P L D 1999 Lahore 238 (PLP)

(1) Whether the defendants had timely intimated the plaintiff that the stay order had been vacated? OPD. (2) If Issue No.l is answered as such whether defendants performed the contract on their part? OPD. (3) Whether the plaintiff is entitled to decree prayed for? OPP (4) Whether the plaintiff is estopped by her own conduct from this suit? OPD (5) Relief.

4. In order to prove her case, the respondent/plaintiff examined Akhtar Ali Qazilbash, Advocate as P.W.1. He deposed that he had sent replies on behalf of the respondent to the notices dated 5‑10‑1985 and 20‑10‑1985 issued by the appellants. Copies of these replies were produced by him as Exhs.P‑2 and 3 respectively. Post office receipt and acknowledgment receipt were also produced by him as Exhs.P‑4 and 5 respectively. The other two witnesses produced by the respondent were Javed Gil (P.W.2) and Tufail Gil (P.W.3) who deposed that they brought about the agreement for sale and that the appellants failed to supply copy of the order vacating the stay. Sajid Saeed, the husband‑of the respondent appeared as her attorney (P.W.4). He reiterated that the respondent was always ready and willing to perform her part of the agreement but the sale could not be. completed due to the fault of the appellants. He stated that the respondent had called upon the appellants to supply her with copy of the order whereby the stay was vacated but they failed to do so.

5. The evidence of the appellants/defendants on the other hand comprises of statement of Muhammad Shafi son of Miran Bakhsh (D.W.1) who deposed that he had participated in the Panchait wherein it was decided that the agreement for sale stood frustrated on account of the failure of the respondent to perform her part of the agreement. Siraj Din, D.W.2, also made a similar statement. Nazir Hussain, father of the appellants, appeared as D.W.3. He deposed that the respondent was duly informed that the stay order had been vacated but she did not have the sale‑deed executed. He further deposed that he was the scribe of notices, Exhs.P‑6 and 7 which were sent through registered post. Appellant No.2, Muhammad Nisar Khan appeared as D.W.4.

6. On the basis of the evidence led by the parties, the trial Court vide its judgment and decree dated 29‑7‑1991 decreed the suit on the finding that there was no default on the part of the respondent in performance of the agreement and she was entitled to have it specifically enforced.

7. It may be mentioned here that the suit for the purposes of court‑fee and jurisdiction was valued at Rs.1,10,835, being the total consideration under the agreement in terms of section 7(x) of the Court Fees Act, 1870 and section 8 of the Suits Valuation Act. The appellant filed an appeal against the judgment and decree before the District Court on 3‑8‑1991. However, an objection was raised before the District Judge that as the value of the subject‑matter for the purpose of jurisdiction was Rs.5,15,375, the appeal did not lie before him. This objection was upheld on 18‑6‑1992 and the memorandum of appeal was returned for presenting the same to this Court where it was filed on 30‑6‑1992.

8. Before the appeal could be heard on merits, an objection was raised by the learned counsel for the respondent that the appeal was barred by time inasmuch as by the time it was presented in the High Court the period for limitation had run out.

9. In reply, the learned counsel for the appellants submitted that the appellants have applied for condonation of delay in filing the appeal by moving an application under section 5 of the Limitation Act, 1908 which has been registered as C.M. No.l/C of 1992. The respondent has contested that application.

10. The arguments of the learned counsel for the parties have been heard on the merits of the case. So far as the limitation is concerned, admittedly the appeal is barred by time. However, a question arises as to whether the appellants are entitled to the benefit of the time which they had spent in prosecuting the appeal before the District Court. Strangely enough, the learned counsel for the appellants has argued that the appeal was rightly filed before the District Court which acted illegally in returning the memorandum of appeal for its presentation before this Court. He submitted that the valuation of the suit for the purpose of court‑fee and jurisdiction had been fixed in the plaint at Rs.1,10,835 which was at no time corrected and as such the appeal lay to the District Court and not to the High Court. 11 We are afraid this contention of the learned counsel cannot prevail and as a matter of fact, he cannot be allowed to raise this plea in the present proceedings. Admittedly the learned District Judge by his order dated 18‑6‑1992 held that he had no pecuniary jurisdiction to entertain and decide the appeal and as such directed that the memorandum of appeal be returned to the appellants. This order of the learned District Judge was challenged by the appellants in revision before this Court. However, for the reasons best known to the appellant, that revision was withdrawn. The order of the learned District Judge dated 18‑6‑1992 has attained finality and its legality has not even been, challenged in the present proceedings. In these circumstances, it cannot be argued with any success that the appeal before the District Judge was competent. Be that as it may, if the plea of the appellants succeeds and it is held that the appeal was competent before the District Judge, then this appeal before this .Court would by itself be incompetent and would have to be dismissed as such.

12. Relying upon certain precedents, the learned counsel for the appellants has argued that the appellants were entitled to have the delay in filing the appeal condoned in view of the principles contained in section 14 of the Limitation Act, 1908. If it is shown that the same has been filed in a wrong Court due to mistaken advice of counsel, the cases cited by the learned counsel are distinguishable. His main reliance was on Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584 which does support the legal proposition advanced by the learned counsel that if a wrong forum has been chosen due to mistaken advice, generally speaking, the delay should be 8 condoned. But in the present case, it is to be noted that according to the learned counsel for the appellants himself that the .appeal before the District Judge was rightly filed and in these circumstances, no benefit can be taken out of the ratio in Sherin's case (supra).

13. It is also to be noticed that section 14 of the Limitation Act, 1908 does not in terms apply to appeal but the Court can follow the principles contained therein while exercising the jurisdiction under section 5 of the Limitation Act, 1908 which requires that each and every day of delay must be explained. The memorandum of appeal was returned by the District Judge on 18‑6‑1992 while the appeal was filed in this Court on 30‑6‑19.92. There is no explanation for the period between 18‑6‑‑1992 to 30‑6‑1992 and for this alone the delay cannot be condoned.

14. As a result of what has been stated above, no ground for condonation of delay in filing the appeal is made out and C.M. No.l‑C of 1992 is liable to be dismissed.

15. Though the appeal was liable to be dismissed on the ground of limitation but we have also heard the learned counsel for the appellants on merits and we are of the view that the judgment and decree of the trial Court is unexceptionable.

16. As already mentioned, the only dispute between the parties is as to who defaulted iii the performance of the obligations under the agreement. Even in that respect controversy is limited to the fact as to whether the respondent had failed to have the sale‑deed executed despite having been informed that the stay order had been vacated and if so, with what effect? .

17. Exh.P‑8, which is agreement between the parties, is an admitted document. It is expressly stipulated in the aforesaid agreement that there was stay order with respect to the land in question and sale‑deed was to be executed within 20 days of the vacation of the stay order. In the written statement the stand taken by the appellants was that they had got the stay order vacated from Tehsildar and informed the respondent of the same who did not have the sale completed despite two notices issued to her in September and October, 1985. On the other hand, the respondent asserted that in the first notice the appellants did not mention anything about the vacation of the stay order but on the receipt of the second notice from them she asked for details and copy of the order vacating the stay which was never sent to her with the result that she could not have the sale deed executed.

18. At the very outset, it may be stated that in the agreement, Exh.P‑8 there was specific mention that stay order was in the field and in the written statement the same stand was taken and it was asserted that the stay order was got vacated from Tehsildar. Surprisingly, in evidence an altogether different case was sought to be built up. When appellant No.2 appeared as D.W.4, he deposed that there was no stay order with respect to the land in question and the Patwari had made a wrong note in the Revenue Record with respect to the area in question which was got clarified from the Tehsildar. This statement runs counter to the plea in the written statement as also the agreement itself, and therefore, cannot be accepted. In the first notice dated 28‑9‑1985 (Exh.P.6) served by the appellants upon the respondent, nothing is mentioned about the stay order at all. In these circumstances, this notice is, therefore, of no avail. In the reply dated 5‑10‑1985 which the respondent sent through Mr. Akhtar Ali Qazilbash who appeared as P. W.1 and proved this document. In this reply, the respondent pointed out the fact that nothing had been mentioned in the notice about the vacation of the stay order and requested that the respondent be informed if the stay order had been vacated. In the second notice dated 13‑10‑1985, it was mentioned that the stay order was got vacated on 20‑8‑1985 and an extract from the Revenue Record had also been obtained. In reply to the said notice which has been produced as Exh.P‑3, the respondent stated that if the stay order had been vacated, she was willing and ready to perform her part of the agreement and asked for copy of the order whereby the stay had been vacated so as to enable her to proceed further. Unfortunately, no reply whatsoever was given to the aforesaid notice. From these documents it is quite obvious. that at no time was the respondent unwilling to perform her part of the agreement. On the other hand, her demand that she be sent copy of the order whereby the stay had been vacated was not unreasonable. In any case, the appellants were under an obligation to have given reply to the demand made by the respondent which they admittedly failed to do. Nazir Hussain, who is father of the appellants, appeared as D.W.3 and in his cross-?examination he did not name the Tehsildar who had vacated the stay order. Appellant No.2, who appeared as D.W.4 and stated in his cross‑examination that he was not aware when the stay order was vacated. This witness has gone to the extent of stating that he had not received any reply to the notice from Akhtar Ali Qazilbash. This statement, however, could not be accepted in view of the deposition of Akhtar Ali Qazilbash who appeared as P.W.1 and had also produced postal receipts as Exhs.P‑2 and 4 as also copy of the acknowledgement of one notice as Exh.P‑

5. The statements of other witnesses produced by the appellants are not of much consequence inasmuch as they have deposed that the parties had gathered in Panchait where the respondent had admitted that the agreement stood frustrated. It is difficult to rely upon the statement of these witnesses produced by the appellants in the absence of any document or notice served terminating the' contract. Furthermore, both the witnesses have admitted that the respondent had offered .to purchase the property at higher price which shows the willingness of the respondent to purchase the property.

19. Be that as it may, it is by now well‑settled that in the contracts relating to immovable properties time is not of essence and the failure to perform part of the contract by the date fixed in the agreement for sale i.e. for executing sale‑deed is not a ground for refusing specific performance. If any authority is needed, reference may be made to Abdul Hamid v. Abbas Bhai Abdul Hussain Sodawaterwala PLD 1962 SC 1 and Seth Essabhoy v. Saboor Ahmad PLD 1972 SC

39. In view of what has been stated above, this appeal is found to be without any force and is accordingly dismissed, with no order as to costs. M.B.A./M‑95/L? ???????????????????????????????????????????????????????????????????????????????????????????????????????? Appeal dismissed.