2010 PLP 286 (SCMR)

CH. IJAZ AHMED, J.

We intend to decide captioned appeals by one consolidated judgment having similar facts and law arising out of the common impugned judgment of the Lahore High Court, Lahore, dated 13-9-2001.

2. Detailed facts have already been mentioned in the impugned judgment and grounds of appeals. However, necessary facts out of which Civil Appeal No.943/2002 arises are that an agreement to sell was executed between the appellant/defendant and respondent/plaintiff on 15-6-1986 in respect of his immovable landed agricultural property measuring 24 Kanals 18 marlas 3 sarsaies situated in Chak No.197/R.B., Tehsil and District Faisalabad at the rate of Rs.1,07,000 per killa. Appellant/defendant received Rs.70,000 as earnest money from the respondent/plaintiff. A receipt was also written in token of earnest money. The time for execution of sale deed and payment of remaining amount of consideration was fixed from 15-6-1986 to 5.6-1987. The appellant/defendant was called by respondent/plaintiff on 4-6-1987 to execute the sale-deed through telegraphic message but he came on 6-6-1987 and refused to get the sale deed executed in favour of the respondent/plaintiff. Respondent/plaintiff being aggrieved filed suit No.21/1987 on 6-7-1987 for possession through specific performance of the contract dated 15-6-1986 in the Court of Civil Judge, First Class, Faisalabad. The appellant/defendant filed written statement controverted the allegations levelled in the plaint. Out of the pleadings of the parties the trial Court framed the following issues:-- "(1) Whether the plaintiff has got no cause of action and locus standi to bring the present suit? (2) Whether the suit of the plaintiff is mala fide and the defendant is entitled to special costs under section 35-A C.P.C? If so, to what extent? OPD. (3) Whether the plaintiff is entitled to a decree for possession through specific performance of contract dated 15-6-1986 on the grounds alleged in the plaint? If so, on what terms and conditions? OPP (4) Relief." Necessary facts out of which Civil Appeal No. 944/2002 arises are that an agreement to sell was executed between respondent/plaintiff and predecessor in interest of appellant/defendants namely Wali Muhammad on 15-6-1986 in respect of immovable agricultural landed property measuring 72 kanals 12 marlas situated in Chak No.197/RB, Tehsil and District Faisalabad at the rate of Rs.1,07,000 per Kila. Predecessor in interest of the appellants/defendants received Rs.1,40,000 as earnest money from respondent/plaintiff. Receipt was also written in token of earnest amount. According to the terms and conditions of the agreement the remaining amount was to be paid from 15-6-1986 to 5-6-1987 and the registered sale deed was to be executed within the aforesaid stipulated time. Predecessor-in-interest of the appellants/ defendants was called by respondent/plaintiff on 4-6-1987 to get the sale deed executed through telegraphic message but he came on 6-6-1987 and refused to get the sale deed executed in favour of the respondent/plaintiff. Respondent/plaintiff being aggrieved filed suit for possession through specific performance of agreement dated 15-6-1986 in the Court of Civil Judge Faisalabad on 6-7-1987. Predecessor in interest of the appellants/defendants filed written statement controverted the allegations levelled in the plaint. Out of the pleadings of the parties the learned trial Court framed the following issues: "(1) Whether the plaintiff is estopped to bring this suit by his act and course of conduct? OPD. (2) Whether the plaintiff has not come in the Court with clean hands, if so, with what effect? OPD. (3) Whether this Court lacks jurisdiction to try the present suit? OPD. (4) Whether the suit of the plaintiff is false, vexatious .and has been brought to harass and blackmail the defendant and the defendant is entitled to special costs under section 35-A of C.P.C, if so, to what extent?. OPD (5) Whether the plaintiff is entitled to a decree for possession through specific performance of the agreement dated 15.6-1986 on the grounds alleged in the plaint, if so, on what terms and conditions? OPP. (6) Relief." The learned trial Court after completing the legal formalities such as recording the evidence of the parties and hearing of the arguments dismissed the suit of the respondent/plaintiff vide two separate judgments dated 30-6-1992. Respondent/plaintiff being aggrieved filed R.F.A. Nos.207/1992 and 208/1992 in the Lahore High Court. The learned High Court accepted the appeals vide impugned judgment dated 13-9-2001. Hence the present appeals.

3. It is pertinent to mention here that the appellants filed C.P. Nos.3541-L of 2001 against the impugned judgment before this. Court on 10-2-2001. The aforesaid petitions were fixed before this Court on 3-7-2002 and the following order was passed:-- "The valuation of the suit for the purpose of court-fee in each suit fixed in the plaint was Rs.1,07,

000. The judgment of the High Court is of reversal and valuation of the subject-matter of the suit being more than Rs.50,000 therefore, direct appeal lies against the judgment as a matter of right. The petitioners filed these petitions on 10-2-2001 and limitation for filing direct appeal is 30 days therefore, prima facie these petitions when filed were within limitation. The petitioners are hereby allowed time to make up deficiency of court-fee within a week. The office is directed to register these petitions thereafter as direct appeals. On filing of the court-fee stamp by the petitioners, C.M.A. Nos. 936-L and 938-L of 2002 shall be fixed on the next day. "

4. The learned counsel of the appellants submits as under:-- (i) The learned High Court had erred in law to reverse the judgment of the trial Court without adverting to the reasoning of the trial Court. (ii) The learned High Court had reversed the finding of the trial Court on surmises and conjectures without adverting to the contents of the agreement to sell Exh.PI as well as oral evidence on record. (iii) The target date was fixed in both the agreements to sell for their completion, therefore, time was essence of the contract and this fact was considered in its true perspective by the learned High Court while reversing the finding of the trial Court. (iv) Appellants had proved through documentary as well as oral evidence that appellants were ready and willing to perform their part of the ,agreement till the target date agreed between the parties in terms of the agreements executed between the parties till 5th June, 1987. (v) The learned High Court had also erred in law to decide the case against the appellants/defendants in spite of the fact that respondent/plaintiff neither appeared himself nor his general attorney appeared in the witness box whereas P.W.4 Rana Irshad Ahmed showing himself special attorney of the respondent/plaintiff appeared as witness before the trial Court, therefore, the learned High Court was not justified to decree the suit of the respondent/plaintiff. (vi) Appellants/defendants attended the office of the sub-registrar on 5-6-1987 for receiving the remaining amount from respondent/plaintiff. The Office of the Sub-Registrar was closed on account of Friday (holiday). (vii) Appellants again on 6-6-1987 had gone to the office of the Sub-Registrar along with Amir Hamza, Manager, National Bank of Pakistan and Muhammad Sarwar, Chowkidar of the Bank for receiving the amount from respondent/defendant but he did not turn up.

5. The learned counsel of the respondent submits that facts admitted by the parties need not to be proved as envisaged by the provisions of Qanun-e-Shahadat Order 1984. Agreements to sell and receipt qua receiving earnest money in both the agreements were admitted by the appellants/defendants. The learned High Court was justified to reverse the finding of the trial Court which was in consonance with the law laid down by the superior Courts. Respondent/plaintiff did not appear in the witness box to prove the contents of the plaint but his special attorney P.W.4 Rana Irshad Ahmed appeared before the trial Court to prove the contents of the plaint. According to the terms and conditions of the agreements to sell appellants/defendants agreed to sell the land in question to the respondent/plaintiff at the rate of Rs.1,07,000 per Killa. As agreements were executed between the parties on 15-6-1986, therefore, the learned counsel for the respondent made a statement at the Bar that the respondent/plaintiff was ready to pay. Rs.2,00,000 per Killa to the appellants/defendants as price of the suit land. Appellants/defendants executed agreements in favour of the respondent/plaintiff even the share of his sister Mst. Shamim Akhtari who had filed an application before the trial Court under Order I, Rule 10, C.P.C. which was dismissed by the trial Court vide order dated 23-1-1989 on the ground that she has not executed agreement in question dated 15-6-1986. Learned counsel has made a statement at the Bar after seeking instructions from respondent/plaintiff that the respondent/plaintiff is ready to pay Rs.5,00,000 per Kila to the appellant/defendant as price of the suit land.

6. He further submits that appellants had to file direct appeals against the impugned judgment of the High Court in terms of Article 185(2)(d)(3) of the Constitution which were entertained as direct appeals under the order of this Court dated 3-7-2001 by that time the appeals had become time barred. The learned counsel for the respondent did not press that the appeals may be dismissed as time barred, as petitions were filed against the judgment within time but petitions were entertained as direct appeal vide order of this Court, dated 3-7-2001.

7. The learned counsel for the appellants in rebuttal submits that learned High Court had erred in law to reverse the judgment of the trial Court. The offer of respondent's counsel was not accepted by the counsel of the appellants/defendants after securing instruction from the appellants defendants.

8. We have given our anxious consideration to the contentions of the learned counsel of the parties and perused the record. It is better and appropriate to reproduce the basic facts of the case in chronological order in order to resolve the controversy between the parties as under:-- (i) Agreements to sell were executed between the parties on 15-6-1986. (ii) The receipts were also written in token of receiving earnest money on 15-6-1986. (iii) Time for execution of sale deed and payment of earnest amount of consideration was fixed as 5-6-1987 in both the agreements. The aforesaid facts are admitted between the parties. The following facts are controverted between the parties: (i) According to the respondent/plaintiff, the appellant/defendant was called on 4-6-1987 by the respondent/plaintiff to get the sale deed executed through telegraphic message. (ii) Appellant/defendant came on 6-6-1987 and refused to get the sale deed executed in favour of the respondent/plaintiff. (iii) Appellant Muhammad Hussain and Wali Muhammad, predecessor in interest of the appellants in C.A. No. 944/2002, attended the office of the Sub-Registrar on 6-6-1987 along with Amir Hamza, Manager National Bank to receive the remaining amount and performance of agreement but the respondent/ plaintiff did not turn up nor paid the remaining amount to the appellant/defendant. The learned trial Court dismissed the suits vide judgments dated 30-6-1992 on the following grounds:

(i) Time is essence of the contract. (ii) Respondent/plaintiff failed to appear in the witness box. The learned High Court had reversed the finding of the trial Court vide impugned judgment by observing as under:-- "Time mentioned in the agreements to sell qua immovable property is not essence of the contract." Non-appearance of the respondent/plaintiff is not fatal in the given circumstances of the case in hand when his special attorney had appeared before the trial Court to support the contents of the plaint.

9. The appellant did not file direct appeals in terms of Article 185(2) and (3) as evident from the order dated 3-7-2002 passed by this Court on the petitions filed by the appellants and the office was directed to register the petitions as direct appeals vide order dated 3-7-2002.

10. In case the aforesaid facts are put in juxtaposition with regard to the execution of agreement and target date for completion of agreement between the parties is 5-6-1987 whereas the respondent/plaintiff had filed suits against the appellant/defendant 6-7-1987. Keeping in view the contrary stands taken by the parties referred to hereinabove one can come to the conclusion that both the parties are at fault respectively towards the performance of their specific obligations arising out of agreements to sell dated 15-6-1986. This fact is fully borne out from the legal notices and their replies inter se parties. It can, therefore, be safely held that according to section 55 of the Contract Act, time was not the essence of the contract as law laid down by this Court in Abdul Hamid's case (PLD 1962 SC 1). It is settled law that first appellate Court has a right to reverse the finding/conclusion of the trial Court while exercising power under section 96 of the C.P.C. subject to the condition that first appellate Court has to meet the reasoning of the trial Court in the first instance and thereafter reappraise the evidence on record while reversing the finding of the trial Court as law laid down by this Court in Madan Gopal's case (PLD 1969 SC 617). The learned High Court had reversed the judgment of the trial Court within the parameters prescribed by this Court in the aforesaid judgment as evident from para 8 of the impugned judgment. The learned High Court had reversed the finding of the trial Court in terms of the law laid down by this Court and the Privy Council that time is not the essence of the contract between the parties in spite of the fact that time was fixed in the contents of the agreement agreed between the parties with regard to the sale of immovable property. The learned High Court reversed the finding in view of the dictum laid down in the following judgments:-- (i) Jamshed's case (AIR 1915 PC 83) (ii) Seth Essabhy's case (PLD 1973 SC 39) (iii) Nisar Muhammad Khan's case (PLD 1965 SC 690) Similarly the learned High Court had reversed the finding with regard to non appearance of the respondent/plaintiff in the witness box in view of the dictum laid down by the Lahore High Court in the following judgments: (i) Muhabat's case (PLD 1970 Lah.303) (ii) Haji Muhammad Younas's case (PLD 1997 Lah. 153) It is settled principle of law that in judging the fairness of the contract the Court will look not merely at the terms of contract itself but all the surrounding circumstances. Applying this principle to facts of the case before us we find that besides the weighty considerations that find favour that the learned judges of the Division Bench in accepting the specific performance of agreement to sell, it does not suffer inherently from ambiguities. It is also "settled law that no doubt, grant of decree for specific performance was discretionary with the civil Courts but the said discretion cannot be used arbitrarily and it had to be exercised judiciously on sound principle. The learned trial Court had erred in law not to exercise its discretion in favour of respondent/plaintiff in view of the circumstances of the case in hand whereas the learned High Court was well within its right to exercise the discretion in favour of the respondent/plaintiff. We have re-examined the evidence on record. It is clear that the respondent/plaintiff had proved his readiness and willingness to perform his obligation under the agreement and also filed the suit without delay and the appellant/defendant avoided the execution of sale deed as evident from judgment of trial Court and High Court wherein it was observed that respondent/plaintiff was ready to purchase the land in question at the rate of Rs.2 lac per acre instead of Rs.1,07,000 agreed between the parties. Even offer was made before us to purchase the land in question at the rate of Rs.5 lac per acre. It is better and. appropriate to reproduce paras of the plaint and written statement along with operative parts of the judgment of the trial Court as well as the High Court to resolve the controversy between the parties:-- Plaint "That the representative of the plaintiff namely Muhammad Ummar visited the house of the defendant on 3-6-1987 who requested the defendant to get the sale deeds registered on 4-6-1987. A solemn promise was given by the defendants, the execution of the sale deed on 4-6-1987, but the defendant, did not come. The plaintiff issued a notice to the defendant. The copy of the notice and the receipt of the acknowledgement is attached herewith the plaint. That on 4-6-1987 the defendant was called to get the sale deed executed through a telegraphic message but the defendant came on 6-6-1987 and refused to get the sale-deed executed in favour of the plaintiff, hence the cause of hostility arose against the defendant. That the cause of action firstly arose on 4-6-1987 when the defendant did not come to the office of Sub-Registrar to get the sale deed executed on 4-6-1987 and lastly on 6-6-1987 when the "defendant refused to get the sale deed executed in favour of the plaintiff." Written Statement Judgment of the Trial Court In the circumstances discussed above, it is proved that plaintiff has been unable to perform his part of the agreement uptill the stipulated date mentioned in the agreement. On the other hand the defendants have been ready and willing to perform their part of the agreement." Judgment of the High Court Since the value of the suit land has been appreciated meanwhile pending litigation between the parties, and P.W.4 Rana Irshad Ahmad, Advocate, stated before the Court that the appellant is ready to pay Rs.2 lac per killa as consideration for the land owned by the respondent measuring 18 kanal, 3 marlas. Further the appellant while arguing the appeal made a statement at the Bar that price of the land shall be paid as Rs.2 lac per killa thereof. For what has been discussed above, this appeal is accepted, judgment and decree dated 30-6-1992 of the Civil Judge, Faisalabad dismissing the suit of the appellant is set aside. Suit for possession through specific performance of the contract dated 15-6-1986 is decreed to the extent of land measuring 18 kanals 3 marlas owned by the respondent Muhammad Hussain subject to payment of Rs.2 lac per killa as consideration for the suit land within a period of two months from today by the appellant to the respondent, failing which the suit of the appellant-plaintiff shall be deemed to have been dismissed. The appeal is accepted with costs." It is pertinent to mention here that this fact was also noted in the judgment of the trial Court in the following terms in para 7:-- "The defendant was, therefore, offered to sell the suit land at the rate of Rs.2 lac per acre. He did not agree". Agreements to sell were executed between the parties on 15-6-1986. The suits were decreed on 30-6-1992 after considerable delay. We have also observed that the agreement were executed on 15-6-1986 and parties are in litigation since 1986. On account of lapse of long time consisting of about 23 years, the value of the suit-land has been increased. The agreements to sell were executed at the rate of Rs.1,07,000 whereas the respondents/plaintiff agreed to purchase the same at the rate of Rs.2,00,000 per acre as offered by his counsel which was accepted by the learned High Court vide impugned judgment dated 13-9-2001. The respondent/plaintiff had deposited the said amount in terms of the direction of the learned High Court within the stipulated period of two months. The learned counsel of the respondent/plaintiff has also offered under the instructions of the respondent/plaintiff to purchase the land in question before us at the rate of Rs.5,00,000 per acre whereas the appellant/defendant had claimed that the land in question was not less than Rs.12,50,000 per acre in the year 1998, therefore, he did not accept the offer of learned counsel of respondent/defendant. Be that as it may, it is well settled law that in the contract relating to immovable property time is not generally the essence of the contract in the failure to perform part of the contract by the date fixed in the agreement to sell i.e. for execution of sale deed is not a ground for refusing specific performance unless the circumstances must be highlighted and proved by the owner of the land that time is essence of the contract in view of the law laid down by this Court in various pronouncements. See Abdul Hamid's case (PLD 1962 SC 1) Seth Essabhy's case (PLD 1973 SC 39). Appellant/defendant had failed to prove the circumstances in terms of law laid down in the aforesaid judgments of this Court. Section 22 of the Specific Relief Act gives discretion to a Court to grant of specific performance but the mandate of law is that this discretion must be exercised on sound judicial principles and not in arbitrary manner. We are of the considered view that by allowing the appeal the learned appellate Court exercised discretion based on sound judicial principles without misreading of evidence and without ignoring some important pieces of evidence on record. The learned High Court was justified to reverse the finding of the trial Court by observing that non-appearance of respondent/plaintiff is not fatal as his special attorney P.W.4 Rana Irshad Ahmed appeared in the Court. The judgment of the learned High Court is in consonance with the law laid down by this Court in Mir Ajam Khan's case (2006 SCMR 1927). This Court laid down the aforesaid principle after considering basic judgment of the Privy Council. We have perused the record minutely and have come to the conclusion that since after execution of agreements, the value of the land in question has been appreciated due to which both the parties did not want to implement the agreements in question in letter and spirit and avoided to act in terms of the agreement and had tried their level best to blame each other for non-compliance of the agreements in question. It is settled proposition of law that constitutional jurisdiction under Article 185 is discretionary in character and it has rightly been held to be so. See Haji Saifullah Khan's case (PLD 1989 SC 166) wherein it is held while exercising discretionary power this Court even after recording the evidence on controversial issues in favour of the appellants/petitioners declined to grant relief under Article 185 of the Constitution. There are various parameters prescribed by this Court in various pronouncements to refuse to exercise equitable discretionary relief in favour of the appellants/petitioners on the following well known maxims:

(i) He who seeks equity must come with clean hands. (ii) Law favours who are vigilant qua their rights. (iii) The purpose of exercising the discretionary jurisdiction is to see that justice is rendered according to the rule of equity and good conscience. The following are the matters for consideration for the exercise of direction:-- (i) Bad faith (ii) Dishonesty (iii) Unreasonableness of the decision (iv) Constitutional remedies being extraordinary, no one is entitled to claim as of right exercise of discretionary power. It is pertinent to mention here that appellants had filed petitions against the impugned judgment of the Lahore High Court on 10-2-2001 and office was directed by this Court to register the petitions as direct appeals vide order dated 3-7-2002 in the absence of the respondent/plaintiff by observing prima facie filed within time. Limitation in direct appeals is thirty days. Petitions, when filed, were within the limitation which, had become time-barred when office was directed by this Court vide order dated 3-7-2002 to be treated as appeals. It is an admitted fact that appellant did not file direct appeals in terms of Article 185(2)(d)(e) and (3) of the Constitution of the Islamic Republic of Pakistan as evident from order dated 3-7-2002 reproduced hereinabove. There is divergent view of this Court qua dismissing the appeals as time barred or entertaining the appeals considering to be filed within time. Recent trend of this Court to dismiss the appeals as time-barred. See Ghulam Muhammad's case (2007 SCMR 41), Ashiq Hussain's case (2005 SCMR 1371) and Rukhsana Parveen Nazeer's case (2008 SCMR 55). The following are the judgments wherein the delay was candoned in such like cases:-- (i) Khurshid Anwar Khan's case (1992 SCMR 1202) (ii) Taza Gul's case (2006 SCMR 504) (iii) Muhammad Inayat's case (2003 SCMR 875) As the appellant did not file direct appeals within time, therefore, keeping in view this conduct of the appellant we are not inclined to exercise discretion in favour of the appellant while exercising our discretion under Article 185 of the Constitution without adverting to the divergent view of the Court regarding condonation of delay in filing petitions instead of appeals or not. It is also admitted fact that respondent/plaintiff had deposited huge amount of sale consideration s amounting to Rs. fifty lac in the year 2001 in terms of impugned judgment. It is settled principle of law that each and every case is to be decided on its own peculiar circumstance and facts as law laid down by this Court in Muhammad Saleem's case (1994 SCMR 2213). It is also an admitted fact that agreements to sell were executed between the parties on 15-6-1986. Parties had to complete the formalities in terms of the agreement till 5-6-1987 but as mentioned above both the parties were at fault. Undoubtedly on account of lapse of 23 years, the value of the price, has, to some extent, diminished due to devaluation of the currency while price of the properties have increased due to trend of increase in the price of immovable properties in the market. It appears that the price of the land in question was increased during specific period as mentioned in the agreement to sell. This fact is also borne out from the impugned judgment as respondent agreed to purchase the land in question for Rs.2,00,000 per acre instead of Rs.1,07,000 and the fact was also mentioned in the judgment of the trial Court as reproduced hereinabove. Even respondent is ready to purchase the land in question for Rs.5,00,000 per acre as offer was made by the respondent/plaintiff before us which was not accepted by the appellant's counsel. This being so while looking the enforcement of the contracts, we feel that appellants are also to be allowed additional compensation.

11. In view of what has been discussed above appeals are dismissed keeping in view the aforesaid aspect and circumstances of the cases subject to the payment of Rs.6 lac per acre as consideration for the suit land by the respondent/plaintiff to the appellants/defendants within a period of two months from the date of receipt of this judgment failing which the suit of the respondent/plaintiff shall be deemed to have been dismissed. The appeals are dismissed in the aforesaid terms/observations. (Sd.) CH. IJAZ AHMED, J I agree, but have added a separate note of my reasons for doing so. (Sd). JAWWAD S. KHAWAJA, J JAWWAD S. KHAWAJA, J.

I have gone through the judgment of my learned brother Ch. Ijaz Ahmed J. and agree with the decision as contained in the final paragraph thereof. I would, however, wish to add a brief note of my reasons for doing so.

2. I am in respectful agreement with the conclusion reached by my learned brother and by the High Court in its judgment dated 13-9-2001, that in the facts of these two cases, time of payment of the balance amount was not of the essence of the agreement. The pleadings of the parties and the evidence on record have been thoroughly examined by the High Court, which has correctly concluded that the respondent/plaintiff w had proved that he was ready and willing to perform his part of the bargain. Learned counsel appearing for the appellants was unable to advert to any infirmity in these findings recorded by the learned Bench of the High Court.

3. In addition to the above circumstances, my inclination, based on the latest case law, is that the appeals may be time barred. However, in view of the divergence of opinion on the question, I would leave for another day and a more appropriate case, the resolution of such divergence.

4. While agreeing with the decision recorded in the final paragraph of the judgment proposed by my learned brother Ch. Ijaz Ahmad J, I would confine myself to the reasons recorded above. S. A.K./M-105/S Appeals dismissed.