2009 SCMR 114 (PLP)

ZIA PERWEZ, J.

Petitioner seeks leave to appeal against the impugned judgment of the Islamabad High Court, Islamabad dated 17-6-2008, whereby Civil Revision No.323 of 2007 filed by the petitioner was dismissed.

2. Suit for specific performance with respect to Property No.2241 situated in C.D.A. Colony I-10/1, Islamabad, hereinafter referred to "as the said property" against the sale consideration of Rs.5,23,000 was instituted by Muhammad Yaseen now represented through his Legal Heirs. An amount of Rs.30,000 was paid by the deceased as earnest money and balance of sum of Rs.4,93,000 was to be paid at the time of transfer of the said property on or before 20-5-1991. However, it appears that No Objection Certificate which was a prerequisite condition for effecting transfer of the said property was issued by the Capital Development Authority on or about 25-11-1991. After service of legal notice dated 8-12-1991 calling upon the petitioner to transfer the said property, the suit was instituted before the learned Civil Judge, Islamabad, who vide order, dated 3-6-1996 dismissed the suit, while ordering forfeiture of the earnest money amounting to Rs.30,

000. The said order was set aside in Civil Appeal No.205 of 2005 by the Additional District Judge, Islamabad vide his judgment and decree, dated 16-12-2006 mainly on the ground that the time was not the essence of the contract. Revision Application No.323 of 2007 before the High Court was also dismissed through the impugned judgment.

3. We have heard Mr. Ibad-ur-Rehman Lodhi, learned Advocate Supreme Court for the petitioner and have perused the record.

4. After perusal of the facts, the learned counsel for the petitioner contended that the time was essence of the contract and failure of respondent to make payment called for forfeiture of the amount of earnest money and under the terms of the agreement. There was no case for specific performance after failure of respondent to make payment of the balance amount of sale consideration within the stipulated period. In support of his contention, the learned Advocate Supreme Court has placed reliance on the cases of Ghulam Nabi and others v. Seth Muhammad Yaqoob and Others PLD 1983 SC 344 and Jamil Akhtar and others v. Las Baba and others PLD 2003 SC 494.

5. Indeed the agreement between the parties provided for payment of balance amount at the time of the registration of the sale-deed and transfer of property on or before 30-5-1991, however, the said payment was subject to transfer in the office of C.D.A. Islamabad. In the instant case, obtaining of N.O.C. was a precondition for such transfer and sale of property. The N.O.C. was to be issued by an independent agency beyond the control either party N.O.C. bears the date 23-11-1991 and was issued on or after that date by the C.D.A., therefore, the respondent could not held liable on account of such delay by the C.D.A. The question of time being essence of contract has to be decided with reference to the facts of the each case. By virtue of section 4 of the Transfer of Property Act, 1882, transactions involving sale of immovable property are subject to the relevant provisions of the Contract Act, 1872. Section 55 of the Contract Act, 1872 stipulates the contracts where time is essence of contract, which is generally not attracted to transactions involving sale of immovable property. Merely mentioning of a specific date for performance of the agreement would not make time the essence of the contract but such intention is to be gathered from the terms agreed amongst the parties contained in the contract in the light of the facts and circumstances of the case as held by this Court in the case of Ghulam Nabi (supra). In the instant case the condition of transfer of property in the office of C.D.A. clearly stipulated further condition in addition to the date. In the absence of issuance of N.O.C. such transfer was not possible. The record further shows that within couple of days after the issuance of N.O.C. on 23-11-1991, the respondent served legal notice dated 8-12-1991 calling upon the petitioner to transfer the property in his favour followed by the suit for specific performance.

6. In the case of Mst. Batul and others v. Mst. Razia Fazal and others 2005 SCMR 544, this Court has already taken a view where the transfer was obliged to obtain the clearness certificate as a precondition for valid execution and registration of sale-deed. The delay in obtaining the same not attributable to the vendee could not effect the claim for specific performance of contract. The case of Ghulam Nabi (supra) relied upon by the learned counsel, therefore, does not support the case as the impugned judgment is in conformity with the principle laid down by this Court. In the case of Jamil Akhtar (supra) the question pertained to registration of transfer of property by an attorney in his own name where registered general power of attorney did not authorize such a transfer. It is settled principle of law that whenever a general attorney transfers the property of his principal in his own name or in the name of his close fiduciary relations, he has to take special permission from the principal. Therefore, the case is distinguishable from the present petition.

7. For the foregoing reasons, no ground for indulgence is made out in the impugned judgment. Accordingly, the instant civil petition is dismissed. Leave refused. M.H./M-66/SC Petition dismissed.