MUHAMMAD MUZAMMAL KHAN, J.--- Instant first appeal is directed against the judgment and decree dated 26.9.1993 passed by the learned Senior Civil Judge, Islamabad, where suit for specific performance filed by the respondent was decreed.
2. Precisely, relevant facts are that appellant being owner of house No. 25, School Road, Sector F- 6/1. Islamabad, entered into a transaction of sale of the house for an amount of Rs. 33,50,000/- and after receiving a consideration of Rs. 2,00,0000/- as earnest money executed the agreement to sell dated 23.8.1987. Regular transfer was to be made in favour of the respondent till 23.11.1987 on payment of the balance sale price and in the meanwhile, appellant was to get completion certificate of the house besides moving an application for its transfer. Respondent -issued two notices dated 4.11.1987 and 14.11.1987 which remained un-served whereafter a notice in daily newspaper 'slang' was got published on 21.11.1987. Since the needful was not done by either of the parties, respondent on 5.12.1987 filed a suit for specific performance with permanent injunction before the learned Senior Civil Judge, Islamabad, averring that he had been willing and ready to perform his part of contract by paying the balance sale price, but appellant failed to fulfill her commitment as neither possession of the house was delivered to him nor any application for transfer of the house was moved with the Capital Development Authority, hence prayed for a decree for specific performance of the agreement dated 23.8.1987, besides praying that appellant be restrained from alienating the house in question through a decree for permanent injunction.
3. Appellant being defendant in the suit contested it by filing her written statement, wherein execution of the agreement dated 23.8.1987 and receipt of earnest money of Rs. 200,000/- thereunder was admitted and it was pleaded that respondent failed to pay the remaining sale price of Rs. 31,50,000/- within the time fixed by the parties, which was essence of the contract, hence his earnest money stood forfeited and he lost his right of specific performance under the agreement which after the time fixed stood automatically cancelled. Controversial pleadings of the parties necessitated framing of issues and recording of evidence. The learned Senior Civil Judge concerned after doing the needful, on the basis of his appraisal of evidence, decreed the suit of the respondent vide his judgment and decree dated 26.9.1993. Thereafter, appellant filed instant appeal before this Court, which was admitted to regular hearing and after completion of record, has now been placed for final determination . Respondent has appeared through counsel and is represented.
4. Learned counsel for the appellant submitted that it was evident on the fact of the record that time was essence of the contract between the parties, whereunder the respondent was to pay balance sale price of Rs. 31,50,000/- on or before 23.11.1987, but the having no money with him, failed to perform his part of contract and in the peculiar circumstances of instant case, his suit could not have been decreed. It was further contended that respondent on account of lack of funds for payment of balance sale price to the appellant, contacted her for refund of earnest money with additional amount of Rs. 25,000/- but the respondent did not accept his demand, whereafter the suit under adjudication was filed with unclean hands. It was also emphasized on behalf of the appellant that respondent after decree by the Trial Court deposited the amount in the Court, but subsequently withdrew the same which shows scarcity of funds with him. He further elaborated his arguments by urging that mere issuance of notices by the respondent was not enough to show his bona fide to perform his part of contract, as he never approached the appellant with balance sale price, requiring her to transfer the house in his favour. According to him, since all the ancillary expenses of sale were to be incurred by the respondent, there is no evidence on the file to show that respondent ever came to the appellant showing his desire to deposit the transfer fee etc. For moving application by her. Likewise according to his assumption, respondent never established any contact for taking of possession by paying the sale price. It was also argued on behalf of the appellant that suit by the respondent was mala fidely filed just to delay payment of the balance sale price and to await increase of the price of the properties.
Learned counsel for the appellant desired this Court to take judicial notice of inflation in the market and increasing prices of the properties and asserted that the suit property at the present is of the value of more than Rs. 10,00,00,000/-, but this aspect of the appellant because decree for specific performance being discretionary with the Court, could have been refused on this score alone.
5. Learned counsel appearing on behalf of the respondent refuted the arguments of the appellant, supported the impugned judgment/decree and urged that under the agreement respondent was to first had over possession of the property to the respondents besides moving transfer application to the concerned department, whereafter the balance sale price was to be paid but none of thee courses was adopted by her which proved that she was not ready/willing to transfer the house and deliberately avoided performance of the agreement dated 23.8.1987. It was further contended on behalf of the respondent that giving strict interpretation to the language used in the agreement, after failure of appellant to perform her part of contract, suit of the respondent was rightly decreed by the Trial Court. A reference of three notices by the respondent was also made to show that the respondent was desirous of getting the property transferred in his name, within the time fixed in the agreement.
6. We have minutely considered the respective arguments of the learned counsel for the parties and have examined the entire record. Sale agreement, receipt of earnest money and transfer of house till 23.11.1987 is not disputed between the parties. The only question which hinges for determination is as to whether time was essence of the contract and who out of the parties failed to perform its respective part. After payment of earnest money on 23.8.1987 no additional amount was received by the appellant and similarly no extension of time was granted by her. The agreement itself and conduct of the parties proved on the file that time was essence of the contract. Under law, normally in the cases involving immovable property, if some time is stipulated in the agreement for its performance and some penalty clause is envisaged therein, time will be considered as its essence, unless the same is extended by active conduct or acquiescence. Our this view gets support from the judgments in the cases of Seth Essabhoy vs. Saboor Ahmad (PLD 1973 S.C. 39), Zaheer Ahmad and another vs. Abdul Aziz and others (1983 SCMR 559), Mrs. Mussarat Shaukat Ali vs. Mrs. Safia Khatoon and others (1994 SCMR 2189), Sandoz Limited and another vs. Federation of Pakistan and others (1995 SCMR 1431), Faqir Muhammad and 8 others vs. Abdul Momin and 2 others (PLD 1995 Lahore 405), Masud Sarwar vs. Mst. Farah Deeba (1988 CLC 1546) and Abdul Habib Durrani vs. Toriali (1999 CLC 207).
7. Respondent had no doubt issued three notices to the appellant out of whom two were through post which were not delivered and the third through publication in newspaper, but there is no evidence on the file to show that notice published in the newspaper was dispatched to her by the respondent or the publishing agency. Notice in newspaper Exh. P.W. 3/4 is not only ambiguous in its own words it did not specify time, date or place of payment of balance sale price by the respondent but also appears to have been got published to coin a defence that he was ready to pay the amount. As a matter of fact, respondent himself should have approached with the entire amount and transfer fee etc. And to require the appellant to do the needful under the agreement, but he did not act in this manner and abruptly rushed to file the suit which was filed just after fourteen days of publication of the notice. Respondent being plaintiff was required to prove issue No. 1, disclosing his entitlement to the decree for specific performance under the agreement dated 23.8.1987 and for this purpose he produced five witnesses, including his own statement. P.W. 1 Muhammad Hafeez, Assistant Settlement Officer CDA simply deposed that no application for transfer of house was filed in the office on behalf of the appellant. P.W. 2 Ghulam Murtaza Bhatti, Town Inspector, proved dispatch of registered letter No. 193. Similarly, PW. 3 Muhammad Arshad Postman deposed that the registered letters were returned by him as there was a property office at the address mentioned and not a house. PW. 4 Lehrasab Hussain, Inspector Post Office, only produced record of the post office. The only witness relevant on the point in controversy is PW. 5, the respondent himself. Though his self-serving statement, uncorroborated by any independent evidence, is not enough to discharge the onus placed on his shoulders, yet it also could not help his case because he did-not utter a single word that he ever went to the appellant with the balance amount payable by him or to the effect that he went/visited the appellant requiring her to go to the office of CDA for taking steps for transfer of the house and that he is ready with the money. Respondent's own witness especially PW. 3 came to the rescue of the appellant when he deposed that he visited the address given on the registered letter Exh. PW. 1/1-c and Exh. PW. 1/1-d, but there was an office of the property. In this situation , respondent did not bring any evidence on the file to show that what steps he tool to establish contact with the appellant and in this behalf his own statement is also absolutely silent. Appellant attempted to prove by her own statement is also absolutely silent. Appellant attempted to prove by her own statement as DW. 1 .And through deposition of DW. 2 that respondent on 21.11.1987 in presence of two persons Azad and Abdul Haq (DW. 2) visited the appellant for return of earnest money of Rs. 2,00,000/- and Rs.
25,000/- as ancillary expenses incurred by him. This stance could not be proved as the same was not put to PW. 5 in the cross-examination, but tenor of cross-examination of both the witnesses of the appellant shows that respondent never established any contact with the appellant. It was simply erroneous to assume that an owner of the property would transfer the proprietary rights in favour of the prospective purchaser and would deliver possession of the property, without receipt of entire consideration. Appellant took a very straightforward defence, which is not only proved on the file but also flows from the evidence of the respondent himself and from the manner, the suit was contested. This brings us to hold that neither the respondent was equipped with money, sufficient to pay off the balance amount of Rs. 31,50,000/- nor he ever contacted the appellant with amount for doing the needful under the agreement and thus failed to perform his 'part of the contract, resulting into rescission of the agreement and forfeiture of his earnest money, but all these matters were not adverted to by the Trial Court and escaped from its notice at the time of decision of the /is.
8. Law regarding grant of decree in suit for specific performance is settled by this time, whereunder the same is discretionary with the Court and can be refused even if the entitlement of the plaintiff is proved. Respondent's rights to decree was not proved, but we taking note of inflation in the country and increase of prices of the properties during the interregnum period, from the date of agreement to sell, fell it harsh to maintain the decree of the Trial Court, which even other wise, is not sustainable for the reasons mentioned in the foregoing paragraphs.
9. For the reasons noted above, we are unable to maintain the judgment/decree of the Trial Court, which being opposed to record, deserves reversal. This appeal is accordingly accepted, impugned judgment/decree is 'set aside and suit of the respondent is dismissed with no order as to costs.
Regular First .