P L D 2019 Supreme Court 677 (PLP)

MUSHIR ALAM, J.--Instant Civil Appeal with the leave of the Court has arisen out of order dated 03.12.2013 passed by learned Division Bench of High Court of Sindh in Constitution Petition No.D-2836/2011, maintaining the order 21.5.2011 passed by learned Vth Additional District Judge, East Karachi, 21.5.2011 in Civil Revision No.55/2009, whereby order dated 8.4.2009 passed by the learned III Senior Civil Judge, Karachi East dismissing an Application under Order VII, Rule 11, C.P.C. was set aside, consequently suit was dismissed.

2. Brief facts forming matrix of the case appears to be that the Appellant was inducted as tenant since over two decades in respect of basement of the House No.378, Block 7 and 8, CP Berar Cooperative Housing Society, Karachi (constructed over a plot measuring 167 square yards), by one Muhammad Tariq, who died on 1st December, 2001 and succeeded by the Respondents being his widow, sons and daughter. Said Property was also mutated in the name of respondents on 23.4.2007. On 14th April, 2008 the Respondents filed rent Case No.156/2008 against the Appellant on the ground of default and personal requirement.

3. After the filing of the Rent case by the Respondents, the Appellant on 9.10.2008 filed a Suit No. 1112/2008 seeking specific performance of purported agreement of sale dated 10.2.2001.

4. It was averred in the suit, that appellant on or before 01.7.1999 orally entered into sale agreement with the Muhammad Tariq since deceased, in respect of the basement of the subject property, which was under her tenancy, for a total sale consideration of Rupees Ten Lac Fifty Thousand only. It was further pleaded that oral sale agreement was reduced into writing on 10.03.2001 in presence of two witnesses wherein it was mentioned "That the vendor has received a sum of Rs. 900,000/ - (Rupees Nine Lac) leaving a balance of Rs. 1,50,000/ =( one Lac Fifty Thousand), to be paid to the vendor very soon".

5. It was further claimed that the balance sale consideration of Rs.1,50,000/- was paid to the deceased Muhammad Tariq and his wife the Respondent No.1 herein and no receipt was claimed. On demise of the predecessor of the Respondents (on 1st December 2001) she demanded trensfer of said property but to no avail and later appellant learnt that the property was got transferred in the name of Respondent through mutation letter dated 30.4.2007 and denied to transfer the property in the name of appellant. Appellant also approached Insaf Committee of Union Counsel-1 Gulshan-e-Iqbal, which was decided on 5.11.2007, which decision was challenged by the Respondent before the Convenor, Committee of Justice. The Convener concluded that the Signatures of Muhammad Tariq on the Sale Agreement and on his Identity Card do not tally and noted other discrepancies, advised both the parties to, approach the court for the resolution of dispute. (page 59). Respondents filed the Rent case as noted above. After six month of filing of the Rent case, appellant filed suit for specific performance. Suit was contested by the Respondents, sale agreement was denied being forged and fabricated. Along with the written statement an Application under Order VI, Rule 7, C.P.C. was also filed on 29.1.2009. Evidence of the appellant/plaintiff was recorded on 29.1.2011 she was cross-examined on 23.4.2011 which was recorded. After recording of evidence as noted herein, the application was dismissed by the learned trail Court vide order dated 8.4.2009. In appeal the order of the learned trial Court was set aside, the application under Order VII, Rule 11, C.P.C. was allowed and suit was dismissed vide judgment dated 21.5.2011, which was maintained through impugned judgment dated 3.12.2013 in C.P. No.D-2836/2011.

6. It was contended by the learned ASC for the Appellant that time was not the essence of the contract. No time was set down in the sale agreement; therefore, time would run from the date of refusal. According to learned Counsel for the Appellant, specific performance was claimed through legal notice dated 15.7.2008, which was replied on 30.7.2008 and the suit was filed 9.10.2008, well within three years from the date of refusal as per Article 113 of the Limitation Act 1908, therefore both the Appellate and Revision Courts failed to appreciate facts and failed to apply correct law resulting in miscarriage of justice.

7. Learned ASC for the Respondents supported the impugned judgment, it was urged that the sale agreement is forged it does not bear the signature of the deceased predecessor of the Respondents as noted by the Convener Insaf Committee. Neither sale consideration was ever paid nor proved. The payment through cheques allegedly made was not issued by the appellant, nor there is any evidence to show that same originated from the business concern of her husband. Appellant was a tenant and paid rent to the deceased Muhammad Tariq during his life time but thereafter as well. He has drawn our attention to her evidence. She in cross-examination stated that she demanded specific performance from late Muhammad Tariq during his life time who passed away on 1.12.2001. Appellant remained quiet for over seven years after the demise of the vendor and when the Rent case was filed on 14th April, 2008 subject suit was after six month thereafter. It was argued by the learned ASC for the Respondents, without admitting the purported sale agreement dated 10.3.2001 (page 51), that on the own showing of the Appellant the balance consideration of Rs.1,50,000 was to be paid "very soon" as mentioned in first clause thereof, which cannot be stretched beyond reasonable time, which could not be more than a month or two, though it was alleged that balance was paid during the life time of deceased Muhammad Tariq, there is no justification why sale deed was not obtained or claimed, nor there is any clause for execution of sale deed, which demonstrate that it is a fictitious sale agreement incapable of specific performance.

8. We have heard the arguments and perused the record.

9. From own showing of the appellant oral sale agreement was made on 01.07.1999 which was reduced into writing on 10.3.2001. Such fact does not find mentioned in the purported Sale agreement. Another important aspect to be taken note of is that the appellant/ plaintiff has not acted within a reasonable time from the date of execution of purported sale agreement dated 8.3.2001, suit was filed much beyond period of limitation on 9.10.2008, that too as a counter blast to the Rent case filed by the Respondent which was filed on 14 April, 2008. Period over eight years to pay the balance sale consideration cannot be termed "to be paid to the vendor "very soon". Term very soon, ordinarily means very shortly, in matters of hours or days. It cannot be starched to a few months and certainly not for years altogether as reasonable time at all for the plaintiff to awake from the deep sleep and demand for sale. In Vidyanandam v. Vairavan (1997 (1) SCR 993) the Supreme Court of India has held that,"even where time is not of the essence of the contract, the plaintiff must perform his part of the contract within a reasonable time and reasonable time should be determined by looking at all the surrounding circumstances including the express terms of the contract and the nature of the property. 'In the case cited as Veerayee Ammal v. Seeni Ammal, reported in (2002(1) SCC 134), while examining the word "reasonable" in the context of specific performance of sale agreement, Indian Supreme Court held in para 13 that The word "reasonable" has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word "reasonable". The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the "reasonable time" is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit. In case cited as Abdul Ghani v. Muhammad Shafi (2007 SCMR 1186), in paragraph 10 it was held:- "The learned counsel for the appellant has not been able to show us from record that before firing the suit the appellant made any effort for fulfilling his part of the contract and offered payment of the sale price within the stipulated time or at least within reasonable time to complete the sale. The learned counsel has also not been able to satisfy us that there was any acknowledgment of right either by the predecessor-in-interest of respondents or the respondents for completion of sale beyond the period mentioned in the agreement and thus, the delay in filing the suit beyond the normal period provided under the law would be fatal and appellant would not be entitled to claim the decree for specific performance." 10. "Very soon", in ordinary parlance and looking at the circumstance of the case, means with utmost dispatch, as soon or as early as possible and as the circumstances would permit and would be convenient and to do what the agreement to sell require to do, but certainly such period could not be stretched to mean indefinite period or beyond the period of three years from the date if so fixed for the specific performance thereof.

11. As noted in the case in hand and as aptly observed by the learned bench of the High Court in paragraph 5 of the impugned judgment to which no exception could be taken, which reads as follows:- "The basic document, on which the petitioner relies is the alleged sale agreement dated 10.3.2001. In this agreement nowhere it is stipulated that there was an oral agreement that was arrived at in the year 1999 and that between 1999 and the date of the alleged written agreement i.e. 10.3.2001 various payments have been made. Counsel for the petitioner has also conceded that between 10.3.2001, date of the execution of disputed agreement and when the matter was referred to the Union Council in the year 2007, no notice seeking specific performance was written by the petitioner to the heirs of the deceased landlord. No doubt that limitation starts form the date of the refusal, but if there is no refusal and at the same time no efforts are made by the purchaser within reasonable time to seek enforcement of the contract then after !apse of period of three years, the suit becomes time barred. Here there is inordinate delay of about nine years, as oral agreement is alleged to have taken place of 01.7.1999 and suit for specific performance was filed on 09.10.2008. The limitation would not start from the refusal for the reason that purchaser also has to come before the Court within the reasonable time even where there is no refusal on the part of the seller." Appellant/Plaintiff cannot be allowed to take benefit of her own indolence for performance of agreement to sell. Period over eight years is neither "VERY SOON" nor reasonable time by all standards, none other than the appellant has to blame herself, sleeping over her rights and only came forward with suit for specific performance, when the Respondents filed ejectment proceedings. Appellant was not able to demonstrate that she ever since the date of purported agreement to sell dated 10.3.2001, made any overt act to keep the alleged agreement alive, nothing was brought on record to show that she issued any reminder and or notices during the life time of the deceased vendor or thereafter, nor she objected to the mutation and or transfer of the property in favour of the Respondents. Admittedly she came into possession of the subject property as a tenant and not pursuant and or in part performance of agreement to sale which commenced over two decade prior to the sale agreement. Under the facts and circumstances of the case, and keeping in view that the writ jurisdiction as invoked by the appellant is sparingly exercised in such like case, more particularly when the appellant remained indolent in seeking specific performance of the agreement within reasonable time from the date of its alleged execution by the deceased vendor. Finding no merits instant appeal by the leave of the court is dismissed. MWA/K-6/S Appeal dismissed.