2002 PLP 2795 (YLR)

6. Mr. Mujeeb‑ur‑Rehman, Advocate, learned counsel for the appellant has argued that the judgment and decree of the learned trial Court is not sustainable in law as the suit for specific performance could not have been decreed when the plaintiff/respondent did not tender the balance amount of the sale price in Court as a token of his willingness and ability to perform his part of the contract. Further argued that the burden of Issue No. 1 was wrongly placed, which in the final analysis materially influenced the judgment of the trial Court. Further contends that the Court has illegally presumed the execution of endorsement which had been denied and proceeded to frame the issue and place its onus on the defendant/appellant. The execution having been denied it was for the plaintiff to prove the execution and the burden should have been placed accordingly and that the finding of the learned trial Court on Issues Nos.3 to 6 is result of misreading of evidence and that time for performance of the agreement was the essence of the contract. Further contends that equities of the case are in favour of the appellant.

7. Conversely, the learned counsel for the respondent/plaintiff has argued that the burden of proof that the agreement Exh. PA and the endorsement on the backside of the agreement Exh. PB dated 6‑2‑1989 has been discharged by the plaintiff/respondent by producing the scribe namely Muhammad Mushataq Siddiqui, Advocate who appeared as P.W.2. Further contends that the respondent/plaintiff was always willing and ready to perform his part of the agreement and that in agreement regarding sale of immovable property time is not the essence of the contract.

8. The first and utmost question fore determination for this Court is whether the time is the essence of the contract in this case and interpretation of section 55 of the Contract Act. A Perusal of the agreement Exh.P.W.2/A would show that there is no fixed time mentioned for execution of the sale‑deed. Though it is stipulated in the agreement dated 1‑2‑1988 that remaining amount shall be paid up to 31‑1‑1989, yet it is the option of the vendee that when he would like, the vendor would execute the sale‑deed in his favour. The following statement in agreement Exh. P.2/A dates 1‑2‑1988 is relevant:‑ From the agreement Exh.P.2/C dated 28‑2‑1988 it was agreed as follows:‑ The matter did not end here. In, endorsement dated 30‑9‑1989 Exh.P.2/B the, time was extended and it has been mentioned that the sale‑deed shall be executed on the option of the vendee. There is no force in the contention of the appellant that time was the essence of the contract and that the respondent has note discharged the onus of proving the endorsement Exh.P.2/B on the back of the agreement dated 1‑2‑1988 Exh.P.2A. The scribe Mian Muhammad Mushtaq Siddiqui, Advocate, appeared as P.W.2, who stated that he is the author of agreement Exh.P.2/B, agreement dated 28‑2‑1988 Exh.P.2/C and endorsement Exh.P.2/B. He refuted the suggestion that the endorsement Exh.P.2/B was the result of connivance with the defendant to cause the damage to defendant/appellant. If we take the endorsement dated 30‑9‑1989 Exh.P.2/B out of consideration, even then a bare reading of agreement dated 1‑2‑1988 Exh.P.2/A in general and clause regarding time in particular would show that time in this case was not essence of the contract. Even it is well‑settled principle of law that in contracts relating to immovable property time is not essence of contract. In this regard the observation of Lord Viscound Halodone in Jamshaed Rhoda Ram Irani v Bujrgi Dhunni Bhi (AIR 1915 Privy Council 83 at page 85) is relevant, which is as under:‑‑ "Prima facie, equity treats the importance of each time limit as being subordinate to main purpose of the parties and it will enjoin specific performance notwithstanding that from the point of view of Court of law the contract has and been literally performed by the plaintiff as regards the time limit specified." In case of Abdul Hamid v. Abbas Bhai-- Abdul Hussain Sodawaterwala (PLD 1962 SC 1) it has been held while interpreting section 55 of the Contract Act, 1872 by the Honourable Supreme Court of Pakistan as under:-‑ "Time not originally made of essence‑‑‑One party riot entitled to make time of essence afterwards by notice, unless there is default or unreasonable delay by other party." In case reported as Mst. Khair‑un‑Nisa and 6 others v. Malik Muhammad Ishaque and others (PLD 1972 SC 39) ‑the principle of law has been envisaged by the Honourable Supreme Court that:‑ "Time not essence of contract in contract relating to immovable property." In case of Ghulam Nabi and others v. Seth Muhammad Yaqub (PLD 1983 SC 344) similar view was affirmed by the Supreme Court.

9. In case of Muhammad Sharif v. Mst. Fauji alias Phaji through legal heirs (1988 SCMR 2485) while interpreting section 55 of the Contract Act (IX of 1872) the Honourable Supreme Court enunciated the principle to determine the time of the essence of Contract of particular case in the following words:‑ "In order to determine whether, in relation to a particular contract time is, or is not of essence, intention of the parties in terms of section 55 of the Contract Act is to be assessed." Further the Supreme Court has observed:‑ "Such an intention is to be gathered from the terms of the contract itself, as translated by the conduct of the parties and attending circumstances. The terms thus are to be construed with reference to the spirit and substance rather than bare words or recitals, in a deed."

10. In the above referred case both the parties stipulated a specific date for completion of the transaction; provided for transaction to fall through unless completed within time and option of acting on commitment, animously ensured their presence at the time and place where the sale was to be visualized, in these circumstances the Supreme Court held that "it left no manner of doubt in coming to the conclusion that the time as postulated was of the essence." In a Division Bench reported case Abdul Habib Durrani v: Toriali (1999 CLC 207) of Quetta High Court, section 55 of the Contract Act (IX of 1872) has been interpreted as such:‑ "Time as essence of contract‑‑‑Sale of Immovable property‑‑‑ Merely an express provision in agreement specifying certain time limit for performance of contractual undertaking on part of promisee/vendee in case of sale of immovable property, would not make specified time as essence of contract in absence of any such specified intendment from construction of document of contract." Similar view has been adopted by this Court while rendering a D.B. Judgment in Noor Muhammad and another v. Muhammad Ishaq and another (2000 MLD 251).

11. Second contention of the learned counsel that the issues have not been properly framed and onus of proof has not been placed in accordance with law and that the plaintiff has not discharged the onus of proof, cannot be accepted. The execution of the agreement Exh. PA dated 1‑2‑1988 arid receipt of earnest money of Rs. 50,000 out of total consideration of Rs.7 lacs has been admitted by the defendant/appellant. Out of remaining amount Rs.3,30,000, cash payment of Rs.10,000 and execution of agreement dated 28‑2‑1988 is also admitted between the parties. The only denial was of the endorsement Exh.P.2/B dated 6‑2‑1989. Mian Muhammad Mushtaq Siddiqui, Advocate, P. W.2 has categorically stated that on 6‑2 11989 when the defendant was released from jail he got executed endorsement Exh.P.2/B on the back of Exh. P.W.2/A which has been signed by him. No objection whatsoever was raised during the trial regarding non- framing of proper issues and placing wrong onus of proof. In case reported as Mehr Din v. Dr. Bashir Ahmad Khan etc. (1985 SCMR 1) the Honourable Supreme Court did not accept the objection of the non -framing of issues when the same was not raised during the trial. The plaintiff has discharged the onus of proof by producing the scribe Muhammad Mushtaq Siddiqui as P. W.2. Even the agreement is admitted between the parties. Under Qanun‑e- Shahadat Order facts which are proved need not be proved. The plaintiff/respondent remained ready and willing to perform his part of the agreement. It is common ground between the parties that Rs.50,000 was paid in advance and that another agreement Exh.P.W.2 C was entered and executed on 28‑2‑1988 through which Rs.3,40,000 was received by the defendant/appellant. Through endorsement Exh.P 2/B dated 6‑2‑1989 the time was fixed on the option of the respondent/plaintiff to comply with the sale. In the notice Mark‑A the defendant/appellant asked the plaintiff/ respondent to complete the sale‑deed. The notice was replied through Exh.P.3 dated 19‑12‑1989. The respondent/plaintiff got the challan for Rs.5,95,000 approved from the office of the Deputy Commissioner to deposit the amount for purchase of the stamp paper. Thereafter, he moved all application to the Registrar (Exh.P.2) dated 19‑2‑1989 to show that he was present alongwith the money to perform his part of contract, but the appellant did not appear before the sub‑Registrar, Attock for completion and execution of the sale‑deed. In this view of the matter, we are constrained to hold that the respondent/defendant was always ready and willing to perform his part of the contract. The contention of the learned counsel for the appellant that since no money was tendered, therefore, it may be inferred that the respondent‑plaintiff was not ready and willing to perform his part of contract has no force. It has been held in case reported as M/s Pioneer Housing Society (Pvt.) Limited through Managing Director, Bank Square, Lahore v. M/s Babar & Company through Shakir Ali Khan and 2 others (PLD 1999 Lahore 193) as under:‑ "Suit for specific performance of agreement to sell property‑Vendee having proved existence of agreement payment of earnest money, readiness to perform the contract and willingness to pay the balance price, relief in the discretionary jurisdiction could not be declined to the vendee." Readiness and willingness in sections 12 and 19 of the Specific Relief Act (I of 1877) has been interpreted by this Court in case of Haji Abdul Rehman v. Niaz Ali through legal heirs (2000 CLC 184) as follows:‑ "Specific performance of agreement to sell‑-Appellant/vendee had proved execution of agreement of sale, payment of earnest money, readiness and willingness to perform obligations under the agreement, filing of application before the sub‑Registrar and appearance before him for getting the sale‑deed attested and having filed the suit immediately after the notice‑‑‑Trial Court dismissed suit of the appellant/vendee on assumption that the appellant/vendee was intending to enforce different terms‑Validity‑Such refusal to grant specific performance was not warranted and the appellant/vendee was entitled to the exercise of discretion by the Trial Court in his favour‑‑‑Judgment and decree of the Trial Court was set aside by High Court in appeal." The next question will be as to whether the appellant should be made to pay the price as actually agreed or in view of the rising prices and delay, the appellant should be compensated. It is settled rule that one who seeks equity must do equity. The sale price originally fixed was Rs.7 lacs. The agreement was executed on 1‑2‑1988 and a period of about 13 years has already elapsed. The respondent had deposited the balance sale price in Court. In these circumstances, we direct that the appellant can be compensated if the profits accrued on the amount deposited may be paid to him. For the above stated reasons, this appeal has no force and the same is dismissed with costs. However, the appellant, as stated above, shall be paid the profits accruing on the amount deposited by the respondent/plaintiff. H.B.T./M‑974/L Appeal dismissed.