2002 PLP 3223 (YLR)

(3) Whether the suit is not maintainable in its present form? (4) Whether the plaintiffs are estopped by their own conduct from filing this suit? OPD. (5) Whether the plaintiffs have waived their right to file this suit? OPD. (6) Whether the defendants are entitled to special costs in case the suit is dismissed? OPD. (7) Whether the defendant entered into an agreement to sell dated 10‑1‑1987, regarding the suit property and received earnest money Rs.30,000 and handed over the possession of the property to the plaintiff? OPP. (8) If Issue No.7 is proved, then the plaintiffs are entitled to special performance of contract? OPP. (9) Relief. The appellants examined three witnesses P.W.1 to P.W.3 and also produced documents as Exh.P.1 to Exh.P.3, which includes copy of the register Haqdaran Zamin for the year 1981‑82 (Exh.P.1), copy of the register Haqdaran Zamin for right of Ihata/house (Exh.P.1) and agreement to sell (Exh.P.3).

3. Conversely, the respondent examined D.W.1 to D.W.9; including the testimony of the Advocate, who states to have issued Exh.D.2, notice dated 3‑2‑1987 to the appellants for the termination of the agreement to sell. Moreover, Exh.D.2 to Exh.D.8/1 are the documents produced in evidence, in furtherance of the defence of the said respondent to establish that he was present in the office of the Sub‑Registrar on the target date; infact it is the appellants who, due to non‑availability of the requisite balance consideration did not turn up and was not ready and willing to perform their part of the agreement.

4. The learned trial Court through the impugned judgment and decree mainly by giving findings on Issue No.2, has also decided Issues Nos. 1, 3, 4, 5 and 8 in favour of the respondent No.1 and against the appellants, as a result of which the suit was dismissed. However, Issue No.7 has been found in favour of the appellants. 4‑A. Learned counsel for the appellants argued that the view of the learned trial Court that time was essence of the contract, has not been proved on the record; that is nothing to establish that the appellants were not possessed with the requisite amount and thus were not ready and willing to perform their part of the agreement.

5. We have heard learned counsel for the parties. It may be pertinent to State here that respondent No.1, who is originally the defendant in the case, is not represented. Rana Aish Bahaudar, is the counsel of respondent No.2, who is the subsequent purchaser of the property and has purchased the suit property two days after dismissal of the suit by the learned trial Court and before filing of this appeal. Anyhow, for the purpose of proving their case, the appellants have examined P.W.1, who is an Advocate, and deposed that the appellant on 3‑2‑1987 came to him and he drafted application for the plaintiff which was presented to the Sub‑Registrar for the purpose of marking his presence and also remained with him throughout the day; the other oral evidence led by the appellant also supports his plea. However, special reference can be made to the statement of P.W.3, who is the Numberdar of the Chak. Contrarily, respondent has examined two Advocates, one who has drafted/issued the notice Exh.D.1 to the appellants and another, who attested the affidavit of the respondent No. 1 and one of his witnesses about their presence on 3‑2‑1987 in the office of the Sub‑Registrar. Besides, challan form, through which approval for the deposit and purchase of stamp paper was procured has also been adduced in evidence.

6. The most significant aspect of the matter is, that the appellants had filed the present suit only three days after stipulated dated 3‑2‑1987 i.e. on 7‑2‑1987. No prejudice by that time is established to have been caused to respondent No.

1. Even assuming that the appellants did not come to the office of the Sub‑Registrar on 3‑2-1987, the prompt and immediate institution of the suit by the appellants was a proof of their readiness and willingness. If the respondent No.1, wanted to controvert the above, he should have conceded the suit, allowing conditional decree to be passed in favour of the appellants that in case the balance consideration is not paid or deposited within the time fixed by the Court, the suit shall stand dismissed. This could have, proved or rebutted the question of ready and willingness of the appellants to perform their part of the agreement.

7. As regards inference drawn by the Court below that the appellants did not possess the requisite fund because they have not produced the record of the concerned bank, wherefrom it is claimed by the plaintiffs to have withdrawn the amount. Suffice it to say, that though burden in this behalf, was on the shoulder of respondent No.1 but still through the statement of the plaintiff, this was discharged, when it was stated that the amount was withdrawn from the bank name of the branch was also given. But in order to discharge the burden in the positive terms or to rebut the above evidence, it was for the respondents to have summoned the record from the bank to disprove the claim of the plaintiffs, which was not done. There is no significant evidence on the record, that the appellant was not possessed with the requisite funds.

8. The statement of D.W.9 that one Soberdar Afzal apprised him that the plaintiffs have not been able to collect the requisite balance consideration and he disclosed this fact to respondent No.1, is hearsay; Soberdar Afzal has not been examined as a witness.

9. Now coming to the question, whether the time is the essence of contract of immovable property, the following judgments have resolved the proposition with the answer in the negative:‑ PLD 1962 SC 1 (Abdul Hamid v. Abbas Bhai), PLD 1968 Lah. 923 (Pakistan v. Firm Loadhi, House), PLD 1972 SC 39 (Seth Essabhoy v. Saboor Ahmed), PLD 1974 Pesh.4 (Mst. Chano Bibi v. Muhammad Shafi etc.), 1983 SCMR. 559 (Zaheer Ahmad v. Abdul‑ Aziz), PLD 1983 SC 344 (Ghulam Nabi v. Seth Muhammad Yaqub) 1984 CLC 2259 (Muhammad Ayub Khan v. Ch. Muhammad Aslam), 1985 CLC 814 (Aslant Khan v. Government of N.‑W.F.P.), 1986 CLC 1887 (Mst. Munawar Bibi v. Mst. Maheen); 1987 CLC 2190 (Karachi Metropolitan Corporation v. Jannat Ali Natta etc.), PLD 1987, Lah.166 (Mehraj Din v. Shah Muhammad etc.), PLD 1987 Lah.607 (Ali Muhammad v. Shah Muhammad), PLD 1989 Lah.152 (Mian Zafar Iqbal v. Bashir), 1989 MLD 252 (Mokha v. Mst. Sarwari Begum), 1993 CLC 2409 (Nazima Begum v. Hasina Begum), PLD 1993 Kar. 780 Tasawar Khalil v. Matinurehman), 1995 SCMR. 1431 (Sandoz Limited v. Federation of Pakistan, PLD 1995 Lah. 405 (Faqir Muhammad v. Abdul Momin), PLD 1997 Lah. 153 (Anjuman‑e‑Islamia v. Haji Muhammad Younus), PLD 1998 Lah.20 (Raja Nasir v. Abdul Sattar Khan), 1998 CLC 21 (Haji Muhammad Yaqub v. Shahnawaz), PLD 1999 Lah.193 (M/S Pioneer Housing Society v. Babar and Company), PLD 1999 Lah.238 (Muhammad Nawaz Khan. v. Mst. Farrah Naz), 1999 CLC 207 (Abdul Habib Durani v. Toriali) and 2000 MLD 251 (Noor Muhammad v. Muhammad Ishaque). On the basis of above cited law, it is held that ordinarily the time is not the essence of a contract for the sale of immovable property, until it is so specifically mentioned in the agreement and/or is proved through evidence qua the intention of the parties. In the present matter, both these aspects are conspicuously missing, resultantly, the Court below has fallen in serious error of law and fact to hold that the time was the essence of the agreement to sell.

10. As regards the plea of respondent No.2 that because he has purchased the property after dismissal of the suit of the appellants and thus is a bona fide purchaser, it may be noticed that this sale was effected only after couple of days or the decree but before the expiry or limitation, provided for the appeal, thus any purchase made during this period, when the limitation for appeal, had not run, would be a transaction, covered by the principle of lis pendens and therefore, respondent No.2 cannot claim any exception to the above rule he is bound by the decree which is likely to be passed in favour of the appellants. In view of what has been observed above, the judgment and decree of the trial Court is set aside; the suit of the appellants is decreed in the terms as prayed for with the direction to the appellants to deposit with the trial Court the balance amount of consideration mentioned in the sale agreement minus Rs.30,000 which respondent No.1 has acknowledged to have received by him. This deposit should be made within the period of one and a half month, from today, failing which, suit shall be deemed to have been dismissed. H.B.T./L‑34/L Appeal accepted.