2010 SCMR 1507 (PLP)

RAJA FAYYAZ AHMED, J.

This Civil Appeal has been directed against the judgment dated 27-1-2005 passed by the learned Division Bench of the Lahore High Court, Rawalpindi Bench, whereby RFA No.318 of 1993 preferred by the respondent against the judgment and decree of the learned Senior Civil Judge, Islamabad dated 26-9-1993, decreeing the suit for specific performance filed by the appellant was set aside and the suit was dismissed.

2. The facts of the case are that the respondent had entered into an agreement with the appellant-plaintiff to sell her House No.25, School Road, Sector F-6/1, Islamabad for the consideration of Rs.33,50,000 (rupees thirty three lacs and fifty thousands) executed between the parties on 23-8-1987. The appellant-plaintiff paid a sum of Rs.2,00,000 (rupees two lacs) as earnest money to the respondent. It was stipulated in the agreement to sell that within a period of 3 months from the date of execution of the agreement, the balance price of the suit property i.e. Rs.31,50,000 (rupees thirty one lacs and fifty thousands) will be paid to the respondent, who was to submit an application for transfer of the suit house in favour of the appellant in the Capital Development Authority, (CDA) Islamabad after delivering possession of the house to the vendee. It was further provided in the agreement that in case the vendor failed to submit the application for transfer of the suit property to the Capital Development Authority and to deliver the peaceful possession of the suit house to the vendee, she will be liable to pay double of the earnest money to the vendee and; in case of failure on the part of the vendor to nay the provided penalty, vendee shall be entitled to get the agreement to sell enforced by filing civil. In case of failure on the part of the vendee to discharge his part of the contractual obligation, the contract will liable to be cancelled and the earnest money to be forfeited.

3. Based on the agreement to sell detailed in paragraph No.2 supra it was averred in the suit instituted by the appellant that he had paid Rs.200,000 (rupees two lacs) to the respondent-defendant as earnest money who undertook that possession of the suit house along with all fittings and fixtures will be delivered to the appellant by 23-11-1987 and she will apply for transfer the suit house in favour of the appellant or his nominee and thereupon; he was to pay the balance amount of Rs.31,50,000 (rupees thirty one lacs and fifty thousands) to the respondent. The respondent failed to abide by the said condition and the appellant was constrained to serve notice dated 4-11-1987 through his counsel but she avoided service. Again a notice dated 14-11-1987 was sent to respondent but the respondent avoided the service and apprehending foul play the appellant served a notice through proclamation in the daily Jang dated 21-11-1987, it was further contended that the appellant has always been willing and ready to perform his part of the contract i.e., payment of the balance sale consideration in accordance with the terms of agreement but surprisingly a notice in daily Jang dated 26-11-1987 was issued on behalf the respondent purporting to have forfeited the earnest money on account of breach of alleged contract by the appellant, the contents whereof as per case of the appellant were false and illegal. Further, it has been contended that the respondent failed to perform her part of the contractual obligation accordingly, on these averments suit for specific performance of contract was instituted by the appellant.

4. The respondent-defendant contested the suit and filed contesting written statement contending therein that she throughout remained ready and willing to fulfil her part of the contract but the appellant-plaintiff failed to discharge his contractual obligation i.e. failed to pay the balance of sale price within the stipulated period, consequently, the defendant was constrained to cancel the contract and the earnest money of Rs.2,00,000 (rupees two lacs) was accordingly forfeited. It was further alleged that on 21-11-1987, the representative of the plaintiff namely, Saiful Islam contacted her husband Muhammad Shafique in order to compromise the terms by stating that the balance amount of the transaction was not available with the plaintiff and, therefore, the defendant to return the earnest amount plus an extra amount of Rs.25,000 (rupees twenty five thousands) over and above, however; it was stated to the said representative that the respondent will ponder over the matter. In order to pressurize the defendant, her husband was called to the police station for seven times but after inquiry he was let off. It was contended that the plaintiff has committed the breach of the contract and failed to perform his contractual obligation with regard to the payment of the remaining amount of the transaction.

5. Out of pleadings of the parties, following issues were framed:-- (1) Whether the plaintiff is entitled to get specific performance of agreement to sell dated 23-8-1987. If so, on what terms and conditions? OPP (2) Whether the suit is false and vexatious and the defendant is entitled to get special costs? If so, on what terms and conditions? OPD (3) Relief

6. The appellant-plaintiff produced four witnesses and himself appeared in the witness box as P.W.5. According to Muhammad Hafeez, Assistant Estate Management Officer, CDA (P.W.1), the plot in question was allotted to one Muhammad Shafique. The completion certificate in favour of Mst. Shaheen Kausar was issued on 4-6-1988, in whose favour the same was transferred by the CDA. According to the witness as per C.D.A. record, the property in dispute belongs to Mst. Shaheen Kausar and letter to such effect dated 21-11-1983 was issued. He stated that, as per record, the defendant did not submit any transfer application of the suit house in favour of the plaintiff. Ghulam Murtaza, Town Inspector, Post Office, Rawalpindi (P.W.2) stated that the article under registered cover No.193 in the name of Mst. Shaheen Kausar respondent, 25, School Road, Islamabad was sent to the Head Office, Islamabad on 14-11-1987. Muhammad Arshad, Postman (P: W.3) produced the endorsements made by him on the articles under registered cover as exhibits for delivery to the addressee, but he found an estate office in the premises, as per the given address, where Shafique (husband of the respondent) met to him and he made the endorsement, at the instance of said Shafique. Lehrasab Hussain, Inspector Post Office (P.W.4), produced record of the post office. The appellant-plaintiff appeared as (P.W.5) produced the agreement to sell as Exh-P.W.3/1. He stated that completion certificate was to be obtained by the respondent, who was also to deliver the possession of the suit house to him but she did not submit transfer application to the CDA. The balance amount according to the plaintiff of the sale transaction was to be paid by him at the time of transfer of the suit house in CDA Office. He further stated that completion certificate was not obtained by the defendant nor possession was delivered to him neither any step in the discharge of obligation was taken by the defendant. He issued two legal notices Exh-P.W.3/2 and Exh-P.W.3/3 under registered cover to the defendant at her given address, which were returned as undelivered to his attorney, who returned the same to him, after that according to the plaintiff, a notice was got published by him in daily Jang, Rawalpindi produced as Exh-P.W.3/4. The other notice got published by the defendant in the same Newspaper Exh. P.W.3/5 was contrary to the facts. In the last, he stated that still he is ready to make the payment of the balance amount of the transaction to the defendant. He denied in cross-examination that on receipt of the balance amount, possession of the suit house was to be delivered to him. He further denied that before submission of the transfer application form, the balance amount was to be paid by him to the vendor. It was denied in cross-examination that he committed the breach of the contract, although; the vendor remained ready and willing to discharge her part of obligation.

7. Attorney for the respondent/defendant namely, Muhammad Shafique appeared as D.W.1. According to him, time was the essence of the contract and the plaintiff failed to make payment of balance amount of the transaction by the specified date. According to him, on 21-11-1987, the plaintiff along with two other persons came to him and requested for extension of time for making payment of balance amount, which he refused to agree. Further, according to the attorney, he proposed that the agreement can be cancelled and he would return the earnest money but the plaintiff demanded Rs.25,000 (rupees twenty five thousands) over and above the earnest money to be returned to him, which he refused. He further stated that he had asked the plaintiff to revisit on the next day for the purpose but he did not come to him again, therefore; in respect of the cancellation of the agreement and forfeiture of the earnest money, notice was published in the newspaper on behalf of the vendor. He further added that agreement Exh-P.W.3/1 was got written by the plaintiff on his own and he had verbally told to the plaintiff that application was submitted by him in the CDA office, to which the plaintiff stated that he would obtain the same from the CDA. Azizul Haq D.W.2 supported to the version of the attorney for the defendant, to the extent that on 21-11-1987 he was present with the husband of the defendant in his house along with one Muhammad Azad when at 5.00 p.m. the plaintiff with two other persons visited to the attorney of the plaintiff and stated to him that he is not in a position to pay the balance amount of transaction, therefore, the earnest money in addition to an amount of Rs.25,000 (rupees twenty five thousands) for misc. expenses be returned to him and the agreement may be cancelled, to which, the attorney of the defendant did not agree, who asked them to come to him on the following day but they did not visit again.

8. The learned trial Court after conclusion of the evidence of the parties decreed the suit in favour of the appellant on 26-9-1993 reversed by the learned High Court vide judgment impugned herein.

9. The learned counsel for the appellant argued that the facts not pleaded by the plaintiff nor challenged in cross-examination by the defendant could not have been considered by the learned High Court. According to the learned counsel, it was proved through the evidence that the respondent-defendant was in the breach of agreement, who failed to perform her part of contractual obligation, although; the plaintiff throughout remained ready and willing to make payment of the balance amount of the transaction in terms of the agreement but neither possession was delivered to the appellant nor application for transfer of the house was submitted by the respondent-vendor who even did not obtain the completion certificate before the crucial date, therefore, the forfeiture of the earnest amount, as well as; the cancellation of the agreement unilaterally by the defendant was unjustified and illegal. The last date for completion of the agreement was 23-11-1987 and the suit was promptly filed by the appellant on 5-12-1987. It was emphatically contented that the appellant did not contribute in any manner for delaying completion of the agreement, which was to be specifically performed on the discharge of reciprocal promise by the defendant. The learned counsel on query by the Court submitted that balance amount of the transaction was deposited by the appellant with the learned trial Court consequent upon passing of the decree and stay was granted by the learned High Court, however; with the permission of the Court, the amount was withdrawn by the appellant. The learned counsel maintained that in the light of the pleadings and the evidence available on record, the judgment and decree passed by the learned trial Court was unexceptional, therefore, the same was not liable to be reversed by the learned High Court in the Regular First Appeal in absence of any legal ground, wanting in the case. Reliance has been placed on the judgments i.e. Seth Essabhoy v. Saboor Ahmed (PLD 1973 SC 39), Alloo v. Sher Khan and others (PLD 1985 SC 382), Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCMR 2189), Kanish Ram v. Om Ram Prakash Jawal and others (AIR 1996 SC 2150) and Mst. Amina Bibi v. Mudassar Aziz and others (PLD 2003 SC 430).

10. The learned Sr. ASC for the respondent by controverting the contentions put forth on behalf of the appellant submitted that in the circumstances equity favours to the defendant in view of the unusual and unfair conditions of the agreement to sell and in absence of extension for the completion of agreement, the time given in the agreement was the essence of the contract. The reciprocal promise for the transfer of the house and for the performance of the other obligations arising out of the contract was subject to the payment of balance amount of the transaction by the appellant, which he failed to do so, rather; requested for extension of time, not acceded to by the attorney for the respondent. According to the learned counsel, had the appellant wanted to make payment of balance amount of the transaction nothing precluded him to transmit the same to the defendant through cross-cheque or bank draft and even could have been deposited with the Government treasury by submitting an application to the Civil Court and even till the decree was passed by the trial Court in favour of the appellant, the balance amount was never tendered to show bona fides, rather; the appellant as a device and to create evidence in order to substantiate his mere verbal assertion that he throughout was ready and willing to perform his part of obligation issued notices etc. As regards the balance amount of the transaction the completion certificate was to be issued by the Capital Development Authority for which the respondent could not be blamed, while the transfer application form was to be submitted on receipt of payment of the balance amount, which the plaintiff failed to pay within the stipulated period of time. In the circumstances of the case, it was not obligatory on the part of the Court to have essentially decreed the suit being a discretionary relief, as the equity favoured the defendant. The learned counsel has cited the following reported judgments in support of his view point i.e. Syed Arif Shah v. Abdul Karim Qureshi (PLD 1991 SC 905), Hakim Ali v. Muhammad Salim and another (1992 SCMR 46), Abdul Rashid v. Water and Power Development Authority (WAPDA) through Chairman and 2 others (2003 CLC 471), and Anwar Ahmed v. Nafees Bano through Legal Heirs (2005 SCMR 152), State Life Insurance Corporation of Pakistan through its Chairman and another v. Director-General, Military Lands and Cantonments, Rawalpindi and 4 others (2005 SCMR 177) and Abdul Hameed and others v. Muzamil Haq and others (2005 SCMR 895).

11. The contentions putfourth on behalf of the parties have been considered in the light of the impugned judgment gone through carefully and minutely with their assistance including pleadings of the parties and the evidence adduced by them at the trial including the judgment passed by the learned trial Court, decreeing the suit for specific performance of the agreement in favour of the appellant. The case law cited on behalf of the parties by their learned counsel have also been considered and perused. In the case of Kanish Ram v. Om Ram Prakash Jawal and others (AIR 1996 SC 2150) having regard to the facts of the case and the arguments advanced before the learned Court the question for consideration was; whether it would be just, fair and equitable to grant the decree for specific performance? The learned Court concluded that it is true that the rise in the prices of the property during the pendency of the suit may not be sole consideration for refusing to decree the suit for specific performance and observed that equally it is settled law that granting decree for specific performance of a contract of a immoveable property is not automatic. It is one of the discretion to be exercised on sound principles. The learned Court further observed that when the Court gets into equity jurisdiction, it would be guided by justice, equity, good conscious and fairness to both the parties. While .adverting to the facts of the case, it was concluded that the respondent himself had claimed alternative relief for the damages, therefore, in such a view of the matter; the learned Court observed that the Courts would have been well justified in granting the alternative decree for damages instead of ordering specific performance which would be unrealistic and unfair. Accordingly, under the circumstances it was held that the decree for specific performance is inequaitable and unjust to be granted to the appellant. In the next cited judgment i.e. Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others, (1994 SCMR 2189) with reference to the facts of the case and in view of section 62 of the Contract Act, 1872, it was observed that no doubt the appellant pleaded that subsequent to the service of notice dated 16-10-1975 the deceased had approached her and requested for sale consideration of the suit property from Rs.300,000 (rupees three lacs) to 3,65,000 (rupees three lacs and sixty five thousands) which she accepted and the deceased agreed to convey the property against the sale consideration of Rs.3,65,000 (rupees three lacs & sixty five thousands) but she failed to prove the novation of the original sale agreement. Further, from this it follow that the original agreement between the parties stood abrogated and became unenforceable. In view of section 62 of the Contract Act, it was observed that if the parties to the contract agreed to substitute a new in place of original one then the original contract need not be performed. In the 3rd cited judgment, in the case of Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344) arising out of a suit for specific performance of the contract for sale of immovable property with reference to the facts of the case observed that contract not performed by the date given in original agreement and the defendant after expiry of stipulated time accepting another amount as advance and extending such time for two months. The plaintiff addressing letter to the defendant explaining delay in making payment and requesting to intimate his availability and to enable him (plaintiff) to keep amount ready and transfer property in his name followed by remittances of amounts to defendant but the defendant keeping silent and withholding from plaintiff of his transaction with another party. Thus, in the circumstances of the case it was held that the conduct of the plaintiff was not amenable to inference of abandonment of his right and that mere dealy in making payment would not non-suit him, if period of imitation still available and the parties had not shown to have intended that time would be of essence of contact; the limitation thus, would run from the date of expiry of extended time for performance. It was further concluded that, in case of contract for sale of immoveable property time in such transaction would not ordinarily be considered as being essence of contract as the intention of the parties to the contract can be gathered from terms of contact and facts and circumstances of the case. Mere mention of time in the contract for its performance would not necessarily mean that time was of essence of contract and the discretionary jurisdiction of the Court to enforce specific performance of contract cannot be claimed as a matter of right and the exercise of such jurisdiction should not be arbitrary but to be sound and reasonable guided by judicial principles and capable of correction by a Court of appeal and the ground of refusal or to grant relief depends upon circumstances of the case and conduct of parties. In the case of Seth Essabhoy v. Saboor Ahmed (PLD 1973 SC 39) in a suit of specific performance of contract in view of the contentions of the learned counsel for the appellant that it was essential for the respondent to prove that he was ready and willing to perform his part of the agreement at all stages upto the filling of the suit for specific performance of contract and that on account of the filing of complaint by the respondent under sections 471, 420, P.P.C. was clearly manifested of his intention to repudiate the contract and thus, not willing to perform his part of the contract, were found to be without force for the reasons that the complaint filed by respondent showed that he in the first instance tried to pin down the appellant by the coercive process of criminal action to fulfil his promise to get the land- converted into a Sakni plot which may be undesirable device resorted to by filing the complaint which did not indicate that the respondent had abandoned his claim of specific performance and that he was not ready and willing to perform his part of the contract. It was held that in the case defendant himself has committed breach of the contract and it was not obligatory on the part of the plaintiff in a suit for specific performance to prove his willingness to perform it upto the date of the filing of the suit. The last judgment cited on behalf of the appellant relates to the case of Alloo v. Sher Khan and others (PLD 1985 SC 382) in which it was held that if finding of fact reached by first appellate Court was at variance with that of trial Court, the former would ordinarily prevail although; it would not possess same value or sanctity as a concurrent finding of fact with reference to the two principles laid down in the case of Madan Gopal and others v. Maran Bepari and others (PLD 1969 SC 617). The first principle was that concurrent finding of fact reached by the lower Courts will not be disturbed by the High Court in second appeal even if it disagrees with that finding on its own view of the evidence, although concurrent finding of the lower Courts may appear to be grossly erroneous unless an error or defect discovered is of a substantial character pertaining to the procedure which may have possibly produced an error or defect in the decision of the case upon merits. The second principle has been mentioned hereinabove in the first part of this para.

12. The cited precedents on behalf of the respondent i.e. Hakim Ali v. Muhammad Salim and another, (1992 SCMR 46), Abdul Hameed and others v. Muzamil Haq and others (2005 SCMR 895) and State Life Insurance Corporation of Pakistan through its Chairman and another v. Director-General, Military Lands and Cantonments, Rawalpindi and 4 others (2005 SCMR 177) have no relevancy to the case in hand. In the other cited judgment in the case of Anwar Ahmed v. Nafees Bano through Legal Heirs 2005 SCMR 152, it has been held-that the grant of specific performance is always discretionary and the Court is not always bound to decree specific performance even in a case where the contract is proved. Such discretion however, must be exercised judiciously and not arbitrarily. In the precedent case following reported judgments have been referred: Syed Arif Shah v. Abdul Karim Qureshi (PLD 1991 SC 905), Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCMR 2189) and Mst. Amina Bibi v. Mudassar Aziz and others (PLD 2003 SC 430) were referred. As regards the case of Syed Arif Shah v. Abdul Karim Qureshi (PLD 1991 SC 905) is concerned, it would be beneficial on the subject to reproduce hereinbelow paragraph No.14 of the judgment: "

14. It may be noticed that according to the above-quoted section the jurisdiction to decree specific performance is discretionary and the Court is not bound to grant such relief merely because it is lawful. However, the discretion of the Court is not arbitrary but sound and reasonable and is to be guided by judicial principles which are amenable to correction by a Court to appeal. It may further be noticed that the above section give two illustrations which are not exhaustive to demonstrate in which cases the Court may decline to exercise discretion of granting specific performance of a contract, namely (i) where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant though there may not be fraud or misrepresentation on the plaintiff's part; and (ii) where the performance of the contract would involve some hardship on the defendant which he did not foresee whereas its non-performance would not involve such hardship on the plaintiff. It may also be pointed out the above section provides that the Court may properly exercise discretion to decree specific performance where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance." In the cited case Abdul Rashid v. Water and Power Development Authority (WAPDA) through Chairman and 2 others (2003 CLC 471), the facts the case have been given in paragraph No.1 of the judgment, reproduced hereinabelow:- "

1. Petitioner purchased WAPDA bearer Bonds (6th issue) bearing Nos.014351 to 014355, each bond valuing Rs.1,00,000 (total Rs. 5,00,000) from respondent Nso.3 on 12-5-1994 the bonds were issued for ten years and six monthly profit was payable @ 19%. The petitioner collected by the profit due on 11-11-1994, 11-5-1995, 11-11-1995, and 11-5-1996. Petitioner claims that on/about 11-11-1996 petitioner lost the bonds along with the profit coupons. He asserts that in this way he lost all his life saving. On discovery of loss, petitioner (i) lodged report No.22 (Annexure "B") with the Police Station Kotwali, Sialkot. (ii) informed respondent No.3 the bank, in writing. (Annexure "C"), (iii) respondent No.3 issued a letter on 11-11-1996 stating that WAPDA Bearer Bonds numbered as above were issued by the Bank in favour of the petitioner and that half yearly profit on these bonds was also collected by the petitioner (Annexure "D"), (iv) loss of bonds was also got published in daily "Khabrain" by way of an advertisement, (Annexure, "E") and (v) that petitioner also got printed a hand bill in Urdu promising prize of Rs.10,000 to the finder of the bonds and this pamphlet was circulated at all public places in Sialkot (copy Annexure "F"). It is asserted that in spite of above and lot of prayers, the bonds could not be retrieved. Petitioner, therefore, applied to respondent No.2 with necessary enclosures for issuing duplicate copies of bonds and profit coupons. This letter is Annexure "G". Vide Annexures "H" and "H/1" respondent No.2 informed that as the bonds were bearer, duplicate of the same cannot be issued. Petitioner also obtained a certificate Annexure "I" from respondent No.3 to the effect that profit due on 11-11-1996 to 2-7-1997 has not been paid to any person nor the coupons have been presented to the Bank. Failing in his effort to have duplicates issued, petitioner has filed this Constitutional petition seeking declaration that Annexure "H" has not been issued with any legal authority and a direction to respondents to issue the duplicates so that the petitioner can collect the profit as also the amount of the bonds on maturity." With reference to the facts of the case in given in paragraph No.14 of the judgment from Lahore jurisdiction, the learned Single Judge in Chambers, concluded as under: "14 There is still another aspect. There is nothing on the present record suggesting that at the time of purchase of the bonds, the petitioner' ever learnt of or was made aware of the conditions of the transition, particularly the so-called clause

8. It is not even clear whether this condition was given wide publicity in press or through electronic media or by conveniently making available the broacher and the booklet at all the sale points. This aspect is important as the Court will not permit one of the contracting party to take advantage of an unusual and onerous condition and thus deprive the other party from its legitimate right/property. Reference can be profitable made to the Pakistan General Insurance Company Ltd. v. Fazal Ahmed PLD 1960 (W.P.) Lah. 1935 and Hakim Ali v. Muhammad Salim and another 1992 SCMR 46."

13. From the above cited precedents on the cited subject it is evidently clear, that section 22 of the Specific Relief Act, 1877 gives discretion to Court to grant specific performance of contract arrived at between the parties but such discretion must be exercised on sound judicial principles of equity, fairness and good conscious and not on erroneous assumption or presumption and Court is not bound to grant relief merely because its lawful to do so irrespective of the conduct of the contracting parties and no unfair advantage to be given to a party or to the other in the suit for specific performance. Relief could be refused though there may not be any fraud or mis-representation on the part of the plaintiff.

14. Adverting to the facts of the case admittedly agreement to sell (Exh.P.W.3/1) in respect of the house No.25, situated at School Road, F-6/1, Islamabad was executed between the parities whereby the respondent-vendor agreed to sell the house measuring 1422 Sq. Yards, almost equal to 3 kanals with all the fittings and fixtures including wall to wall carpet etc against the sale consideration of Rs.33,50,000 (rupees thirty three lacs and fifty thousands) to the appellant, out of which earnest money of Rs.2,00,000 (rupees two lacs) was paid by the said vendee to the respondent duly acknowledged by the vendor on the express terms and conditions stipulated therein; reproduced herein below in verbatim:--

15. It is clearly reflected from the above mentioned terms and conditions of the agreement that physical possession of the suit house within a period of 3 months upto 23-11-1987 along with fittings and fixtures was to be handed over to the vendee and vendor-respondent will submit application to the CDA for transfer of the house and at such juncture, the appellant-vendee will pay the balance amount of the transaction amounting to Rs.31,50,000 (rupees thirty one lacs and fifty thousands) to the vendor while the transfer fee shall be payable by the vendee, whereas; completion certificate shall be obtained by the vendor at her own cost from the CDA. It was further, provided in the agreement that in case of failure of the respondent to deliver possession of the suit house to the vendee or abstained from submitting transfer letter to the CDA within the given period, the respondent-vendor shall be liable to pay double of the earnest money to the vendee and further that vendee shall be entitled to get possession of the house and transfer the same in his favour through specific performance of the agreement and similarly if the vendee avoided to make payment of the balance amount of the transaction to the vendor at the time of delivery possession and on submission of transfer letter; the earnest money will be liable to be forfeited and the transaction shall be treated as annulled. A bare perusal of the abovementioned contents of the agreement shows that on payment of the earnest money of Rs.2,00,000 (rupees two lacs) to vendor, she was bound to deliver the vacant possession of the suit house to the appellant-vendor within three months upto 23-11-1987 and on submission of the transfer letter to the CDA in favour of the vendee, she then would be entitled to receive the balance amount from the appellant and on failure such as; on the part of the vendee to pay balance amount of the transaction, the earnest money will be forfeited as well as; the agreement shall stand cancelled. It is abundantly clear from the conditions abovementioned' that on discharge of the contractual obligations by the vendor; then reciprocally the vendee will become liable to pay the balance amount of the transaction to the respondent-vendor and in case of breach of agreement on the part of the vendor, to get the same enforced through suit for specific performance and in case of breach of agreement on the part of the vendee, the respondent would only be entitled to forfeit the earnest amount and to treat the contract as cancelled thus, it is apparent from such conditions that as against the vendor, the appellant- vendee was put to an advantageous and much preferential position. Moreover; the incorporated covenants of the sale agreement also provided the specified penalties against either party for breach of the contract spells out their intendment for the due performance of the agreement for completion of the transaction, therefore, the time specified in the agreement for the purpose was the essence of the contract unless the same is extended by mutual agreement or conduct of the parties to the contract. Undoubtedly, legal notices dated 4-11-1987 and 13-11-1987 were issued on behalf of the appellant to the vendee at her given address under registered cover but contrary to the terms of the contract it was offered in these notices '(Exh. W.3/2 and Exh.P.W.3/3) to the vendor that after receiving the balance amount of the sale consideration on or before 23-11-1987 (the time specified in the agreement to sell) called upon to deliver possession of the suit house to the vendee; indicating in clear terms that the vendee himself was conscious about the unusual and unreasonable condition of the agreement whereby the vendor was supposed in first deliver the physical possession of the house and to apply to the CDA for transfer of the same in favour of the. vendee and then to become entitled to receive the balance amount but as per appellant's own showing, he did not enclose any cross-cheque or demand draft of the balance amount of the transaction with either of these notices. The legal notices were returned as undelivered containing endorsements of the postman on the registered articles marked as(Exh.P.W.1/A, Exh.P.W.1/B and Exh.P. W. 1/2-A). The postman, Muhammad Arshad was produced as (P.W.3) who stated that he had taken these two registered articles for delivery to the addressee where an estate office was found where he met with the husband of the addressee namely Shafiq and at his instance he made the endorsements on the registered articles. Endorsement (Exh. P.W. shows that from the office he came to know that Shaheen Kausar (vendor) was not available in the house. He explained before the Court as (P.W.3), that husband of the respondent told to him that his wife has gone to Lahore, therefore, the article was returned as undelivered on 16-11-1987. Whereas, prior to the same, it was taken at the given address to be delivered to the addressee, who was not found present in the house. Accordingly, it was taken again to be delivered to the addressee but was returned as un delivered on 16-11-1987. The second article under registered cover was returned with the endorsement (Exh.P.W.1/2-A) made by the postman to the effect that the addressee has left for Karachi. After that the appellant through his advocate got published a notice in the Newspaper (Exh.P.W.3/4) in the name of the respondent for general information to the effect that on fictitious reports, two legal notices under registered cover sent to her were returned; intimating through this public notice that the appellant is ready and willing to make payment of the balance amount of the transaction in question. Accordingly, the respondent was called upon to deliver the possession of the suit house to him by 23-11-1987. In order to show that the breach of the contract was committed by the appellant; the respondent in her written-statement contended that on 21-11-1987 (two days prior the last date for completion of the contract) representative of the plaintiff namely, Saiful Islam contacted the defendant's representative Muhammad Shafique (her husband) to come to comprising terms because the balance amount was not available with the appellant and that the defendant should pay Rs.2,25,000 (rupees two Lacs and twenty five thousands) over and above the earnest money, to which the representative of the respondent expressed that he will think over the matter, whereas; the attorney for the respondent namely Muhammad Shafique in his statement before the trial Court in contradiction to the pleadings stated that the appellant along with two unknown persons came to him on 21-11-1987 requesting that the balance amount could not be paid, therefore, the time fixed in the contract may be extended but such request was declined. Further, the attorney for the defendant (D.W.1) stated to them that they can cancel the agreement in writing and in this way he can return the earnest amount but refused to pay any extra amount to the appellant. The evidence led by the defendant on the point is in contradiction to what she pleaded in her written-statement and secondly, the plea advanced could not be termed or amount to the cancellation of the contract inasmuch as; the attorney for the respondent categorically stated before the trial Court, while refusing to accede to the stated request made by the attorney for the respondent that he can return the earnest amount and nothing more provided he cancelled the contract in writing. Further, the case of the respondent was that the earnest amount of Rs.2,00,000 was forfeited by her as the appellant committed breach of the contract may be found to be not in conformity with the express terms of the contract reproduced hereinabove for the simple reason that no contractual obligation was to be discharged by the appellant after payment of the earnest money to the respondent who was to first deliver physical possession of the house in question to the plaintiff and was also to apply for transfer of the same to the CDA in favour of the appellant-plaintiff but within the stipulated period neither the possession was delivered to the appellant nor she applied to the CDA for transfer of the house in favour of the appellant. Hence; in view of the terms and conditions of the contract it could not be said that the appellant was the one who had reciprocally after payment of the earnest money was to discharge the contractual obligation i.e. to make payment of the balance amount rather; the same was to be paid by the appellant subject to discharge of the contractual obligations abovementioned on the part of the respondent. Contrary to the stipulated condition as has been referred to above, through the legal notices the appellant offered that after receiving the balance amount to deliver vacant possession of the house and to transfer the same in favour of the appellant. This conduct on the part of the appellant requesting the respondent to deliver the physical possession of the house to him on receipt of the balance amount clearly indicates that the appellant was conscious of the fact that unfair and oppressive condition was incorporated in the agreement to sell whereby the respondent was obliged not only to deliver the possession of the house to the appellant but also to apply for transfer of the house in favour of the vendee in the CDA record and thereafter; she would become entitled for the balance amount which if not paid, pertinently note worthy, the vendor to have only recourse to legal proceedings for the recovery of the balance amount. It is note worthy that the total area of the house is approximately 3 kanals i.e. 1422 Sq. Yards with all fittings and fixtures including wall to wall carpet detailed in the agreement to sell was agreed to be sold to the appellant against sale consideration of Rs.33,50,000 (rupees thirty three lacs and fifty thousands) out of which Rs:200,000 (rupees two lacs) was paid by the vendee to the respondent and the remaining amount was to be paid within a period of three months from 23-8-1987. The physical possession of the house was to be delivered to the appellant-vendee as well as; the respondent was also to apply to the CDA for transfer of the house in favour of the vendee within the said period. As concluded hereinabove in view of the pleadings of the parties and the evidence adduced by them at the trial, the forfeiture of the earnest money of Rs.200,000 (rupees two lacs) on the part of the respondent was unjustified and illegal. Moreover, as held hereinabove in view of import of the penalties provided in the agreement; these reflected the intendment of the parties to secure completion of the agreement and thus, the time specified in the agreement for the purpose and rightly so observed by the learned High Court was the essence of the contract but in view of the nature of the specific condition of the agreement involving performance of reciprocal promises respectively by both the parties, we do not find the appellant to be entitled to the discretionary relief of specific performance of the agreement to sell as envisaged by section 22 of the Specific Relief Act, 1877 keeping in view the principles of justice, equity, good conscious and fairness to both the parties laid down in the precedent cases referred to hereinabove on the subject. In the peculiar circumstances of the case discussed hereinabove, the appellant is not entitled to the specific enforcement of the contract as a matter of right. Further, he has been found entitled to, as admittedly since the date of execution of the agreement i.e. 23-8-1987 the respondent has utilized the earnest amount of Rs.200,000 (rupees two lacs) for her benefit and converted to her own use by forfeiting the same on baseless plea till date, therefore, she is also liable in view of the devaluation of the currency and the constant trend of rising dearness, to make payment Rs.20,00,000 (rupees twenty lacs) inclusive of the earnest amount to the appellant within a period of three months by depositing the same in favour of the appellant in the trial Court; failing which the judgment and decree passed by the trial Court shall stand restored.

16. The result is that the judgment and decree passed by the learned High Court stands modified to the above extent subject to which modification, this Civil Appeal is dismissed. There shall be no order as to costs. M.H./S-25/SC Order accordingly.