2023 PLP 2603 (YLR)

Statement of Fact: ASIM HAFEEZ, J.

Civil Revision is directed against concurrent decisions, which resulted in decreeing of suit for specific performance of agreement of 08.03.2017, instituted by the Muhammad Ashraf (deceased) -- represented through legal heirs, respondents Nos.1 to

6. Decree dated 26.07.2022 was affirmed upon dismissal of petitioner's appeal vide judgment of 08.02.2023. Agreement to sell was admitted and so was the extension of time agreed, whereby date of performance was extended from 08.09.2017 to 15.02.2018. Muhammad Ashraf brought action for enforcement of agreement on 09.04.2019. Defence pleaded by the petitioner was that agreement contained a default clause, consequence whereof admitted the cancellation of agreement and forfeiture of earnest money, hence, time was the essence of contract, and suit merits dismissal. This plea of the petitioner was dismissed by the courts, in the wake of petitioner's failure to prove this fact. Submissions:

2. Learned counsel pleads that document provided default clause, which manifested the intent of the parties that time was the essence of the contract. Adds that facts of the case and evidence led otherwise establish that Muhammad Ashraf was neither willing nor have had finances to pay balance consideration within agreed time - refers to the cross-examination of PW.2. Submits that mere allowing of extension would not imply otherwise, that time was not the essence, and despite grant of extension all corresponding terms and conditions of agreement would apply and were enforceable. Referred to following decisions, reported as "Lahore Cantonment Cooperative Housing Society Limited, Lahore Cantt. through Secretary v. Dr. Nusrat Ullah Chaudhary and others" (PLD 2002 SC 1068), "Mst. Rehmat and others v. Mst. Zubaida Begum and others" (2021 SCMR 1534) and "Hamood Mehmood v. Mst. Shabana Ishaque" (2017 SCMR 2022). Determination:

3. Submissions made were adjudicated upon by the courts, concurrently. Admittedly, time for performance was extended till 15.02.2018: Petitioner's primary case was that legal notice was issued to Muhammad Arshad on 18.04.2018, calling for the performance of the conditions of contract but default persisted. This fact, being relevant in the context of the controversy, was not proved. Copy of the Notice was not produced in evidence, leading to adverse inference. Conversely, case of the respondent's predecessor was that petitioner was required to perform reciprocal obligations, which performance was delayed, whereupon notice of 08.04.2019 was delivered and next date suit was instituted. Reply to the notice by the petitioner, dated 13.04.2019, was brought on record as Exh.P-5 - [factum of legal notice by Muhammad Ashraf was admitted in the reply dated 13.04.2019]. Extension in the time for performance against part consideration of Rs.1.00 million was admitted. There is a presumption that time was not always the essence of the contract in agreements relating to the sale of immovable property unless intentions contrary thereto were proved. In this case, fundamental plea of the petitioner is that legal notice was issued on 08.04.2018, to convey intent that non-performance would result in cancellation of the contract and forfeiture of the amounts paid so far, but factum of notice was not proved. This failure coupled with the factum of extension of time for performance, are critical facts, which convinced courts to dismiss plea that time was the essence of the contract. Balance consideration was paid during the proceedings before trial court - absence of willingness and availability of funds was not proved through convincing evidence. Judgments referred are distinguishable on facts, ratio whereof are not attracted. No interference warranted to upset concurrent decisions upon exercising revisional jurisdiction, in the absence of any illegality or irregularity in the exercise of jurisdiction.

4. Civil Revision is devoid of merits, which is, hereby, dismissed. MQ/I-15/L Revision Petition dismissed.