' MIAN SAQIB NISAR, J.---The present appeal has been directed against the judgment and decree dated 11-7-2000, passed by the learned Civil Judge Ist Class, Lahore, whereby the suit for the specific performance, filed by the respondent against the present appellants, was allowed.
2. Briefly stated the facts of the case are, that the respondent on 22-1-1994 instituted a suit for specific performance of an agreement to sell dated 26-1-1991 (Exh.P.1), admittedly executed between the respondent and Mst. Waseem Sughra, the predecessor-in-interest of the appellants, for the sale of the Bungalow No,S-86-R-113, situate at Ferozepur Road, Lahore, with the land underneath measuring 3 Kanals, 5 Marlas and 143 square feet, out of which, Mst. Waseem Sughra (hereinafter called the seller), had got allotted 1 Kanal, 19 Marlas and 15 square feet from the Settlement Department as an evacuee property and the remaining 1 Kanal, 6 Marlas and 128 Square feet bearing Khasra No,4870 was purchased by her through a registered sale-deed dated 3-12-1981 from the Collector, Lahore. The parties vide agreement mentioned above, agreed for the sale/purchase of the aforesaid property for a total consideration of Rs,75,48,088 i.e, at the rate of Rs,1,15,000 per Marla. Out of the total consideration, the respondent at the time of the execution of the agreement, paid Rs,10,00,000 to the seller, as earnest/advance money and it was agreed between the parties that on the payment of the balance consideration, within six months from the date of the agreement i.e, till 25-7-1991, the seller shall transfer the property to the respondent or his nominee through a registered sale-deed. However, as per terms of the agreement (clause No,4), the seller undertook the responsibility of getting the land underneath the Bungalow mutated in her name in Revenue Record. Besides, it was also agreed that if, there is any encumbrance/charge over the property, the same shall be got redeemed/un-. Encumbered before the target date and if, the time consumed in this behalf is beyond the period of six months, that shall be excluded from the period settled between the parties for the finalization of the transaction. However, subsequently, vide endorsement (Exh.P.1/1) dated 26-7-1991 on the back of the agreement to sell (Exh.P.1), it was stipulated that the seller has not been able to complete her documents by the given date, resultantly, the time is extended till 2-8-1991 and still if, the needful is not done, the completion date shall be 26-1-1992. It may be pertinent to state here that in the eventually of the respondent not making the payment of the full consideration, the seller was entitled to forfeit the amount of Rs,10,00,000, whereas if the default was that of the seller, the respondent buyer was entitled to return of the double the amount of the earnest/advance money.
Anyhow, the transaction between the parties was not accomplished and in the situation, the respondent on 22-1-1994 brought the suit for the specific performance, with the assertions that, he throughout was ready and willing to perform his part of the agreement, but the defendants had failed to provide the clear title documents of the property, the exact demarcation and the mutation of the land underneath, attested in favour of the seller, as required under clause 4 of the agreement to sell Exh.P.1 despite repeated requests of the respondents, and therefore, he sought the specific enforcement of the agreement by offering to make the payment of the balance consideration amount.
3. The appellants, who are the legal heirs of Mst. Waseem Sughra, who had died by that time, were arrayed as defendants. They contested the suit, in which, inter alia, objections were raised, that the respondent was estopped by his own conduct to file the suit and was not ready and willing to perform his part of the agreement to sell. Out of the pleadings of the parties, the following issues were framed by the trial Court:-- Issues:
(1) Whether the plaintiff is estopped to file this suit by his words and conduct? OPP
(2) Whether the plaintiff has not come in the Court with clean stands? OPD
(3) Whether the time is the essence of the contract and the plaintiff failed to perform his part of agreement? OPD
(4) Whether the plaintiff has no cause of action to bring this suit? OPD
(5) Whether the suit is not maintainable in its present form? OPD
(6) Whether the suit is false, frivolous, and vexatious? If so, whether the defendant is entitled to get special costs? OPD
(7) Whether no agreement in dispute exists between the parties at this stage? OPD
(8) Whether the plaintiff is entitled to the decree as prayed for? OPD
(9) Relief.
4. The respondent in proof of his case, examined Muhammad Ajmal as P.W.l, P.W.2 is Rao Sharafat Ali, P.W.3 is Muhammad Hanif; besides the plaintiff himself has appeared as P.W.4, in addition, the documentary evidence is Exh.P.1 to Exh.P.19. Conversely, the petitioners examined Muhammad Saeed Amani as D.W.1 and D.W.2 is Agha Dawood Shah Rukh (one of the defendants/legal heir of Mst. Waseem Sughra), and produced the documentary evidence as Exh.D.1 to Exh.D.21. It may be pertinent to state here that the documentary evidence is more or less the same, which has been produced by both the parties.
5. On the conclusion of the trial, the learned Civil Judge, mainly by giving his findings on Issue No,3 against the appellants, has allowed the suit holding, that the appellants had defaulted in performance of their part of the obligation under the agreement, inasmuch as, neither the mutation of the land underneath the Bungalow, as per clause (4), of the agreement, was got attested by the seller, nor the property was got demarcated; moreover, the seller also failed to provide the documents of title, to the respondent. Whereas the respondent was ready and willing to perform his part of the agreement and has been insisting for the accomplishment of the transaction. The other issues have been settled basically on the findings of Issue No,3 and resultantly, the suit has been decreed.
6. The learned counsel for both the parties, at the very outset, have agreed that, the fate of the present appeal is not much dependent upon the oral evidence produced by the parties, rather, the documentary evidence shall enable the Court to reach the correct conclusion. Anyhow, Ch. Khurshid Ahmad, Advocate, learned counsel for the appellants has formulated the points that; the respondent was not ready and willing to perform his part of the agreement, consequently, was not entitled to the equitable relief of specific enforcement; in fact, it is the respondent, who was avoiding the registration of the sale-deed by making payment of the balance consideration, though he time and again was intimated in writing through the counsel of the appellants that, they were possessed with the requisite title documents necessary for the purpose of the execution and registration of the agreement to sell, yet the respondent had been asking for extraneous documents, which were absolutely not necessary for the transaction to be finalized. It is also argued that, in his handwritten notices Exh. P.12, Exh. P.14 and Exh.P.17, the respondent has been demanding the return of his advance/earnest amount of Rs,10,00,000 with double the amount as stipulated in the agreement to sell, and thus, had abandoned the specific enforcement of the said agreement.
7. Conversely, the learned counsel for the respondent has argued that, the respondent was always ready and willing to make the payment of the balance consideration to the seller, provided the seller had given/handed over the requisite documents enabling the finalization of the transaction.
In this behalf, he has drawn our attention to clause 4 of the agreement to sell, in which it is stipulated between the parties that, the appellant (the seller) shall get the land mutated in her name before the target date. According to the learned counsel for the respondent, it is in this sequence that, vide endorsement (Exh.P.1/1), the original date for the finalization of transaction, was extended, because the seller did not possess the "Fard" and also the mutation attested in her favour. It is also argued that throughout, the respondent has been insisting upon these documents through his counsel and repeatedly has asserted that, whenever such documents are provided to him, he shall make the payment of balance consideration amount, but the needful was not done by the appellants' side, who has failed to perform their part of the agreement and in such situation, the respondent being not at fault, is entitled to the decree for specific performance, which has been rightly awarded by the learned Court below.
8. We have heard the learned counsel for the parties. The agreement to sell (Exh. P. 1) and the endorsement (Exh.P.1/1), through which the time was extended, are admitted by the parties. The question to be examined in this case is that, out of the two parties, who has defaulted in performance of the terms and conditions of the agreement. Thought according to clause 4 of the agreement to sell, it is stipulated that the appellant (the seller) shall get the land underneath the Bungalow mutated in her favour, but to our mind, this is not the essential condition for the finalization of the transaction, because, the seller was the transferee of part of the land from the Settlement department and possessed the requisite PTD, which is the title document for all intents and purposes; the rest of the land had been purchased by her through a registered sale-deed from the Collector, Lahore. In fact, these were the actual and real title documents, which the appellant was supposed to provide to the respondent for the satisfaction and proof of her title. The seller through her counsel issued a notice dated 15-3-1992 (Exh.P.3), notifying to the respondent that all the documents, which are necessary for the purpose of the sale-deed, are ready and thus, requested the respondent for the execution and registration of the sale-deed within 10 days, on paying the balance consideration, otherwise it was stated that, the agreement shall be deemed to have been cancelled. In reply to this notice (Exh.P.3), through notice dated 31-3-1992 (Exh.P.4), from the office of Chowhan Law Associates, the respondent maintained that the documents, such as mutation and "Fard Patwar" should also be provided. To our mind, "Fard Patwar" in the presence of the registered sale-deeds and the transfer order from the Settlement department, which the seller was ready to provide to the respondent, was not at all necessary. As far as the mutation is concerned part of the land had already been mutated in favour of the appellant, which position has been admitted in the Court by the respondent's counsel, and for remaining part, the mutation was never a condition precedent for the accomplishment of the transaction. It may be pertinent to state here that, the property in question is situate in urban area of Lahore and for such property, there was no requirement under the Land Revenue Act, to get a mutation attested, even if the parties had agreed, particularly in view of the clear title of the seller as mentioned above. The key and the requisite documents, as mentioned earlier, were the title deeds, which the seller time and again had been asking the respondent to inspect and to pay the amount, and get the sale-deed executed in his favour.
9. However, despite the above notice and reply, again Mr. Imran Ahmad Malik, Advocate, on behalf of the appellants, issued another notice (Exh.P.7) dated 20-4-1992, in which, he categorically stated that necessary documents are available and also offered that such documents be inspected at his office, which are available in original with him. It is not the case of the respondent that, he or his counsel visited Mr. Imran Ahmad Malik, Advocate of the appellants, rather the respondent through reply of his counsel dated 26-4-1992 (Exh. P. 8), again raised extraneous demand of now getting the property demarcated and also insisting for certain record of Settlement Department and of the LPA 117 of 1962, which record had nothing to do with the finalization of the transaction, when the title of the property had already legally vested with the appellant by virtue of the PTD and also the registered sale-deed in her favour. The demand for demarcation of the property. Absolutely was not the condition for the sale of the property, because the area of the property was clearly mentioned in the agreement to sell, with no condition of the demarcation.
10. In the light of above, we find that the respondent, on one pretext or the other, had been trying to delay the matter and was not inclined to get the transaction accomplished. Above all, through letter dated 7-4-1993 (Exh.P.12), the respondent again made demand of the title documents, the copies whereof had already been provided to him and for the original record, the counsel had made the offer for inspection at his office, yet in this notice, the respondent stated that the appellants are compelling him to buy a disputed property. We do not understand, as to how and under what circumstances, this statement was made, because it has not been proved in evidence, if there was any dispute ever with regard to the property in question. In this letter, the respondent also very clearly stated that, he should be paid double the amount of his advance money, meaning thereby that, the respondent himself was not intending to seek the finalization of the transaction, rather was giving up his right to buy the property and was demanding the return of his money. This letter was followed by Exh.P.14 and Exh.P.17 and crux whereof is that, for the lame excuse, of not providing the documents, which were not necessary, the respondent mainly was asking for the refund of his advance plus Rs,10,00,000 more. This conduct of the respondent, which is proved by his own documentary evidence, clearly postulates that, he was either not possessing the requisite money or for some other reason, was avoiding to finalize the transaction, just by making the excuses and intended to wriggle out of the contract. This conduct of the respondent has serious reflection upon his claim to seek the enforcement of agreement to sell.
11. The learned Court below has not taken into consideration the above facts and has given erroneous reasons in coming to the conclusion that, because of not providing the mutation and for lack of demarcation of the property, the appellants were at fault. It may by reiterated that the mutation, in the facts and circumstances of the case, even though there is stipulation, had no significance for the valid transfer of title in favour of the respondent, and was such a condition, without the fulfilment of which, a valid title could be transferred to the respondent.
12. As regards the demarcation is concerned, the property is well described in the agreement to sell and the respondent, if felt that there is any deficiency in the area, could have easily got it measured himself with the permission of the appellants. No such attempt was ever made by the appellant, therefore, just to say that, as the property had not been described in terms of the measurement or its boundaries in the agreement to sell and, therefore, before the sale could be finalized, the seller was obliged to get it demarcated from the revenue authorities, is not a well- founded reason.
12-A. Resultantly, we reverse the findings of the learned Court below on Issue No,3 with the result that all the issues going against the appellants, are accordingly construed and decided in their favour by holding that, the respondent is not entitled to the grant of the decree for specific performance and, therefore, the suit is liable to be dismissed. However, at this stage, when asked, learned counsel for the appellants, on instructions of some of the appellants present in the Court, states that the appellants would not like to retain the advance money of the respondent; moreover, with an object to compensate the respondents, for use of the money which remained with the appellants, they are prepared to return the double amount i.e, Rs . 20 , 00 , 000.
13. For whatever has been stated above, while accepting this appeal, setting aside the judgment and decree of the trial Court, dismissing the suit of the respondent, we direct the appellants to pay a sum of Rs,20,00,000 to the respondent through a Pay-order to be deposited with the learned Additional Registrar (Judicial) of this Court, within one month from today.
' In case, the amount is not so deposited through the Pay-order, this appeal shall be deemed to have been dismissed by upholding the judgment and decree of the trial Court, in which eventuality, the respondent shall be entitled to deposit the balance consideration amount within 15 days with the trial Court and seek the execution of the decree of the trial Court. But if, such amount is not so deposited by the respondent, his suit shall be deemed to have been dismissed.