1996 PLP 883 (CLC)

(iii) That the learned appellate Court while reversing the judgment and decree of the learned trial Court misread the material evidence on record.

4. Learned counsel for the respondents defended the impugned judgment and‑‑‑submitted that the respondents‑defendants went to the. Registrar for performance their part of the contract and the appellant left the premises by telling them that he will come back after arranging the money and thereafter he disappeared and, therefore, having failed to perform his part of the contract he could not seek its enforcement through the Court.

5. I have heard the learned counsel for the parties and have also gone through the evidence on record.

6. Whether time is the essence of contract or not depends on the facts and circumstances of each case. The terms of the contract, the conduct of the parties and the surrounding circumstances have to be examined to arrive at correct conclusion. In AIR 1915 Privy Council 83 (Jamshed Khodaran Irani v. Burjorji Dhunjibhai) it was held as under:‑‑ "Prima facie, equity treats the importance of such time limits as being subordinate to the main purpose of the parties, and it will enjoin specific performance notwithstanding that from the point of view of a Court of Law the contract has not been literally performed by the plaintiff as regards the time limit specified. But equity will not assist where there has been undue delay on the part of one party to the contract, and the other has given him reasonable notice, that he must complete Within a definite time. Nor will it exercise its jurisdiction when the character of the property or other circumstances would render such exercise likely to result in injustice. In such cases the circumstances themselves, apart from any question of expressed intention, exclude the jurisdiction. Equity will further infer an intention that time should be of the essence from what has passed between the parties prior to the signing of the contract. " In PLD 1962 Supreme Court 1 (Abdul Hameed v. Abbas Bhai‑Abdul Hussain Sodawaterwala) it was held as follows:‑‑ "That if time is not originally made of the essence of a contract for sale of land, one of the parties is not entitled to afterwards, by notice, to make it of the essence, unless there has been some default or unreasonable delay by the other party. " In 1984 CLC 2159 (Muhammad Ayyub Khan v. Ch. Muhammad Aslam and another) it was observed as under:‑‑ "Contract Act (IX of 1872)‑‑‑ ‑‑‑‑S.56‑‑‑Performance of contract‑‑‑Time essence of contract‑‑‑Sale of land‑‑‑Period fixed for completion‑‑‑Mere mention of period, for completion of sale, held, does not make time essence of contract. " In PLD 1981 BJ 60 (Ahmad Bakhsh v. Mst. Zeb Ilahi) it was observed as follows:‑‑ "Specific Relief Act (I of 1877)‑‑‑ ‑‑‑‑S.22‑‑‑Specific performance of agreement‑‑‑Discretion of Court‑‑ Specific period ‑ provided in agreement within which specific performance to be carried out but in cases relating to immovable property time generally not essence of contract‑‑‑Party, however, held, cannot sleep over indefinitely and invoke jurisdiction of Court at sweet will. " In NLR 1984 UC 512 (Ghulam Muhammad etc. v. Abdul Hameed) this Court held as under:‑‑ "Specific performance‑‑‑ ‑‑‑‑ Specific performance of agreement to sell land‑‑‑Determination of question whether or not time should be treated to be of essence of contract‑‑‑Depends upon intention of parties, their conduct, nature of property and surrounding circumstances‑‑‑Held: In circumstances of case nature of property and conduct of parties gave rise to irresistible conclusion that time was of essence of contract." In PLD 1973 SC 39 (Seth Essabhoy v. Saboor Ahmad) it was observed as under:‑‑ "Where defendant found to have committed breach of contract, it is not obligatory on part of plaintiff to prove his willingness to perform it uptodate of filing of suit‑‑‑Plaintiff absolved from showing that he was ready and willing to perform his part of contract where defendant has definitely repudiated contract or has committed breach thereof. " Again in 1985 SCMR 1568 (Shah Sultana and another v. Syed Shaukat Ali and 3 others) the dictum laid down was as under: "Contract of sale of immovable property‑‑‑Question whether time was of essence of contract is a question of intention of parties‑‑‑Its determination depends upon terms of contract, conduct of parties before executing contract and surrounding circumstances‑‑‑It is not a pure question of law but a question of fact‑‑‑If not raised before trial Court, it cannot be raised in second appeal under section 100 before High Court or in leave proceedings before Supreme Court".

7. Analysing the evidence on record in the light of the principle laid down in the afore-referred precedent case‑law I find that the parties had in unmistakenable term made time as the essence of the contract. The relevant portion of the agreement is reproduced below:‑‑ Thus there was a specific stipulation that in case the appellant‑plaintiff failed to perform his part of the contract, the earnest money shall stand forfeited and the agreement shall stand rescinded.

8. To prove that the appellant‑plaintiff did perform his part of the contract by coming to the office of the Registrar to have the sale‑deed executed, the appellant produced three witnesses besides himself, namely, Allah Wassay (P.W.1), Hadayat Ali (P.W.2) and Abdul Sattar (P.W.3). Allah Wasaya (P.W.1) is the deed‑writer who prepared Exh.PI which is not disputed. Hadayat Ali (P.W.2) stated that on the appointed day i.e. 31‑3‑1982 they reached the office of the Registrar but the respondents‑defendants did not turn up. In cross- examination he stated that the appellant‑plaintiff did mark himself present before the Registrar on the said day. Abdul Sattar (P.W.) stated that he came to the office of the Registrar on the appointed day alongwith Muhammad Sharif appellant and Yousaf member and Allah Yar Lumerdar also came with them. In cross‑examination, he stated that the appellant came to the Tehsil/Registrar office with 4/5 persons and all of them came in a bus. However, P.W.2 Hadayat Ali in cross‑examination stated that he and Muhammad Sharif came in a bus whereas others came on scooters. He also stated that all of them got themselves marked present in the Tehsil/Registrar office. Muhammad Sharif appellant appeared as P.W.4 and stated that he alongwith others came to the Tehsil office, waited the whole day for respondents -defendants but they did not turn up. He further stated that they got themselves marked present before the Registrar/Tehsildar at about 3‑00 p.m. through an application.

9. The respondents‑defendants produced three witnesses. Allah Wasaya is a common witness who appeared as D.W.1. He submitted that he wrote Exh.DI which is an affidavit of the defendant Mst. Faji to the effect that the appellant- defendant did not turn up on 31‑3‑1982 for execution of the sale‑deed. D.W.2 is Abdul Wahid who corroborated the statement of D.W.4 Mst. Faji. Syed Nazar Hussain Shah appeared as D.W.3. He was the Oath Commissioner who attested the Exh.Dl, the affidavit tendered by .Mst. Faji. She stated that the appellant -plaintiff did come to the Tehsil office but left the place to arrange for some more money as he was short of the same. She further stated that they waited for the appellant the whole day. She confirmed that one Yousaf also accompanied the appellant‑plaintiff on the appointed day. The bona fides of the respondents- defendants in performing their part of the contract is manifest from the fact that D.W.4 Mst. Faji does not deny that the appellant‑plaintiff did visit the Tehsil/Registrar office for execution of sale‑deed. Her version is that as the appellant‑plaintiff was short of money he left the premises to arrange for the money and thereafter did not return. Her statement inspires confidence. In cross‑examination as to who else accompanied the appellant‑plaintiff Muhammad Sharif, she stated. that Muhammad Yousaf member also accompanied him. Her statement is corroborated by the testimony of D.W.1 Allah Wasaya who is also scriber of Exh.PI and, therefore, common to both the parties. He testified before the Court that on the asking of respondent‑defendant Mst. Faji, he wrote affidavit (Exh.DI) wherein she had stated that on 31‑3‑1982 she waited the whole day but the appellant‑plaintiff did not turn up with the requisite money to have the sale‑deed executed. The version of Mst. Faji D.W. is further strengthened by the statement of D.W.2 who is not related to either of the parties and stated that he accompanied Mst. Faji on the afore-referred date but the appellant did C not come. The sworning of affidavit (Exh.Dl) is further proved by D.W.3 Syed Nazar Hussain Shah who, at the relevant time, was the Oath Commissioner.

10. The' infirmity of the case of appellant‑plaintiff is further evident from the following features which are apparent on record:‑‑ (i) According to appellant‑plaintiff, the respondents‑defendants did not turn up on the appointed day i.e. on 31‑3‑1982 and that he remained present before the Registrar and got himself marked present before him. But no evidence about his appearance before the Registrar has been produced. (ii) Appellant‑plaintiff stated that he visited the office of the Registrar on the date referred to above. According to Abdul Sattar (P.W.3) besides himself, Muhammad Yousaf member and Allah Yar also accompanied the appellant‑plaintiff to the office of the Registrar but surprisingly neither Yousaf member nor Allah Yar Lumbardar appeared in Court in support of the plaintiff's case as they were the best witnesses holding position of status in society. (iii) The appellant‑plaintiff filed the present suit on 3‑5‑1982 after more than a month of the day when he allegedly visited office of the Registrar for the purpose in question. In‑between these days he neither gave any notice to the respondents‑defendants nor has he given any explanation for keeping quiet for this long period.

11. For what has been discussed above, the judgment of the learned appellate Court dated 13‑9‑1987 does not call for interference as the same is not against the evidence on record. This appeal has no merit which is dismissed with no order as to costs. A.A./M‑2652/L Appeal dismissed.