' IFTIKHAR MUHAMMAD CHAUDHRY, J.--- This appeal by leave of the Court has been filed against the judgment, dated 27th March, 1998 passed by a Division Bench of the High Court of Sindh, Karachi, whereby appeal filed by appellants against the judgment, dated 28th May, 1995 passed by learned Single Judge of the High Court has, been maintained.
2. Necessary facts of the case are that appellants vide sale agreement dated 13th February, 1980 agreed to sell their joint property bearing Survey No,1, Sheet No,KG8, situated at Ghulam Hussain Kasim Quarters, Kharadar, Karachi, measuring 4546 sq. Yds. Along with superstructure existing on it 0 Rs,800 per sq. Yard. For a total consideration of Rs,36,36,800 to the predecessor-in-interest of the respondents namely Fazal-ur-Rehman. Out of stipulated sale consideration, Rs,3,75,000 was paid to the appellants as part payment.
' As the suit property was in occupation of a tenant i,e, Messrs Bengal Oil Mills, Ltd., therefore, appellants also executed a power of attorney in favor of late Fazal-ur-Rehman enabling him to obtain the possession of the property from the tenant. Clauses 5, 6 and 10 of the agreement seem to be important, therefore, same are reproduced hereinbelow for convenience:-- "Clause 5. The Vendors shall obtain Capital gains tax Clearance Certificate from Excise and Taxation Authority "L" Division required for registration of sale-deed of the said property in favor of the purchaser."
' Clause 6. The sale of the said property will be completed within a period of 4 months from the date hereof, provided time for completion of the sale will be extended by mutual consent, for a period not exceeding 2 months thereafter and time as provided will be of the essence of this agreement.
' Clause 10. Stamp and Registration charges of the sale-deed will be paid by the purchaser and the parties will pay their respective Advocate fees."
' It is important to note that balance of consideration was to be paid by late Fazal-ur-Rehman to appellants at the time of registration of sale-deed before the Sub-Registrar. It is stated that appellants applied for grant of Capital Gains Tax Clearance Certificate to the Excise and Taxation Department but they could not get the same as allegedly they were called upon to pay Capital Gains Tax to the tune of Rs,22 lacs because Excise and Taxation Department assessed the value of the property @ Rs,1,800 per sq. Yrd. Against the agreed valuation of Rs,800 per sq. Yad. Statedly appellants preferred appeal before the competent authority. Meanwhile there was exchange of correspondence between the parties concerning the performance of their respective part of obligation. However, on 30th June, 1986, the Government of Sindh remitted the Capital Gains Tax by means of Sindh Finance Act, 1986 (hereinafter referred as "the Act, 1986") with the result that appellants were legally absolved from producing Capital Gains Tax Clearance Certificate, whereas the respondents' predecessor-in-interest was burdened to pay enhanced stamp duty because the Government of Sindh on abolition of the payment of Capital Gains Tax increased the duty on the registration of sale-deeds from 6% to 8%. After this development, there was another round of correspondence between the parties because the purchaser demanded from sellers share of additional amount of stamp duty. Vide letter Exh.5/29 dated 30th April, 1987 respondents demanded extension of period by one year to complete the sale-deed but their request was turned down. Ultimately appellants urged vide letter Exh.5/37 dated 21st December, 1987 that agreement to sell stood cancelled due to continuous negligence, default and failure of respondents to perform it.
3. In this manner Suit No,149 of 1988 was filed by late. Fazal-ur-Rehman before learned High Court of Sindh, wherein after narrating the facts, a decree was claimed in the following terms:- "(a) A judgment and decree against the defendants jointly and/or severally for specific performance of the agreement, dated 13-2-1980 and registration of the sale-deed in favor of the plaintiff or his nominee or nominees before the Registrar or Sub-Registrar transferring and conveying the said property viz. Plot of land being Survey No,1 Sheet No,GK8 and measuring 4546 sq. Yards situated at Ghulam Hussain Kassim Quarters Kharadhar Karachi with the .Buildings and structures raised thereon free from all dues and encumbrances and on their failure direct the Nazir of this Honourable Court to execute and register the sale-deed in favor of the plaintiff or his nominees in accordance with law.
(b) A decree against the defendants and in favor of the plaintiff directing the defendants to pay to the plaintiff jointly and/or severally a sum of Rs,72,736 being the amount of stamp duty calculated at 2% on the total sale consideration of Rs,3636,800 which stood increased by enhancement of stamp duty under the Sindh Finance Act, 1986 or to allow the plaintiff to adjust the same against the balance sale consideration.
(c) A decree against the defendants and in favor of the plaintiff directing the defendants to pay to the plaintiff jointly and/or severally a sum of Rs,3,63,680 being the amount of stamp duty calculated at 8% on Rs,45,46,000 being the amount of difference between the agreed price and the value fixed under. The law in Valuation Table or to allow the plaintiff to adjust the same against the balance sale consideration.
(d) A decree against the defendants and in favor of the plaintiff directing the defendants to pay to the plaintiff directing the defendants to pay to the plaintiff jointly and/or severally a sum of Rs,45,460 being the amount of registration charges calculated at 1 % on Rs,45,46,000 being amount of difference between the agreed price and the value fixed under the law in Valuation Table or to allow the plaintiff to adjust the same against the balance sale consideration."
' The appellants contested the suit by filing written statement.
5. Learned trial Court framed following, issues arising out of the pleadings of the parties:-
(1) Whether the defendants executed agreement for sale dated. 13-2-1980 in respect of the suit property in favor of the plaintiff and the same is still valid and subsisting?
(2) What are the terms on which the sale was to be effected by the defendants in favor of the plaintiff particularly relating to ,payment of balance sale consideration, obtaining of Capital Gains Tax, vacant possession, marketable title and the period far completion of sale transaction?
(3) Whether the time was the essence of contract and whether the defendants failed/were unable to execute the sale-deed of the property in suit in terms of the contract and if so, what is the effect?
(4) Whether the defendants committed breach/avoided to perform their part of the contract and failed to obtain Capital Gains Tax clearance certificate from the Excise and Taxation Authority and if so', what is the effect?
(5) Whether the defendants were required to obtain Capital Gains Tax Clearance Certificate before execution of a sale-deed in favor of the plaintiff?
(6) Whether on abolition of the Capital Gains Tax under Sindh Finance Act, 1986 the rate of the stamp duty and registration charges stood increased by 2% to 1% respectively, if so, its effect?
(7) Whether on abolishing of Capital Gains Tax under the Sindh Finance Act, 1986 the Government fixed the value of the properties of different areas on different rates for the purposes of charging the stamp duty, if so, its effect?
(8) Whether the plaintiff Is entitled to. Specific performance of the contract of sale property in suit and also to the payments of Rs,72,736. Rs,363,680 and Rs,45,460 or any other amount as compensation and or damages on account of enhancement of stamp duty and registration charges due to delay in the performance of the contract by the defendants?
(9) Whether the plaintiff, in the alternative or otherwise, is entitled to the payment of Rs,6,271,000 by way of compensation and refund of the earnest money with interest thereon?
(10) Whether the respondents are entitled to any relief and what the decree should be?
(11) Whether the plaintiff was ready/willing to complete sale and used the defendant's difficulties with the Excise Department simply to delay sale and if so its effect?
(12) Whether the suit is time-barred? {13) Whether the plaintiff has assigned/transferred his right to the attorney, if so, its effect?"
6. Parties led evidence in support of their respective pleas. On completion of trial vide judgment, dated 28th May, 1995 the suit was decreed against which appellants filed appeal before the High Court which has been dismissed by means of impugned judgment.
7. Learned counsel for appellants contended that:--
(a) Concurrent findings of fact recorded by learned trial and Appellate Courts are not sustainable as they are based on non-reading and misreading of documentary as well as oral evidence produced by them, therefore, interference is called for by this Court.
(b) The predecessor-in-interest of the respondent (plaintiff) was not ready and willing to perform his part of obligation despite obtaining time because sufficient funds were not available to him to perform his part of contractual obligation and lastly to further prolong the performance of the contract he requested for one years' time to complete the sale transaction vide letter Exh.5/29 dated 30th April, 1987 but despite his such conduct both the Courts granted decree in his favor contrary to law and facts.
8. On the other hand learned counsel for respondents contended as follows:--
(1) Learned trial and Appellate Courts have recorded concurrent findings of fact on correct appreciation of relevant material available on record and granted relief to them as prayed for.
Therefore, it being not a case of non-reading or misreading of evidence does not warrant any interference by this Court.
(2) The predecessor-in-interest of the respondents had always been ready and willing to complete the sale transaction but it could not be done because appellants (defendants) failed to obtain Capital Gains Tax Clearance Certificate from the Excise and Taxation Authority "L" Division as per clause 5 of the agreement dated 13th February, 1980 and as time was not the essence of the contract, therefore, relief could not be denied to the plaintiffs' predecessor-in-interest, even if he had prayed for one year's time to complete the sale. (Exh.5/29 dated 30th April, 1987).
9. We have heard learned counsel for the parties and perused the available record as well as impugned judgment consciously. It may be noted that leave had been granted to examine "whether the findings recorded by the two Courts on the question that respondents had been ready and willing to perform their part under the agreement are in consonance with the evidence available on record. Learned Appellate Court maintained the judgment/decree of the trial Court for the following reasons:--
(a) The appellants failed to secure the Capital Gains Tax Clearance Certificate from the concerned authorities.
(b) The Exhs. Referred to and reproduced hereinabove clearly show that respondents all along had been willing and ready to perform their part of contract in pursuance whereof they had paid Rs,3,75,000 to the appellants and deposited Rs,32,61,800 with the Nazir of the Court in pursuance of.
Court order dated 24th October, 1988.
(c) The draft sale-deed was also prepared which has been produced and admitted during the evidence. The willingness of the respondents to purchase the property has also been admitted by the attorney of the appellants namely Ebrahim Lakdawala son of Ghulam Hussain in his cross- examination.
10. A careful perusal of facts of the case suggests that instant case has two phases (i) first phase pertains to the period commencing from 16th July, 1980 when letter Exh.5/4 was sent by the appellants to the respondents and ended on 3rd March, 1982 when vide Exh.5/22 dated 3rd March, 1982 appellants in reply to respondent's letter dated 28th February, 1982 claimed that they were applying for Capital Gains Tax Clearance Certificate, as all matters concerning certificates in respect of property valued at more than Rs,10 Lacs were to be decided by the Board of Directors it will take some time to obtain the Capital Gains Tax assessed, and also assured that they will try to get the assessm ent as soon as possible. In between both the dates, noted hereinabove, there was exchange of correspondence from both the sides. In this context, they wrote letters to each other vide Exhs.5/5 dated 5th November, 1980, 5/7 dated 24th November, 1980, 5/8 dated 13th August, 1981, 5/10 dated 3rd September, 1981, 5/11 dated 15th September. 1981, 5/12 dated 12th October, 1981, 5/14 dated 1st November, 1981, 5/15 dated 3rd February, 1982, 5/16 dated 6th February, 1982, 8/16 and 5/19 dated 13th February, 1982, 5/20 dated 22nd February, 1982 and Exhs.5/6 dated 20th November, 1980, 5/9 dated 27th August, 1981, 5/13 dated 21st October, 1981 and 5/21 dated 28th February, 1982 written by appellants to the respondents in reply to each other's letters respectively and vice versa; and (ii) second phase commenced on 20th August, 1985 when Exh.5/23 was written by respondents' predecessor-in-interest to the appellants upto 7th February, 1988 when Exh.8/43 was written by the appellants to respondents in the reply of their letter vide Exh.8/42 dated 20th January, 1988. During this phase appellants wrote letters Exhs.5/28 dated 23rd November, 1986, 5/23 dated 18th February, 1987, 5/29 dated 30th April, 1987, 5/26 dated 18th May, 1987, 5/33 dated 8th August, 1987, 5/30 dated 20th September, 1987, 5/37 dated 21st December, 1987, 5/39 dated 7th February, 1988, 8/42 dated 20th January, 1988, 5/27 dated 3rd March, 1987, 5/31 dated 7th June, 1987, 5/34 dated 23rd August, 1987, 5/36 dated 10th December, 1987 and 5/38 dated 20th January, 1988 and their replies were also written by the parties respondents, accordingly.
11. From perusal of the documents exchanged between the parties two things have surfaced prominently namely that one of the appellants was residing in Singapur and in her absence registration of sale-deed was not possible (vide letter, dated 5/12 dated 3rd February, 1982).
Although the draft sale-deed was prepared but it could not be finalized. However, in this letter appellants mentioned that she was coming on Friday next and on her arrival they would be able to obtain the certificate required for registration of the sale-deed but they would be in need of some amount as such requested the respondents for making arrangements for payment of assessed tax but evidently they failed to obtain the certificate according to their own statement that they intended to apply for the same after 3rd March, 1982 (Exh.5/22) and as per the contents of his letter the appellants themselves were of the opinion that some time would be consumed in getting the certificate because it was to be placed before the Board being a high value document.
Undoubtedly, this condition was required to be fulfilled essentially by the appellants as per clause 5 of the agreement before completion of transaction which could not be adhered to.
12. As far as other events which took place during the exchange of correspondence between the parties in first phase are concerned, they have no adverse reflection on the case of respondents because on account of not obtaining Capital Gains Tax Clearance Certificate by the appellants, the time for completion of sale stood extended thus, they are legally estopped to take advantage of their own omissions, as held by this Court in the case of Amina Bibi v. Mudassar Aziz PLD 2003 SC
430. It is equally important to note that after sending Exh.5/22 dated 3rd March, A 1982 the appellants had taken upon themselves the legal obligation to obtain Capital Gains Tax Clearance Certificate which admittedly they did not get till last.##TE Record reveals that vide Exh.8/44, the appellants themselves calculated the Capital Gains Tax @ Rs,21,91,328. According to learned counsel as against this assessm ent representation was filed by the, appellants Exh.8/45 on 29th March, 1982, but the record is completely silent as to whether any representation was actually filed and decided in their favor or against. Be that as' it may, the appellants having calculated the assessm ent of gain 'tax and failing to obtain any positive response about the assessment of Capital Gains Tax from Excise Department should have informed the respondents accordingly but surprisingly instead of doing so they kept quiet for a long period of about three years. Ultimately vide Exh.5/23, dated 20th August, 1985 respondents' attorney inquired from them in respect of the progress made by them for obtaining Capital Gains Tax Clearance Certificate and requested them to expedite the matter and keep them informed fully. It is important to note that in the said letter appellants were also informed that in the case of ejectment of tenants Messrs Burma Oil Mills from the premises in dispute, petition for leave to appeal was filed before this Court. It may be observed that in pursuance of power of attorney executed by the appellants in favor of late Fazal-ur- Rehman (predecessor-in-interest) after the execution of agreement to sell dated 13th February, 1980 latter was authorized to proceed with ejectment proceedings against tenant who succeeded in obtaining ejectment order and ultimately matter came up before this Court. Surprisingly vide Exh.5/28 dated 23rd September, 1986, was delivered on 30th September, 1986 through letter Exh.5/24. Contents of the former letter are important, therefore, the same are reproduced hereinbelow:-- "We write to you on behalf of our client Mst. Batool F. Shaikha and others, the owners of the above property.
(1) That for over a month and a half, our clients have been through their representative, Mr. Ebrahim Lakdawala, approaching you several times for completion of the sale, for the impediment which had been earlier created by a highly unreasonable demand for Capital Gains Tax removed by abolishing of this tax by Sindh Finance Act, 1986.
(2) That we are instructed to state that instead of completing the sale you desired that the agreed price be reduced as our clients stood to gain considerably as they were no longer required to pay any Capital Gains Tax and that as your burden, which stood increased by having to pay enhanced stamp duty and registration, be shared by our clients.
(3) We are instructed to state that both your demands are unreasonable and were to your knowledge untenable and were made only for the reason that you have no funds to complete the sale.
(4) You are, therefore, hereby finally called upon to complete the sale on or before 15th October, 1986, which time is hereby made the essence of the contract, failing which our clients will forfeit the earnest money paid."
' Perusal of above letter abundantly makes it clear that appellants having acquired knowledge that the Capital Gains Tax has been abolished by Sindh Finance Act, 1986, approached the respondents' predecessor-in-interest after a long period of about three years blaming him for not performing his part of obligation, fully knowing that vide letter Exh.5/22 dated 3rd March, 1982, they had themselves postponed the execution of sale-deed because till then. They could not get Capital Gains Tax Clearance Certificate. Therefore, the assertion made in the above letter seems to be an attempt on their part to absolve themselves from the liability of causing delay in performing their part of obligation. Thus, its cumulative effect would be that for the period commencing from 5th November, 1980 to 23rd December, 1986, appellants would be responsible for not performing their part of obligation.
13. Learned counsel for appellants vehemently contended that they were not legally bound to obtain such certificate before the registration of the sale-deed, in view of the judgment in the case of Asad Zaheeruddin v. Sub-Registrar 1987 CLC 786. Besides' it clause (5), incorporated in the agreement, has rendered the agreement void because the mistake regarding law is the mistake of fact and under section 22 of the Contract Act, 1972 contract may be voidable on account of a mistake regarding not no any law is a mistake of fact. Therefore, on-obtaining of no objection certificate from the Excise and Taxation Department by the appellants could not be considered to be fatal for completion of sale but as the respondents' predecessor-in-interest was not interested to perform his part of obligation, therefore, he caused unnecessary delay on one pretext or the other, as such a decree had been wrongly passed in his/their favor.
14. Learned counsel for respondents while relying upon the judgment in the case of Mst. Musharaf Begum v. Abdul Wahab 1999 CLC 1820 submitted that the judgment relied upon by the learned counsel in the case of Asad Zaheeruddin (ibid) surfaced in 1987 whereas till then without producing no objection certificate, showing the payment of Capital Gains Tax, the Sub-Registrar used to refuse to entertain a request for registration of sale-deed. He further stated that in Mst. Mushraf Begum (supra) learned Single Judge of Sindh High Court who is now the member of this Bench (Justice Rana Bhagwandas) has held that "Vendor according -to terms of agreement of sale was required to obtain Capital Gains Tax Certificate, pay all other taxes and dues in respect of plot in suit and execute sale-deed before Sub-Registrar within stipulated period, after receiving balance amount".
15. It may be pointed out that vide Notification No,4785/66/ 1570/Tax issued under subsection 1(a) of section 13 of the West Pakistan Finance Act, 1963 (hereinafter referred to as "the Act, 1963") the Government of West Pakistan declared certain areas as urban areas for the purpose of levy and collection of Capital Gains Tax and Karachi was one of those areas, therefore, under section 16 of the Act, 1963, as amended by the Sindh Province, the Gains Tax was chargeable on the sale, exchange or transfer of immovable property within the urban areas, specified under clause (a) or
(b) subsection (1), within seven days of such sale, exchange or transfer and the transferor was required to file a statement showing the details of the person to whom the property has been sold, transferred or with whom it has been exchanged to the prescribed authority i,e, the Excise and Taxation Officer. It may be observed that vide Notification No,SLEGIS(1)15/70, dated 28th December, 1970, Province of Sindh introduced' an amendment adding such sections (2)(a) to (2)(e) and subsection (3) and (4) in section 16 of the Act, 1963 as in pursuance whereof the transferor was required to furnish the statement in respect of particulars of transfer of property with name of the transferee, the particulars and location of the property, the price and other value or consideration received from the property and such other information or particulars as may be prescribed. By virtue of section 2(b) the Registrar or Sub-Registrar, who registers under the Registration Act, 1908 any document relating to sale, exchange, or transfer of any immovable property within an urban area specified under clause (a) or (b) subsection (1) of section 16 had an obligation to furnish free of charge to the prescribed authority a true copy of such document, within 15 days of such registration. Therefore, in view of such provision of law, the transferor used to clear Capital Gains Tax because according to the command of newly added subsection 2(c) of section 16 of the Act, 1963, the person, failing to convey such information under section 29 of the Act, 1963 (as amended by the Sindh Government) was liable to pay in addition to the tax due, a penalty not exceeding the amount of the tax due.
' Thus, in view of above legal position it is held that clause (5) in the agreement was not incorporated being a mistake of law, rendering, whole agreement void. Besides it, the transferor had an obligation to pay the Capital Gain Tax as, it had been a consistent practice that before approaching or appearing before the Registrar or Sub-Registrar for the purpose of registration of sale-deed, the transferor used to secure a clearance certificate. Moreover, the judgment relied upon by the learned counsel was pronounced after the repeal of the Act, 1963 which was promulgated w,e,f, 30th November, 1986 whereby the Stamp Act, 1899 was amended and by substituting Article 23 in Schedule 1, the duty was made payable Rs,8 for every Rs,100 or part thereof, of the value of the property situated in the urban area. It may also be noted that learned High Court had not taken into consideration the effect of the Sindh amendment whereby after section 2(a) to 2(e) and sections 3 and 4 were incorporated.
16. As noted hereinabove the appellants consumed considerable time in obtaining no objection certificate in respect of Capital Gains Tax but no sooner they learnt that the tax had been abolished by means of Sindh Finance Act, 1986 they approached the respondents' predecessor-in interest vide Exh.5/28 dated 23rd September, 1986, contents of which have been reproduced hereinabove. Essentially on account of remission of Capital Gains Tax, appellants were benefited whereas respondents' predecessor-in-interest was placed under financial burden as the stamp duty was increased on sale-deed from 6% to 8%, therefore, respondents' predecessor-in-interest, genuinely expressed his view in Exh.P.22. In fact on account of inordinate delay of more than 6 years by the appellants in execution of the document, he was put to additional financial liability but despite it, he expressed his willingness for execution of the sale-deed within a reasonable time.
Ultimately, after exchange of few letters between the parties, i,e, Exh.8/24 dated 23rd November, 1986, Exh.P.23, dated 8th February, 1987, Exh.5/27 dated 3rd March, 1987, the respondents' predecessor-in-interest on 30th April, 1987 demanded extension of time for a period of one year for the completion of sale-deed, which was declined by the appellants, therefore, on 31st July, 1987, respondents' predecessor-in-interest got issued a publication in newspapers, mentioning therein that the agreement to sell between the parties was still subsisting, valid and binding and if any third party entered into bargains with the appellants, he/they would be doing this at his/their own risk and cost. This publication was followed by a letter dated 20th September, 1987 Exh.P.30 written by appellants, wherein it was stated that agreement stood terminated. Nevertheless, respondents' predecessor-in-interest vide Exh.5/36 dated 10th December, 1987, expressed his readiness and willingness to complete the sale provided sufficient time was given to him for publication of public notice and inspection of documents. This offer was not conceded by the appellants and replied vide Exh.5/37, dated 31st December, 1987, that agreement stood cancelled due to his negligence, default and failure. In response to this letter, respondents' predecessor-in-interest issued a legal notice Exh.5/38 dated 20th January, 1988, demanding to share additional burden and complete the sale. The request made by him was repelled vide letter Exh.5/39 dated 7th February, 1988, leading to the institution of, suit.
17. Keeping in view the correspondence referred to hereinabove, one can conveniently conclude that both the parties- were at fault respectively, towards the performance of their specific obligations, arising out of agreement to sell dated 30th February, 1980. It can, therefore, be safely held that according to section 55 of the Contract Act, time was not the essence of the contract.
Learned counsel for appellants, relied upon Abdul Hamid v. Abbas Bhai Abdul Hussain PLD 1962 SC 1, and argued that if time was not originally made of essence, one party not entitled to make time essence afterwards by issuing notice unless there is default or unreasonable delay by other party and equity will not assist where there has been undue delay on the part of one party to the contract and the other has given him reasonable notice that he must complete it within a definite time. Similarly, in view of the principle discussed in the case of Muhammad Yaqub v. Muhammad.
Nasrullah Khan PLD 1986 SC 497, he argued that in order to obtain a relief by way of specific performance of a contract the plaintiff has, to first allege and prove that he was ever ready and willing to perform his part of contract from the date of contract till the date of suit as the contract really was and not in the way he thought the contract 'to be. He also relied upon the judgment reported as Alkhram v. Kulwantin Bai AIR 1950 Nag. 238, and contended that even if time is not essence of the contract under section 46 of the Contract Act, it has to be performed within reasonable time. So if there is unnecessary delay on the part of the plaintiff, it would be open to the other party to put an end to the contract by giving a notice before its termination. In this behalf reliance was placed by him upon the judgments reported as Jamshed v. Burjorji AIR 1915 PC 83 and Pearl Mill Co. Ltd. v. Ivy Tannery Co. 'Ltd. 1919 1 KB 78.
18. Whereas learned counsel for the respondents contended that in the facts and circumstances of the case time was not the essence of the contract and the appellants are in breach of contract for not obtaining the Capital Gains Tax Certificate and as they had themselves violated clause 5 of the agreement, in such view of the matter, there was no obligation upon the respondents' predecessor-in-interest to show his willingness to perform his part of contract because it was not possible unless no objection ^ertificate in respect of Capital Gains Tax was obtained by them.
Reliance in this behalf was placed by him Ashfaque Ahmed Sheikh v. State. PLD 1972 SC 39 (citation is not correct because it deals with `contempt matter'). He further argued that a party cannot take advantage of its own fault particularly, when it is the duty of the vendor to procure requisite certificate, etc. Reference in this behalf was made by him on Abdul Karim v. Muhammad Shafi 1993 SCMR 225 and Saidur Rehman v. Nasrullah Jan 1993 SCMR 231.
19. After having examined the judgment cited from both the sides, we are of the opinion that the time was not the essence of the contract as observed hereinabove, therefore, the contract can be enforced. Reliance in this regard may be placed on the case of. Amina Bibi (ibid). Relevant para. Therefrom is reproduced hereinbelow:-- "(15) In the facts and circumstance of the case, fully described in the narrative of this judgment analyzed by the Courts below, in our view, have been correctly and consciously construed. In our view, by mentioning a period of one month for completion of the transaction in the agreement of sale, the parties did intend to make the time of the essence of the contract. At any event appellant herself has been found to be in breach of the contract and she cannot be permitted to take the advantage of her own wrong. Alternatively, assuming for the sake of arguments, respondent was in breach of contract, in law and equity, appellant was under an obligation to provide reasonable time to the respondent for performance of the part of contract before resorting to hasty and abrupt revocation of the contract before expiry of 30 days. Obviously, it was not stipulated in the agreement that in case respondent failed to perform his part of the contract, it would stand revoked and the only stipulation in the agreement was that on his failure to make payment, as stipulated, earnest money of Rs,20,000 would stand forfeited. No other circumstance has been pointed out to lead to the contrary view. We are therefore, firmly of the opinion that time was not of the essence of the contract as rightly held by the Court below."
' It may be noted that in the above case, after having surveyed a number of judgments, including most of the judgments relied upon by learned counsel for parties to determine whether the time was the essence of the contract or not, the above conclusion was drawn, therefore, following the said dictum, we are of the considered opinion that since both the parties are sailing in the same boat, therefore, actual responsibility cannot be fixed upon one of them.
' Thus, in view of above facts and circumstances of the case, respondents' predecessors-in-interest was entitled to reasonable extension of time to complete the sale and concurrent findings of facts, assailed in the instant appeal do not warrant any interference, in view of peculiar circumstances of the case. Consequently, this appeal is dismissed with costs.