1988 PLP 2095 (CLC)

17. In replication the respondent gives a lie to the appellants' assertion touching computation of price of the bungalow on the basis of two different sets of rates of price. He reiterates that only one rate, namely, Rs.3,000 per marla for land and Rs.10 per square foot for built‑up area, was agreed upon. He maintains that he had adequate funds to complete the sale and that he never failed to perform his part of the contract. He contends that the appellants' version that the price had to be paid by the end of May, 1973, is devoid of truth and that there was no question of expiry of agreement in May, 1973, or of the forfeiture of money paid by him. He expresses ignorance of stationing of Major Munir Ahmed at Lahore during the time of anti‑Ahmadia agitation or of his being attorney of appellant 1 for executing the sale‑deed. He sticks to his statement that appellant 2 told him over the telephone of appellants' inability to execute the sale‑deed at Lahore due to violent of anti‑Ahmadia agitation and of postponement of the execution and registration of the sale‑deed.

18. The contentions of the parties gave rise to the following issues for determination:‑‑ (1) Whether the parties entered into an oral agreement or. 6‑1‑1973? If so, at what rate the property in dispute was agreed to be sold to the plaintiff? OPP (2) Was the time the essence of the contract? If so, which of the parties failed to perform his part of the contract? OPD (3) What is the balance amount to which the defendant No.l is entitled? OFD (4) Whether the plaintiff made any improvement of the property in question? If so, how much amount he spent and what is its effect? OPP (5) Whether the plaintiff is entitled to the specific performance of the contract? OPP (6) If issue No.5 is decided in the negative whether the plaintiff is entitled to any refund of money? If so, what is the amount to be refunded?' OPP (7) Relief.

19. The learned trial Civil Judge formed the view that time was not of the essence of the contract. He accepted the respondent's version of the case that the entire property was agreed to be sold at the rate of Rs.3, 000 per marls for land and Rs.10 per square foot for constructed area. Considering appellant 1 to be responsible for breach of contract and finding no fault with the respondent he was held to be entitled to the specific enforcement of contract. The respondent accepted the measurements of the land and constructed area of the property in dispute as given by the appellants, the land measures 2 kanals 3 marlas 185 square feet and the constructed area stands on 4, 003 square feet. The price of the aforesaid land and the constructed area at the rate of Rs.3,000 per marla and Rs.10 per square foot comes to Rs.1,71,497.90. Rs.55,000 already paid by the respondent to the appellants were to be adjusted against the aforesaid price. The learned Civil Judge also allowed deduction ‑of Rs.28, 450, which amount represented rent of the property in dispute due from January, 1975, onwards paid by the respondent, describing it as compensation for breach of the contract measured in terms of mesne profits for the period of wilful default. Accordingly the suit was decreed subject to payment of Rs. 88, 047.90 by the respondent.

20. The respondent was not given anything for the improvements he alleged he had effected. Actually he did not specifically put forth any claim for compensation regarding improvements. Striking of issue re-improvements was not called for.

21. The learned counsel for the appellants did not throw a serious challenge to the finding of the learned trial Court that the time was not of the essence of the contract. Appellant 1, through her husband and attorney, appellant 2, received Rs.10,000 as earnest money in January, 1973, Rs.10,000 in March, 1973, Rs.15,000 in July, 1973, Rs.10,000 in March, 1974, and Rs.40,000 in October, 1974, towards payment of the price of the property. Appellant 2, in his letter of the 8th November, 1974, Exh.P.52, addressed to the respondent, intimated his willingness to come down to Lahore for registration of the sale‑deed if respondent was prepared to pay Rs.40,000 as penalty It follows that the parties, especially the appellants, did not intend time to be of the essence of the contract and were prepared for the registration of the sale‑deed irrespective of rigid time limit.

22. The real controversy relates to the rate at which price of the property was to be calculated. Choice has to be made between two sets of rates: the one alleged by the appellants and the other given by the respondent. The respondent brought on the record his letter (copy Exh.P.31) which he stated he had sent to appellant 2 on the 8th January, 1973, from Lahore communicating acceptance of the offer of sale of the bungalow at the rate of Rs.3,000 per marla of land and Rs.10 per square foot of constructed area. He also sent a draft of Rs.10,000 alongwith this letter. The appellants admitted that they got the draft but denied the receipt of the letter.

23. The respondent produced Dr. Muhammad Safdar PW.5, who was an attesting witness of the sale‑deed, Exh.P.30, whereby. the back portion of the bungalow had been sold by appellant 1 to the respondent and who held fairly high position in the Pakistan Council of Scientific and Industrial Research Laboratories, Lahore, as well as Mian Fazl‑i‑Mahmood, Advocate, PW.10, to bear out that according to the contract between the parties the property was to be sold at the rate of Rs.3,000 per marla of land and Rs.10 per square foot of constructed area. Dr. Muhammad Safdar stated that appellant 2 had told him that as the price had gone up he should ask the respondent to pay something over and above the settled price. According to Mian Fazl‑i‑Mahmood the parties had fallen out on the question of rate because appellant 2 demanded more and the respondent insisted upon paying according to the agreed rate. Appellant 2 denied ever having a talk on the subject with either Dr. Muhammad Safdar or Mian Fazl‑i‑Mahmood. He asserted that the agreed rate was of Rs.5,000 per marla of land and Rs.15 per square foot of constructed area. The learned trial Court has believed the testimony of Dr. Muhammad Safdar and Mian Fazl‑i‑Mahmood to be true and corroborated as it is by documentary evidence to be presently discussed. This Court find's no reason to take a different view.

24. Muhammad Saddiq, D.W.1, and Abdul Majid, D.W.2, produced by the appellants, are not witnesses of the conclusion of agreement between the parties. They do not testify to the rates which were agreed upon between the parties. Their oral evidence is not of much value.

25. The document, Exh.P.44, which purports to be memorandum of agreement of sale of the property between the parties is of some help to resolve the issue. It was typed by the respondent. Both appellant 2 and the respondent made corrections therein at no fewer than thirteen places with their hands in the presence of appellant 1 in June, 1973. Corrections Exhs. A‑1 to A‑7 are in the hand of the respondent and those Exhs. B‑1 to B‑6 are in the hand of appellant

2. The contents of the document after corrections so made read as follows, ‑ "THIS MEMO. OF AGREEMENT OF SALE made at Lahore this day of June, 1973 between Amatullah Begum (hereinafter called the vendor) which expression shall include her heirs, administrators, executors and assigns of the one part, and Mr. Munawar Akhtar, Advocate, resident of 45‑Mozang Road, Lahore, hereinafter called the vendee which term shall include his heirs, administrators, executors and assigns of the second part, in respect of sale of the entire property known as No.45‑Mozang Road, Lahore, part of which is presently in occupation of the vendee. WHEREAS the vendor is the absolute owner of premises known and numbered as 45‑Mozang Road, Lahore, more particularly described hereinafter and has agreed to sell the same alongwith all building, fixtures, fittings and appurtenances whatsoever. AND WHEREAS the vendee has agreed to purchase the said premises and has made an offer to the vendor who has accepted the same. NOW THIS AGREEMENT WITNESSETH:‑ (1) That the land of the entire property mentioned above has been agreed to be sold at the rate of Rs.3, 000 per marla. Another Rs.10 per square foot has been agreed upon as price for the constructed area. (2) That the vendee undertakes not to claim any expenditure he has incurred or may incur for adjustment against the agreed price. (3) That the vendee will pay half the entire sale price in December, 1973, and the remaining half in July, 1974 and get the sale‑deed registered. (4) That the vendee has paid to the vendor a sum of Rs as advance in the following manner: Bank draft dated for a sum of Rs in favour of the vendor drawn on United Bank Ltd. Abpara Branch, Islamabad. Another Bank draft of Rs . dated drawn on . (5) The vendor hereby acknowledges the receipt of the aforesaid amount of Rs .......... (6) (Scored out.) (7) That during the period the sale‑deed is not registered any additions/alterations/construction raised by the vendee will be at his own risk and cost and the vendor will not be responsible for reimbursing costs thereof." Condition No.6, which was scored out by appellant 2 vide correction, Exh.B‑6, runs as follows,‑ "

6. That on payment of Rs . . . . . . . the vendee will have the right to receive rents from all the tenants and stop payment of his own rent to the vendor." It is significant to note that corrections in condition ‑No.l mentioning that the property had been agreed to be sold at the rate of Rs.3,000 per marla of land and Rs.10 per square foot of constructed area were made both by appellant 2 and the respondent but none of them touched the figures representing the rate which were kept intact. This was as a matter of fact the most important condition and if the rate agreed upon was to be different from the one set out therein appellant 2 would have certainly made necessary alteration and substituted the rate which according to him was the agreed one. Absence of any change made by appellant 2 in the rate is indicative of the fact that the agreed rate was Rs.3,000 per marla of land and Rs.10 per square foot of constructed area. The appellants' version of the rate is falsified by this document. The finding of the learned trial Court touching the rate cannot but be affirmed.

26. It is difficult to endorse the learned trial Court's awarding of amount of rent paid by the respondent as compensation to him. It was no part of the agreement that the respondent could stop paying rent before actual sale of the property. As a matter of fact he took on rent a portion of the property in dispute on the 10th February, 1974, from appellant 1 and on the 28th March, 1975, moved an application before the Rent Controller for fixation of fair rent of that portion. In that application he did not assert that he was in any way entitled to hold the property in dispute without payment of rent under the agreement of sale. He made no claim for compensation either in the suit brought by him. In the circumstances the amount of Rs.28,450 paid by him as rent could not be adjusted against the price payable by him. He could only claim adjustment of Rs.55,000 which had indisputably been paid to the appellants. He was liable to pay Rs.1,16,497.90.

27. The contention of the learned counsel for the appellants that the contract was not specifically enforceable under section 21(c) of the Specific Relief Act, 1877, which was not raised before the learned trial Court nor incorporated in the memorandum of appeal, is simply not maintainable because there is no difficulty in ascertaining the terms of the contract. His plea that the discretionary relief of enforcement of contract should not be granted to the respondent is equally without force. He had all along been ready and willing to perform his part of the contract, fault rather lay with the appellants who had unjustifiably been claiming enhanced price.

28. In view of what has been said above, the appeal is partially accepted and the decree of the learned trial Court is modified to the) extent that the respondent will pay Rs.1,16,497.90, instead of Rs.88,047.90, as balance of the sale price to appellant

1. The respondent is given six months' time to make the requisite payment. Any payment already made in obedience to the decree of the learned trial Court will be deemed to be part of Rs.1,16,497.90 and the respondent will make up the shortfall. The parties are left to bear their own costs. A.A./A‑402/L Appeal partly accepted.