' On 26-5-1983 the respondents Nos.1 to 3 filed a suit against the appellants, respondent No,4 and one Mst. Zauhran Bibi. In the plaint, it was stated that the petitioners in person while the said Mst.
Zauhran Bibi through her general attorney Muhammad Ashraf respondent No,4 entered into an agreement on 26-2-1983 for the sale of the suit-land, mentioned in the plaint, for a consideration of Rs,1,17,925. A sum of Rs,20,600 was paid as earnest. The balance was to be paid upto 1-5-1983 whereupon the land was to be transferred by the said vendors on 1-5-1983. It was a holiday.
However, the respondents Nos.1 to 3 approached the said vendors and requested them to accept the balance consideration and to transfer the land on 2-5-1983. They promised to do so but did not turn up on 2-5-1983. Meanwhile they received a notice from the petitioner No,2 on 2-5-1983 and reached the Court of the Sub-Registrar, Mian Channu but the vendors did not turn up. Then they received a noticed on 11-5-1983. This time they sent to the petitioners on 13-5-1983 who demanded a sum of Rs,22,125 which was required by them. This amount was paid and promised it will be adjusted against balance consideration. On 14-5-1983 the respondents Nos.1 to .3 had been waiting for the vendors in the office of Sub-Registrar but they did not turn up. With these averments, a decree for specific performance of the agreement was sought. All the defendants filed a joint written statement on 23-6-1983. They admitted that the petitioners and the said lady (defendant No,3 in the case) had executed the agreement promising to transfer the said land for the said consideration and the receipt of earnest money. It was then stated that, in fact, the receipt of earnest money was shown only as filing of pre-emption suit was being apprehended. According to them, the consideration settled was Rs,97,325 which was to be paid upto 1-5-1983. Upon failure, the defendants in the case were to give a notice of one week and if despite the said notice the payment had not been made the agreement was to stand cancelled. It was then stated that a notice was given twice extending the period upto 14-5-1983 but the payment was not made. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit on 4- 10-1995. I may note here that the decree-sheet carries the names of all the defendants noted by me above i,e, the petitioners; the respondent No,4 and Mst. Zauhran Bibi. However, the first appeal was filed by the petitioners. The respondents Nos.1 to 3 were impleaded as such while Muhammad Ashraf was impleaded as respondent No,4. Mst. Zauhran Bibi was not impleaded as party. No reason is forthcoming on the record for non-impleading of Mst. Zauhran Bibi in the first appeal or present second appeal. Be that as it may, the said first appeal was dismissed by a learned Additional District Judge, Khanewal, on 20-5-1996.
2. Learned counsel for the appellants relying upon a judgment in the case of Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others 1999 SCM R 1362 argues that the time was essence of the contract and the plaintiffs/respondents having failed to pay the consideration amount within the time specified, they were not entitled to the discretionary relief of specific performance. Learned counsel for respondents Nos.1 to 3, on the other hand contends with reference to the cases of Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344; Haji Abdullah Khan and others v. Nisar Muhammad Khan and others PLD 1865 SC 690 and Mst. Ghulam Jannat by Legal Heirs and another -v. Allah Ditta 2003 YLR 981 that in contracts for transfer of immovable property time is not essence of the contract. With reference to evidence on record contends that, in the first instance, the respondents have been making attempt to pay the consideration and in the second it cannot at all be said that the time was of the essence of the contract notwithstanding the fixation of a date for performance in the agreement particularly states that the suit was filed in the same month i,e, May, 1983.
3. I have gone through the trial Court records, with the assistance of the learned counsel for the parties. So far as the nonimpleadment of Mst. Zauhran in the first and second appeals is concerned, it appears that the omission was not noted by learned Court of first appeal and otherwise in this R.S.A. Which is pending in this Court since the year, 1996, till date no attempt has been made to implead the said lady as a party. To my mind in the absence of any reasons forthcoming to the contrary, the said lady is a necessary party to his R.S.A. And her non- impleadment is fatal.
4. Now coming to the said contention of the learned counsel for the Parties, the agreement is on record as Exh.P.1. Apart from the fact that the execution stands admitted in the written statement, the respondent produced Shah Muhammad P. W.1 a marginal witness who stated that the agreement was executed by the vendees and a sum of Rs,20,600 was paid in his presence. Now Mukhtar Ahmad appellant appeared as D.W.1. He was confronted with Exh.D.I. He stated that it was duly executed by the, defendants in the case with their own free-will. The contents were read over and they understood the same and thereafter they put their thumb-impressions without any objection. He also admitted that in none of the notices they alleged that the amount of Rs,20,600 was not received by them.
5. I am, therefore, satisfied that the agreement was executed by the defendants in the case and that they had received Rs,20,600 while balance was to be paid.
6. Now D.W.1 states that the sale-deed was to be registered on 1-5-1983 which was a holiday. They went next day but the respondents did not come. They were issued a notice on 5-5-1983 for 14-5- 1983 but they did not turn up. They filed an application Exh.D.3 before the Tehsildar who marked them present. In his cross-examination, he denied that the respondents had approached the defendants with payment. Now the respondent No,1 appeared as P.W.4. He states that 1-5-1983 was a holiday and that he along with witnesses went to the defendants and it was promised that the matters will be concluded the following day but the defendants did not turn up. He stated that a notice was received for 8-5-1983. They went on 7-5-1983 and filed an application Exh.P.2. Before the Tehsildar. Thereafter, a notice for 14-5-1983 was given but they went to the defendants on 13-5- 1983 and a payment of Rs,22,125 was made but they did not execute the sale-deed. In his cross- examination Exh.P.4 was got proved which is a reply to the notice dated 2-5-1983 issued by the defendants in the case. This document is available at page 183 of the trial Court file. Now I find that the defendants in the case were called upon to do the needful by 8-5-1983 as plaintiffs were ready and willing to perform their part of the contract.
7. Now Exh.D.1 is a notice dated 11-5-1983 addressed to the respondents calling upon them to pay the balance price by 14-5-1983 and to get the sale-deed registered. Exh.D.2 is a notice dated 14-5- 1983 informing the respondents that the agreement has been cancelled. According to application Exh.D.3 the defendants in the case requested the Tehsildar/Sub-Registrar, Khanewal, who marked them present so that they are able to cancel the agreement. Now Exh.P.2 was filed by the respondents before the said Sub-Registrar on 8-5-1983 that despite notice the defendants in the case have not turned up for performance of the agreement.
8. Having, thus, gone through the evidence on the record I find that the evidence on both sides is somewhat equally balanced. One thing is certain that the date fixed in the agreement was never intended to be essence of the agreement. It will be seen that the defendants in the case themselves extended the time upto 14-5-1983. On the other hand, the petitioners themselves got exhibited the copy of notice Exh.P.4 in cross-examination of respondent No,1 whereby they had been called upon to receive the balance amount and to execute the sale-deed. Exh.P.2 does go to show that they were present before the Sub-Registrar on the relevant date.
9. In the said state of evidence on the record, when no ulterior motive is attributed to the plaintiffs/respondents, the possession admittedly remained with the defendants in the case all the time. No undue disadvantage stands accrued to the plaintiffs/respondents. I am not inclined to interfere with the findings recorded by the learned Courts below in this R.S.A. As it cannot be said that the conclusion arrived at by them concurrently was not possible upon a proper reading of the evidence.
10. Now coming to the said judgment in the case of Rab Nawaz and 13 others being relied upon by the learned counsel for the petitioners, their Lordships have made detailed reference to the facts and circumstances of the said case as also the findings recorded by the learned High Court at Peshawar in the course of first appeal. It was held as a fact that the plaintiffs in the said case .Have an unfair advantage over the defendants and further that they had not come to the Court with clean hands. It was further held as a fact that two out of the 15 alleged vendors had no authority whatsoever to enter into the agreement on behalf of the remaining 13. No earnest money or advance was paid. The plaintiffs were in possession of the land and were not paying any rent to the defendants in the case.
11. The relevant portion being relied upon by the learned counsel is in para. 8 of the said judgment.
However, their Lordships had confirmed the findings of the learned High Court of Peshawar that time was essence of the contract. The plaintiffs were required to serve a notice for part payment of the consideration amount which they had not done and instead proceeded to file a suit without tendering the said earnest or advance.
12. To my mind in the facts and circumstances of the present case, the said findings recorded with reference to the facts and circumstances of the said precedent case are not attracted.
13. The R.S.A. Accordingly is dismissed without any orders as to costs.
14. The trial Court records be remitted back immediately.