2006 PLP 2070 (YLR)

MUHAMMAD MUZAMMAL KHAN, J.

This second appeal assails judgments and decrees dated 2-3-1988 and 24-4-2003 passed by the learned Civil Judge and learned Additional District Judge, Sheikhupura, respectively.

2. A short factual background of the case is that Ismail, predecessor-in-interest of the respondents entered into an agreement to sell his 92 Kanals, one Marla of agricultural land situated in Chak No.9/RB, Tehsil and District Sheikhupura, in favour of the appellant vide agreement dated 10-9-1974 for an amount of Rs.43,622 out of which Rs.5,000 was paid to the predecessor of the respondents as earnest money. Appellant gave a notice on 5-12-1974 to the predecessor of the respondents requiring him to perform his part of contract and to appear, before the Sub-Registrar concerned on 10-12-1974 for execution and completion of the sale-deed. In response to this notice Ismail appeared before the Sub-Registrar and thumb marked the challan forms, for getting stamp papers, required for inscribing the sale-deed, but on account of close of bank hours, needful could not be done. Thereafter appellant filed a suit for specific performance of the agreement on 10-9-1977 asserting that he had been ready and willing to perform his part of contract but predecessor of the respondents failed to execute sale-deed in his favour in spite of notice dated 5-12-1974.

3. Predecessor of the respondents denied assertions of the appellant in his plaint and contested it by filing his written statement, raising a number of preliminary objections like that the suit was barred by limitation, appellant was estopped by his words and conduct to file the suit and that the suit was instituted with unexplained culpable delay. On merits it was averred that appellant being a clever and cunning man, has created false and fake excuse for his own lapse, as he had no money for payment under the agreement. It was pleaded that time was essence of the contract and appellant having failed to pay price of the land within the time stipulated, is not entitled to decree prayed for. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. At the conclusion of trial the learned trial Judge, who was seized of the matter, dismissed the suit of the appellant vide his judgment and decree dated 10-9-1977.

4. Appellant aggrieved of the decisions dated 10-9-1977 filed an appeal before the learned Additional District Judge, Sheikhupura, but remained unsuccessful as his appeal was dismissed on 9-4-1991, as barred by limitation. Thereafter, the appellant filed R.S.A. No.49 of 1991 before this Court, which was ultimately accepted on 18-6-2001 and the case was remanded to the first appellate Court holding that appeal of the appellant was not barred by limitation. In post remand proceedings, first appellate Court dismissed the appeal of the appellant on merits, vide judgment and decree dated 24-4-2003. He has now come up in second appeal before this Court seeking annulment of both the concurrent judgments and decrees of the two Courts below. On this appeal a pre-admission notice to the respondents was issued, who have appeared through their counsel, to contest it.

5. Learned counsel for the appellant submits that in presence of findings by both the Courts below that suit of the appellant was within limitation and that agreement to sell was executed by the predecessor of the respondents, his suit could not have been dismissed. He further submits that appellant had throughout been ready and willing to perform his part of contract by paying the remaining sale price to the vendor, but he did not come out to perform his part of contract, as such, his suit was liable to be decreed. According to the learned counsel for the appellant his bona fides are evident from the notice dated 5-12-1974, which was given to Ismail, predecessor of the respondents, requiring him to execute the sale-deed.

6. Learned counsel for the respondents besides refuting assertions of the appellant supported the judgments and decrees of the two Courts below and urged that notice dated 5-12-1974 was a fake attempt by the appellant to create some false evidence in support of his incorrect assertion of willingness to perform his part of contract, whereas he had no money to discharge his obligations under the agreement dated 10-9-1974. He further elaborating his arguments referred to proceedings before the Sub-Registrar on 10-12-1974, wherein appellant had not come up with the remaining sale price payable under the agreement. It has also been contended on behalf of the respondents that agreement to sell dated 10-9-1974 gives a specific date for performance of the agreement and provides penalties in case of failure of any of the parties to discharge its obligations. Under the conditions details in the agreement, according to him, failure of the appellant to pay the remaining amount resulted in confiscation of his earnest money and resulted into cancellation of the agreement whereafter it is not enforceable at law. Learned counsel for the respondents emphasized that time was essence of the contract, but the appellant remained silent for a period of about three years after appearance before the Sub-Registrar.

7. I have anxiously considered the respective arguments of the learned counsel for the parties and have examined the record, appended herewith. Undeniably, agreement to sell between the parties gave a specific date of 10-12-1974 for execution and completion of sale-deed by the predecessor of the respondents after receipt of balance sale price. After execution of agreement to sell dated 10-9-1974 neither any date for execution of sale-deed was extended nor any more earnest money was received by the vendor. Appellant himself gave notice (Exh.P.2) on 5-12-1974requiring the predecessor of the respondents to appear before the Sub-Registrar on 10-12-1974 for execution and completion of the sale-deed. In response to this notice Ismail, aforementioned, did appear before the Sub-Registrar and thumb c marked the challan forms, but the appellant did not produce before the Sub-Registrar the balance sale price for payment to the vendor. There was a period of three months intervening the agreement and the date fixed for its performance but the appellant opted to issue notice just five days before the last date fixed for this purpose and did not make any effort before 5-12-1974 to fulfil other requirements touching execution of sale-deed, like getting of title documents, purchase of stamp papers, deposit of District Council Fee and other allied taxes payable on the sale-deed, inscribing of sale documents. His appearance, without money, before the Sub-Registrar on the last date fixed for this purpose i.e. 10-12-1974 manifest that claim of the respondents has worth in it that the appellant had no money for payment under the agreement. As against this, it follows from the record that Ismail deceased was ready and willing to perform his part of contract till 10-12-1974 because his appearance before the Sub-Registrar, authenticates this fact. Had the deceased been not serious for performing his part of contract, there was nothing to compel him to appear, as noted above and he could simply absent himself to avoid the performance of the agreement. It is a settled principle of law that, whether time is essence of the contract or not, is to be gathered from the terms of the agreement, circumstances of the case and conduct of the parties in discharge their obligations under the agreement, was to entail penal clauses provided in the agreement. Since the appellant is proved to have failed to perform his part of contract, his earnest money stood forfeited in favour of the predecessor of the respondents and agreement to sell dated 10-9-1974 came to an end and is not enforceable. I am fortified in this behalf by the alighted judgment of the Honourable Supreme Court given in the case - of Sandoz Limited and another v. Federation of Pakistan and others (1995 SCMR 1431) and another judgment of this Court given in the case of Abdul Habib Durrani v. Toriali (1999 CLC 207).

8. For what has been discussed above and scan of record, I have come to the conclusion that both the Courts below have rightly concluded the lis and their findings are absolutely in consonance with the evidence on the file. Neither any part of evidence has been misread nor any illegality has been committed by them. Appellant could not make out a case for interference in second appeal, which is accordingly, dismissed having no merit in it. Parties will bear their own costs. M.I./N-18/L???????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.