' The present revision application is directed against the decree dated 19-12-2002, passed by the learned IV-Additional District Judge, Shikarpur, by which the learned Judge set aside the decree passed by the learned IInd Senior Civil Judge, Shikarpur, under which he decreed the suit of the applicant.
2. Brief facts giving rise to the present revision application are that the applicant filed the suit for specific performance of contract and permanent injunction against the respondent No,1, alleging that the respondent No,1 was owner of City Survey No,37/143, admeasuring 105-05 sq. Yards, situated at Old Saddar, Shikarpur. He agreed to sell the same to the applicant for an amount of Rs,1,40,000 by an agreement, dated 27-8-1992. An earnest money of Rs,20,000 was paid to the respondent No,1 at the time of execution of agreement of sale. The balance amount of Rs,1,20,000 was to be paid at the time of executing registered sale-deed, which was to be executed after clearing the loan amount of Rs,90,000 advanced to the respondent No,1 by House Building Finance Corporation and also clearing the dues of electricity and Sui Gas up to 31-1-1993. It was also agreed between the parties that in case of breach of contract from the side of applicant the earnest money of Rs,20,000 would be forfeited and in case of breach of contract from the side of respondent No,1 he would pay Rs,40,000 being double the amount of earnest money. It was alleged in the plaint that the applicant was requesting respondent No,1 to execute the sale-deed, but he was avoiding to do so, as he wanted to sell the property to somebody else on higher price.
Ultimately, on 11-4-1993, the respondent No,1 refused to execute the registered sale-deed, therefore, the applicant filed the suit with the following prayer:--
(i) to direct the defendant to specifically perform his part of the contract by executing registered sale-deed in respect of house in suit, in favour of the plaintiff on payment of balance of consideration of Rs,1,20,000 failing -which this Honourable Court be pleased to get the needful done through the Nazir of the Court;
(ii) or in the alternative, this Honourable Court be pleased to direct the defendant to pay the plaintiff the sum of Rs,40,000 i,e, Rs,20,000 as penalty in terms of agreement in-question.
(iii) to award cost of this suit;
(iv) to grant any other equitable relief as may be deemed fit and necessary under the circumstances of the case."
' On 24-10-1996 the applicant made a statement before the trial Court withdrawing his alternative prayer. After serving notice and hearing the parties' counsel the learned trial Judge allowed the application by his order dated 23-2-1997. As such the prayer mentioned in the alternative was dropped.
4. The respondent No,1 contested the suit by filing the written statement, in which he admitted the execution of agreement of sale dated 27-8-1992 and the terms and conditions mentioned in the contract. He took the plea that the applicant did not pay balance amount of the sale consideration, therefore, on 6-2-1993 a notice was issued to the applicant to pay the balance amount within 15 days, otherwise the agreement would stand cancelled. He further took the plea that the applicant did not pay the balance amount within the above stipulated time, therefore, on 2-3-1993 he gifted the property to respondent No,2 and thereafter the gift deed was registered.
5. The applicant joined the respondent No,2 in the plaint, who also filed the written statement, by asserting that on 2-3-1993 the respondent No,1 gifted the property to him and delivered the possession, which he had accepted and thereafter the gift-deed was registered and the record of rights was mutated in his name.
6. The trial Court framed the required issues. The parties led evidence in support of their respective claims.. The learned Judge after evaluating the evidence and hearing the parties' counsel decreed the suit of the applicant vide decree, dated 28-5-2001. The respondent challenged the said decree before the Appellate Court. The learned IV-Additional District Judge, Shikarpur after hearing the parties' counsel set aside the decree of the trial Court and allowed the appeal by dismissing the suit of the applicant under the impugned decree. Hence, the present revision application.
7. The learned Advocate for the applicant has stated that the Appellate Court has granted compensation under a wrong impression that the alternative prayer was not withdrawn, therefore, he did not allow the main prayer on the ground that the compensation was adequate relief; that the said observation of the trial Court is against the record as the alternative prayer was withdrawn by the order of the trial Court dated 23-2-1997; that the respondent had committed the breach of contract, as he had not cleared the loan of House Building Finance Corporation up to 31-1-1993 and in spite of his requests he failed to execute the sale-deed; that the notice dated 6-2-1993 sent by respondent No,1 was not received by him; that the time was not the essence of contract; that the gift executed by respondent No,1 in favour of respondent No,2 was executed to frustrate the contract. Therefore, the same carries no weight. He has relied upon Amjad Rashid Khan Malik v. Mrs. Zubeda Rashid Khan 1984 CLC 2851 (Karachi); Messrs Karachi Gas Co. Ltd., Karachi v. Messrs Fancy Foundation PLD 1977 Kar. 191; Ram Jee Patel v. Rao Kishore Singh AIR 1929 Privy Council 190; Abdul Karim v. Muhammad Shafi 1973 SCMR 225; Ch. Nazir Ahmed v. Usman Khan 1993 CLC 937 (Lahore); Hakim Ghulam Rasool v. Sh. Imdad Hussain PLD 1968 Lah. 501; Seth Essabhoy v. Saboor Ahmed PLD 1973 SC 39; Gulzar Begum v. Mst. Saira Bibi 1972 SCMR 251; and Pakistan v. Firm Lodhi House PLD 1968 Lah, 923.
8. Conversely, the learned Advocate for respondents has stated that the time was the essence of the contract, but the applicant did not pay the balance amount in spite of service of notice, dated 6-2-1993 and the contract was cancelled; that the applicant had prayed for alternative relief by praying that Rs,40,000 being the double amount of the earnest money be paid to him, which is an adequate relief within the meaning of section 21 of Specific Relief Act; that the property was gifted before filing the suit, as such the contract cannot be executed; that the applicant had not prayed for cancellation of the gift-deed. In support of his contentions he has relied upon WAPDA v. Saeed Badar PLD 1991 SC 660; M. Ameen M. Bashir Ltd. v. Haji Soomar Haji Hajan Potol PLD 1977 Kar. 973; Abdul Hameed v. Abbas Bhai Abdul Hussain PLD 1962 SC 1; Sandoz Limited v. Federation of Pakistan 1995 SCMR 1431; Manicklal Mukherjee v. Commissioner of Sanchaita 1993 SCMR 2241 (Supreme Court of India); Muhammad Siddique v. Muhammad Akram 2000 SCMR 533 and PLD 1959 Kar.
629.
9. I have given due consideration to the arguments, gone through the material available on the record, case-law cited at the Bar and find that the entire case hinges upon the interpretation of agreement of sale, particularly clauses (3) and (8), which are as under:-- "(3) In connection with this sale, I, the seller, have been paid an earnest money of Rs,20,000 in advance by the other side i,e, purchaser. Now I, the seller, promise that from today till 31st January, 1993, after depositing the remaining dues of Finance Corporation will get such Clearance Certificate from them and also shall clear the electricity, Gas and any other dues outstanding against the property and shall also get the property redeemed from any other dues. After that I shall hand over the property with all rights and interests through registration to other side. And the payment of total amount of Rs, 1,40,000, out of which Rs,20,000 is already paid to me, after deduction thereof, I shall receive the remaining amount of Rs,1,20,000 from other side i,e,, purchaser before the Sub-Registrar.
(8) In case I, the seller, after clearing the Government dues within a period of six months and getting such clearance certificate, did not get the registration of sale of the property to the other side i,e,, purchaser, then I, the seller, will refund the earnest money of Rs,20,000 and also Rs,20,000 more in lieu of not performing the contract, total Rs,40,000 to the purchaser. And in case, all the documents of the executant are complete and I the purchaser do not purchase the property, then I will withdrawn from the earnest money of Rs,20,000 paid by me in advance to the executant. I have made this agreement in presence of respectable witnesses of the Mohalla, which is read over, explained and accepted, so that it may be useful at any time to us."
10. From the plain reading of both the clauses it is clear that the respondent No,1 was required to obtain clearance certificate up to 31-1-1993 from House Building Finance Corporation and to clear all the other required dues and then the registered deed was to be executed after receipt of Rs,1,20,000 from the applicant in the presence of Sub-Registrar. It is further clear from clause (8) that if the respondent No,1 could not clear the above dues within a period of six months, then he would pay Rs,40,000 to the applicant being double the earnest money and in case after obtaining the required certificate the applicant could not pay the amount then his earnest money will be forfeited. It is further pointed out that in both the clauses the time mentioned therein is quite different from each other, because the agreement was executed on 27-8-1992. The dues of House Building Finance Corporation and other dues were to be cleared on or before 31-1-1993, which means that the respondent No,1 was required to complete the said formalities within 5 months and 3 days, whereas the clause (8) discloses the time as 6 months for completing the above formalities. From both these clauses it is apparent that time was not the essence of contract. Under the law if a plea of essence of contract is raised then the intention to make time as the essence of contract must be expressed in unmistakable language, which can be inferred from what passed between the parties before the execution of contract and not after the contract is made. The Honourable Supreme Court of Pakistan in the case of Mst. Amna Bibi v. Mudassar Aziz PLD 2003-SC 430, at page 439, has observed as under:-- "(13) It is well-settled that intention to make time of the essence of the contract must be expressed in unmistakable language and it may be inferred from what passed between the parties before but not after, the contract is made. A mere mention of a specific period in an agreement for completion of sale has been held as not to make the time of essence of the contract. In contracts of sale of immovable property, ordinarily, time is not considered to be of essence of the contract unless it was expressly intended by the parties and the terms of the contract do not permit of any other interpretation. "
11. Following the above dictum of the Honourable Supreme Court of Pakistan, I am convinced that the time was not the essence of the contract. However, the learned Advocate for the respondents has drawn my attention to the notice, dated 6-2-1993 issued by the respondent No,1 to the applicant and stated that in that notice a time of 15 days was allowed to the applicant to fulfil his condition, otherwise the contract would stand cancelled, therefore, the said period was the essence of the contract. I am not impressed by the said arguments for the simple reason that time was not originally made the essence of contract of the sale of house, therefore, one of the parties cannot unilaterally fix the time for the purpose of the contract unless there is a default or unreasonable delay on the party of other side. The above view is supported by a case of Abdul Hameed v. Abbas Bhai Abdul Hussain PLD 1962 SC 1.
12. As regards the breach of the contract, the applicant alleged that he had approached the respondent No,1 to execute the sale-deed, but he was avoiding co do the same, whereas the respondent No,1 claimed that the applicant was not interested in execution of sale-deed in spite of service of notice upon him, therefore, he was responsible for the breach of contract. In order to prove their assertions, the applicant examined himself and stated as under:- "After that I approached the defendant No,1, from time to time for execution of sale-deed in my favour of the disputed house but the defendant No,1 kept me on false hopes. I continuously used to approach the defendant No,1, in presence of Abdul Razzak for execution of the sale-deed, but finally refused after expiry of the period of the sale agreement."
' The above portion of the statement of the applicant went unchallenged, as no cross-examination was conducted to deny the said assertions. The applicant in order to prove the said assertions examined Abdul Razak, who was also one of attesting witnesses of the agreement of sale. He stated that the applicant had approached the respondent No,1 and had tried to pay the amount, but he did not execute the sale-deed and avoided to do so. The learned Advocate for the respondents has drawn my attention to some portion of his statement in the cross-examination, in which he gave some diversion statements with regard to the carrying of money and other related matter and argued that his evidence is unreliable. No doubt, there are some discrepancies in his evidence, but no such questions were put to the applicant so as to make those portions of the statements contradictory statements with that of the statement of the applicant. However, the fact remains that he supported the version of the applicant that the applicant had approached the respondent No,1 to execute the sale-deed but he had avoided to do so even after 31-1-1993. As such the statement of the applicant is supported and corroborated by P.W. Abdul Razak on the above point.
13. On the other hand, the respondent No,1 examined Naseer Ahmed, his attorney, who deposed that after the execution of agreement the respondent No,1 got redeemed the house from House Building Finance Corporation and thereafter approached the applicant for registration of sale- deed and to pay the remaining amount, but the applicant did not pay the amount, therefore, on 6- 2-1993 the respondent No,1 sent the legal notice to the applicant. In support of his statement, no other evidence has been produced to prove the above assertions. If the dues of House Building Finance Corporation were cleared, then it must have been cleared through bank challans. The respondent No,1 should have produced the copy of the bank'challans to show the date, on which the amount was paid to the House Building Finance Corporation, because the allegation is that the respondent No,1 did not clear the dues of House Building Finance Corporation. The attorney of the respondent No,1 was evasive as he did not give specific date of clearing the loan of House Building Finance Corporation or the date from which the respondent No,1 approached the applicant for payment of remaining amount. As such, the solitary statement of the attorney of the respondent No,1 cannot be safely relied upon, particularly when on the above point best piece of evidence was the bank challans of House Building Finance Corporation, by which the loan was allegedly cleared but the same was withheld. It is well-settled principle of law that if a best piece of evidence is withheld by a party, then it is presumed that the said party has some sinister motive behind it and a presumption under illustration "g" of Article 129 of Qanun-e-Shahadat Order can be drawn that had the said evidence been produced, it would have not been favourable to the party concerned.
As such, I am clear in my mind that it was the respondent No,1, who was responsible for the breach of the contract.
14. As regards the alternative prayer of the applicant in the plaint, suffice it to say that the said prayer was withdrawn by the applicant, which was allowed by the trial Court on 23-2-1997 after hearing the parties. The learned Advocate for the respondents has stated that the penalty clause in the agreement of sale was adequate compensation within the meaning of section 21 of Specific Relief Act, therefore, the suit is liable to be dismissed. The learned Advocate for the applicant has relied upon the explanation clause of section 12 of the Specific Relief Act and argued that the respondent No,1 was required to have proved, through evidence that the compensation was adequate relief so as to invoke the provisions of section 21 of Specific Relief Act. The explanation clause of section 12 of Specific Relief Act is as follows:-- "Explanation.--- Unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer movable property can be thus relieved."
From the bare reading of the explanation clause it is clear that the Court is required to presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money unless contrary is proved. Thus, the respondent No,1 is required to prove that the compensation was an adequate relief, so as to take away the presumption of explanation clause of section 12 of the Specific Relief Act. I have gone through the evidence, but I could not find a single assertion under which such explanation has been furnished by the respondent No,1, as such there is no evidence whatsoever available on the record to prove that compensation in money is the adequate relief of the breach of contract.
15. The learned Advocate for respondents has stated that the applicant had made a prayer in the prayer clause with regard to payment of Rs,40,000 being an alternative prayer, therefore, the same is enough to prove the above fact. I do not feel persuaded to agree with the above contention, as the alternative prayer was made, that if for any reason the main prayer is not granted, then the alternative prayer may be granted. The said alternative prayer cannot legally take away the presumption of explanation clause of section 12 of Specific Relief Act. For that, evidence is to be led to affect the said presumption. However, a similar point was discussed by the Privy Council in the case of Ram Jee Patel v. Rao Kishoie Singh AIR 1929 Privy Council 190. The facts of the case were that suit for specific performance of contract was filed with an alternative prayer, as in the present case. The Courts did not take into consideration the above-said alternative prayer but it was found that the respondents independently proved that the compensation was adequate relief, therefore, the ,presumption under explanation clause of section 12 of Specific Relief Act was not drawn. The Honourable Privy Council considered sections 12, 19 and 21 of Specific Relief Act and then formed such opinion. Somewhat similar point was considered by the Honourable Supreme Court of Pakistan in the case of Abdul Karim v. Muhammad Shafi 1973 SCMR 225. The Honourable Supreme Court of Pakistan at page 227 has observed as under:-- We are unable to accept this contention in view of the clear provisions of the Specific Relief Act which is applicable in this country. Section 12 provides that the specific performance of the contract may be enforced in the discretion of the, Court. Explanation to section 12 of the Act clearly states that unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer movable property can be thus, relieved.
Section 19 provides that any person suing for specific performance of a contract may also ask for compensation for its breach, either in addition to, or in substitution for, such performance. Section 20 says that a contract, otherwise proper to be specifically enforced, may be thus, enforced, though a sum be named in it as the amount to be paid in case of its breach, and the party in default is willing to pay the same. Section 22 provides that the jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.
' The aforesaid provisions thus, clearly empower the Court to decree a specific performance of the contract even though a sum be named in the contract as the amount to be paid in case of its breach."
' Thus, the penalty clause in the contract or alternative prayer in the prayer would not come in the way of the trial Court to grant prayer of specific performance of contract, unless the party has proved that the compensation was an adequate relief, which is not in the present case. Thus, the arguments have no force at all.
17. As regards the gift, if it is alleged that the respondent No 1. Had orally gifted the suit property to respondent No,2 by executing such deed, which has been produced in evidence. In order to prove the gift the respondent examined Rasheed Ahmed and Jameel Ahmed before whom the gift was made, who supported the version of respondent No,
1. The record further reveals that the respondent No,1 had executed a general power of attorney in favour of Muhammad Din, father of the respondent No,2, on 9-1-1993, who on the basis of said power of attorney executed the registered gift deed.
18. The case of the applicant is that the respondent No,1 wanted to sell the property to someone else, therefore, he avoided to execute the registered sale-deed. In this background it is to be examined as to what were the circumstances under which the property was gifted to the respondent No,2 on 2-3-1993..
19. It is pertinent to point- out that on 27-8-1992 the agreement of sale was executed under which it was provided that by 31-1-1993 the respondent No,1 would clear the loan of House Building Finance Corporation and to obtain clearance certificates. But before that, on 9-1-1993 the respondent No,1 executed irrevocable general power of attorney in favour of Muhammad Din in respect of suit property only, under which he gave all his powers including the powers of managing the property, paying the House Building Finance Corporation dues, selling mortgaging, gifting, exchanging and all other powers. As such, by virtue of this general power of attorney the respondent No,1 had transferred all his powers to Muhammad Din, the father of the respondent No,2. The legal notice dated 6-2-1993 was sent to applicant, in which 15 days' time was granted to the applicant to pay the balance amount and on 2-3-1993 the respondent No,1 himself orally gifted the property to respondent No,2, who was son of Muhammad Din, to whom the respondent No,1 had already given general power of attorney on 9-1-1993. As per clause 8 of the agreement, six months' time was fixed to invoke the penalty clause, which was to expire on 27-2-1993. However, before the expiry of said period the respondent No,1 issued a notice to the applicant fixing the time of 15 days to pay the amount and then cancelled the agreement on 21-2-1993, which was not required to have been cancelled before 27-2-1993. Just after 8 or 9 days thereof, the oral gift was made. All these facts clearly indicate that the respondent No,1 had already formed the opinion that the property would not be sold to the applicant and in order to achieve that object he had already executed general power of attorney in favour of Muhammad Din, father of respondent No,2, on 9-1-1993, by transferring all his powers in his (Muhammad Din) favour. It is not out of place to mention that in this part of the country, usually the properties are sold on executing general power of attorneys, so as to transfer all, the rights of seller to the purchaser, who may at any time execute the sale-deed in favour of anybody. This case appears to be not an exception to the common practice available in this part of the country. It is also pertinent to point out that when the respondent No,1 had already executed the general power of attorney in favour of father of respondent No,2 with power to make gift, then what was the necessity of making oral gift in favour of respondent No,2 by the respondent No,1, though there was no relationship between the respondents Nos.1 and 2. As such a gift out of love, affection and respect to a stranger demonstrates some other considerations to gift the property, which creates doubt about bona fides of the transaction.
20. After considering all the facts and surrounding circumstances available in execution of the above-mentioned documents I am of the considered view that said documents were executed so as to frustrate the contract executed between the applicant and respondent No, 1 . Therefore, the execution of these documents would not come in the way of the Court for decreeing the suit for specific performance of contract, as the documents were executed with mala fide intention.
21. After considering the material available on the record, I am of the considered view that the applicant is entitled to specific performance of contract. Consequently, the impugned decree is set aside. The decree of the trial Court is maintained. The revision application is allowed.