2005 PLP 851 (YLR)

Date of hearing: 8th June, 2004. Brief facts of the case are that Abdul Latif Abbasi and others, through their general attorney, had agreed to sell a Plot No.39‑A, measuring one Kanal, situated in Mohammadia Colony, Noor Mahal Road, Bahawalpur through agreement to sell, Exh.P.I, for a consideration of Rs.24,750 on 8‑6‑1977. Earnest money of Rs.200 was received by the aforesaid vendor and it was settled that vendor would receive the remaining amount of sale agreement from the vendee within three months and that the sale‑deed would be hereafter executed and completed in favour of the purchaser, Muzammal Mehdi, the respondent. As performance was refused so a suit for specific performance of contract was tiled by the vendee respondent on 9‑7‑1979 which was decreed on 22‑7‑1981. The appeal filed by the present petitioners was also dismissed by the learned Additional District Judge, Bahawalpur on 7‑3‑1984. Hence this civil revision.

2. Learned counsel appearing on behalf of vendor‑petitioners has argued that the time period of three months mentioned in the agreement to sell was the essence of the contract. The non‑performance of which had the consequence of the annulment of that contract. He has referred to the statement of Muhammad Din, P.W.1 in which he has stated that one year from the agreement, they had not contacted the vendor. So according to the learned counsel, the suit was liable to be dismissed. He has placed reliance on Malik Elahi, etc. Muhammad Aslam 2002 CLC 433.

3. To rebut the arguments of the learned counsel for the petitioner, learned counsel for the respondents argued that in cases of immovable property, time is never considered generally as the essence of contract unless there are special/exceptional circumstances to hold such. He has referred to Lehrasap Khan and 3 others v. Muhammad Sarwar Khan and another 2002 YLR 3233; Mst. Ghulam Jannat v. Allah Ditta 2003 YLR 981; Lal Din v. Muhammad Sardar and 3 others 2002 YLR 1482; Noor Muhammad and others v. Muhammad Ishaq 2000 MLD 251; Muhammad Nawaz Khan and others v. Mst. Farah Naz PLD 1999 Lah. 238; and Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC

344. He has further asserted that as both the learned Courts below have rendered concurrent findings of facts with regard to the time being not essence of the contract, this question cannot be raised in this civil revision. To support his contention, he has referred to 1997 SCMR 1139 and 1997 CLC 875.

4. I have considered the arguments of both the learned counsel and have perused the record.

5. The agreement to sell dated 8‑6‑1977 Exh.P.1 contained the following words. These words clearly connote that General Attorney of vendors, Col. Abdul Majeed Khan had to receive the remaining sale consideration from the vendee within three months and to get the document executed and completed and it was not the duty of the vendee to offer the remaining payment. So if there was any delay on the part of vendee as agitated by the learned counsel for the petitioners, it was not fatal to the case of the plaintiff. Moreover, the statement on Oath of D.W.2 had clearly given out that the vendee had been continuously visiting the vendor but the vendor had been dilly‑dallying on this pretext that after the settlement of his dispute with the tenant he would receive remaining amount from him and complete the transaction of sale. As regards the statement of D.W.1, Haji Muhammad Din the same cannot affect the deposition of D. W.2 who has stated that he has been regularly visiting the vendor. No specific question was asked from the D.W.2 that he had approached the General Attorney of the defendant/vendor only in the company of Haji Muhammad Din, P.W.1 for the first time after one year. So this fact cannot be used as to deprive the respondent/plaintiff from the decree he has got from the learned Courts below.

6. It is settled law that in cases of contract with regard to the immovable property, the time is not considered as the essence of the contract. The words as noted above do not indicate that the parties had intended to make the period of three months as the time to be an essence of contract. No special/exceptional words were used to make out such intention of the parties. There is another aspect of this case. No penalty was provided for the non performance of the contract within the prescribed period of three months. No emphasis was laid down on the party not performing the agreement within three months, the agreement was not necessarily to be performed within the aforesaid period. As indicated earlier, the words used that the General Attorney Col. Abdul Majeed Khan had to receive the amount of sale consideration from the vendee/plaintiff, so it had shifted the burden upon the shoulders of petitioners. If there was any fault on the part of the vendee with regard to the payment within three months, it cannot be considered as fatal to the case of the vendee/plaintiff.

7. Both the learned Courts below' having found concurrently that the period prescribed in the agreement to sell was not an essence of the contract being a finding of fact, cannot be upset in this revisional jurisdiction. Therefore, this civil revision is dismissed with no order as to costs. H.B.T.A/‑355/L Revision dismissed.