2019 PLP 1040 (YLR)

ZULFIQAR AHMAD KHAN, J.

These revisions are emanating from a consolidated judgment rendered by appellate Court where it reversed the findings of the trial Court dated 20.10.2010 and in consequent thereto, Civil Appeal No.323/2010 filed by respondent Muhammad Arif Memon was allowed and Civil Appeal No.325/2010 filed by appellant was turned down.

2. Suit was filed by for Specific Performance of Contract and Permanent Injunction by respondent asserting therein that he being owner of 05 acres land out of 05-37 Ghuntas from Survey No.256 located in Deh Jamshoro Tapo Jamshoro Taluka Qasimabad, Hyderabad, sold out it to appellant in the sum of Rs.1,10,00,000/- (One Crore Ten Lacs) at the rate of Rs.22,00,000/- (Twenty Two Lacs) per acre by executing an agreement of sale dated 04.04.2005 and Rs.10,00,000/- (Ten Lacs) being token amount was paid to the respondent and it was settled that remaining balance consideration was to be paid at the time of execution of sale deed after 08 months of date of execution of the sale agreement and according to condition of the said agreement, prior to execution of sale deed and delivering the possession, respondent was to obtain layout plans in the name of the appellant, if so desired by the appellant. It is further pleaded that in the month of September, 2005, respondent informed the appellant that a F.C. Suit No.52 of 2005 against him, has been instituted by some persons involving the above survey number, hence, requested to complete transaction after verdict of the said suit then on the different approaches of respondent and dates, appellant paid Rs.200,000/- (Two Lacs) towards sale consideration but sale transaction could not be finalized because of pendency of litigation instituted by some persons nor publication for calling objections from general public and government functionaries due to awaiting of decision of the above suit was effected. It is the further case of the appellant that respondent failed to obtain sale certificate in respect of the land under transaction as per clause-7 of the sale agreement, without which transaction could not be finalized as even title of the respondent was still subjudice before District Judge, Hyderabad in the shape of Civil Appeal No.17 of 2006 and instead of informing the appellant about decision of the suit, respondent served legal notice dated 27.01.2006 through his advocate for cancellation of the said agreement with allegation of failure to perform contract of specific performance, which was replied by the appellant on 06.02.2006. It was also learnt by the appellant that respondent is going to sell out the above property to somebody else, though, he was ready to perform his part of contract, for which appellant published a news clipping informing the general public as to the cancellation of the sale agreement etc. According to the agreement, respondent was bound to perform his part of contract after receiving balance sale consideration but he was avoiding to execute sale deed and handover physical possession of the land in question.

4. Learned counsel for the appellant submitted that fact of execution of sale agreement has been accepted by the respondent, therefore, he was bound to perform his part of contract. Learned counsel next submitted that appellant was ever ready to pay balance sale consideration but it was the respondent, who was adopting delaying tactics by procrastinating him on the ground of pendency of the suit filed by some persons and having completely failed to perform his part of contract of obtaining Sale Certificate. Learned counsel additionally submitted that findings of trial Court are result of misreading and non-reading of the available record, which suffer from gross illegality and material irregularity. Learned counsel lastly contended that the appellate Court could not have reversed the findings in such a surmisingly manner, which apparently suffer from patent illegality and material irregularity.

5. In opposition, learned counsel for the respondent vehemently questioned above assertions and submitted that appellant engineered a false story against the respondent as he was constantly approaching the appellant for performance of contract but appellant could not arrange the huge amount, therefore, he was keeping the respondent on hallow hopes deliberately and intentionally and his such conduct aggrieved the respondent to terminate / cancel the agreement. Learned counsel further contended that appellant has failed to prove any subsequent payment as claimed by the appellant as respondent was ready to perform his part of contract knowing the fact that the time was essence of the contract. Learned counsel lastly submitted that findings of the appellate Court are questionable being clear violation of Section 55 of the Contract Act whereas findings of trial Court are according to evidence and record produced by the parties and failure on the part of appellant to prove his case cannot seize the respondent to perform part of contract. In the end, in support of his contention, counsel for the respondent relied upon case laws reported at 2015 SCMR 21, 2001 CLC 1029 Karachi, PLD 1962 SC 01, 2004 SCMR 584, 2004 SCMR 1140, 1999 CLC 1076, 2000 CLC 643, PLD 2003 SC 430 and 2016 CLC 553 Lahore.

6. Listened to counsel for the parties and gone through the material available on record.

7. At the very outset, it is evident that though execution of the agreement is an admitted fact and it is settled principle of law that a fact admitted needs no proof, yet the same is not a registered document, thus, protection granted under Section 16 of Registration Act, is not amenable to it. Clause-7 of the sale agreement discloses that appellant was bound to obtain Sale Certificate and with regard to said clause, appellant pleaded that he moved application to Mukhtiarkar for issuance of sale certificate yet no such record is brought on record to show that appellant attempted to obtain Sale Certificate to discharge his contractual obligation. I have gone through the evidence of the appellant available at Ex.87 wherein he deposed that he did not receive any Sale Certificate from the concerned Mukhtiarkar. I in fact called for the Mukhtiarkar in my Court with record, who confirmed that not even any application for obtaining Sale Certificate was filed by the appellant, which gives reasons to believe that the appellant (seller) had no intention to seek the Sale Certificate. To the contrary, it is proved on the part of the respondent that he was operating a bank account and he deposited the balance sale consideration before the trial Court, which also establishes that he was willing and ever ready to perform his part of agreement. It is an admitted fact that appellant got published a notice in the newspaper dated 14.02.2006, yet appellant had not clarified in the said publication that he has obtained Sale Certificate from the concerned Mukhitarkar being his contractual duty, which shows that he was not at fault to perform part of agreement. Counsel for the appellant constantly pressed that the time was essence of the contract and respondent committed wilful default to pay the balance sale consideration. At this point of juncture, I draw my attention to the case law reported at 2015 SCMR 21 (d) where Apex Court held that in relation to contracts of immoveable property, the rule is that time ordinarily is not the essence, which shows that suitor did not commit any fault while performing his part of contract and merely mentioning a specific date for performance of contract would not make time the essence of contract, hence, time could not be treated to be essence of the contract, therefore, Section 55 of the Contract Act would not give any force in the instant matter.

8. In the given circumstances, I am of the view that the appellate Court's judgment is maintained being legal and do not call for interference, likewise judgment of the trial Court suffers from illegality and irregularity, which is hereby set-aside. Consequently both the Ilnd Appeals at hand stand dismissed. ZC/M-179/Sindh Appeals dismissed.