2016 PLP 197 (YLRN)

MAHMOOD AHMAD BHATTI, J.

This revision petition is directed against the judgments and decree dated 6.6.2006 and 2.4.2007 passed by the learned Civil Judge, Daska and an Additional District Judge, Daska, District Sialkot, whereby the suit of Muhammad Ayub, the respondent was decreed and an appeal preferred thereagainst was dismissed.

2. Tersely stated, the facts are that Muhammad Ayub, the respondent instituted a suit for possession through specific performance, averring therein that Abbas Ali, the petitioner herein entered into an agreement to sell dated 15.5.1995 with him in respect of land measuring 09 Kanals, 15 Marlas, situated in Mauza Dholeke, Tehsil Daska, District Sialkot for a consideration of Rs.65,000/-, out of which he received an amount of Rs.10,000/- as earnest money. This agreement was duly registered in the office of Sub-Registrar, Daska. The petitioner/defendant was to execute a registered sale deed in favour of the plaintiff/respondent by 15.5.1996, on receipt of the balance sale consideration amounting to Rs.55,000/-.

3. The defendant entered appearance and filed written statement. He did not deny execution of the agreement to sell, but he took the plea that time was the essence of the agreement and the plaintiff himself was at fault, who made no effort to fulfil his part of the agreement within the stipulated period, resulting in the rescission of the agreement.

4. The pleadings of the parties gave rise to the following issues:- "1) Whether this suit is incompetent in its present form? OPD 2) Whether the plaintiff has not come to the Court with clean hands? OPD 3) Whether the description of the disputed land is incorrect, if so, what is the correct description? OPD 4) Whether due to the fault of the plaintiff the sale agreement dated 15.5.1995 was not executed? OPD 5) Whether the plaintiff was ready to perform his part of the agreement on 15.5.1995 and it was not executed due to the fault of the defendant? OPP 6) Relief."

5. Following the framing of the above-mentioned issues, the plaintiff/ respondent produced Shamas Din as P.W.2, Chaudhry Gulzar Ahmad Goraya as respondent No.3 and he himself appeared as P.W.I. In documentary evidence, he produced a certified copy of the agreement to sell as Exh.P.1 and an extract from the Register Haqdaran-e-Zamin as Exh.P.2. The latter document was produced to show that the vendor was owner of the suit land. In rebuttal, the petitioner/defendant produced Muhammad Ibrahim as D.W.2 and he examined himself as D.W.1. He also produced application in original made by him to the Tehsildar/Sub-Registrar, Daska as Exh.D.1.

6. Before proceeding further, it is pertinent to mention that earlier, the suit of the plaintiff was dismissed vide judgment and decree dated 30.5.1998. An appeal preferred thereagainst by the respondent/ plaintiff also met the same fate, which was dismissed vide judgment and decree dated 29.1.2004 passed by an Additional District Judge, Daska. However, the fortune smiled on him when his revision petition bearing No.1107 of 2004 was allowed by this Court by the judgment and decree dated 10.1.2005, whereby both the judgments and decrees passed by the learned Courts below were set aside and the case was remitted to the learned trial Court for re-writing of the judgment on the basis of the existing record, after hearing the parties. As it is, the petitioner herein filed Civil Petition No.400-L of 2005, which was dismissed by the Hon'ble Supreme Court of Pakistan on 14.4.2006. In post-remand proceedings, the plaintiff succeeded in persuading the learned trial Court that he was not at fault in fulfilling his part of the agreement and that time was not the essence of the agreement, with the result that his suit was decreed vide the impugned judgment and decree dated 6.6.2006. Feeling aggrieved, the petitioner herein preferred an appeal, which was dismissed by the learned appellate Court vide the impugned judgment and decree dated 2.4.2007, upholding the findings recorded by the learned trial Court. Hence this revision petition.

7. In support of this revision petition, the learned counsel for the petitioner submits that both the learned Courts below did not appreciate the controversy in proper perspective. It was overlooked by them that the plaintiff did not have ready money to be paid to the petitioner. Thus, he was in breach of the agreement. To buttress his arguments, he has sought support from Exh.D.1, which is an application made by the petitioner to the Sub-Registrar/ Tehsildar, Daska, requesting him to mark him present on 15.5.1996. An inference was sought to be drawn from it that it sufficiently proved that the plaintiff had not turned up before the Revenue Officer, reflecting adversely on the bona fides of his claim. It is further argued by him that the petitioner/vendor is the nephew/Bhanja of the respondent/plaintiff and he had agreed to sell the suit land so as to meet his exigencies. According to him, time was the essence of the agreement and the plaintiff having failed to honour his commitments and carrying out his part of the bargain within the stipulated time, he was not entitled to any discretionary relief. He concluded by advancing the argument that the plaintiff was rightly non-suited in the first round of litigation. He wondered how the learned Courts below came to the opposite conclusion in the post-remand proceedings, when neither new evidence was recorded nor was any fresh judgment delivered by the Hon'ble Supreme Court of Pakistan to help the case of the respondent.

8. Conversely, the learned counsel for the respondent/decree-holder has supported the impugned judgments and decrees. It is emphasized by him that the learned appellate Court not only discussed each and every piece of evidence in great detail, but also dealt with all the contentions raised by the petitioner's side in the light of the judgments of the Superior Courts. It is further stressed by him that the impugned judgments, particularly the judgment of the learned appellate Court is well-reasoned and no fault can be found with it. He has also refuted the argument advanced by the learned counsel for the petitioner that the respondent was not willing and ready to fulfil his part of the agreement. According to him, there is overwhelming, cogent and credible evidence to the contrary.

9. I have heard the learned counsel for the parties at great length and perused the record appended to the revision petition with their assistance.

10. I am unable to agree with the contentions raised by the learned counsel for the petitioner and I see no reasons and find no grounds to arrive at the conclusions different from the ones reached and recorded by them.

11. Since the execution of the agreement to sell, Exh.P.1 has not been denied by the Petitioner, and it is also admitted by him that he received an amount of Rs.10,000/- as earnest money, the sole question falling for consideration is whether time was the essence of the agreement and if so, whether the plaintiff was at fault and he failed to carry out his part of the bargain. From a perusal of the copy of the registered agreement to sell Exh.P.1, it is hard to sustain the argument that time was the essence of the agreement. Unlike the facts of the judgment reported as "Mst. Gulshan Hamid v. Kh. Abdul Rehman and others" (2010 SCMR 334) upon which heavy reliance was placed by the learned counsel for the petitioner, nowhere has it been provided in Exh.P.1 that in the event of the failure of the vendor's keeping date, the plaintiff would be entitled to recover double the amount paid by him as earnest money. Again, unlike the aforesaid reported judgment, there is no evidence that the price of the suit land had increased substantially within a matter of days. Another circumstance present in the reported judgment is missing in the instant case. There the vendor was a lady and it was held by the apex Court that the conduct of the vendees was questionable and not above board, who had been playing hide and seek with the lady. What distinguishes this case singularly from the reported judgment is that the suit was instituted within 18 days of the time fixed in the alleged agreement to sell. Admittedly, the plaintiff made the remaining deposit of Rs.55,000/- with the Court vide challan dated 19.10.1996 in compliance with the trial Court's order dated 21.9.1996. This circumstance has made a strong impact upon the mind of the learned appellate Court, who drew the inference that it showed the bona fide's of the plaintiff.

12. Since the controversy between the parties centres around the interpretation of section 55 of the Contract Act, 1872 as well as Article 113 of the First Schedule to the Limitation Act, 1908, the same are reproduced hereunder for the ease of reference:- "55.Effect of failure to perform at fixed time, a contract in which time is essential.

When a party to a contract promises to a certain thing at or before a specified time, or certain things at or before specified time, and fails to do any such thing at or before the specified time, the contract, or so much of its as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract. Effect of such failure when time is not essential.

If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure." Article 113 of the First Schedule to the Limitation Act, 1908 Description of Suit Period of Limitation Time from which period beings to run For specific performance of a contract Three years The date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused.

13. There are several judgments of the Hon'ble Supreme Court of Pakistan in which the question at issue cropped up and was dealt with. It would be worthwhile to make reference to a few of the judgments here. It was considered by the apex Court in the case reported as "Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala" (PLD 1962 SC 1) and answered as follows: "In Jamshed Khodaram Irani v. Burjorji Dhunjibhal (43 IA 26), the Judicial Committee of the Privy Council had occasion to observe that "section 55 of the Indian Contract Act, 1872, does not lay down any principle which differs from the law of England as to contracts for the sale of land. Specific performance of a contract of that nature will be granted although there has been a failure to keep the dates assigned by it, if justice can be done between the parties and if nothing in (a) the express stipulation of the parties, (b) a the surrounding circumstances, make it inequitable to grant relief. An intention to make time of the essence of the contract must be expressed in unmistakable language; it may be inferred from what passed between the parties before, but not after, the contract is made. It was also laid down in that case that "equity will not assist where there has been undue delay on the part of one party to the contract, and the other has given him reasonable notice that he must complete within a definite time."

14. In the case of "Seth Essabhoy v. Saboor Ahmad" (PLD 1973 SC 39), it was observed as under: "It is a 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."

15. In the case of "Muhammad Iqbal v. Mehboob Alam" (2015 SCMR 21), it has been held as under: "In relation to contracts of immovable property the rule is that time ordinarily is not the essence, however, this by no means is an absolute rule and it is always open to the party, who claims exception thereto, to establish otherwise from the contents/text, letter and spirit of the agreement and/or from the intent and conduct of the parties, as well as the attending circumstances. The appellant/ defendant has failed to do so in the instant case."

16. Another related question is whether time may be made essence of the agreement subsequent to the making of the agreement sought to be specifically enforced. In the case of "Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others" (1994 SCMR 2189), it was authoritatively held by the apex Court that "It may also be mentioned here that where the parties have not treated the date fixed for performance of the contract relating to immovable property as the essence of the contract at the time of entering into the agreement, subsequently, one of the parties to the contract cannot unilaterally make the time as the essence of the contract (see Abdul Hamid v. Abbas Bhati, PLD 1962 SC 1)." (Emphasis added)

17. Earlier this issue was dealt with by the apex Court in the case reported as "Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala" PLD 1962 SC 1), where the following observations were made: "The principle, that if time is not originally made of the essence of a contract for sale of land one of the parties is not entitled afterwards, by notice, to make it of the essence, unless there has been some default or unreasonable delay by the other party, was laid down as long ago as 1879 by Fry J. in green v. Sevin (3). That principle was re affirmed in Smith v. Hamilton and another (4). The following extract from Fry J,'s judgment in Green v. Sevin was, inter ilia, cited with approval by Harman, J. in the last named case:- What right then had one party to limit a particular time within which an act was to be done by the other? It appears to me that he had no right so to do, unless there had been such delay on the part of the other contracting party as to render it fair that, if steps were not immediately taken to complete, the person giving the notice should be relieved from his contract. It has been argued that there is a right in either party to a contract by notice so to engraft time as to make it of the essence of the contract where it has not originally been of the essence, independently of delay on the part of him to whom the notice is given. In my view there is no such right. It is plain upon principle, as it appears to me, that there can be no such right. That which is not of the essence of the original contract is not to be made so by the volition of one of the parties, unless the other has done something which gives a right to the other to make it so. You cannot make a new contract at the will of one of the contracting parties. There must have been such improper conduct on the part of the other as to justify the rescission of the contract sub modo, that is, if a reasonable notice be not complied with. That this is the law appears to me abundantly plain. This proposition has received the support of standard text books on the subject-See Fry on Specific Performance Para. 1092, 6th Edition, and Cheshire & Fifoot on Contracts, page 450, 5th Edition."

18. No doubt, a date was fixed in the agreement, Exh.P.1 within which the respondent was to fulfil his part of the agreement. There is no clinching evidence as to which of the parties dithered. Both the parties have attempted to shift the blame on to the other and have maintained that they were ready to fulfil their respective part of the agreement, but it cannot be overlooked that no notice whatsoever was given by the defendant to the plaintiff, apprising him of his decision to put an end to the agreement. In the same way, the plaintiff/respondent did not serve any notice upon the vendor, calling upon him to complete the execution and registration of the sale deed in his favour by expressing his readiness to pay the balance amount of sale consideration to him. Probably, this was not done due to the close relationship of the parties, who are Bhanja and Mamoon inter se. My lurking suspicion is that Exh.D.1 produced by the petitioner was brought into existence to defeat the case of the plaintiff. It was rightly observed by both the learned Courts below that the Revenue Officer/Sub-Registrar, Daska was not examined by the defendant to prove his signature on Exh.D.l. Since this document does not bear the signature of the person concerned and carries the initials of someone, no definitive opinion can be rendered as to the name and the personage of the official concerned. That is why both the learned Courts below excluded this document from consideration, and I am in agreement with the approach adopted by them.

19. I am of the considered opinion that where a date is fixed by the parties to an agreement to sell by which they are to fulfil their obligations, the case would fall under the First part of Article 113 of the First Schedule to the Limitation Act, 1908. The cause of action would accrue to the aggrieved party from the date-fixed in the agreement. Unless the circumstances have undergone a sea change making it impossible for one or both the parties to abide by the agreement in question, without causing substantial loss to the other party, the discretion vested in the Courts is to be exercised in decreeing the suit for specific performance. The phraseology in which Section 22 of the Specific Relief Act, 1877 is couched also points in the same direction. This was highlighted by the apex Court in the case of "Syed Arif Shah v. Abdul Hakeem Qurishi" (PLD 1991 SC 905) in the following words: "... ... ...the jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful. However, the discretion of the Court is not arbitrary but sound and reasonable and is to be guided by judicial principles which are amenable to correction by a Court of appeal. It may further be noticed that the above section gives two illustrations which are not exhaustive to demonstrate in which cases the Court may decline to exercise discretion of granting specific performance of a contract, namely, (i) where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant though there may not be fraud or misrepresentation on the plaintiffs part; and (ii) where the performance of the contract would involve some hardship on the defendant which he did not foresee whereas its non-performance would not involve such hardship on the plaintiff. It may also be pointed out that the above section provides that the Court may properly exercise discretion to decree specific performance where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance."

20. For what has been stated above, I find no infirmity in the impugned judgments and decrees passed by the learned Courts below. They do not suffer from misreading or non-reading of evidence produced by the parties. The concurrent findings recorded by them are sound and unexceptional and need not be interfered with in the exercise of the revisional jurisdiction of this Court under section 115, C.P.C. No illegality or material irregularity or jurisdictional defect that might have affected the ultimate outcome of the lis has been pointed out either. Resultantly, this revision petition being devoid of merits is hereby dismissed. ZC/A-128/L Revision dismissed.