' This Civil Revision arises out of judgment and decree dated 31-7-2003 passed by Civil Judge 1st Class, Bahawalpur passing decree for specific performance of agreement in favour of respondents and also the judgment and decree dated 16-4-2004 passed by learned Additional District Judge, Bahawalpur dismissing petitioners' appeal against the judgment and decree of the trial Court.
2. The facts briefly stated are that petitioners being owner of land measuring 40 Kanals situated in village Jalababad Tehsil and District Bahawalpur, fully detailed in the head note of the plaint entered into agreement to sell the same to Muhammad Ramzan, predecessor-ininterest of the respondents through agreement dated 23-7-1999 for a sum of Rs.4,00,000 (four lacs). Admittedly at the time of execution of agreement to sell Rs.50,000 (fifty thousand) were paid as earnest money and possession was also delivered to Muhammad Ramzan and it was agreed that sale- deed shall be executed on or before 16-12-1999 on payment of the balance amount of Rs.3,50,000.
As the petitioner failed to get the sale-deed executed in terms of the said agreement to sell the respondents being heirs of Muhammad Ramzan, who had in the meanwhile died, filed a suit for the enforcement of said agreement to sell on 20-9-2001. It was specifically claimed in the plaint that despite death of Muhammad Ramzan deceased the plaintiffs/respondents were ready and willing to perform their part of contract by making payment of the balance amount. It was further averred in the plaint that Muhammad Ramzan deceased had also paid Rs.50,000 to the petitioner out of the remaining balance amount of Rs.3,50,000. However, in the meanwhile, the petitioner had changed his mind and finally refused to perform his part of the contract and also to complete the sale-deed and tried to alienate the said property to some other person in order to frustrate the agreement in question, necessitating the institution of the suit in hand.
3. The suit was contested by the petitioner who in his written statement besides admitting the execution of agreement to sell also admitted the fixation of Rs.4,00,000 as the sale price and further receipt of Rs.50,000 as earnest money at the time of execution of agreement in dispute but denied"to have received any additional amount of Rs.50,000 out of the balance price. The petitioner's main stay in the written statement was that as Muhammad Ramzan predecessor-in- interest of the respondent neither turned up to complete the sale on the date stipulated in the agreement i.e. , 16-12-1999 nor made payment of the balance amount of Rs.3,50,000, hence the agreement stood rescinded for nonperformance of contract within stipulated time because the time was essence of the contract.
4, In view of the pleadings of the parties, the learned trial Court framed the following issues and put the parties on trial.
(1). Whether the predecessor-in-interest of the plaintiff paid Rs.50,000 subsequent to the alleged agreement in addition to Rs.50,000 the earnest money and thus Rs.3,00,000 were to be paid by the plaintiffs, as remaining amount? OPP.
(2) Whether the predecessor-in-interest of the plaintiffs failed to make the payment on the stipulated date and in this context, the agreement to sell stands cancelled/rescinded? OPD.
(3) Whether the plaintiffs are entitled to specific performance of the agreement? If so, on what terms and conditions? OPP.
(4) Whether the plaintiffs have got no cause of action to file this suit? OPD.
(5) Whether the defendant is entitled to recover special costs? If so, to what extent? OPD.
(6) Relief.
5. The respondents/plaintiff produced oral evidence, in which Mst. Sakina one of the plaintiffs appeared as P.W.1 and they also produced two witnesses namely Ghulam Muhammad as P.W.2 (wrongly written as P.W.3) and Muhammad Qasim as P.W.3 and with that closed their evidence by placing on record the original agreement to sell Exh.P.1. Copy of register Haqdaran Zameen for the year 1997-1998, Exh.P.2, attested copy of Mutation No.738 Exh.P.3, attested copy of Mutation No.739, Exh.P.4 and copy of Khasra Girdavari Exh.P.5. In rebuttal the petitioner appeared as a sole witness in his oral evidence as D.W..1 and closed his evidence by submitting copy of Register Haqdaran Zameen as Exh.D.1 and death certificate of Muhammad Ramzan Exh.D.2.
6. On the conclusion of trial the learned Civil Judge vide judgment and decree dated 31-7-2003 answered all the above issues in favour of respondents, except the fact that any amount of Rs.50,000 in addition to Rs.50,000 already paid at the time of entering into disputed agreement was also paid, decreed the suit of the respondents holding that respondents were entitled to the decree prayed for on payment of balance amount Rs.3,50,000 within sixty days, failing which it would be deemed that the suit has been dismissed. Feeling aggrieved against the judgment and decree of the learned trial Court, petitioner filed an appeal and before the Appellate Court contested the judgment and decree of the trial Court on the point that as time was the essence of contract, hence, the disputed agreement stood automatically revoked after the expiry of time mentioned in the contract and the learned trial Court should not have passed any decree in favour of the respondents. However, the learned Appellate Court/Additional District Judge, Bahawalpur finding no force in the contention of the petitioner dismissed his appeal maintaining the judgment and decree of the learned trial Court. Hence this revision petition.
7. Before this Court also the learned counsel for the petitioner has mainly argued that as the time was the essence of contract and since Muhammad Ramzan deceased/predecessor-in-interest Of the respondents failed to perform his part of the contract by not making payment of the balance amount, although he remained alive six months after the expiry of the stipulated date, hence the respondents were in no way entitled to enforce the disputed agreement and obtain the decree. In support of his contention the learned counsel has placed reliance on the case of "Muhammad'
Sharif v. Mst. Fajji alias Phaji Begum through Legal Heirs and another" (1998 SCMR 2485) and has contended that as the parties intended to make the time as the essence of the agreement to sell, hence, the two Courts below were not right in passing the decree in favour of the respondents.
Learned counsel further placed reliance on the case of "Haji Abdul Rehman v. Niaz Ali through Legal Heirs" (2000 CLC 184 Lahore) to contend that as the time was essence of the contract, its nonperformance by Muhammad Ramzan within stipulated time amounted to breach of contract and same should automatically result in rescission of the contract in dispute. He has also placed reliance on the case of "Abdul Habib Durrani v. Toriali" (1999 CLC 207) to support his contention regarding the time being essence of the contract.
8. On the other hand, learned counsel for the respondents has argued that it is an established principle of law that in the case relating to agreement to sell immovable property time is never the essence of the contract and even if the same is to be considered so, Muhammad Ramzan predecessor-in-interest of the respondents never committed any breach and he was always willing and ready to perform his part of the contract after making payment of the balance amount.
To support his contention, the learned counsel has placed reliance on "Seth Essabohoy v. Saboor Ahmad" (PLD 1973 Supreme Court 39), "Ghulam Nabi and others v. Seth Muhammad Yaqub and others" (PLD 1983 Supreme Court 344), "Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others" (1994 SCMR 2189), "Faqir Muhammad and 8 others v. Abdul Momin and 2 others"
(PLD 1995 Lahore 405) and "Sher Muhammad (Deceased) through Legal Heirs v. Ghulam Muhammad and others (2004 CLC 1T17).
9. So far as the judgments relied upon by the learned counsel for the petitioner are concerned, I am afraid that except the judgment reported as "Muhammad Sharif v. Mst. Fajji alias Phaji Begum through Legal Heirs and another" (1998 SCMR 2485), none of the remaining judgments support the petiti Iner's case, rather it has been specifically held in "Haji Abdul Rehman v. Niaz Ali through Legal Heirs" (2000 CLC 184 Lahore) and "Abdul Habib Durrani v. Toriali" (1999 CLC 207) that merely an express provision in the agreement specifying certain time limit for performance of contractual undertaking on the part of promisee/vendee in case of sale of immovable property, would not make specified time as essence of contract in absence of any such specified intendment from construction of document of contract. However, the judgment reported as "Muhammad Sharif v.
Mst. Fajji alias Phaji Begum through Legal Heirs and another" (1998 SCMR 2485) is of some support to the petitioner's case but in the presence of larger Bench judgment of the Hon'ble Supreme Court rendered in "Ghulam Nabi and others v. Seth Muhammad Yaqub and others" (PLD 1983 Supreme Court 344), "Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others" (1994 SCMR 2189) and "Seth Essabohoy v. Saboor Ahmad" (PLD 1973 Supreme Court 39), declaring time as not the essence of contract relating to immovable property, the judgments relied upon by the learned counsel for the petitioner rendered by a Bench of two learned Judges cannot be followed. In all the above- mentioned judgments, relied upon by learned counsel for the respondents, it has been consistently held that in case of contract for sale immovable property, mere mention of time in contract for its performance does not necessarily mean that time was the essence of contract and the plaintiff cannot be non-suited merely on the ground that contract was not performed within time stipulated therein., The D.B. Judgment of this Court reported as "Sher Muhammad (deceased) through Legal Heirs v. Ghulam Muhammad and Others" (2004 CLC 1217) specifically took notice of the judgments reported as "Seth Essabohoy v. Saboor Ahmad" (PLD 1973 Supreme Court 39), "Ghulam Nabi and others v. Seth Muhammad Yaqub and others" (PLD 1983 Supreme Court 344) and "Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others" (1994 SCMR 2189), for holding that in contracts relating to sale of immovable property the time is not essence of the contract and suit having been instituted within limitation, can be decreed.
10. In the instant case, execution of agreement, receipt of earnest money of Rs.50,000 and delivery of possession of the suit-land to Muhammad Ramzan predecessor-in-interest of the respondents has been admitted by the petitioner. In case, if the time was essence of the contract for him, it was his duty to have produced evidence to this effect but there is nothing on the record to suggest that Muhammad Ramzan or for that matter the present 'respondents were not willing to pay the balance amount or that the petitioner made any effort to get the possession of the suit property back to show the revocation of contract after the expiry of stipulated time. Even no notice to this effect was served upon by the petitioner either on Muhammad Ramzan or to his heirs after his death indicating that the parties intended to take_ the time as essence of the contract and that after the expiry of that time the contract stood revoked. The petitioner has admitted in his evidence as D.W.1 that he never issued any notice to Muhammad Ramzan expressing revocation of contract for non-payment of balance amount after the stipulated date. He has also admitted in his statement that he took no step for obtaining possession of the suit property or obtaining share of produce from the heirs of Muhammad Ramzan deceased. This omission on his part also indicates that the petitioner never took the contract as revoked after the expiry of stipulated time.
11. To me the provisions of section 55 of the Contract Act stipulating the time as essence of the contract are usually meant for and are invoked in transactions either relating to goods or other movable properties where there is possibility of goods being perished, going to waste or their value likely to be diminished or reduced by lapse of time *but since in the case of immovable property there is hardly any such possibility and there is always possibility of improvement or the more precise, rapid increase in the value of such immovable property as well as increase in its price, hence, it is not believable that prospective vendee would refuse to complete the contract by making payment of the balance price. Similarly, it cannot be said that alleged failure on the part of prospective vendee to make payment of the balance amount always amount to showing his unwillingness to perform the contract. There is yet another aspect of the matter which renders the notion "time is essence of contract in case of immovable property", ineffective if the contract is not performed within a stipulated time and that is the period of limitation provided by Article 113 of the Limitation Act under which the suit can be filed within three years from the date specified in the contract or if no such date is specified; within three years from the last refusal by the party. If the intention of the law-makers had been to render the agreement ineffective after the expiry of time specified in the contract, there would have been no sense or necessity of legislating by way of Article 113 of the Limitation Act providing a limitation of three years for filing a suit for specific performance of contract from the date as mentioned in the agreement. This clearly indicates that legislature never intended to make time for specific performance as essence of contract. It is an established principle of interpreGation that while interpreting certain provisions of law the Court cannot insert which the legislature never intended to nor the Court can sit over the authority of legislature by interpreting such provisions in a way which legislature never intended to. Hence, there is no force in the contention of the learned counsel for the petitioner that as Muhammad Ramzan or after his death the present respondents as heirs never performed the contract or filed a suit within time stipulated in the contract, so by implication the time specified in the contract be taken as essence of the contract and the suit filed after said time be dismissed. The two Courts below after proper appraisal of evidence have rightly come to the conclusion that parties never intended the time stipulated in the contract as its essence and by taking no step for rendering the contract ineffective or treating the contract having been revoked after the time specified therein, the petitioner himself allowed the contract to remain in the field after the time specified in the contract and thus the respondents rightly filed a suit within the period prescribed under Article 113 of the Limitation Act, which was rightly decreed by the learned trial Court and appeal of the petitioner was rightly dismissed by the learned Additional District Judge, hence, the findings of two Courts below on Issues Nos.2 and 3 are maintained being unexceptionable.
12. The upshot of above discussion in that this civil revision has no force and, the same is dismissed, leaving the parties to bear their own costs.