1989 PLP 2770 (MLD)

(2) Whether the plaintiff seeks a declaration for the partial performance of the contract which is not permissible at Law? O.P.D. (3) Whether the plaintiff by his own conduct is, estopped to bring the suit'' O.P.D. (4) Whether the time was of essence of the contract and the plaintiff has failed to perform his part of the contract, if so, whether the security stands forfeited? O.P.D. (5) Whether the plaintiff has always been ready and willing to perform his part of the contract, but the defendant has not been so willing? O.P.D. (5-A) Whether the defendant is not an owner of 4 kanals 10 marlas 256 sq. ft.? O.P.D. (6) Relief." The trial Court dismissed the suit with costs and upheld the forfeiture of the earnest amount. Aggrieved by it the plaintiff preferred the present R.FA.

5. There was no dispute between the parties in regard to many material aspects. The controversy primarily was confined only to two points, namely whether the respondent-defendant had title to the extent of 4 kanals 10 marlas 256 Sq.Ft. or 3 kanals 17 marlas and whether the time was of the essence of the contract. It was not denied by the defendant that he had obtained a refund of Rs.6,970 as cost of the passage measuring 236 x 12 ft. but he insisted to contend that the passage nonetheless vested in him as per all the copies of the P.T.D placed upon the record, namely, Exhs. P.1, D.12 and D.13. We do not think he was wrong in this behalf particularly because the P.T.D. Exhs.D.12 and D.13 besides, of course, the auction list Exh. D.17 and bid sheet Exh.D.18 amply showed that the property signified by No.19, Ward 10 measured 4 kanals i0 marlas 256 Sq.Ft. The appellant's reliance basically was upon the copy of the P.T.D. Exh.P.1 which did not contain the said area and instead recorded an overwritten figure of 3 kanals 17 marlas. This overwriting which apparently amounted to scoring off the figures, needed a serious explanation. P.W.2 who was concerned with its issuance conceded that there was an "omission" in it in regard to the area. He was emphatic that the scoring off the figures was indeed not a "correction". He, however, affirmed that the basic record of the P.T.D. was collect viz., that it showed the area of the property to be 4 kanals 10 marlas 256 Sq.Ft. The various documents produced by the parties did not suggest that the passage once sold to the defendant was retained either by the Department itself or for someone else. All the three copies of the P.T.D. referred to above consistently disclosed that the passage had been given free of cost to the defendant, obviously meaning thereby that the title thereto was not taken back from him. The reason probably may have been that it was an inseparable appendage to the main unit of the property and, therefore, charging for it separately was rather uncalled for. If this were not so, the title to the passage must have been clearly retained by the Department for itself for future disposal.

6. Ch. Muhammad Farooq, Advocate for the appellant argued that what was contemplated by the agreement Exh. P.2 was to pass title to the entire area of 4 kanals 10 marlas 256 Sq.Ft. and that in case there was shortfall in it, the appellant could legitimately take his hands off to pay for the whole of it particularly when the rate was settled per marla. A careful perusal of the agreement P.2 does not support this plea. The entire area of 4 kanals 10 marlas 256 Sq.Ft. was sold for a lump sum of Rs.4,05,000 without mentioning that this amount was calculated at a particular rate per marla. The attempt to apply rate per marla appeared to be a subterfuge under which the appellant perhaps purposely worked to cloak his failure to abide by the contract. In the written terms and conditions of a contract nothing can be easily imported. Articles 102 and 103 of the Qanun-e-Shahadat, 1984, would preclude any such contrivance. When the agreement P.2 was admitted by the appellant he failed to offer any explanation as to why only a lump sum of Rs.4,05,000 was mentioned therein. The respondent's version in his -written statement was that the lump sum was Rs.4,08,000 and if we apply the rate of Rs.4,500 per marla, the total claimed by the defendant exceeds the calculation rendered on behalf of the appellant. This incongruity would weaken the appellant's stance.

7. Counsel claimed that there was a like incongruity in the area too. While P.T.D. etc. showed it to measure 4 kanals 10 marlas 256 Sq. Ft., some documents showed it to be 4 kanals 12 marlas. 145 Sq. Ft. The difference, if any, was explained in the P.T.Ds. themselves because the area of the passage, that is 316 x 20 Ft. was later reduced to 316 x 12 ft. and the excess was to be taken from owner of the other bungalow situate in the back. Nonetheless selling 4 kanals 10 marlas 256 Sq. Ft. out of 4 kanals 12 marlas 145 Sq.Ft. was not objectionable because the appellant-vendee was assured delivery of the former area. He had nothing to do with the excess which as explained above was apportionable by the owner of the bungalow in the back. Next, it was argued that the appellant was not supposed to pay for the passage especially when the defendant himself did not pay for it to the Settlement Department. A complete answer to this objection is provided by the agreement P.2 itself. The appellant should have made a reservation in it. No ambiguity was left while drafting it inasmuch as the whole area was shown to include the passage. Inclusion of the passage in the bargain being settled for a lump sum amount clearly suggested that the appellant was aware of this element as it formed an integral part of the property sold. Thus, it was not open to the appellant to claim subsequently that some ambiguity existing in the agreement escaped his notice. Parties were ad idem and no one-sided interpretation styled d, later could help the concerned party. The defendant was clearly selling even the passage, and since its title vested m him notwithstanding the fact that he had earlier obtained it gratis, he could insist for its price with impunity. That is what he precisely did in P.2.

8. Mr. Farooq tried to canvass that under sections 13 and 14 of the Specific Relief Act he could ask for partial performance of the contract when the whole was not possible. The so-called impossibility appears to be the plaintiff's misconceived plea. If the bargain purported to sell the property and if the defendant remained willing till the terminal date to convey it by a recognizance, the very concept of impossibility envisaged by the aforementioned provisions of law would manifestly disappear. The type of impossibility visualized by those sections was entirely different like a happening beyond one's control (vis major) etc. etc. Nothing of the sort was either pleaded or proved in the present case.

9. Mr. Jari Ullah, Advocate for the respondent rightly emphasized that the copy of the P.T.D. Exh. P.1 being doubtful was wrongly exploited by the appellant. He stressed that after having obtained the same on the 24th of August, 1976, the appellant remained silent till the 19th of October, 1976. According to him, he should have made some acrimony about the so-called shortfall in the area but silence on his part for a couple of months over the point clearly suggested that he was quite aware of it from the beginning. The record amply bears out this view. Lastly, there was some truth in the story that as a property dealer the appellant may have been trying his best to attract a customer for the sale of this plot and that on having failed to take a chance, he turned round against the defendant in asking for specific performance of the contract.

10. The circumstances of the case eminently reveal that the time was of the essence of the contract. The agreement P.2 itself made a reservation showing that the defendant had already contracted elsewhere to purchase a house. Later, he proved through evidence like Exhs. D.2, D-21,D-22,D-23 and D-24 that he was trying to purchase the other house from one Waheed Akhtar. He had even to bring a suit to stall the sale of that house by Waheed Akhtar to another purchaser. The intention was thus made clear that the defendant needed money in time or else he had to run the risk of forfeiture of a huge amount of Rs.1,90,000 already advanced by him to the other vendor. The appellant did not keep in view this vital stipulation and after he lost the time, he was rightly refused the performance. Forfeiture of the earnest amount of Rs.50,000 on the part of the defendant was equally justified as he had to sell another house hurriedly for a random price in order to save himself of a like forfeiture of a comparatively much larger amount advanced by him.

11. For all these reasons, we do not find any force in the appeal and dismiss it with costs throughout. M.Z.S./Z-103\L Appeal dismissed.