2005 PLP 774 (MLD)

Briefly stated the facts of the case, as discernible from the available record, are that the petitioner filed the suit for specific performance of agreement to sell dated 15-5-1995, executed between the parties, regarding the land measuring 9 Kanals, 15 Marlas (hereinafter referred to as suit-land), for a consideration of Rs.65,000, out of which a sum of Rs.10,000 was received by the respondent and the balance sum of Rs.55,000 was to be paid before the sub-Registrar at the time of the execution of the sale-deed. It was the case of the petitioner that on the date fixed in the agreement, he remained present in the office of the Sub-Registrar, but the respondent did not turn up to execute the sale-deed and thus, he was constrained to file the suit for specific performance. The suit was contested by the respondent through filing the written statement, thereby admitting the execution of the agreement to sell, however, pleading that on the fixed date, he attended the office of the Sub-Registrar and also filed an application for marking his presence before the Sub-Registrar, but as the petitioner failed to come to the office of Sub-Registrar, therefore, he is responsible for non-execution of the sale-deed, and his earnest money of Rs.10,000 stood forfeited. The learned trial Court framed the necessary issues, recorded the evidence of the parties and ultimately dismissed the suit, vide judgment and decree dated 30-5-1998. Petitioner's appeal was also dismissed by the learned Addl. District Judge, vide judgment and decree dated 29-1-2004, hence the present revision petition.

2. The learned counsel for the petitioner has contended that in contracts for the sale of immoveable property, time is not the essence and both the Courts have rendered the impugned judgments in complete oblivion of the settled law on the subject. He has relied upon Muhammad Anwar and 8 others v. Bahan and another (2000 YLR 378), Seth Essabhoy v. Saboor Ahmad (PLD 1972 SC 39) and Abdul Hamid v. Abbas Bhai Abdul Hussain Sodawaterwala (PLD 1962 SC 1). He has further submitted that the learned trial Court, without any legal justification and cogent reasons, closed the right of the petitioner to produce the evidence in rebuttal, vide order dated 11-5-1998 thus the said order is not sustainable in law. Conversely, the learned counsel for the respondent, while supporting both the judgments, has submitted that the petitioner, was not ready with the balance amount and unable to perform his part of the contract and as such, both the Courts have rightly refused to grant the discretionary relief to the petitioner. He has further submitted that the petitioner has not been able to make out a case of misreading and non-reading of evidence.

3. As noted above the petitioner/vendee through the filing of the suit, sought specific performance of agreement to sell dated 15-5-1995 (Exh.P.1), execution and contents whereof were not denied by the respondent/vendor. The only defence taken by the respondent was that the date of completion, stipulated in the agreement to sell, was 15-5-1996 and as on the said date, the petitioner failed to attend the office of the Sub-Registrar, therefore, he is not entitled for the specific performance of the contract and the earnest money stands forfeited. It would be appropriate to reproduce para. 3 of the written statement, which reads as follows:-- Urdu Page 776 It is evident from the defence pleaded by the petitioner, as noted above, that his only case was that as the time was the essence of the contract, therefore, the petitioner is not entitled for the relief, claimed in the suit. The only pivotal point, around which whole of the controversy revolves, is as to whether under the law, in the contracts regarding sale of immoveable property, the time is essence of the contract.

4. It appears appropriate to go through some case-law on the subject. While interpreting section 55 of the Contract Act, the Hon'ble Supreme Court of Pakistan in the case reported as Seth Essabhoy v. Saboor Ahmed (PLD 1973 SC 39) has held that: "It is well-settled principle of law that in contracts relating to immovable property, time is not of the essence of the contract, and the claim of the appellant, even if it were accepted that he had given three days' notice to the respondent for completion of the contract, failing which it would come to an end, cannot at all be considered to be reasonable time." Learned Division Bench of this Court, in the judgment reported as Muhammad Nawaz Khan v. Mst. Farrukh Naz (PLD 1991 Lahore 238), while relying upon the cases of Abdul Hamid v. Abbas Bhai = Abdul Hussain Sodawaterwala (PLD 1962 SC 1) and Seth Essabhoy, ibid, has held as under:-- "Be that as it may, it is by now well-settled that in the contracts relating to immovable properties time is not of essence and the failure to perform part of the contract by the date fixed in the agreement for sale i.e. for executing sale-deed is not a ground for refusing specific performance. If any authority is needed, reference may be made to Abdul Hamid v. Abbas Bhai Abdul Hussain Sodawaterwala (PLD 1962 SC 1) and Seth Essabhoy v. Saboor Ahmad (PLD 1972 SC 39)." Same view was adopted by this Court in the judgment reported as Muhammad Anwar and 8 others v. Bahan and another (2000 YLR 378) and Muhammad Ramzan v. Abdullah and others (2000 YLR 398). It flows from the examination of the aforenoted law declared by the apex Court of the country and the principle of law laid down by this Court that in contracts for the sale of immovable property, time is not of the essence of the contract.

5. Now coming to the judgment rendered by the First Appellate Court. Although the crucial dispute between the parties, as is evident from the issues framed in the case and the record of the case, as noted above, was as to whether in this case time was of the essence of the contract or not, but the learned Additional District Judge, in complete oblivions of the facts of the case, has held that it is not disputed between the parties that the completion of contract on target date i.e. 15-5-1996, was of the essence of the contract. This shows that the learned Additional District Judge did not apply his judicial mind to the facts of the case and law applicable thereto and is a sufficient ground for setting aside the impugned judgment. Additionally, the judgment rendered by the learned Additional District Judge is contradictory, inasmuch as on the one hand, it has been held that "it means that it is not disputed between the parties that completion of contract on the target date 15-5-1996, was essence of the contract" and on the other hand it has been held that "I am of the considered view that 15-5-1996, the target date, was the essence of the contract which the plaintiff asserted in the plaint but could not prove so, he is not entitled for discretionary relief". In the above perspective, I earnestly feel that the learned Additional District Judge has completely misdirected itself, inasmuch as the impugned Judgment was passed in complete oblivion of the facts of the case and law on the subject, as noted above, hence the said judgment is not sustainable in law.

6. Similarly, the learned trial Court has also erred in law in coming to the conclusion that in this case time was of the essence of the contract, whereas the law declared by the apex Court of the country negates the said findings. The judgment rendered by the learned trial Court is contrary to the law on the subject, hence the same deserves to be set aside.

7. In the above perspective, I have examined both the judgments and find that both the Courts, while rendering the impugned judgments, did not consider the settled law on the subject, inasmuch as the law declared by the apex Court of the country has completely been ignored. Both the Courts, obviously, acted illegally and with material irregularity, while rendering the impugned judgments, thus, I am inclined to set aside both the judgments, while invoking the revisional jurisdiction of this Court.

8. Upshot of the above discussion is that the present revision petition is allowed and both the judgments and decrees are set aside with no order as to costs. Resultantly, petitioner's suit for the specific performance of agreement dated 15-5-1995 shall deem to be pending before the learned Civil Judge, Daska, who shall re-write the judgment on the basis of existing record, after hearing the parties and in view of the findings of this Court and decide the suit afresh on or before 15-2-2005. M.B.A./M-842/L Case remanded.