1983 PLP 559 (SCMR)

Art. 185 (3)‑Leave to appeal‑Point neither specifically pleaded before courts below nor evidence adduced‑Held, cannot be allowed to be raised before Supreme Court. Bashir Ahmad Ansari, Advocate Supreme Court instructed by Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioners. Kh. Muhammad Farooq, Advocate Supreme Court instructed by, M. Kaukab Iqbal, Advocate‑on‑Record for Respondents. Date of hearing : 10th April. 1983. M. S. H. QURAISHI, J.‑The petitioners are defendants against whom a decree for specific performance of agreement to sell House No. U/103, Kucha Sher Singh, Rawalpindi, was passed, against which their Regular First Appeal was dismissed by the High Court by the impugned judgment dated 14‑11‑1982.

2. The petitioners had entered into an agreement on 23‑2‑1976 to sell the house and had received Rs. 25,000 out of the total consideration of Rs. 73,

000. Three months' time had been allowed by the agreement for, Impletion and registration of the sale‑deed. Before the expiry of this period, however, the parties entered into a second agreement on 18‑5‑1976, whereby the date for completion of the transaction was extended up to 30‑6‑1976. It was the ease, of the plaintiffs that they were ready to perform their part of the agreement , but that they could not do so because the defendants refused to receive communication from them and as many as three registered letters sent to them were returned as refused. In view of the pleas raised by the defendants, the following two issues were framed (1) Whether the plaintiffs have failed to perform their part of the contract ? O. P. A. (2) Whether the plaintiffs are entitled to the specific performance of the contract ? O. P. D. After examining the evidence, both the Courts below found issue No. 1 against the defendants and held that it was they who had defaulted in the performance of their pact. Nothing substantial had been urged in respect of the other issue before the trial Court but an argument had‑ been built before the High Court that time was of the essence of the contract and as such the contract had become frustrated upon the expiry of the period specified for the completion of the transaction. But the argument was repelled and it was held on the basis of Abdul Hamid v. Abbas Bhai‑Abdul Hussain (P L D 1962 S C 1), Pakistan v. Lodhi House (P L D 1968 Lah. 923) and Easabhoy v. Saboor Ahmad (PLD1973SC39) that the right of the plaintiffs to get the sale‑deed registered was not restricted to the time given in the agreement and would survive for a further reasonable time.

3. Learned counsel for the petitioners/defendants has reiterated before us that time was of the essence of the contract. While we have no reason to disagree with the view taken in this regard by the High Court, we feel that the contention side‑tracks the main point whether the petitioners were themselves guilty of preventing the completion of the transaction within the time. If they were guilty, as has been rightly held by the Courts below after a careful examination of the evidence, they could hardly plead that time was of the essence of the contract.

4. The other point urged on which learned counsel laid much stress was that the contract could not be specifically performed. For this, he drew our attention to certain portion in the subsequent agreement dated 18‑5‑1976 which had been scored out at the time of the execution and which was to the effect that in case the defendants failed to execute the deed in time, the other party, that is, the plaintiffs, could get the registration done through Court or sue for double the amount advanced. The argument was that this portion had been deleted at the petitioners', instance for the sole purpose of denying the plaintiffs the right to have the agreement specifically performed. However, no such plea had been taken in their written statements nor an issue framed nor evidence led. The point had been vaguely included in paras. 4 and '5 of the memorandum of appeal but does not appear to have t been raised during the hearing of the arguments because the High Court's judgment is totally silent about it. Learned counsel concedes that if the document was read without the scored out portion, then specific performance could not be legally resisted. In such situation, the real intention of the parties in deleting the scored out portion was a point which had to be specifically pleaded and evidence adduced. That not having been done, the point cannot be allowed to be raised at this stage. Nor does the material on record substantiate the assertion. The petition is, therefore, without merit and is accordingly dismissed. Petition dismissed.