2004 PLP 1217 (CLC)

SYED ZAHID HUSSAIN, J.‑‑‑On 5‑11‑1989 a suit for specific performance of agreement, dated 24‑9‑1988 was instituted by Ghulam Muhammad and 3 others (respondents herein) against the appellants which was tried and decreed vide judgment and decree, dated 4‑11‑1997 by a learned Civil Judge 1st Class, Kasur with the exception of defendants Nos. 11, 15, 29 and

34. The said judgment has been assailed through this regular first appeal.

2. The prime and main contention of the learned counsel for the appellants is that Issue No.3 has not been correctly decided by the trial Court as according to him the time for performance of agreement in this case was of essence which aspect has been ignored by the Court. Reference has been made to section 55 of the Contract Act, 1872 and Muhammad Sharif v. Mst. Fajji alias Phaji Begum through Legal Heirs and another 1998 SCMR 2485.

3. The learned counsel for the respondents‑plaintiffs on the other hand, contends that in contracts relating to immovable property, the time is not of essence and the suit having been instituted within limitation has rightly been decreed by the trial Court. Reference in this context has been made by him to Abdul Hamid v. Abbas Bhai‑Abdul Hussain Sodawaterwala PLD 1962 SC .1, Seth Essabhoy v. Saboor Ahmad PLD 1973 SC 39, Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344, Mrs. Mussarat Shaukat Ali. v. Mrs. Safia Khatoon and others 1994 SCMR 2189, Bashir Ahmad and 4 others v. Muhammad Ramzan and another 1988 CLC 1600 and Haji Muhammad Yaqoob through Legal Heirs v. Shah Nawaz 1998 CLC

21. It is further contended that the decree granted by the trial Court qua some of the defendants was also permissible under the law. Reference for that purpose has been made to Shah Nawaz v. Ferhat Ali Khan and 2 others 2001 CLC 1686, Mirza Tasawar Ali Beg v. Abdul Rashid Khan and anther 1989 SCMR 868 and Mrs. Apwara Chowdhury v. M. Majid and others PLD 1964 SC 807.

4. We have perused the record and considered the respective contentions of the learned counsel for the parties.

5. Execution of agreement, dated 24‑9‑1988 (Exh.P.1) is admitted by the appellants‑defendants except defendants Nos. 11, 15, 29 and

34. There is a finding recorded by the trial Court in this respect which has not been controverted or assailed by either side. The finding thus, on Issue No need not be dilated upon any further. Insofar as the plea of the appellants qua Issue No.3 is concerned, the learned trial Court has reached the conclusion on consideration of the evidence that time was not of essence and in view of admitted position of agreement to sell dated 24‑9‑1988 (except defendants Nos.11, 15, 29 and 34), the respondents- plaintiffs were entitled to a decree. Suffice it to observe that mere mention of a date or stipulation made in the agreement would not make the time as of essence of the contract as was observed in Bashir Ahmad and 4 others v. Muhammad Ramzan and another 1988 CLC 1600. In Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others 1994 SCMR 2189, it was held that "it is, however, well‑settled law that in the absence of a provision in the agreement to sell an immovable property that the time fixed for performance of the contract is to be treated as the essence of the contract, the time fixed for performance of the contract is not treated as the essence of the contract. Therefore, specific performance of an agreement of sale relating to immovable property can be granted by Courts even after expiry of the period fixed in the contract". It was further observed in that case that "delay simplicitor which is short of period of limitation prescribed under the law is not enough to disentitle a plaintiff to the relief of specific performance". In the present case it had been pleaded by the respondents‑plaintiffs that there was some defect in the title of the appellants‑defendants for which purpose, they had approached the appellants before the date i.e. 2‑7‑1989. Such an assertion had been made in paragraph 2 of the plaint C which was not specifically controverted in the written statement filed by them. Ghulam Rasool appellant, who had appeared as D.W.2 had indeed admitted in cross‑examination that the respondents‑plaintiffs had approached them for removal of the defects in the title, similar was the deposition made by Muhammad Yasin D.W.3. In such view of the matter, when the title of the appellants‑defendants was not perfect and clear, the respondents‑plaintiffs were justified to approach them in this regard and to postpone the performance of the agreement. Needless to mention that only an owner with absolutely clear title could expect the performance within the stipulated period. The trial Court, was, therefore, justified in recording a finding qua Issue No.3 against the appellants‑defendants. Insofar as findings on Issue No.4 are concerned, the same were necessarily dependent upon the findings on Issue No.3 thus, reliance of the learned counsel on Muhammad Sharif v. Mst. Fajji alias Phaji Begum through Legal Heirs and another 19P SCMR 2485 was inapt. The execution of agreement having been admitted and established and the respondents‑plaintiffs being willing to take the land as it was except to the extent of defendants Nos. 11, 15 29 and 34, they were rightly granted decree by the trial Court. No illegality has been committed by the trial Court in granting the same in the context of the controversy which became subject‑matter of trial of the suit. In view of the above, finding no merit the appeal is dismissed with no order as to costs. M.I./S‑61/L Appeal dismissed.