1985 PLP 1335 (SCMR)

2. The respondent being unable to obtain the completion of the sale, filed a suit for.. Specific Performance of the contract between the parties which was resisted by the petitioner. Each party blamed the other as having been responsible for‑ breach of contract.‑ The plea taken by the petitioner was that he had not replied to the letters addressed .by the respondent to him within the stipulated period of one year because the respondents husband had orally requested him to ignore them as they wanted extension for the date for completion of the sale. He also contended that he orally communicated to the husband of the respondent that he had all the documents ready and complete which were required for the purpose of execution of the conveyance deed. On these allegations the petitioner pleaded that the agreement between, the parties stood cancelled and revoked prior to the filing of the site. The trial Court did not accept the pleas of the petitioner in his defence and holding him responsible for failure to perform his part of the contract, decreed the suit of the respondent for Specific Performance of the contract, vide judgment, dated 9‑1‑1980. Feeling aggrieved the petitioner filed appeal in the Sind High Court which had been dismissed by a learned Judge of that Court as per his judgment, dated 27‑2‑1983, whereby decree passed by the trial Court has been affirmed and maintained. The petitioner has now brought this petition for special leave to appeal against the judgment of the High Court. In seeking leave to appeal Mr. Azhar Ali Siddiqui, learned counsel for the petitioner has raised the following contentions:‑ (i) In view of the fact that after 1‑4‑1974 due to the amendment of law the Income‑tax Clearance Certificate not being a necessary requirement for registration of the conveyance deed, the High Court was in error in holding that the petitioner was responsible. for the delay in the finalization of the sale. (ii) The respondent was clearly in breach of the contract in so far as she did' not arrange for the payment of the balance price of Rs. 40,000 upto the end of December, 1974 and it was on this account that she adopted the delaying tactics in order to postpone the execution of the sale conveyance. (iii) The effect of the petitioner's final letters, dated 13‑12‑1974 and 11‑1‑1975 was not considered by the High Court while deciding the issue as to who committed the breach of the contract. (iv) The evidence clearly shows that the respondent was not ready and willing to perform her part of the contract,

3. As far as the first contention is concerned, since admittedly during the stipulated period of one year the sale conveyance could not be registered without the Income‑tax Clearance Certificate, the High Court has referred to the two notices addressed by the respondent urging the petitioner to obtain the certificate and execute the conveyance and from this coupled with the fact that draft sale‑deed was sent to the petitioner, as also notice was issued through newspaper, it was rightly held by the High Court that the fact that subsequently there was a change of law doing away with the requirement of obtaining Income‑tax Clearance Certificate, had no bearing on the finding of the trial Court that the petitioner had failed to perform his part of the contract. There is nothing reliable on the record that even after 1‑7‑1974 the petitioner acted immediately to show his willingness to perform his part of the contract. As to the second contention the finding of the two Courts below seems to be unexceptionable in view of the circum stances mentioned above which showed the promptness with which the respondent acted in calling the petitioner to fulfil his contract. In the face of these circumstances it is not possible to hold that the respondent was avoiding the completion of the sale‑deed. There is no requirement of law and indeed in terms of the contract the respondent was not required, to pay the balanc6 amount prior to the `execution of the sale‑deed. In view of the concurrent finding of the two Courts below the petitioner took no step to enable himself to execute the conveyance deed, it is not open to the petitioner now to urge that the respondent was unable to pay the amount. Indeed no such specific plea was taken in the written statement of the petitioner nor was anything suggested to this fact in the cross‑examination of the respondent's evidence. The plea of the petitioner that the respondent has sought extension of time has not been supported by any documentary evidence but is being pressed on a mere oral assertion of the petitioner which has been disbelieved by the Courts below.

4. As to the third contention the facts are that on 2‑12‑1974 the petitioner sent a letter to the respondent alleging that the latter's husband had asked for another extension of time but that the petitioner was unable to agree, and, therefore, the contract between the parties stood cancelled. He also alleged that the agreement was entered into under duress. This letter was replied by the respondent as per her reply, dated 6‑12‑1974 denying the allegation regarding extension of time and further calling upon the petitioner to perform his part of the contract and receive the balance of the consideration amounting to the terms of the contract. It was in response to this letter that the petitioner came out with the allegation that the respondent's husband was shown all the papers necessary for the execution of the sale conveyance and further reiterated the alleged request for extension on the part of the respondent. Further it was in his letter, dated 13‑12‑1974 that notwithstanding his earlier revocation of the contract, the petitioner called upon the respondent to come to his place on 18th or 19th so that a bank draft could be prepared for Rs. 40,000 and Government and K.M.C. taxes be paid otherwise the agreement would stand cancelled. In reply, dated 28‑12‑1974 the respondent denied to comply with his notice because the letter was received in the afternoon of 19‑12‑1974 by her Advocate and that the sale‑deed could not be, therefore, presented on the same date. All these facts have been noted in the judgment of the High Court and from this correspondence it is quite clear that upto the date of this final notice the petitioner had not cleared all the Government and K.M.C. taxes. He cannot, therefore, urge that before that date he was able to execute the conveyance. Further, if he was ready and willing to perform his part of the contract on 13‑12‑1974, he could have shown his bona fides by not contesting the suit which was filed on 31‑1‑1975. In spite of that he took up the plea that the contract stood revoked and was not enforceable. The Courts below were, therefore, justified in holding that the fault lay on the part of the petitioner who was avoiding the contract for the sale of his property.

5. After hearing the learned counsel at length we find no force in all the contentions advanced by him and would dismiss this petition. M.I. Petition dismissed.