SAYED ZAHID HUSSAIN, J. --- A suite for specific performance was filed by the appellant on the basis of three successive agreements final being of 11.4.1987, which was decreed by the Trial Court on 4.4.1995 whereagainst the appeal preferred by the respondents was accepted by the first Appellate Court on 3.12.1999. This is second appeal by the plaintiff
2. The case of the appellant/plaintiff was that respondents Nos. 1 and 2 had initially. Executed agreements Ex.P-1 (4.1.1987), Ex.P-2 (3.2 1987) and finally Ex.P-3 dated 11.4.1987 for the sale of the suit property i.e. House measuring 4-Marlas 117-ft. For a consideration of Rs. 1,04,000/- out of which a sum of Rs. 75.000/- had been received by respondents Nos 1 and 2 and possession C.L.R. delivered. The suit was instituted on 26.6.1989. During the, pendency of the suit it transpired that the suit property had been sold by respondents Nos. 1 and 2 in favour of respondent No. 3 on 2,7.1989 through sale-deed Ex.P-9. The said vendee was then impleaded as party. In view' of the .Pleadings of the parties following issues were framed:--- ISSUES: Whether plaintiff is estopped to file this suit? OPD.
(2) Whether the suit is not maintainable in its present form? OPD.
(3) Whether the defendant No. 3 is bona fide purchaser? OPD.
(4) 'Whether the defendants are entitled to special costs u/S. 35-A of C.P.C.? OPD (5) Whether the plaintiff is entitled the decree for specific performance of the contract as prayed for? OPP
(6) If the above issue is proved whether the registered sale-deed No. 615, dated 21.7.1989 as well as mutation on 6287, dated 26.7.1989 are illegal, void and against facts? OPP
(7) Relief.
The parties led evidence in support of their respective pleas. The two Courts below and variant approach to the same set of evidence. The learned Trial Court decreed the suit on 4.4.1995 with the direction to the appellant to make payment of the balance consideration of Rs. 29,000/- within one month. On appeal however the judgment was reversed by the First Appellate Court by accepting the appeal on 3.12.1999 granting decree for refund of Rs. 75,000/: paid as earnest money by the appellant.
3. The learned counsel for the parties have been heard. The record of the Trial Court which is available before me has been perused.
4. The execution of agreements mentioned above in favour of the appellant by respondents Nos. 1 and 2 and his physical possession is not in dispute. The controversy however centered around as to whether the appellant was entitled to the decree of specific relief and legality of subsequent sale in favour of respondent No. 3. It has been found by the Appellate Court that though the time was not of essence of the contract yet appellant/plaintiff failed to ' perform the agreement despite notices and demands by respondents Nos. 1 and 2 and that respondent No. 3 in purchasing the suit property acted in good faith without notice of prior agreement in favour of the appellant/plaintiff. The learned counsel for the appellant while assailing the findings recorded by the Appellate Court contends that since the suit property was subject- matter of litigation (pre-emption suit) no time was fixed for performance of the agreement and it was left open till the conclusion of the said litigation. It is contended that the appellant/plaintiff was . Always ready and willing to perform his part of the agreement and it has illegally been held by the Appellate Court that he failed to perform his part. According to him the notices sent by respondents Nos. 1 and 2 since had not been exhibited as evidence could not be made basis for any such finding. It is contended that respondent No. 3 had since failed to discharge onus that he was bona fide purchaser of the property without notice of prior agreement, the findings recorded by the Appellate Court are incorrect, based on no evidence ad are contrary to law. He has made reference to Flt. It. (Retd.) Mumtaz Khan v. Mst. Amant ul Batool (1984 CLC 3462), Iqbal Sultan v. Miss Chand Sultan and 2 others (1990 CLC 366), Muhammad Yasin v. Allah Din (1991 CLC 1957), Mst.
Surraya Begum and others v. Mst. Suban Begum and others (1992 SCMR 652), Sher Muhammad v.
Qutabu and others (2002 SCMR 1447) and Province of Punjab through Collector-, Faisalabad and another v Rana Hakim All and another (2003 MLD 67). The learned counsel for. Respondents Nos. 1 and 2 has on the other hand contended that since the appellant was not willing to pay the balance consideration despite repeated demands and notices issued to him and even published in the newspaper he has rightly been found by the Appellate Court not entitled to the grant of decree for specific performance which is always in the discretion of the Court. He has particularly emphasized on the averments of paragraph-4, of the written statement.
He has placed reliance upon Sm. Parul Bala Ghosh v. Saroj Kumar Goswami and others (AIR (35)
1948 Calcutta 147) and Smt. Chand Rani (dead) by L.Rs. v. Smt. Kamal Rani (dead) by L.Ls. (AIR 1993 S.C. 1742). The learned counsel for respondent No. 3 has drawn my attention to the sale-deed Ex.P-9 in favour of his client, which though was registered on 2.7.1989 yet had been executed between the parties on 18.6.1989. According to him the execution thereof had taken place prior to the institution of the suit. It is contended that since respondent No. 3 had categorically denied the knowledge of any prior agreement in favour of the appellant the onus shifted upon the appellant to prove that he had notice of prior agreement. Reference has been made . To Mst. Surraya Begum and others v. Mst. Suban Begum and others (1992 SCMR 652), Muhammad Ashraf v. All Zaman and others (1992 SCMR 1442), Messrs Pak United Housing Enterprise v. Ramian and 7 others (1992 CLC 1678) and Qazi Muhammad Bakhsh and 20 others v. Ghulam Sarwar and 13 others (2001 CLC 1526). It is contended that in second appeal the scope of interference is very limited and since the findings recorded by the first Appellate Court are based on appreciation and due appraisal of the evidence the appeal is liable, to be dismissed. For this purpose he has made reference to Nadir Shah v. Lal Shah and another (PLD 1954 Lahore 447), Pathana v. Mst. Wasat and another (PLD 1965 S.C. 134), Muhammad Amin and 5 others v. Muhammad Latif (1987 CLC 2358) and Atta Rasool v. Fateh Khan and others (1995 CLC 1321).
5. The suit for specific performance was instituted by the appellant on 26.6.1989 with the prayer that decree for specific performance be granted and in the alternative decree for refund of Rs.
75000/- may be passed. The averments made in paragraph-4 of the plaint were that due to the pendency of pre-emption suit qua the suit property the right to pass title in favour of the appellant had remained inchoate and suspended. The refusal to execute the sale-deed ten days prior to the institution of the suit was made basis for cause of action for the said suit. The contents of the corresponding paragraph of the written statement i.e. Paragraph-4 laid a comprehensive basis for the plea of respondents Nos. 1 and 2 wherein the issuance of notices, the dismissal of pre-emption suits on 17.10.1988, publication of notice in daily lmroz' of 23.4.1989 were all mentioned and that only when the appellant/plaintiff did not respond sale in favour of respondent No. 3 was made through sale-deed dated 18.6.1989. These averments made in the written statement and pleaded with particularity find support from the evidence, led by respondents and are of great relevance and significance. It is correct that the suit property had remained in litigation due to the pendency of pre-emption suits which litigation terminated with the dismissal of those suits on 17.10.1988. This was duly conveyed to the appellant by respondents Nos. 1 and 2 through notice dated 4.1.1989, which makes mention of an earlier notice dated 21.12.1988. Through these notices the appellant was called upon to make payment of balance amount of Rs. 29,000/- for completion of sale-deed. This is. Besides the other notices issued to him including the publication of notice in daily `Imroz' of 23.4.1989 (Mark-A). What else should have been done by respondents Nos. 1 and 2 to shOw theirinclination and readiness, for completion of sale in favour of the appellant. On receipt of information about the termination of litigation qua the property in dispute, the appellant himself should have taken prompt steps for the performance of the agreement by making balance payment. Nothing has however come on record to show his readiness except the oral assertions and depositions of the witnesses produced by him. It was not his case that he remained unaware of the dismissal of the pre-emption suits. Keeping all this in view, the contentions of the learned counsel for the appellant loose its significance. Since the appellant failed to perform his part despite the termination of litigation qua the suit property, respondents Nos. 1 and 2 were absolutely justified to deal with the property after having no response from the appellant.
6. Insofar as the sale in favour of respondent No. 3 by respondents Nos. 1 and 2 is concerned it may be observed that he i.e. Respondent No. 3 appeared as a witness and produced Riaz-ul-Haq DW-2, Faiz Rasool DW-3 and Muhammad Rafi DW-4 to show that he made necessary inquiries and even visited the site of suit property before the purchase of the same. He had even made clarification about the price mentioned in the sale- deed and paid actually to respondents Nos. 1 and 2. It is established on the record that the sale- deed through which the sale took place in his favour (Ex.P-9) was executed on 18.6.1989 though it was registered on 2:7.1989. By virtue of Section . 47 of Registration Act, 1908 the date of execution of such a document will be the one on which it was signed by the parties i.e. 18.6.1989. Reference in this context may be made to The Lahore Development Authority v. The Commissioner Lahore Division and others (1984 SCMR 746). Before entering into the transaction of sale with respondent No. 3, respondents Nos. 1 and 2 had called upon the appellant through notices mentioned above for payment of the balance price and execution of the deed but the appellant failed to respond. It may be observed that though time may not be ordinarily of essence of agreement as is laid down in various precedents, yet the owner cannot be expected to hold the property and await for the execution of sale-deed in favour of the prospective vendee indefinitely.' He may be in gehuine need of money and each day may have great value for him. This is apart from the fact that there is continuous trend of appreciation in the value of immovable properties. I find substance in the contention of the learned counsel for the respondents that it was the appellant himself who had failed to perform his part of the agreement and was not entitled to the grant of decree for specific performance. Such a conclusion has been arrived at by me on perusal of the pleadings of the parties, material/evidence brought on record, despite the constraints and scope in second appeal.
It may also be noticed that though the Onus of proof of issue No. 3 was on defendants as held in Mst. Surraya Begum and others v. Mst. Suban Begum and others (1992 SCMR 652) and Muhammad Ashraf Ali v. Zaman and others (1992 SCMR 1442), yet the same was sufficiently discharged by producing ample . Evidence by the respondents. Nothing in rebuttal was brought on record. The case of Sher Muhammad v. Qutabu and others (2002 SCMR 1447) also indeed support the plea of the respondents in the present appeal as it has been proved that respondent No. 3 acted in good faith in purchasing the property.
On consideration of the matter from various angles the conclusion is unescapable that the findings recorded by the Appellate Court as compared to that of the Trial Court are consistent with the evidence on the record which call for no interference by this Court in second appeal result whereof is that the appeal is without merit, which is dismissed accordingly. No order as to costs. .