plea categorically in her written statement. The appellants appeared to be justified to entertain an apprehension that the attorney trying to represent her had no genuine credentials. Assuming for the sake of argument that they were not much correct in that context, time being not of the essence of the contract, they could insist for performance even after expiry of the appointed date.

11. The case of the other respondents is of no help to them. They purchased land during pendency of the suit and were hit by the doctrine of lis pendens as contemplated by section 52 of the Transfer of Property Act. They did not bring any material on the record to establish that they had taken steps to know that there was no claim pending against the lady.

12. As a result we accept the appeal, set aside the impugned judgment and decree and instead grant the appellants a decree for specific performance of the agreement to sell the land in dispute dated 4‑2‑1979 on payment of Rs. 1,75,

000. Parties are left to bear their own costs. M.Z.S./M‑1040/L Appeal accepted.