1999 PLP 1820 (CLC)

4. In his written statement defendant admitted the execution of agreement to sell in respect of the plot in suit but denied the same in respect of Plot No.12/1‑C. He admitted the receipt of letter, dated 2‑5‑1985 and his reply, dated 11‑5‑1985 but denied the notice, dated 29‑8‑1.985 sent on his behalf. According to the defendant, plaintiffs themselves failed to get the sale‑deed registered within one month as stipulated under the contract.

5. Pleadings of the parties were reflected in the following issues:‑‑ (1) Whether ,the plaintiff was required to prepare the sale‑deed for registration, if so, has he failed to do so? (2) What should the decree be?

6. In order to substantiate their claim plaintiffs examined their attorney Haji Muhammad Rafi, husband of plaintiff No. 1 and father of plaintiff No. 2 and attesting witness Muhammad Iqbal. On his part defendant did not step into the witness‑box and nominated his son Muhammad Arif as his attorney to give evidence on his behalf.

7. After the close of evidence, learned counsel for the parties submitted the notes of written arguments which are available on the record but the suit could not be disposed of for one or the other reason.

8. I have examined the material on record and gone through the notes of arguments as counsel for plaintiffs is reported to be out of country whereas the counsel for the defendant did not like to add anything to what was already submitted in the notes of written arguments. My findings on the issues are as under: ‑‑ Reasons

9. Issue No.

1. From a narrative of this judgment it is established that there was a valid and lawful contract of sale executed by the defendant stipulating to sell the plot in suit in favour of plaintiffs for consideration of Rs.1,27,000 after receiving part payment of Rs.15,

000. Indeed despite the denial of contract of sale in the notice, dated 11‑5‑1985 sent to the plaintiff‑ on behalf of the defendant the fact remains that the execution of agreement to sell and the receipt of part payment is not disputed in the written statement which establishes the contract As per terms and conditions of the agreement Exh.5/2, defendant undertook to obtain Capital Gain Tax Certificate and acquire a valid and marketable title to the property in suit by paving all other dues and taxes if any and to complete the transaction within one month He further, agreed to receive the balance consideration before the Sub‑Registrar and to hand over vacant and peaceful possession to the plaintiffs who were responsible for payment of expenses on account of registration etc. In the context of this background it is to be determined whether the plaintiffs committed a breach of contract or it was the defendant who committed a default in compliance with the terms of the contract.

10. From the evidence of plaintiffs witness Haji Muhammad Rafi I am convinced that after executing the agreement defendant had changed his mind to abide by the terms of the contract because he did not take steps to obtain Capital Gain Tax Certificate from the concerned authorities for execution of a sale‑deed before the Registrar. Indeed it was a requirement of law to pay Capital Gain Tax before the deed could be registered by the Registrar. Plaintiffs witness rightly stated that suspecting some ill‑will on the part of the defendant he sent a letter, dated 2‑5‑1985 Exh.5/4 to the defendant calling upon him to execute the sale- deed before the Sub‑Registrar and to receive the balance consideration as undertaken by him in the agreement of sale. In this letter he reminded' the defendant that the transaction was required to be finalized within one month but he was not intimated as to the date when the sale‑deed would be executed before the Sub‑Registrar so that he could get prepared requisite documents. On his part defendant through his Advocate Mr. Asghar Hussain Akhtar sent a reply, dated 11‑5‑1985 Exh.5/5 denying altogether the execution of contract of sale in respect of the plot in suit which on the face of it, was a dishonest and mala fide act on his part. Instead of honouring the contract and his commitment defendant through his reply notice demanded compensation for loss of business, physical trouble and mental torture to the tune of Rs.24,800 which was frivolous and made with a view to harass the plaintiffs. As observed earlier defendant himself did not muster the courage to step into the witness‑box to deny the claim of the plaintiffs. Instead he authorised his son Muhammad Arif to face the cross examination who was constrained to admit the execution of .the contract of sale duly signed by him as an attesting witness. According to him, in order to obtain Capital Gain Tax Certificate a copy of the sale‑deed was required ‑to be submitted alongwith an application for Capital Gain Tax Certificate. For the first time this witness claimed that his father had requested the plaintiffs' attorney on a number of occasions to supply a copy of the sale‑deed in order to obtain the requisite certificate but the latter did not provide the same with the result that the certificate could not be obtained. The witness wrongly asserted that after the preparation of the sale‑deed it was the duty of the plaintiffs to obtain a date from the Sub‑Registrar for registration of deed and to intimate the defendant but the plaintiffs .and their attorney failed to perform their duty. This assertion is absolutely wrong. During his cross‑examination the witness was obliged to admit that no period was mentioned in the agreement to sell but he maintained that under the agreement plaintiffs were required to prepare the sale‑deed and hand it over to the defendant, which is after thought and far from the truth.

11. The witness mala fide denied the receipt of plaintiffs letter Exh.5/4, dated 2‑5‑1985 but admitted the reply thereto, dated 11‑5‑1985 sent by defendant's Advocate. It is pertinent to observe that paragraph 1 of the reply recites the receipt of notice by the defendant which is sufficient to contradict his statement and to brush aside the stand of defendant's witness which on the face of it is false and frivolous. The witness was daring enough to dispute the suggestion that in the reply notice Exh.5/5 defendant had denied the execution of the sale agreement but upon persistent cross‑examination he was constrained to, admit this position. In the absence of any plea in the written statement to the effect that the defendant had ever approached or called upon the plaintiffs' attorney to submit the sale‑deed and he himself having avoided to appear for his evidence, I am not at all inclined to accept hearsay version of the defendant's witness whose testimony does not inspire any confidence. To my mind, it seems, that the defendant having entered into a contract of sale for a valuable consideration and receiving part payment was under a duty to fulfill his legal obligation by obtaining Capital Gain Tax Certificate and to pay off dues and taxes, in respect of the plot in suit.

12. It was incumbent upon the defendant, who knew the whole circumstances of the case, to cross‑examine the plaintiffs' attorney and to appear in the witness‑box for his own evidence and submit to cross‑examination. His non‑appearance as a witness would be the strongest possible circumstance going to discredit his case. Wrongful attitude of the defendant can be gathered from the circumstances that at the earliest stage, in his reply notice he even denied the execution of agreement to sell point blank. Had he been fair and honest enough in his dealing he would have called upon the plaintiffs to get prepared the sale -deed and to provide him a copy thereof to take further steps for fulfillment of his obligation. In the circumstances of the case I am clear in my mind in holding that the plaintiffs were all along ready and willing to perform their part of the contract whereas the defendant refused to perform his part of contract and to execute the sale‑deed as agreed. Since time was not of the essence of the contract the claim of the plaintiffs seeking specific performance of the contract cannot be legally declined.

13. It is true that specific performance is discretionary with the Court but the discretion is to be exercised in a judicious manner and on judicially settled principles of law. In the present case I find the defendant responsible for breach of contract, therefore, I am legally entitled and justified to decree specific performance of the contract with costs which is otherwise lawful. In the light of aforesaid facts and circumstances I answer the issue against the defendant and decree the suit for specific performance with direction that the plaintiff shall I deposit the balance consideration of Rs.1,12,000 with the Nazir of this Court within 30 days of the decree. Needless to observe that with the execution of the sale‑deed in favour of the plaintiffs they shall be entitled to vacant and physical possesjion of the property in suit. H.B.T./M‑287/K ‑ Suit decreed.