1988 PLP 280 (MLD)

ABAID ULLAH KHAN, J.--This appeal against the judgment and decree of the learned Civil Judge, Sargodha, dated the 22nd March, 1980 decreeing the respondent's suit for possession through specific performance of contract of sale of 13 Kanals 7.5 Marlas of urban land in dispute, situate in the area of Chak No. 45-A Shamali, Sargodha (within the municipal limits of Sargodha City), and in the alternative for recovery of Rs. 50,000 arises out of the following circumstances. The appellant, Major (Retired) Hamid Ali Khan, was owner of the land in question on the 12th December, 1972, he entered into agreement with the respondent, Mian Muhammad Anwar, to sell the disputed land to the latter for a consideration of Rs. 2,05,

000. The parties executed the deed of agreement of sale, Exh. P

2. The appellant received Rs. 25,000 as earnest money from the respondent vide the receipt, Exh. P

3. The balance of the price mounting to Rs. 1,80,000 was to be paid by the respondent within two months and the appellant was to get the sale deed registered. The agreement provided that the parties could extend the time limit by their mutual consent. In case the appellant were to refuse to execute and get registered the sale-deed within the stipulated time, except in the case of any restriction imposed by the Government, the respondent were to be entitled to get refund of Rs. 25,000 which he had paid in advance as earnest money as well as an additional amount of Rs. 25,000 as penalty. However, in case of the respondent's failure to pay the balance of the price within two months, or during mutually extended period, the appellant could forfeit the earnest money and sell the land to someone else. Expenses to be incurred on purchase of stamp paper and registration of sale deed were to be borne by the respondent. It was agreed that if the area of the land on measurement fell short of 13 Kanals 7.5 marlas the price of shortfall in areas would be deducted from the total amount and in case the area exceeded 13 Kanals 7.5 Marlas the respondent would pay the proportionate price of excess area. The appellant was to hand over the possession of the land, to the respondent when the latter was to pay the balance of the price.

2. On the 5th February, 1973, the respondent sent to the appellant at his Lahore address notice, whose copy is Exh. P. 6, informing him that the period of two months within which the balance of the price was to be paid and the sale deed was to be got registered was coming to an end on the 11th February, 1973, and requested him to come to Sargodha soon so that he might be able to give him the balance of the price. The notice was received by the appellant on the 8th February, 1973. On the 9th February, 1973, the respondent and Muhammad Hanif, broker, P.W. 5, who was instrumental in getting the bargain of sale settled between the parties and who attested the deed of agreement, Exh. P. 2, as a marginal witness, received telegrams, Exhs. P. 4 and P. 9, respectively, purported to have been sent by Sheikh Muhammad Abdullah, who was said to be a Karinda of the appellant, saying `certificate of sale of land situated in Civil Lines. Sargodha, after arrival of Major Hamid Ali Khan Noon from England in the last week of February, 1973'. It was followed by the letter dated the 9th February, 1973, Exh. P. 5, purported to be reply to the notice, Exh. P. 6, said to have been sent by Sheikh Muhammad Abdullah, stating that the appellant had gone abroad, that information had been received that he would return to Pakistan in the last week of February and that the agreement of sale pertaining to the land in dispute would be executed on the return of the appellant.

3. According to the respondent when the appellant was contacted in the last week of February, 1973, the latter refused to receive the balance of price and get the sale deed registered because, he said, the price of the property in dispute had considerably gone up and he was not prepared to execute and get the sale-deed registered according to the terms of the agreement. On the 28th February, 1973, the respondent instituted suit for specific performance of agreement of sale and for possession of the land in dispute and m the alternative for realization of Rs. 50,000.

4. The appellant blamed the respondent for not taking any step towards the completion of the agreement and for resiling from the same. He pleaded that the agreement was not legally enforceable nor was the respondent entitled to get it enforced. He denied that any of his appointed mukhtar had sent telegrams (Exhs. P4 and P9) or letter (Exh P5) to the respondent though he admitted that he had received the notice (copy Exh. P6) of the respondent dated the 5th February, 1973. He asserted that his Mukhtar-i-Khas had been present in the office of the Sub-Registrar, Sargodha, on the 10th and 12th February, 1973, for the purpose of execution and registration of the sale-deed but the respondent had not turned up and this fact the Mukhtar-i-Khas had got certified by the Sub-Registrar on the 12th February, 1973. Exh. D1 is the certificate given by Mehrban Khan, Sub Registrar, Sargodha, D.W. 1, on the 12th February, 1973, on the application, Exh. D2, moved by the appellant's Mukhtar, Rahmat Ullah, D.W.

2. In the application, exh. D2, Rehmat Ullah referred to the conclusion of agreement of sale of the land in dispute between the parties on the 12th December, 1972, and made mention of the fact that he had attended the office of the Sub-Registrar, Sargodha, in connection with the execution of the sale-deed on the 10th and 12th February, 1973, but the respondent had not come there. He requested that his presence and the respondent's absence on the 10th and the 12th February, 1973, be certified. Mehrban Khan, Sub-Registrar, D.W. 1, certified that Rahmat Ullah had been present during working hours in connection with the execution of the agreement on the 10th and 12th February, 1973, and that the respondent had not put in appearance.

5. On the contentions of the parties the learned trial Civil Judge settled the following issues for determination:- (1) Whether the disputed contract of sale is unenforceable? OPD. (2) Whether the plaintiff is not entitled to the specific performance of the contract of sale according to its terms and conditions? OPD. (3) Whether the plaintiff has been ready and willing to perform his part of the contract? OPP. (4) Whether the defendant has been ready and willing to perform his part of the contract? OPD. (5) Whether the plaintiff is entitled to specific performance of the contract of the sale dated 12-12-1972? If so, on what terms and conditions? OPP. (6) Whether the plaintiff is entitled to recover the earnest money of Rs. 25,000 and the penalty of Rs. 25,000 from the defendant as an alternative relief? OPP. (7) Relief.

6. The first issue was conceded before the learned' Civil Judge by the learned counsel for the appellant. Verdict on the other issues went against the appellant and the suit was decreed. The learned Civil Judge came to the conclusion that time was not of the essence of the contract and m case it was of the essence of the contract the same stood either waived by the respondent or extended by him by necessary implication. He was inclined to believe the telegrams, Exhs. P4 and P9, and reply to the notice, Exh. P6, to have been sent on hi' s behalf by Shaikh Muhammad Abdullah, who, according to the admission of the appellant's witnesses, Rahmat Ullah, D.W. 2, and Malik Qadir Yar, D.W. 3, was an employee of Noon Sugar Mills of which the appellant was a partner. The learned Judge observed that even if the telegrams, Exhs. P4 and P9, and the letter, Exh. P5, were excluded from consideration, the appellant's keeping silent and giving no reply to the notice (copy Exh. P6.) sent by the respondent was not without significance and was indicative of the fact that time was not of the essence of the contract in the eye of the appellant or that he had changed his mind to perform his part of the contract even before the expiry of the stipulated period. He was of the view that the appearance of Rahmat Ullah, D.W. 2, whom the appellant had appointed Mukhtar through the power-of-attorney, Exh. D3, on the 19th January. 1973, before the Sub-Registrar on the 10th and 12th December, 1973, and his moving the application, Exh. D. 2, and securing certificate of the Sub-Registrar, Exh. D. 1, were of little help to advance the appellant's case because Rahmat Ullah had been authorised by virtue of the aforesaid power-of attorney only to present the .sale deed (duly executed by the appellant) before the Sub-Registrar for the purpose of getting it registered and to receive the balance of the sale price; he had not been invested with the power of executing the sale deed on behalf of the appellant and admittedly the appellant had not executed any sale deed. The learned Judge concluded that the appellant did not appear to be honest in the performance of agreement of sale.

7. Before proceeding to touch the merits of the case the learned counsel of the appellant raised some points which need to be disposed of though no mention of these points is found in the memorandum of appeal. He pointed out that the documents relied upon and brought into evidence by the respondent had not been filed alongwith the plaint. The authenticity of these documents was never questioned. Therefore, no valid objection to their introduction in evidence can be taken.

8. The learned counsel submitted that two material issues as to whether the time was of the essence of the contract and as to what the exact area of the land in dispute was had not been framed. The appellant never urged before the learned trial Court for striking of issues on these points. If the area falls short of 13 Kanals 7.5 Marlas it will be for the respondent to suffer. In any case the matter will be resolved at the time of execution of the decree and non-framing of issue on this point does not at all affect the decision in the suit. The appellant never specifically pleaded that time was of the essence of the contract. Anyway the question whether time was of the essence of the contract has been considered by the learned trial Court under issues Nos. 2 to 5 and can very well be disposed of without the necessity of framing a specific issue.

9. The appellant's grievance that he had not been given opportunity to produce evidence after the respondent's additional evidence had been brought on the record is not well founded. The appellant never asked for the production of evidence at that stage and was never refused the opportunity of production of evidence.

10. The learned counsel took exception to the validity of the agreement on account of its being in violation of paragraph 24(5) of the Land Reforms Regulation (M.L.R. 115) inasmuch as the appellant would be left after sale with the land less than the subsisting holding. In the first place paragraph 24(5) applies to sale and not to agreement of sale. The question whether the appellant's .holding would be reduced to less than the subsistence level is not purely legal but a mixed one of law and fact and in the absence of anything on the record indicating the extent of total holding of the appellant in the estate, it would require investigation by production of evidence by both the parties for its proper det6rmination. Consequently this point, which was not urged before the learned . trial Court nor included in the grounds of appeal, cannot be permitted to be raised and resolved at the appeal level.

11. The agreement of sale, Exh. P. 2, does not set down the dead aline of two months in absolute terms for the payment of the balance of price and execution of the sale deed rather it provides a flexible time limit extendable by the mutual consent of the parties. Further in case of any restriction imposed by the Government, the time limit of two months was not to work as an impediment in the way of execution of the deed of sale. On the face of the language of the agreement time could not be said to be of the essence of the contract. The appellant's failure to respond to the notice Exh. P. 6, as has been viewed by the learned trial Court, would fortify the conclusion that time was not of the essence of the contract. If the telegrams, Exhs. P. 4 and P. 9, as also the letter, Exh. P.5, are taken to have been sent on the appellant's behalf it would lend added support to the inference drawn above.

12. It has been rightly held by the learned trial Court that making of application, Exh. D. 2, by the appellant's Mukhtar, Rahmat Ullah, D.W. 2, and securing of the Sub-Registrar's certificate, Exh. D. 1, to the effect that the respondent had not turned up on the 10th and 12th February, 1973, does not advance the appellant's case. The application Exh. D. 2, runs as under:-- It is Rahmat Ullah, and not the appellant, who put in appearance before the Sub-Registrar. He gave out that he had gone for execution and registration of the sale-deed and for receiving the balance amount of the price. However, Rahmat Ullah had not been authorised on the basis of the power-of-attorney, Exh. D. 3, given by the appellant in his favour, to execute the sale-deed. Admittedly the sale-deed had not been executed by the appellant nor the appellant was himself present at Sargodha on the 10th and 12th February, 1973. In the circumstances Rahmat Ullah's action of making application and getting certificate of the Sub-Registrar was no more than an exercise in futility; its aim seems to be nothing else than to create a circumstance for showing that the appellant was ready and willing to perform his part of the contract and execute the sale-deed. Nevertheless, the absence of the appellant and non-execution of the sale-deed by him would rather reflect his unwillingness to perform his part of the contract.

13. The respondent, while appearing as P.W. 7, and Muhammad Hanif, P.W. 5, bore out that they had contacted the appellant at his house at Sargodha on the 27th February, 1973, and that he had promised that he would get the sale deed registered and had asked them to proceed to tehsil office. According to P.Ws 5 and 7, they waited in the office of the Sub-Registrar on the 27th and 28th February, 1973, but the appellant had not turned up. The respondent obtained the certificate, Exh. PI/B, of the Sub-Registrar, Sargodha, Muhammad Ashraf Qamar, P.W. 3, to the effect that the appellant had not been present on the 28th February, 1973. Immediately thereafter the respondent filed the suit. Muhammad Hanif, P.W. 5, appears to be an independent witness and is not shown to be in any way unfavourably disposed towards the appellant. Therefore, reliance can be placed on his testimony.. The respondent's eagerness to get the sale-deed executed and registered is also evident. In view of the above circumstances the view formulated by the learned trial Court that it was the appellant who was to be blamed for non-performance of his part of the contract cannot but be endorsed.

14. The argument of the learned counsel for the appellant that since a specific sum of Rs. 25,000 was stated in the agreement to be payable by the appellant to the respondent in case of the former's refusal to execute and get registered the sale-deed within the stipulated time the learned trial Court ought to have ordered payment of the said amount by the respondent instead of decreeing the suit for specific performance of contract of sale can be accepted only with a grain of salt. What the agreement stipulated was that Rs. 25,000 were to be paid as penalty, the aforesaid amount could not be taken to be equivalent to liquidated or ascertained damages as contended by the learned counsel. The contract being one relating to transfer of immovable property, its breach cannot be adequately relieved' by compensation in money. The respondent's conduct throughout seems to be blame free and the appellant being responsible for the breach of the contract it is in the interest of justice and equity that the respondent should be given the relief of specific enforcement of contract. We may mention here that payment of Rs- 25,000 as penalty in case of breach of the contract cannot, as envisaged by section 20 of the Specific Relief Act, 1877, stand in the way of grant of the desired relief to the respondent.

15. In view of the above we do not find any force in the appellant's appeal which we dismiss with costs. S.Q./H-82/L Appeal dismissed.