2007 PLP 264 (MLD)

SARDAR MUHAMMAD ASLAM, J.

Through this appeal, the appellant calls in question the judgment and decree, dated 22-10-2004 passed by the learned Additional District Judge, Lahore, whereby he while accepting appeal set aside the judgment and decree passed by the learned Civil Judge, Lahore.

2. Briefly the facts relevant for disposal of this appeal are that the appellant/plaintiff filed a suit against respondent for possession through specific performance of an agreement to sell the suit property against consideration of Rs.21,60,000 on 8-7-1989 after receiving an amount of Rs.5,00,000 as part payment. Execution of sale-deed had to take place on payment of remaining amount, within a period of three months from 3-7-1989. The defendants filed written statement. Issues were framed. Both sides led their respective evidence. The learned trial Court decreed the suit on 6-2-1996. The respondent filed R.F.A. No.97 of 1996 in this Court. The matter was sent to the learned District Court vide order, dated 10-3-2004, as valuation-wise it was to be heard by District Judge, whose pecuniary jurisdiction was enhanced in the meantime.. A learned Additional District Judge allowed the appeal of respondent on 22-10-2004, which lead to dismissal of suit. The judgment and decree of the learned Additional District Judge is being assailed.

3. At the outset, learned counsel for the appellant contended that value of the suit for the purposes of court-fee and jurisdiction was fixed at Rs.51,60,000, hence judgment of the appellate Court is liable to be set aside as it lacked pecuniary jurisdiction to entertain and hear. Learned counsel for the respondent, replying to this objection, argued that the matter was remitted by this Court to the learned District Court to hear itself or entrust it to some other learned Additional District Judge, in presence of the plaintiff, who did not raise any objection. He argued the case before the learned Appellate Court without raising jurisdictional objection. He remained sitting on the fence expecting judgment in his favour and that no prejudice has been caused to him. Learned counsel for the appellant, at this stage, withdrew his objection in regard to the jurisdiction and argued the appeal on merit.

4. It was contended that the time was not essence of contract. Execution of agreement to sell is admitted and plaintiff was ready and willing on all time to perform his part of obligation, hence is entitled to the decree prayed for.

5. On the other hand, learned counsel for respondent argued that time was essence of the contract; the defendants on receipt of the amount from the plaintiff had to undertake another project, but failed to accomplish the same, on account of contumacious conduct of the plaintiff, who only paid a sum of Rs.5,00,000 and lingered the matter on one pretext or the other for insufficiency of funds.

6. Heard. Record perused.

7. Raja Muhammad Yousaf appeared as P.W.I. He deposed that the parties had entered into an agreement to sell (Exh.P.1) in respect of the suit property, which was signed by him as marginal witness. A sum of Rs.5,00,000 was paid as earnest amount. He visited the respondent on number of occasions along with plaintiff for execution of the sale-deed, but the respondent has been avoiding. In cross-examination he admits that he is in business of property dealing for the last 19 years. He denied the suggestion for want of knowledge, that on account of operation of plaintiff's brother, he could not arrange balance amount. Abdul Razzaq Bhatti appeared as P.W.2. He is not the witness or Exh. P.1. but it was authored and signed in his presence. Plaintiff appeared as P.W.3. He supported his averments made in the plaint. He had been requesting for execution of the sale-deed time and again but with no positive response from the defendants. In cross-examination he admits that no notice was issued to the defendants to perform their obligation on receipt of balance amount. He admitted that defendants had intention to build a house in Qila Gujjar Singh on sale of suit property. On 3-10-1989, he submitted an application to the Sub-Registrar seeking direction to respondents to appear and execute sale-deed. It was not per se admissible and, thus, not exhibited. He denied the suggestion that after execution of agreement the appellant had informed the defendants of insufficiency of funds. On the back of first page of agreement a writing appears which shows that the time was extended from 3-10-1989 to 1.0-5-1990, on receipt of additional sum of Rs.20,

000. However, this writing is not signed by anyone but is written by author of Exh.P.1. Exh.P.2, is an order by the Sub-Registrar on the above said application to seek remedy from Court of law. Mubashar Saced appeared as D.W.1. He stated that time was essence of the contract as on receipt of balance amount from the plaintiff, it was to be invested in some business concern. The plaintiff told the defendant in his presence that his brother has eyesight problem and he suffered loss in business to the tune of Rs.35,00,000 therefore, agreement be terminated and earnest amount be refunded to him. Defendant replied that he has demolished the residential house to rebuild in view of agreement hence he should pay the balance amount and get the deed registered. In cross-examination stated that site-plan for construction of house was prepared after execution of agreement to sell. Riaz-ur-Rahim appeared as D.W.2 and stated that the defendant was doing business of wire in his property located at Nicklison Road. Old building was demolished on account of sale of suit property. Faiz-ul-Hassan, one of the defendants appeared as D.W.3 and stated that the transaction could not be completed on account of non-availability of funds with plaintiff.

8. The plaintiff is property dealer. He was not in possession of balance amount and had sought extension in time, once. Had he been in possession of sufficient funds, he would have deposited in Court to prove his bona fides. In the long drawn litigation, the plaintiff on no occasion desired to deposit the balance amount. Writing on back of the sale agreement evidencing extension in time appears to have been sought by the plaintiff. He admitted that no application signed by him was presented to the Sub-Registrar, calling upon the defendants to execute the sale-decd. Exh.P.2. endorsement of Sub-Registrar on the application, to approach civil Court, looks to be a forged one. Sub-Registrar was not brought in witness box to prove his endorsement. Even if it so then why plaintiffs failed to file civil suit till 6-5-1992. He under the garb of agreement merely on payment of Rs.5,00,000 intended to retain his claim. At hearing of appeal, when called upon as to what is market price of the property Appellant stated in presence of his learned counsel, that it would fetch at least of a sum of Rs.10 Millions. When asked whether he is prepared to pay this amount to the defendants, he stated that he would be able to pay a sum of Rs.7 Millions.

9. Decree in a suit for specific performance is discretionary. Even if the agreement is proved the suit may not be decreed on the ground of equitable consideration. The price of real estate has increased manifold, while value of rupee has suffered erosion in market.

10. The defendant had received earnest amount of Rs.5,00,000 from the plaintiff. They have not issued notice of forfeiture of this amount to plaintiff, thus, are bound to return the same. They are directed to deposit the same within a period of two months from today with the Deputy Registrar (Judicial) of this Court for payment to the plaintiff.

11. For what has been discussed above, this regular second appeal merits dismissal, and, it is dismissed accordingly. F.B./M-610/L????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.