2007 PLP 492 (MLD)

JAWWAD S. KHAWAJA, J.

Iftikhar Ahmad respondent-plaintiff filed a suit against the appellants-defendants seeking possession of the suit-land through specific performance of agreement to sell (Exh. P-1), dated 1-11-1993. The suit was resisted by the appellants-defendants. It was dismissed by the learned trial Court vide judgment and decree, dated 13-10-2005. However, on appeal filed by the respondent, the learned trial Court has been reversed and as a result, the suit of the respondent has been decreed on 28-3-2006.

2. The execution of the agreement (Exh.P-1) as well as the receipt of earnest money of Rs.3,00,000 is admitted by the appellants-defendants. Their case, however, is that time was of the essence of the agreement and, as such, the respondent-plaintiff was obliged to make payment of the balance amount by 10-7-1994, which was the date stipulated in the agreement (Exh.P-1). According to learned counsel for the appellants, the respondent did not make or tender such payment. Instead almost three years later on 8-7-1997, he filed a suit for specific performance.

3. Learned counsel for the appellants contends that the above circumstances per se were sufficient to deny discretionary relief by way of specific performance to the respondent-plaintiff. The circumstances were considered by the trial Court while dismissing the respondent's suit. Learned counsel for the appellants argued that the only reason, which has prevailed with the learned appellate Court to reverse the decision of the learned trial Court is that the land was mortgaged and had not been redeemed within time. He contended that there is no evidence on the record to prove that the land was mortgaged.

4. The above-contentions of learned counsel for the appellants were controverted by learned counsel for the respondent. He drew the attention of the Court to the agreement (Exh.P.I) itself. It has expressly been stipulated therein that the property is mortgaged with the Zarai Taraqiati Bank, Pattoki. The appellants-vendors, as per terms of the agreement, undertook to have the property redeemed by 10-7-1994. This was an obligation on the part of the appellants which has to be performed by them as a reciprocal promise, before demanding payment of the balance consideration. In these circumstances, it was argued on behalf of the respondent that the appellants cannot take up the plea that the property was not mortgaged.

5. The above circumstances have been considered by the learned appellate Court which has, for valid reasons, concluded that there was a good explanation for delay in the filing of the suit.

6. Another consideration which prevailed with the learned appellate Court is that out of the total consideration of Rs.5,55,612, the respondent-plaintiff had paid Rs.3,00,000 to the appellants and only Rs.2,55,612 remained outstanding. The appellants having received more than half of the consideration and not having fulfilled their obligation to ensure that the encumbrance on the property was removed, could not be permitted to urge that the respondent-plaintiff had not tendered the balance amount.

7. In the foregoing circumstances, I find the impugned decree to be unexceptionable. Furthermore, learned counsel for the appellants was unable to show the existence of any of the grounds mentioned in section 100, C.P.C. to justify interference in the impugned decree. This appeal is, therefore, dismissed. F.B./R-57/L Appeal dismissed.