1986 PLP 1887 (CLC)

5. That after the completion of the requisites necessary for the registration as aforesaid the vendor shall inform the vendee about the date and time of registration and the vendee on the fixed date and time shall turn up for the registration of the sale‑deed, get the same registered and pay the balance i.e. Rs.40,000 (Rupees forty thousand only) to the vendor before the Registrar." It has also been noticed earlier that the present suit was filed on 16‑5‑1978. The relevant article of the First Schedule to the Limitation Act, 1908, is Article 113, which provides a period of three years for filing a suit for specific performance of contract and the time, from Which this period of three years begins to run, is provided as the dace fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. According to Mr. Jan Muhammad Dawood, learned counsel for plaintiff the case of the plaintiff falls within the second part of Article, 113, that is, time begins to run when the plaintiff has notice that performance is refused, whereas, according to Mr. Abdur Rauf Khan, as the date has been fixed for the performance of the contract, the first part of Article 113 will apply and according to him this suit is patently barred by time, as the date of the agreement is 18‑4‑1973, which provides for 45 days as the period for the execution of the sale‑deed, whereas the suit was filed on 1ti‑5‑1978 i.e. nearly five years after the time began to run.

4. Mr. jan Munamiuad 1)awood, learned counsel for the plaintiff, argued that no doubt in the agreement of sale (Exh. 5/1) there is a period of 45 days mentioned, during which the defendant was required to obtain necessary no objection and clearance certificates so that she could execute a sale‑deed in favour of the plaintiff but the defendant was also required to inform the plaintiff, after the completion of , the requisites necessary for the registration proceedings, the date and time of registration and then the plaintiff would have been required to turn up on such fixed date and time for registration of the sale‑deed and payment of the balance sale consideration. Learned counsel for the plaintiff submitted that the defendant never informed about the date and time of registration so that the sale‑deed could take place and this she could not do, as she had not obtained the requisite certificates. It was also argued that time was of the essence of the agreement of sale between the parties and as such the mention of 45 days in the sale agreement between the parries is to be ignored for all intents and purposes and this period of 45 days cannot be "the date fixed for tile performance' mentioned in Article 113 of the Limitation Act. Mr. Abdur Aauf Khan, learned counsel for the defendant, on the other hand, argued that time was the essence of the agreement and even if time was held not to be of the essence of the contract in question, as the period of 45 days has been specifically mentioned in the agreement of sale, during which sale‑deed was to be registered, time began to run under Article 113 on the expiry of 45 days of the date of, the agreement and as such the present suit is patently barred by time.

5. There appears to be no difficulty at all in coming to the conclusion that time was not the essence of the contract between the parties. Firstly, it is not mentioned‑ in the agreement of, sale (Exh. 5/1) that time is the essence of the contract. Secondly, the date of the agreement is 18‑4‑1973 and at no point of time uptil now in any writing on behalf of the defendant the plea has been taken that time is the essence of the contract. Against the application filed in the present suit by the plaintiff for temporary injunction (C.M.A. No. 2223/78) no counter affidavit was filed by the defendant and even in the written statement no plea has been taken to the effect that time is essence of the contract. Thirdly, no notice was given by the defendant to the plaintiff after the expiry of 45 days that the period provided in the agreement for registration has expired and as such agreement has come to an end. As a matter of fact, no notice at all has been given by the defendant to the plaintiff at any stage. Last but not the least, the evidence of the defendant herself confirms that time was not essence of the contract. As observed earlier, the date of the agreement of sale between the parties is 18‑4‑1973 and 45 days expired in the first week of June, 1973 but in her examination‑in‑chief, the defendant states as follows:‑ "I had made several requests and demands upon the plaintiff to pay the balance amount so that transfer could be completed. Such requests were made on telephone and at other times, when I saw the plaintiff but she did not make payment. Every time the plaintiff said that she was in a fix and whenever she had the amount she would pay the balance and complete the transaction. I may again say, that I had been meeting the plaintiff, within the first one or two years of the execution of the agreement when demands and requests were made by me for the payment of the balance amount. After that also whenever I used to see the plaintiff in the bazar or in some marriage ceremony I would make the demand to complete the transaction but she did not do so. I have not seen the plaintiff after 1976." The statement in the examination‑in‑chief by the defendant shows that according to the defendant herself, the time of 45 days mentioned in the agreement was of no consequence. If time had been the essence the contract, either defendant would have given a notice to the plaintiff terminating the agreement between the parties on account of delay on the part of the plaintiff or at least orally informed the plaintiff that the agreement had to be concluded within 45 days and as they had not been done on account of the default on the party of the plaintiff, the contract between the parties had come to an end. The evidence of the defendant does not indicate at all that time was the essence of contract. On the contrary, in the evidence of the defendant there are clear admissions that time was not of the essence of the contract and the period of 45 days mentioned in the agreement had no importance. It may be observed here that the learned counsel for the plaintiff as well as the learned counsel for the defendant have cited case‑law on the point of time being the essence of the contract. Mr. Jan Muhammad Dawood, . learned counsel for the plaintiff, relied upon the following reported judgments: (i) Jamshed v. Burjorji A I R 1915 P C

83. In this judgment it was observed by the Privy Council that section 55 of the Contract Act did not lay down any principle. Which differs from those which obtained under the law of England as regards the contracts to sell land. It was observed that under that law, equity, which governs the rights of the parties in cases of specific performance of contracts to sell real estate, looks not at the letter but at the substance of the agreement in order to ascertain whether the parties, notwithstanding that they named a specific time within which completion was to take place, really and in substance intended more than that it should tax place within a reasonable time. (ii) Ghulam Jillani v. Munir Ahmad Khan P L D 1960 Kar.

51. Wahiduddin, J. in this judgment after referring to section 55 of the Contract Act, observed as follows:‑ . "The question, therefore, whether time is the essence of the contract, depends upon the intention of the parties, the surrounding circumstance and the nature of the property. The mere fact, that certain time is specified for the payment of the amounts in consideration of which. the property is transferred, will not show that time is of the essence of the contract. So far as the contracts relating to land are concerned, it is well‑settled that the time fixed for the completion of the transaction is not considered to be of the essence of the contract. The presumption in such contract though specified time is mentioned within which completion is to take place, is that the parties really and in substance only intended that it should take place within a reasonable time. T4is presumption, however, is rebuttable. (iii) Abdul Hamid v. Abbas Bhai P L D 1962 S C

1. In this judgment reference was made to English cases as well as decisions of the Privy Council. The Supreme Court was of the view that if time was not originally made of the essence of a contract for sale of land, one. of the parties was not entitled afterwards, by notice, to make it of the essence unless there had been some default or unreasonable delay by the other party. (iv) Ghulam Hussain v. Ebrahim Saley P L D 1964 Kar.

388. It was observed in this case that if the parties stated in a contract that time was of the essence of it but there were sure indications of the contrary intention then in spite of the language used, their intention would prevail and the point in any enquiry as to the importance of time for the performance of a contract is the discovery of the intention and not complete reliance on any particular aspect of the transaction, (v) Tanzeem Overseas v. Zainab Bai P L D 1965 (W.P.) Kar.

271. It was observed in this judgment that merely because a period had been fixed in the agreement for the completion of the sale, that by itself does not make time of the essence of the contract and that the law is well‑settled that in a contract of sale of land though the period is fixed by the contract, the presumption is that the parties intended that the agreement should be performed within a reasonable time and that the fixing of the time limit in the agreement does not, by itself, rebut the presumption and lead to an inference that time was intended to be made of the essence of the contract. Mr. Abdur Rauf Khan, learned counsel for defendant referred to a decision of Allahabad High Court in the case of Muhammad Zafar v. Hamida Khatoon A I R 1945 All 32. ^) This judgment does not support the contention of the learned counsel for the defendant that time was of the essence of the contract between the parties in the instant case. In this judgment from Allahabad High, Court it was observed that the question whether the time mentioned in a contract or agreement is or is not of the essence of the contract or agreement is a question which depends, for its decision upon the facts and circumstances of each case, The mere fact that a certain time its mentioned in an agreement. for the performance of an act would not necessarily lead to the conclusion that the time so fixed was essence of the contract. The real intention of the parties to the agreement has to be deduced from all the surrounding circumstances of the case. The learned counsel for the defendant also cited the case of Mangu Lai v. Kandhai Lai I L R 8 All.

475. I have gone through this case and I do not find either the facts or principles laid down in this case relevant to the point in issue. The case‑law cited before me supports the contention of the (Nasir Aslam Zahid, J) learned counsel for the plaintiff's that in the instant case, time was not of the essence of the contract.

6. The other leg of the argument of Mr. Jan Muhammad Dawood, learned counsel for the plaintiff, was that time not being the essence of the contract, the plaintiff case fell under second part of Article 113 of the Limitation Act and time would start to run only from the date when the plaintiff, has notice that performance was refused. According to the learned counsel, evidence on record shows that the defendant had been avoiding the completion of the transaction and had at no time refused to perform the agreement and it was only after notice had been served upon the defendant that the plaintiff realized that the defendant was not going to complete the transaction and time began to run only after the service of, the legal notice by the plaintiff upon the defendant. On Article 113, Mr. Jan Muhammad Dawood, learned counsel for the plaintiff, cited the case of Custodian of Enemy Property v. Hoshang M. Dastur P L D 1977 Kar.

377. It was observed in this judgment that Article 113 of the Limitation Act presupposes the existence of a concluded and finalized contract between the plaintiff and defendant, the performance of which has been refused by the defendant a<

410. In this judgment from the Allahabad High Court, while referring to first part of Article 113 of Limitation Act, it was observed that the date fixed for performance should be date fixed by express contract and not by necessary implication, that is, it should be fixed definitely and should not be left to be gathered from surrounding circumstances of the case. The point that has been raised in the present case was neither raised nor considered or decided in A I R 1.933 All. 410.

7. In my view, for the purposes of limitation, the case of the plaintiff falls under the second part of Article 113 of the Limitation Act. Learned counsel for the defendant had relied upon the period of 45 days mentioned. in the agreement. In clause (2) of the agreement it is mentioned that the vendor shall complete all the requisites necessary for the registration of the proper sale‑deed in favour of the vendee or her nominee within a period of 45 days and by clause (4) it was provided that the balance amount shall be paid by the vendee at the time of registration within "the period stated aforesaid". However, it is obvious from the terms of the agreement dated 18‑4‑1973 (Exh. 5/3) itself that this period of 45 days mentioned in the agreement was of no consequence. The agreement itself acknowledged that the defendant had delivered to the plaintiff full, vacant, actual and physical possession of the property pursuant to the said agreement and it is not mentioned any where in the agreement that time was of the essence of the contract. Further the period of 45 days was given to the defendant to obtain the requisite clearanqe certificate and thereafter the defendant was required to inform the plaintiff about the date and time of registration and the evidence on record shows that at no point of time the defendant had informed the plaintiff that she ~ had completed the requisites necessary for the registration. Only after the defendant had informed plaintiff that requisite clearance certificate had been obtained and also informed the plaintiff about the date and time of registration, could there be any obligation upon the plaintiff to complete the transaction. In the circumstances, the period of 45 days mentioned in the agreement is to be completely ignored and cannot be set up by the defendant as a plea that the suit is barred by limitation. In evidence the defendant herself had stated very clearly that for several years after the agreement she had been wanting the plaintiff to complete the transaction. If the period of 45 days had any significance, the defendant would have given a notice or at least informed the plaintiff that the period of 45 days had expired and, therefore, she was absolved of her obligations under the agreement. On an objective assessment of the evidence on record it appears that the defendant had all along been avoiding to complete the transaction and this was perhaps for the reasons that prices of the immovable properties had risen appreciately after the execution, of, the agreement. As the period of 45 days mentioned in the agreement is to be ignored on facts and circumstances of the present case, the case of the plaintiff for purposes of limitation falls under the second part of Article 113 of the Limitation Act. The suit is, therefore, not barred by time. Issue No.3 is decided in the negative.

8. As a result of my finding on the issues framed in this suit,. Suit No. 412 of 1978 is decreed as prayed. It is further ordered thai in case the deed of conveyance is not registered by the defendant in favour of the plaintiff on or before 31‑5‑1986, the Nazir of this Court will execute the deed of conveyance and get the same registered in favour of the plaintiff. The plaintiff shall also be entitled to costs. A . A . Suit decreed.