2003 PLP 174 (MLD)

CH. IJAZ AHMAD, J.‑‑‑The brief facts out of which the present appeal arises are that agreement to sell was executed between the parties qua the property in question on 3‑6‑1989. The terms of the agreement reveal that agreement was executed between the parties for a consideration of Rs.10,00,000 out of which appellants grad received Rs. 2,80,

000. The appellants failed to executed sale‑deed in favour of the respondent. The respondent being aggrieved filed a suit for specific performance before the learned Civil Judge 1st Class, Lahore. The appellants/defendants filed written statement controverting the allegation levelled in the plaint. Out of the pleadings of the parties the trial Court framed the following issues: (1) Whether the plaintiff himself resiled from the terms are conditions of the impugned contract and as such due to his on conduct and fault the sale‑deed was not executed? OPD (2) Whether the suit is not maintainable in its present form in vie of preliminary objections Nos.2 and 5, of the written statement? OPD (3) Whether the suit is time‑barred? OPD (4) Whether the suit is false and frivolous? OPD (5) If Issue No.1, is proved in negative then whether plaintiff entitled to a decree for specific performance of contract? If so upon what terms and conditions? OPP (6) Relief After recording the evidence of the parties, the learned trial Judge screed the suit vide his judgment and decree, dated 11‑4‑1998. Hence the present appeal.

2. Learned counsel for the appellants submits that time was fixed between the parties to execute the sale‑deed till 30‑11‑1989 but the respondent/plaintiff did not file suit within the prescribed period, the respondent/plaintiff filed an application for condonation of delay alongwith the plaint without explaining the delay of each day and that the learned trial Court was erred in law to decide the Issue No.3 in favour of the respondent/plaintiff. He further submits that trial Court was erred in law to decide the remaining issues against the appellant without any justification and with proper appreciation of evidence on record. He further submits that respondent failed to honour his own commitment in terms of the agreement to sell. The learned counsel of the respondent submits that appellants accepted the agreement to sell as is evident from the written statement of the appellants before the trial Court and also admitted in evidence by D. W.1 qua the contents of the agreement to sell well as accepted that part of the earnest money was received by the appellants after target date. He further submitted that learned counsel of the appellants failed to point out any illegality or infirmity in the impugned judgment of the trial Court and that the trial Court had decided all the issues against the appellants after proper appreciation of evidence on record.

3. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record ourselves.

4. It is pertinent to mention here that there is no dispute between parties pertaining to the sale agreement dated 3‑6‑1989 and receipt Rs.1,00,000 as earnest money. It is also admitted fact that the appellants/defendants received Rs.50,000 from the respondent/plaintiff as earnest money after the target date. This fact brings the case in the area where the parties did not stick to the target date for the execution of are agreement to sell within the specified period mentioned in the original agreement. After receiving the said amount by the appellant i.e. Rs.50,000 on their own request the amount of earnest money was further enhanced to the tune of Rs.50,000 and again Rs.80,000 were paid by the respondent/plaintiff to the appellants/defendants. In this way the appellants received Rs.1,80,000 as enhanced amount after the target date i.e. 30‑11‑1989. The appellants/defendants admitted that they received Rs.2.80,000 from the respondent/plaintiff. In case the whole evidence be put in a juxtaposition then it brings the case in the area that time was not essence of the contract. Even otherwise it is settled principle of law that time is not essence of contract qua the agreement with regard to the immovable property unless and until the same is proved by the party who claims that the time is essence of the contract with cogent evidence. But he appellants/defendants failed to bring on record sufficient material to show that time is essence of the contract. We have reappraised the evidence on the record and we uphold the finding of the learned trial Court on Issue No.

1. In arriving to this conclusion we are fortified by the law laid down in Malik Ghulam Jilani v. Malik Munir Ahmad Khan and others (PLD 1960 (W.P.) Karachi 517). The relevant observation is reproduced hereunder: ‑‑ "The question, therefore, whether time is of the essence of the contract depends upon the intention of the parties, the surrounding circumstances and the nature of the property. The mere fact that certain time is specified for the payment of the amounts in consideration of which the property is transferred will not show that time is of the essence of the contract. So far as the contracts relating to land are concerned, it is weld‑settled that time fixed for the completion of the transaction is not considered to be of the essence of the contract. The presumption in such contracts, though specified time is mentioned within which completion is to take place, is that the parties really and in substance only intended that it should take place within a reasonable time. The presumption, however, is rebuttable. The subsequent conduct of the defendants also shows that they never treated the time fixed for the payments of the amounts in the agreement as of essence of the contract. Under clause 1 of the agreement Rs.19,000 was to be paid after a week from the notice of construction given to the plaintiff." Similarly we uphold the finding of the trial Court on Issue No.2 as agreement to sell was not denied by the appellants/defendants in their evidence as well as in the written statement. We have already held‑‑that time is not essence of the contract while discussing Issue No.1, therefore, we uphold the findings of the learned trial Court on Issue No.2. In view of our finding on the aforesaid issues we uphold the findings on the remaining issues. It is pertinent to mention that the learned counsel of the appellants only pressed Issue No.3 before us.

5. In view of what has been discussed above, this appeal has no merits and the same is dismissed. S.A.K./G‑191/L Appeal dismissed.