1. ' MRS. QAISER IQBAL, J.--- The plaintiff has filed suit fer specific performance, of the contract, damages and permanent injunction against the defendants.
2. ' Succinctly, the facts of the case are that defendant No,1, negotiated the sale of House No,B- 179/2004, K.D.A. Scheme 19, Khudadad Colony, Karachi, hereinafter referred as to "disputed property" being exclusive owner entered into a sale agreement dated 8-2-2005 Exh.P.2 in consideration of Rs,33,50,000, a sum of Rs,3,50,000 was advanced admittedly to the defendant No,1 at the time of the execution of the sale-deed and balance sale consideration was required to be paid on execution and registration of conveyance deed, defendant No,1, has assured the plaintiff to deliver the requisite documents of title, certificates and clearance of all charges and taxes to enable the plaintiff to prepare sale-deed, it was revealed that the disputed property stood in the name of Abdul Waheed, husband of the defendant No,1, upon his death property has devolved upon defendants Nos.1 to 6, the plaintiff, was obliged to pay Rs,1,00,000 for the purpose of procuring the mutation on 16-4-2005 and another sum of Rs,1,00,000 was paid on 3-6-2005, Exh.P.8 another agreement of sale was executed on 15-6-2005, whereas balance amount was deposited in Court after filing of the suit. It is alleged defendants had contravened the conditions of the agreement did not supply requisite document for preparation of conveyance deed, resulted into exchange of correspondence ultimately suit was filed for specific performance, damages and injunction.
3. ' In the joint written statement, defendants admitted execution of sale-deeds, having received a sum of Rs,5,50,000 towards advance out of total consideration of Rs,33,50,000. It is averred that the defendant No,1 had served a legal notice upon the plaintiff about the cancellation of the sale agreement and forfeiture of the earnest money, replied.By the plaintiff, the defendants had denied that the disputed property stood in the name of their predecessor after earnest money was advanced to the defendant No,1, another agreement dated 15-6-2005, was executed on the request of the plaintiff that he shall pay balance sale consideration on 5-7-2005, in terms of covenant No,(10) of the agreement, not complied with, the mala fide intentions plaintiff has set up a false story of nonperformance of the contract stood cancelled after the expiry of the stipulated period,, on the basis of the pleadings, following issues were framed:--
(i) Whether the plaintiff has breached the terms of the agreement dated 28-2-2005 and 15-6- 2005? If so, its effect?
(ii) What amount the plaintiff has paid to the defendants?
(iii) Whether the plaintiff is entitled to the specific performance of the agreements?
(iv) What should the decree be?
4. ' I have heard Messrs Abdul Karim Siddiqui and Amjad Ali, learned counsel appearing for the parties, my findings on the above issues are as follows:-- Issue No,1. The plaintiff has relied upon contract dated 28-2-2005, Exh.P.2 executed with defendant No,1 in respect of disputed property in consideration of Rs,33,50,000 out of which Rs,3,50,000 were paid, required to be concluded on 3-6-2005, consequent thereupon, plaintiff served a legal notice upon the defendant No,1, Exh.P.6 disclosing the defendant No,1, offered to sell the property through misrepresenting herself as sole and absolute owner of the property stood in name of her husband, Abdul Waheed, upon his death, it has devolved upon the defendants as his surviving legal heirs, co-owners of the property. The defendant No,1, was not competent to execute the sale-deed.
5. Second sale-deed dated 15-6-2005, Exh.P.8 was executed by the defendants, contract was required to be concluded on 5-7-2005, the defendant No,1 served a legal notice dated 12-7-2005 Exh.P.9.
6. ' Learned counsel for the plaintiff has contended that Exh.P.2 was executed on 28-2-2005, whereby the vendee was required to pay balance sale consideration on or before 3-6-2005, vendor undertook to deliver complete and vacant possession free from all claims, liens, charges and encumbrances. Balance sale consideration was required to be paid on the execution of conveyance deed, upon its registration before the Sub-Registrar. Later, it was revealed that property was owned by late Abdul Waheed, husband of defendant No,1, devolved upon his legal heirs, therefore, for the purpose of procuring the mutation of property, the plaintiff had paid substantial amount on 16-4-2005, through Exh.P.4, another sum of Rs,1,00,000 was paid for the purpose of preparation of sale-deed, consequently agreement dated 15-6-2005, Exh.P.8 was executed by the defendant, contain clauses (8) and (10), which are as follows:-- "(8) That the vendors further agree and undertake to complete all title documents upto date of the said property at their own risk and cost within agreed time period for final payment.
(9) ..................................................................................
(10) that in case the vendee fails to pay the balance amount to the vendors within stipulated time period the advance money shall be forfeited and in case of denial by the terms and conditions of this agreement or refuse/cancel the agreement the vendors shall pay the double amount of advance to the vendee."
7. ' It is further contended that the time was not the essence of the contract, Exh.P.8 required to be completed on 5-7-2005, defendants with the mala fide intention served a legal notice dated 12-7- 2005 upon the plaintiff Exh.P.9 to malign and forfeit earnest money on account of nonpayment of balance sale consideration within the stipulated period viz. 5-7-2005, which was promptly replied by the plaintiff's counsel Exh.P.10, dated 15-7-2005, whereby the defendants were called upon to supply the title documents for execution of the sale-deed and payment of balance sale consideration, the defendant's Advocate replied Exh.P.13, alleging that balance sale consideration was not ready with the plaintiff.
8. ' Mr. Amjad Ali, learned counsel for the defendant had contended that agreements dated 28-2- 2005 and 15-6-2005, were executed between the parties, the plaintiff had failed to fulfil the requirements of clause No,11 of the agreement dated 15-6-2005, therefore, contract was cancelled and earnest money was forfeited.
9. ' I have given anxious consideration to arguments advanced at bar.
10. ' The defendants did not deny execution of sale agreements Exhs.P.2 and P.8, on the contrary, Mst.
11. Badrunnissa, in the cross-examination has admitted the sale consideration amount, payment of earnest money at the time of execution of sale agreements and subsequent advances. At the time of execution of Exh.P.2 she had shown herself to be the sole and absolute owner, whereas property had devolved upon her and five sons, another sale-deed Exh.P.8 was required to be executed by the parties, she had delivered all the title documents to Tariq Akbar, though she 'has furnished explanation about her competency to execute first sale agreement on behalf of her sons being legally authorized. She has further admitted in cross-examination to have received Rs,3.50,000, Rs,1,00,000 and Rs,1,00,000 on different dates total Rs,5,50;000 from the plaintiff.
12. ' It transpires that the sale agreement Exh.P.2 could not be acted upon on account of concealment of the factum of co-owners/legal heirs of Abdul Waheed. Moment this fact came to the knowledge of the plaintiff, Exh.P.8 was executed defendants had fraudulently procured money from the plaintiff for getting their names mutated in the Government 'record, mutation was effected on 4-12-2003, much prior to the execution of sale agreements, contract explicitly reveals time was not the essence as contended by the learned counsel for the defendant, by way of execution on sale agreements and correspondence exchanged, .The defendants themselves had extended time, which cannot be limited to 5-7-2005, defendants did not fulfil their obligation to deliver photo copies of the title documents enabling the plaintiff to proceed with the registration of conveyance deed, which in fact was the liability of the defendants.
13. ' Onus to prove that the plaintiff had breached the terms of the agreements does not stand discharged, from the defendant's evidence, Exh.P.2 had merged in P.8 on its execution, sought to be acted upon parties were under obligation to fulfil its covenants, defendants did not discharge their obligation,. Therefore, sale-deed could not be finalized. In this view of the matter, defendants had breached the terms of the agreements, Issue No,1 is answered accordingly.
14. ' Issue No,2. It is an admitted position on the part of the defendant that the plaintiff had paid Rs,5,50,000 on various dates apparent from Exhs.P.3, P.4, P.5 to the defendants towards part sale consideration, in view of specific admission by the defendant No,1, in her evidence, Issue No,2 is answered in affirmative.
15. ' Issue No,3. It is contended by Mr. Amjad Ali, learned counsel for the defendant that after cancellation of the sale agreement executed between the parties forfeiture of earnest money defendants had entered into a sale agreement with one Muhammad Ishaq son of Abdul Hameed, transaction was cancelled by Muhammad Ishaq. Defendant No,1 has admitted in her cross- examination that she was willing to sell property to the plaintiff at the prevalent market rate which suggests that the story of sale agreement with Muhammad Ishaq has been manipulated with ulterior motives.
16. ' It is well-settled law that relief of specific performance of a contract is discretionary in nature, required to be exercised judiciously, equitably and on well recognized judicial considerations as provided under section 22 of the Specific Relief Act. In the present case, the facts and circumstances lend support to the plaintiff's case that it was within the knowledge of defendant No,1, that she was not the only surviving legal heir of her deceased husband, there were no justifications on her part to execute sale agreement being sole owner of the property. However, through subsequent agreement P.8 and defendants had agreed to abide terms of contract. On careful scrutiny of the evidence of the defendant juxtaposition to the evidence of the plaintiff, I am not prepared to accept the plea of defendant about the breach of agreement by the plaintiff. The evidence on record equitably makes out the transaction of sale, it may further be noticed that Section 22 of the Specific Relief Act and given illustrations, are not exhaustive to demonstrate in which cases the Court may decline the exercise of grant of specific performance of a contract (i) where the circumstances, under which the contract is made are such to give the plaintiff an unfair advantage over the defendant though there may not be fraud or misrepresentation on the plaintiff's part and (ii) when the performance of the contract would involve some hardship to the defendant which he did not foresee when his nonperformance of the contract would involve in such hardship on the plaintiff. In the present case, breach of the contract is attributed to the defendants, in my view, relief of specific performance being an equitable relief can only be refused if the equities in the case are against the plaintiff. In this context reliance is placed on the case of Federation of Pakistan v. Muhammad Tariq Pirzada 1999 SCM R 2189 it was held by their Lordships of the Supreme Court that the Court while refusing to grant a decree for 'specific performance to a plaintiff must find something in the contract of the plaintiff which entitles him to the grant of equitable relief for specific performance of contract, which cannot be refused merely because it is lawful for the Court to refuse it, Court may properly exercise discretion to decree specific performance when the plaintiff has done substantial acts or suffered losses in consequences of a contract capable of a specific performance". The circumstances of the present case show that the plaintiff was not guilty of misconduct as the defendant No,1 has categorically stated on oath that she was prepared to sell the property on the prevalent market rate to the plaintiff. The intention of the parties can be gathered from the terms of the contract, the facts and circumstances of the case, mere stipulation of a specific time in the contract for its performance does not necessarily mean that time was the essence of the contract, the contentions of the defendant's counsel that the contract stood cancelled for non-performance by the plaintiff of his part of contract within the stipulated period is not tenable. It has been ruled by Honourable Supreme Court in case of Abdul Hamid v. Abbas Bhai alias Abdul Hussain Sodawaterwala PLD 1962 SC page 1 that ("an intention to make time the essence of the contract must be expressed, in unmistakable language, it may be inferred from what passed between the parties before but not after the contract is made"). The plaintiff is a bona fide purchaser for valuable consideration. So far as penal, and damages for breach of contract are claimed against the defendants, plaintiff did not adduce cogent evidence to substantiate the claim, hence disallowed.
17. ' In view of the above discussion, plaintiff is entitled to the relief claimed, Issue No,3 is answered accordingly.
18. ' Issue No,4. The upshot of above discussion is that plaintiff's suit is decreed against the defendant for specific performance of the contract Exh.P.8 dated 15-6-2005 parties are left to bear their own cost.