' This revision petition is by the plaintiff whose suit for specific performance of an agreement to sell has concurrently been dismissed. It arises out of the following circumstances.
2. On 29-7-1981, Muhammad Sharif and 5 others (respondents Nos.1 to 6) agreed to sell their land measuring 16 Kanals for a consideration of Rs.16,000 received Rs.5,000 as earnest money while the balance amount was to be paid at the time of completion of the transaction. The case of the plaintiff was that possession of the land, subject-matter of the agreement (which was a 1/4th share of the Khata) had also been transferred to the plaintiff-petitioner. It was averred in the plaint that the respondents had refused to execute the registered sale-deed. The suit was filed on 31-3- 1982.
3. The suit was contested. A number of preliminary objections were taken particularly that the petitioner was repeatedly asked to pay the balance sale consideration and get the sale-deed executed in his favour, even a written notice for completion of the transaction was addressed to the petitioner on 16-11-1981 and on 21-3-1982 the land in dispute was sold in favour of one Muhammad Aslam son of Rehmat. Khan for a consideration of Rs.24,000. It may be noted here that Muhammad Aslam, respondent No.7, filed a separate written statement. It was averred that Mst.
Fatima Bibi, shown as one of the vendors in the agreement to sell had died three years prior to the institution of the suit and the attorney had no authority to enter into an agreement on behalf of a dead person. It was further contended that no relief had been claimed against him, he had purchased the land in dispute through registered document for a consideration of Rs.24,000 and was a bona fide purchaser for value.
4. Necessary issues were framed and the suit was Vied. It may be noted that execution of the agreement to sell was not disputed. The learned trial Court, however, found that while the vendors were prepared to perform their part of the contract, it was the plaintiff-petitioner who was in default and on account of his conduct he was estopped to bring the suit. Respondent No.7 was held to be bona fide purchaser for value and the suit was held to be barred by time.. Accordingly, it was dismissed on 26-1-1991. The petitioner appealed which was dismissed on 1-11-1994.
5. The learned counsel for the petitioner submits that the learned two Courts were persuaded to accept the version of the vendors that one months' time was fixed for completion of the transaction which was not so stated in the agreement and no parol evidence as to the contents of a documents was admissible on account of the provisions of Articles 102 and 103 of Qanun-e- Shahadat Order, 1984. It was next contended that the petitioner has been a tenant on the land in dispute, since he continued in possession under the agreement to sell dated 29-7-1981 he was protected under section 53-A of the Transfer of Property Act, 1882 and the vendors could not have alienated the land in dispute to respondent No.7. The only right they had been left with was to enforce the terms of the agreement against the petitioner. It was next contended that in case of an agreement to sell an immovable property time was not the essence of the contract unless expressly agreed to by the parties but the learned two Courts proceeded to examine the case on the assumption to the contrary. The finding that respondent No.7 was a bona fide purchaser was also assailed on the ground that examination of the Revenue Record was not sufficient and a cursory spot inquiry by respondent No.7 would have posted him with a prior agreement. On the question that the time was not the essence of the contract reliance was placed on Mst. Amina Bibi v. Mudassar Aziz (PLD 2003 SC 4'30), Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344) and P. Purshottam Reddy and another v. Messrs Pratap Steel Ltd. (PLJ 2003 SC (India) 197). On the question of protection of section 53-A Transfer of Property Act, 1882 reliance was placed on Fazal v. Mehr Din and 2 others (1997 SCM R 837), Ali Rehman v. Fazal Mehmud and 8 others (2003 SCM R 327) and Amirzada Khan and others v. Ahmad Noor and others (PLD 2003 SC 410). On the question of Parole evidence reliance was placed on Muhammad Shafi and others v.
Allah Dad Khan (PLD 1986 SC 519) and Ali Muhammad v. Ghulam Haider and 4 others (2001 CLC 1440).
' While on the question of protection of section 41 of the Transfer of Property Act claimed by respondent No.7, reliance was placed on Muhammad Jamil and others v. Lahore Development Authority and 3 others (1999 SCM R 2015), Muhammad Nabi through Legal Heirs (1999 CLC 1771) and Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCM R 2189).
6. On the other hand, the learned counsel for respondent No.7 has defended the impugned judgments and decrees. He submits that even if time was not the essence of the contract, the plaintiff in a suit for specific performance is not absolved of his duty of being ready and willing to perform his part of the contract and the learned two Courts, on the basis of the evidence produced in the case, have come to the concurrent conclusion that the plaintiff-petitioner was in default. It is finding of fact not liable to be interfered with. He maintains that although no time for completion of the transaction was mentioned in the agreement yet, the parties had orally agreed to its performance within one months from the date of execution of the agreement and this is backed by adequate evidence on record. He particularly referred to the notice, Exh.D.1, issued to the petitioner for completion of the transaction and it was after a period of about four months that the land was sold to respondent No.7. He next contended that protection of section 53-A of the Transfer of Property Act, was not available to the petitioner because undisputedly the petitioner had not paid the entire sale consideration. Reliance was placed on Rashid Ahmad v. Messrs Friends Match Works (PLD 1989 SC 503). He further contended that the land, subject-matter of the agreement, comprised a joint Khata in which the vendors had 1/4th share and that respondent No.7 had satisfied by inspection of Revenue Record. Reliance was placed on Jamil Akhtar and others v. Las Baba and others (PLD 2003 SC 494).
7. The submissions of the learned counsel for the parties have been considered and record examined. Muhammad Nazir, one of the vendors, appeared as D.W.2 and stated that the period of one month was orally settled between the parties. He was cross examined at length but the assertion as to the alleged time limit of one month was not questioned. Therefore, this will have to be accepted. The objection of the learned counsel is that this evidence could not have been received because of the bar of Article 102 of the Qanun-e-Shahadat Order. The argument proceeds on complete oblivion of the priviso to section 103 of the Qanun-e-Shahadat Order. Article 102 of the Qanun-e-Shahadat Order, prohibits oral evidence in proof of the terms of a contract, grant or disposition of property except the document itself and Article 103 is to the same effect.
However the second proviso to Article 103 permits proof of a matter on which a document is silent.
It will be of advantage to reproduce the aforesaid proviso; "Proviso (2) The existence of any separate oral agreement as to any matter on which a document is silent, and which is not inconsistent with its terms may be proved. In considering whether or not this proviso applies, the Court shall have regard to the degree of formality of the document".
8. The judgments cited by the learned counsel for the petitioner have been considered. In the case of Muhammad Shafi etc. Supra the rule laid down by the Hon'ble Supreme Court was the section 92 of the Evidence Act (102 of Qanun-e-Shahadat Order) does not contemplate a legal bar to admissibility of parol evidence to unveil transaction leading to the existence of the sale-deed. In the case of Ali Muhammad supra a suit for preemption, the observation of this Court was that contents of a document cannot be contradicted by oral evidence. None of the judgments relied upon by the learned counsel or the petitioner advances the proposition that the parties could not have fixed the time limit for performance of the contract.
9. As far as the next contention is concerned, I am of the view that protection of section 53-A of the Transfer of Property Act, was not available to the petitioner for two reasons. Firstly, that as held by the Hon'ble Supreme Court in the case of Rashid Ahmad supra, the petitioner had not paid the entire sale consideration. The rule laid down by the Hon'ble Supreme Court is just and equitable. To allow protection of section 53-A to a vendee under an agreement to sell who had only paid part of the sale consideration will mean that a vendee may not be ready and willing to perform his part of the contract and the vendor will be compelled to bring a suit for recovery of the balance sale consideration. This will apparently be unjust and unfair because on the basis of his stated possession a vendee may keep quiet for any length of time and wait for the suit by the vendor for recovery of the balance sale consideration. This will be an abuse of the process of the law. The other reason, to my mind, is that possession contemplated by section 53-A is a specific possession, the agreement in this case involved only of 1/4th share in the Khata and a fraction of a Khata is not capable of specific possession because the vendors had 1/4th share in the joint Khata in every inch of the land.
10. The judgments cited by the learned counsel for the petitioner have been considered. In the case of Fazla supra the entire consideration was paid to the vendors and possession of the land, subject-matter of the agreement, was also transferred. In the case of Ali Rehman supra although the vendee was claiming possession as well as the payment of entire sale consideration yet protection of section 53-A of the Transfer of Property Act, was not found available to the plaintiff because the agreement, the basis of the suit, was not found to have been duly proved.
' In the case of Amirzada Khan and others supra protection of section 53-A of the Transfer Property Act was withheld on the ground that the sale contract was found to be inadmissible in evidence with a further observation that it was not registered and, therefore, would not transfer title. As to the possession under the said agreement it was found that the plaintiffs were not in possession. None of the judgments, therefore, advances the case of the petitioner. The observations in Amirzada Khan supra are in fact against the contention of the learned counsel for the petitioner.
11. The learned counsel for the petitioner contended with vehemence that time not being the essence of the contract the petitioner could not have been non-suited on the ground of an oral agreement as to fixation of time for performance of the contract. The assumption inbuilt in the submission is that plaintiff who has paid part of sale consideration and who happened to be in possession as tenant in a joint Khata may withhold. Payment of the balance sale consideration for an indefinite period and even if he was not prepared to perform his part of the contract he was entitled to the decree whenever he chooses to bring a suit within a period of three years allowed by section 113 of the Limitation Act. The learned two Courts have come to a concurrent finding of fact that it was the plaintiff-petitioner who was in default to perform his part of the contract. The relief of specific performance is discretionary and one who seeks equity must do equity. In the case of Mst.
Amina Bibi supra the sale contract was executed between the parties on 14-3-1984. On 11-4-1984 the vendee addressed a legal notice to the vendor through registered post requiring him to produce the necessary papers of ownership and to sign the papers for transfer. In reply to the said notice, on 14-4-1984, the vendor informed the vendee that the agreement stood cancelled. The legal notice issued by the vendee within the contemplated period clearly established that the vendee was prepared to perform his part of the contract. It was observed that the vendor, who was in breach of the contract, could not be permitted to take advantage of his own wrong and even if the vendee was in breach of the contract he was entitled to a reasonable time for performance of his part of the contract instead of hasty and abrupt revocation of contract before expiry of 30 days.
These observations, seen in the context of the facts of the present case, rather go against the contention of the learned counsel for the petitioner. The notice, Exh.D.1, was addressed to the petitioner on 25-11-1981 which he admitted while appearing as P.W.3 and it was almost four months thereafter that the land was sold to respondent No.7. Therefore, even from the date of the notice, the petitioner was given a reasonable time to perform his part of the contract. In the case of Ghulam Nabi and others supra, the time fixed in the agreement was extended with the consent of the parties, after the expiry of the agreed period, the vendor received another amount as an advance on which the vendee addressed letter requesting him to intimate his availability so as to keep the amount ready for transfer of the property in his name, followed by remittances of some amounts. This was not responded to by the vendor. It was in the context of the particular facts of the said case that an observation was made by the Hon'ble Supreme Court that the time was not the essence of the contract. The case of P. Pursushottam Reddy and another supra is a judgment of the Supreme Court of India. In the aid case the contract of sale could only mature with the permission of the authorities under Urban Land (Ceiling and Regulation) Act, 1976 which was to be obtained by the vendor, even the agreement provided for extension of time and it was observed that the time was not the essence of the contract.
12. None of the judgments cited by the learned counsel for the petitioner lays down the rule that even if a plaintiff is not prepared to perform his part of the contract, he can rely on the principle that time was not the essence of the contract.
13. As far as the next contention of the learned counsel for the petitioner is concerned, the learned two Courts have returned a concurrent finding of fact that respondent No.7 had no notice and the Revenue Record did not indicate that the land in dispute was encumbered with a previous agreement to sell. This is a finding of fact not liable to be interfered with. On of the principles enunciated by the Hon'ble Supreme Court in the case of Muhammad Jamil supra, relied upon by the learned counsel for the petitioner is that the transferee had acted in good faith taking reasonable care to ascertain that the transferor had power to transfer. The observations in the said case were that there was nothing on the record to show that the transferee had not acted in good faith in taking reasonable care to ascertain that the transferor had the power of transfer. In the case of Muhammad Nabi supra the sale by co-sharer was in excess of his share and the plea of the vendee that he was a bona fide purchaser was repelled. Of course, it was also observed that mere reliance on the .Entries of the Revenue Record was not sufficient. The judgment in the case of Mrs. Musarrat Shaukat Ali supra was relied upon by the learned counsel for the petitioner in support of the contention that possession of property was notice to everyone under section 3 of the Transfer of Property Act. The said judgment proceeded on its own facts because it pertains to a plot in Islamabad capable of specific possession.
14. The observations made by the Hon'ble' Supreme Court in the case of Jamil Akhtar supra support the contention of the learned counsel for respondent No.7. It was held that unregistered agreement to sell could not put the subsequent vendee on guard and even notice thereof could not be taken by third persons. In this case also specific performance was denied to holder of a prior agreement against a subsequent vendee.
15. It may be noted that a decision of the superior Court is a binding precedent to the extent of a question which it decides in the context of particular facts of a case. However, the tendency on the part of the learned counsel to cite judgments of the superior Courts en the basis of a general statement of law unfortunately continues which consumes lot of time. The role of a precedent was explained by the Hon'ble Supreme Court in the case of Trustees of the Port of Karachi v.
Muhammad Saleem (1994 SCM R 2213). The Hon'ble Supreme Court noted the following observations with approval:-- "It is well settled that "every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expression which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. (Quinn V. Leathem (1901) AC 495, 506)."
' The following observations were also made by the Hon'ble Supreme Court:-- "Precedent cases fall in two distinct categories. In the first category fall the decisions which decide a question of law or are based upon or enunciate a principle of law within the meaning of Articles 198 and 201 of the Constitution and are; therefore, binding, if the decision be by the Supreme Court, on all Courts in Pakistan, and if the decision be by a High Court, on all Courts subordinate to it. In the second category fall the cases which are not so binding but are merely illustrations of the application of the principles of law enunciated in the first category of precedent cases. So in order that a decision on a question of law is binding within the meaning of Articles 198 and 201 of the Constitution it is not enough that a legal proposition follows logically from it; that question must have been actually decided".
16. The learned two Courts after appraising the entire evidence have come to the conclusion that petitioner was not prepared to perform his part of the contract and respondent No.7 was a bona fide purchaser for value. These are findings of fact not liable to be interfered with even if another view of the evidence could be taken. Accordingly, this revision petition is dismissed. No order as to costs.