' The plaintiff has filed the above suit against the defendant with the following prayers:-- "It is, therefore, very humbly and respectfully prayed that a decree may kindly be passed in favour of the plaintiff and against the defendant; thereby directing the defendant to transfer the property detailed above in favour of the plaintiff by virtue of the terms and conditions of the agreement to sell, along with the possession of the suit property and costs of the suit please be also awarded.
' Any other relief to which the plaintiff found entitled, for the submissions, facts and circumstances, as succinctly enumerated above, as this august Court may deem fit and proper, may also be conferred to the plaintiff , in the supreme interest and safe administration of justice."
2. The facts as they appear from the pleadings of the parties are that on 5-7-1995 the plaintiff entered into a sale agreement with the defendant at Lahore to purchase from the defendant the Property bearing No. 26, Khayaban-e-Ghazi, Phase V, Defence Housing Authority, Karachi, measuring 1000 square yards (hereinafter. Referred to as 'the property'), for a total sale consideration of Rs.53,50,000.00. The plaintiff paid a sum of Rs.500,000.00 to the defendant towards earnest money at the time of execution of sale agreement and the balance sale consideration was mutually agreed to be paid to the defendant on or before 4-11-1995. It was further provided under the sale agreement that in case of default by the plaintiff, the defendant was entitled to confiscate the amount of Rs.500,000.00 paid by the plaintiff towards the earnest money and in case of default by the defendant the defendant was required to pay back the earnest money with an additional amount of Rs.500,000 to the plaintiff.
3. The record reflects that the plaintiff on 1-11-1995 filed a suit for specific performance of the said sale agreement against the defendant before the Civil Judge 1st Class, Lahore (Exh.P/2). Along with the said suit the plaintiff made an application for injunction. The learned Civil Judge 1st Class, Lahore, while issuing notice to the defendant granted status quo restraining the defendant from alienating the property. On 30-11-1995 the defendant filed her written statement, Exh.P/5. In her written statement, the defendant has pleaded that she kept on contracting the plaintiff to fulfil his part of contract by making payment of balance sale consideration in order to complete the sale transaction however, the plaintiff did not respond the defendant. It was further pleaded in the written statement that on 17-10-1995, the defendant also handed over the copies of the entire title document of the property to the estate agent, Muhammad Saleem, in order to enable the plaintiff and the estate agent to draft the proposed sale-deed but till 29-10-1995, neither the defendant received the proposed sale-deed nor any intimation was, given by the plaintiff or his said estate agent. On 29-10-1995, the defendant, therefore, served a legal notice upon the plaintiff calling upon him to perform his part of contract failing which the defendant would resort to clause 10 of the sale agreement and would forfeit the earnest money. On 1-11-1995, the plaintiff filed Suit No.178 of 1995 before the Civil Judge 1st Class, Lahore, Exli.P/3.
4. The record further reveals that after filing of the written statement by the defendant in Court, the matter was adjourned to 5-12-1995, the question of territorial jurisdiction was raised and thereafter, the matter was kept on adjourning when on 19-12-1995 a Vakalatnama of Mr. Tariq Shakoor, Advocate was filed on behalf of the defendant and the matter was adjourned. On 31-1-1996 the matter was taken up when the counsel for the defendant Mr. Tariq Shakoor, Advocate, has made a statement that if the plaintiff pays the balance sale consideration in Court by 7th February, 1996, the suit may be decreed. The diary of the learned Civil Judge, 1st Class, Lahore, reflects that a pay order of Rs.48,50,000 was produced before the Court on 7-1-1996 and it was stated by the defendant counsel that the defendant has refused to accept the pay order. The plaintiff however, did not deposit the pay order in Court. Ultimately by an order, dated 12-3-1996 the plaint in Suit No.178 of 1995 was returned by the Civil Judge, Lahore, to the plaintiff to be presented before the Court of competent jurisdiction.
5. On 20-3-1996 the plaintiff pursuant to the said order had presented the plaint. Exh.P/3, along with the Court-fee in this Court whereafter the plaintiff has filed amended plaint on 21-3-1996. The notices were ordered and the defendant filed her written statement. On 20-1-1998 the following issues were framed:-- (1)Where the plaintiff has no cause of action, if so, to what effect?
(2)Whether the plaintiff has failed to perform his part of the agreement specifically in terms thereof, if so, to what effect?
(3)Whether the plaintiff is entitled to any relief.
(4) Whether the plaintiff is entitled to have sale-deed executed in his favour?
5. What should the order be?
6. The plaintiff examined himself as P.W.1 and produced affidavit-in-evidence, Exh.P/1, photocopy of agreement to sell, dated 5-7-1995, Exh.P/2, photocopy of plaint of suit before the Civil Judge 1st Class, Lahore, Exh.P/3, photocopy of injunction application filed before Civil Judge 1st Class, Lahore Exh.P/4, photocopy of written statement flied by defendant before the Civil Judge 1st Class, Lahore, Exh.P/5, photocopy of order, dated 1-11-1995 passed iy Civil Judge 1st Class, Lahore, Exh.P/6, photocopy of Court diaries Exh.P/7, legible copies of Court diaries Exh.P/8, photocopy of pay order Exh.P/9 and photocopy of order, dated 12-3-1996 of Civil Judge 1st Class, Lahore, Exh.P/10. The plaintiff also examined Muhammad Saleem P.W.2 the estate agent, who produced affidavit- inevidence', Exh.P/11 and was also cross-examined by the defendant's counsel.
7. On conclusion of the plaintiff's evidence the defendant, D.W.1 examined herself and has produced her affidavit-inevidence as Exh.D/1, original receipt, dated 17-10-1995 signed by P.W.2 Muhammad Saleem, Exh.D/1-A, photocopy of legal notice, dated 29-10-1995 addressed to the plaintiff-Exh.D/2, Postal Registry Receipt No.40 Exh.D/3, A.D. Card (slip), Exh.D/4 and application for certified copy in suit filed at Lahore, Exh.D/5. The defendant also examined Group Capt. (Rtd.) Ihsanullah Khan, her husband, as D.W.2.
8. It has been contended by the learned counsel for the plaintiff that the defendant has refused to perform her part of contract and the plaintiff under these circumstances, had approached the Civil Judge 1st Class, Lahore, to seek specific performance of the sale agreement Exh.P/2, by filing suit, Exh.P/3 and in response to the said suit the defendant has filed her written statement. Exh.P/5.
According to the learned counsel in paragraph No.6 of the Exh.P/5, she has conceded to the prayer of specific performance and sought the said suit to be decreed and, therefore, the defendant cannot take a different stand in her written statement filed in this Court, which according to him was continuation of the original proceedings. He submitted that though the suit, Exh.P/3, was filed prior to the lapse of time fixed in the agreement Exh.P/2 but this was done by the plaintiff as an abundant caution. He submitted that in support of his claim the Plaintiff has examined himself and the estate agent, Muhammad Saleem. P.W.2, who has fully supported the plaintiff's version. The learned counsel for the Plaintiff further submitted that time was the essence of the contract and under the given circumstances, the plaintiff was entitled to the prayers made in the suit. In support of his contention he has relied upon the case of Bashir Ahmed v. Shahzadi reported in 1984 CLC 1348 and the case of Mst. Musharaf Begum v. Abdul Wahab reported in 1997 MLD 1975.
9. He further contended that the plaintiff offered the balance sale consideration through a demand draft but the defendant's counsel refused to accept it before the Civil Judge 1st Class, Lahore, during the proceedings, which reflects the conduct of the defendant. The learned counsel for the plaintiff submitted that he, at the relevant time, was willing to make payment of the balance sale consideration and in fact a pay order of balance sale consideration was produced by the plaintiff's counsel on 7-2-1996 but the same was not accepted by the counsel for the defendant, inter alia, on the ground that the defendant has instructed him not to accept the pay order and the matter was fixed for arguments. He submitted that by order, dated 12-3-1996, Exh.P/10, the learned Civil Judge 1st Class, Lahore has returned the plaint, which was presented in this Court on 20-3-1996 along with the court-fee followed by the amended plaint. Accordingly to the learned counsel, the defendant after conceding in the written statement had changed her mind and has filed written statement taking altogether a different stand in these proceedings. The learned counsel for the plaintiff submitted that the pay order, which was produced before the Court in Lahore was encashed by his client on refusal to accept the same by the defendant and the plaintiff was entitled to a decree in terms of the prayers.
10. As against this, Mr. Akhtar Hussain, learned counsel for the defendant has submitted that the plaintiff was never in a position to make the payment on 4-11-1995 and on receipt of the legal notice, dated 29-10-1995, Exh.D/2, he, in order to gain time, has filed a frivolous suit, Exh.P/3, before the Court in Lahore, which was not a Court of competent jurisdiction, without even payment of Court-fee. The learned counsel submitted that in the written statement, Exh.P/5, the defendant has objected to the maintainability of the suit on the ground of want of proper court-fee and has pleaded that the Plaintiff was issued notice. Exh.D/2,"to perform his part of contract by making payment of balance sale consideration and on receipt of such notice the incompetent suit was filed.
11. It was further argued by the learned counsel for the defendant that the defendant was in dire need of money and therefore, she consented to the prayers of the plaintiff subject to payment of the balance consideration immediately and even that too was not done by the plaintiff. According to the learned counsel, on 17-10-1995 the photocopies of entire original title document were handed over to the estate agent Muhammad Saleem to enable him to prepare the proper sale- deed of the suit property. It was contended that the defendant kept on contacting the estate agent and the plaintiff but both of them avoided response as a result of which the legal notice, Exh.D/2, was issued. He submitted that the plaintiff was not in a position to make payment of balance consideration on 4-11-1995 and in order to avoid the payment of balance sale consideration he filed a premature suit at Lahore on the date when no cause of action accrued to the plaintiff. He submitted that even the said suit was filed without payment of court-fee and in a Court, which did not have the jurisdiction. It was contended that the defendant never authorized any of his counsel to enter into a compromise with the plaintiff besides the fact that she was never offered the balance sale consideration by pay order as alleged. The learned counsel has relied upon the cases of Younek Electric Co. v. Muhammad Abdul Hayi Khan, 1981 SCMR 181, Munawar Bibi v. Maheen Quddusi 1998 CLC 1226, Ali Muhammad v. Hussain Bukhsh PLD 1976 SC 37, Hakim Ali v. Muhammad Salim 1992 SCMR 46, Riaz Mahmood v. Bismillah Jan 1988 SCMR 981, Muhammad Sharif v. Fajji 1998 SCMR 2485 and Ali Muhammad v. Shah Muhammad PLD 1987 Lahore 607.
12. I have heard the learned counsel and have perused the record. The sale agreement Exh.P/2 is not disputed. The learned counsel for the plaintiff disputes to have been served with the legal notice, Exh.D/2. The record reflects that the legal notice was served and the acknowledgement receipt besides the postal receipt Exhs.D/3 and D/4 were produced and exhibited by the defendant in her evidence. Exhs.D/3 and D/4 have not been objected to and, therefore, the plaintiff cannot take stand and the notice Exh.D/2 was not served. Once original postal Exh.D/3 and acknowledgement Exh. D/4 have been produced in the evidence, then in view of the principles laid down in the cases decided by the Honourable Supreme Court Khuda Bukhsh v. Muhammad Yacioob 1981 SCMR 179 and Muhammad Ahsan v. Naseem Khatoon 1988 CLC 1226 such notice is construed to have been served. The record reflect that after service of notice Exh.D/2, the plaintiff has filed a suit. Exh.P/3, on 1-11-1995 against the defendant for specific performance of the sale agreement, Exh.P/2. In the said suit, the Plaintiff has not specifically pleaded his willingness to make payment of the balance sale consideration nor he has pleaded that he was willing to perform his part of contract except that he has alleged that the defendant does not want to perform her part of the contract and intends to dispose of the property to a third party at enhanced price. Even the Plaintiff in the said suit, Exh.P/3, has not given even the date of cause of action and has undervalued the suit at Rs.1000.00.
13. The relief in suit of specific performance is a discretionary relief and could only be granted to a party which has approached the Court with clean hands and has placed material on record to show bona fides on his part to perform the contract. Primarily, the party approaching the Court has to show that it was willing and ready to perform its part. This ingredient in the present proceedings is missing on the part of the plaintiff in order to entitle him to the relief of specific performance inasmuch as the suit, Exh.P/3, was filed by the Plaintiff prior to stipulated time fixed in the sale agreement, Exh.P/2 without any explanation. Even the plaintiff before tiling the said suit has not put the party to notice of the alleged non-performance of contract on her part. In the plaint in the said suit, the valuation for the purposes of Court-fee and jurisdiction was shown at Rs.1,000 in order to avoid proper court-fee and the purpose behind filing of the suit by the plaintiff appears to be to gain time by avoiding the stipulated date in order to restrain the defendant from invoking the clause 10 of sale agreement, Exh.P/2. It is also established from the material on record that the plaintiff has filed the suit after receipt of the notice of the defendant, dated 29-10-1995. Exh.D/2, otherwise, there was no occasion for the plaintiff to file a suit prior to stipulated date of 4-11-1995.
Additionally, in the written statement, Exh.P/5, the defendant though objecting to the jurisdiction had shown her willingness to perform her part of contract subject to payment of balance sale consideration. This written statement was filed on 30-11-1995 and from this date till 31-1-1996, the plaintiff did not offer payment of the balance sale consideration nor any application to deposit such amount was made by the plaintiff to show his bona fide though he had the notice of the concession given by the defendant in her written statement to accept amount of balance sale consideration after the lapse of time fixed in the sale agreement. However, this concession was incorporated in the written statement with the word "forthwith". It did not mean that the further item was ever intended to be granted by the defendant to permit the plaintiff to pay the balance sale consideration at his convenience. The plaintiff's stand that a pay order of Rs.48,50,000 of the balance consideration was produced by him on 7-2-1996 was sufficient to show that he had the amount of balance sale consideration at his disposal of non-acceptance of the same by the Court for the defendant was sufficient to seek relief in these proceedings. The question is whether the plaintiff on the date of filing of suit had with him the balance sale consideration and was willing to make such payment is not borne out from the record. The plaintiff in these proceedings claims to be an Advocate of Lahore High Court and was aware of his obligation in law.
' Moreover, neither in the plaint in suit, nor at any point of time, prior to the alleged offer made by the defendant's counsel, the plaintiff has never shown his willingness to make payment of balance sale consideration.
14. Additionally, on return of the plaint which was presented in this Court, the plaintiff filed amended plaint in these proceedings which also reflects that even in the amended plaint subsequent events after filing of suit Exh.P/3 were not incorporated by the plaintiff and, even in the amended plaint it has not been pleaded that the plaintiff at any point of time was willing and had the capability of making payment of balance sale consideration.
15. In cross-examination the plaintiff has conceded that P.W.2 Muhammad Salim did receive the copies of the documents on 17-10-1995 for preparation of sale-deed but has not given explanation for non-preparation of the sale-deed. In his cross-examination, the plaintiff has further admitted that he has not pleaded his willingness to perform his part of sale agreement, Exh. P/2, in between 5-7-1995 to 4-11-1995. He, however, denied service of legal notice, Exh.D/2. Since Exhs.D/3 and D/4 have been produced and exhibited, mere denial of the plaintiff of service of the legal notice would be insufficient to establish the fact that plaintiff was not served with the legal notice.
16. The plaintiff has failed to produce any evidence to show that on 4-11-1995 he had an amount of Rs.48,50,000.00 available with him. The plaintiff has further admitted in his cross-examination that he never offered himself for payment of balance sale consideration to the defendant. The other witness of the plaintiff P.W.2, Muhammad Salim, in his cross-examination has admitted that the defendant on 17-10-1995 had handed over all the copies of the original title documents of the suit property against receipt Exh.D/1-A. He further admits that the draft of the sale-deed was never prepared by him for which he has not offered any explanation. He also admits that he never offered balance sale consideration to the defendant. The admissions of the P.W.2, Muhammad Salim, besides the admissions of the plaintiff in his cross-examination clearly suggests that the defendant had all the intents to perform her part of contract and such intent is reflected when she has handed over copies of the original title documents of the suit property well in advance to Muhammad Salim, the estate agent, on 17-10-1995 in order to enable the plaintiff to prepare proposed sale-deed. The defendant's role to perform her part of contract would have countered only once draft sale-deed accompanied with the balance sale consideration has been handed over to the defendant. This admittedly has not been done either by the plaintiff or by the estate agent, Muhammad Salim for which no explanation of any nature has been offered.
17. Under the aforesaid circumstances, it can be safely presumed that the plaintiff was not in a position to pay balance sale consideration within the stipulated time i.e. 4-11-1995 and it also appeals to reason that the defendant had issued legal notice on 29-10-1995, Exh.D/2, as a result of which the plaintiff in order to gain time and avoid payment of balance sale consideration within the stipulated time has decided to file premature suit. Exh.P/3 in Lahore. The argument that the plaintiff was obliged to make payment of the balance consideration only in the office of the Defence Housing Authority at Karachi, and since the defendant was not willing to accompany the plaintiff to Karachi therefore he was justified in non-payment of the balance consideration. With profound respect, in the given situation, the plaintiff could easily have made a pay order of the Rs.48,50,000.00 in the name of the defendant for 4-11-1995, copy of which he could have passed on to the defendant to satisfy her that the balance sale consideration was ready with him. But instead, the plaintiff did not even prepare the proposed sale-deed nor any explanation has been offered, by him, which clearly establishes unwillingness of the plaintiff to complete the sale transaction.
18. The concession/admission of the defendant in her written statement before the Civil Judge, Ist Class, Lahore, that if the plaintiff makes payment fortwith she would have no objection to the grant of relief would not come in the way of the defendant once the plaintiff having knowledge of the concession had failed to make payment of balance sale consideration immediately. The demand draft of Rs.48,50,000.00 produced on 7-2-1996 after months together would not absolve the plaintiff from the rigours of clause 10 of sale agreement, which the defendant had the right to invoke after 4-11-1995 in terms of legal notice Exh.D/2. The defendant, in law, had the option to refuse to accept the balance sale consideration after the lapse of stipulated time and no adverse presumption can be drawn against her.
19. The defendant has examined herself besides her husband as Exh.D.W.2 and the plaintiff could not shake their testimony. In her evidence, the defendant has deposed that the balance sale consideration was never paid nor deposited by the plaintiff in Court and nor the pay order of the said amount was ever offered by the plaintiff to her directly or through the estate agent, which fact is not in dispute. The version of the plaintiff is belied that the defendant was not willing to go to Karachi. In her deposition, she has stated that the plaintiff was not in a position to make the balance sale consideration and was gaining time.
20. On perusal of the record after hearing the parties, I am of the considered view that the plaintiff has failed to prove his bona fides to perform his part of contract as the plaintiff was not in position to make the balance sale consideration on 4-11-1995 and, therefore, in order to gain time he had filed the proceedings at Lahore with the sole object to gain time. The defendant under these circumstances was justified to seek benefit of clause 10 of the sale agreement Exh.P/2 and was entitled to forfeit the earnest money after notice Exh.D/2. Since the plaintiff has not approached this Court with clean hands and relief of specific performance is a discretionary remedy, the suit of the plaintiff is dismissed with costs. The case-laws cited by the learned counsel do not apply to the issues involved in the present proceedings.
' These are the reasons of my short order, dated 7-2-2005.