' This second appeal arises from a suit for specific performance filed by Muhammad Iqbal (appellant/plaintiff). The facts of this case are straightforward. The respondent/defendant, namely, Abdul Rauf executed an agreement dated 25-3-1999 (Exh.P.2), whereby he undertook to sell a property measuring 5 Marlas situated in Mauza Charar to the appellant/plaintiff for a total consider:ation of Rs:5,10,000. A sum of Rs.1,00,000 was paid by the appellant/ plaintiff as earnest money. The balance was to be paid on or before 25-4-1999 at which time the respondent/defendant was to execute and register a sale deed in favour of the appellant.
2. The case of the appellant/plaintiff is that the respondent/defendant failed to abide by the terms of the agreement and refused to execute a sale deed in favour of the appellant. As a consequence, the appellant was constrained to file an application before the sub-Registrar on 24-4-1999 (Exh.P.3) wherein he stated that he was ready and willing to perform his part of the agreement. On 28-4-1999, legal notice (Exh.P.4) was also issued to Abdul Rauf (respondent/defendant) requiring him to execute the sale deed for the disputed plot. This demand was also not complied with by the respondent/defendant. The appellant/plaintiff was, therefore, constrained to file his suit on 27-5- 1999 to seek specific performance of the agreement. The respondent/defendant filed his written statement in which the only defence was that the appellant/plaintiff had not paid or tendered the balance amount in time. Issues were framed by the learned trial Court and the appellant/plaintiff led evidence on the same. The above-referred exhibits were also produced on record. The respondent/defendant, despite repeated opportunities, did not produce any evidence. The learned trial Court vide judgment dated 12-3-2002 decreed the suit of the appellant/plaintiff.
3. Feeling aggrieved of the decision of the learned trial Court, the respondent/defendant preferred an appeal. The learned lower Appellate Court vide judgment dated 23-6-2003 has set aside the decision of the learned trial Court and, as a consequence, has dismissed the suit for specific performance filed by the appellant/ plaintiff. It is this appellate judgment which has been impugned in the present' appeal.
4. I have gone through the impugned judgment, with the assistance of learned counsel for the appellant. The sole reason given by the learned lower Appellate Court for dismissing the appellant's suit is that time was of the essence of the contract and that the appellant had failed to make payment of the balance consideration on or before 25-4-1999. These observations are not consistent with the record. Firstly, it is to be noted that the general rule, by now well settled, is that in cases involving agreements to sell immovable property, time generally, is not of the essence.
Secondly, it is clear from the exhibits P.3 and P.4, referred to above, that the appellant was diligent in pursuing his rights under the agreement to sell and had also established on record his readiness and willingness to perform his part of the agreernent. The appellant also acted promptly in filing the suit for specific, performance on 27-5-1999. Furthermore, the evidence led by the appellant is unrebutted by any evidence from the other side.
5. Learned counsel for the respondent did not have any satisfactory answer to the above arguments of learned counsel for the appellant. He merely stated that even though, as a general proposition of law, time is not of the essence in performance of contracts for sale of immovable property, this assumption is rebutable. He, however, was unable to show that there , was anything on record to rebut such assumption. Furthermore, the appellant/ plaintiff was able to prove that he had, in fact, presented an application (Exh.P.3) to the sub-Registrar on 24-4-1999 showing his willingness to perform his part of agreement (Exh.P.2). The evidence led by the appellant/plaintiff was sufficient to prove his case while the respondent/ defendant had failed to adduce any evidence to controvert the evidence of the appellant/plaintiff.
6. In the foregoing circumstances, the impugned appdllate judgment and decree dated 23-6-2003 are quite clearly not consistent with the evidence on record. The same are, therefore, set aside. As a consequence, the decree of the trial Court dated 12-3-2002 stands restored.