' SYED HAMID ALI SHAH, J.--- Facts giving rise to this Regular First Appeal are that Plot No,110, Block "D" measuring 2 Kanals in Park View Cooperative Housing Society, Lahore Cantt. Was allotted to the appellant vide letter No,P.V.2837/334/96, dated 18-6-1996. The appellant through his attorney Mr. M.A. Rehman, entered into an agreement to sell (Exh.P.1) dated 17-6-2003 with the respondent. The respondent, according to the terms of the agreement (Exh.P.1), agreed to clear development charges and outstanding dues of the society on or before 13-7-2003. The respondent out of total amount of consideration of Rs,43,00,000 paid a sum of Rs,3,00,000 as earnest money with a promise to pay, balance amount of Rs,40,00,000 on or before the target date i,e, 13-7-2003. The appellant according to terms of agreement, was obliged to receive the balance amount of consideration and get the suit property, transferred to the name of the respondent.
2. The controversy inter se the parties arose when the respondent claimed that despite repeated calls to attorney of the appellant, the outstanding dues of society amounting to Rs,2,34,000, were not cleared. Conversely the appellant claimed that no amount, within the stipulated time, was paid and time being the essence of the contract gave cause to the appellant to rescind the contract, which was accordingly rescinded through letter dated 1-9-2003. This controversy led to filing of suit for possession through specific performance of agreement. The appellant on receipt of notice entered appearance and contested suit through filing written statement, wherein assertions of the plaint were controverted and various preliminary objections were raised. Learned trial Court, out of the divergent pleadings of the parties, struck down seven issues, recorded evidence of the parties and on conclusion of trial proceeded to decree the suit with costs vide judgment dated 4-1-2005.
The appellant through filing the instant appeal has assailed judgment and decree dated 4-1-2005 of the trial Court.
3. Learned counsel for the appellant has contended that .As per clause (3) of the agreement (Exh.P.1), balance amount of Rs,40 lacs was payable on or before 13-7-2003 at the time of transfer of plot. The respondent failed to pay the balance amount while breach of clause 3 entails penal consequences of rescission of contract, as per clause 7 of the agreement. The Court totally ignored that the time was essence of the contract and this fact finds mention in agreement to sell and the same is also supported by the statement of M.A. Rehman (D.W.1); who stated that due to old age and various ailments the appellant will not be in a position to run around for finalization of deal.
Learned counsel added that the question of modality of payment of sale consideration does not amount to derogation or variation from main agreement. Explanation of a term in agreement falls outside the purview of provisos (2) and (3) of Article 102 of Qanun-e-Shahadat Order, 1984. Learned counsel has submitted that the oral testimony, outside the purview of the written agreement, within the contemplation of provisos 2 and 3 to Article 103 of Qanun-e-Shahadat Order, 1984 is not admissible. Learned counsel while explaining clause 5 of the agreement has submitted that this term provides the responsibility of seller to clear development charges and dues of the society.
Learned counsel went on to argue that there was sufficient evidence on record to prove that the dues were to be cleared out of the balance consideration. It was further contended that according to statement of D.W.1, the dues of the society upto 13-7-2003 were cleared but learned trial Court totally ignored the same. Learned counsel has further submitted that the suit for specific performance of agreement, has been instituted by the respondent but he himself failed in proving his readiness and willingness to perform his part of contract, thus the suit merited dismissal but learned trial court erroneously decreed the same. Cases of Muzaffar Javed v. Haji Noor Bakhsh and others 2002 M LD 1474 and Muhammad Abbas v. Murad Bibi 2002 YLR 3018, were referred to support this contention. It was contended that when an agreement provides expressly a period for performance of agreement and if a penalty is provided then time would be essence of contract, moreso when the parties never agreed for enlargement of time. Learned counsel in support of her contention placed reliance on the cases of Mst. Shaheen Kousar v. Shakeel Ahmad 2005 YLR 1347, Mst. Nawab Bibi and another v. Major (Retd.) Irshad Muhammad Khan Lodhi 1987 SCM R 398 and Mst. Amina Bibi v. Muddasar Aziz PLD 2003 SC 430. Learned counsel has further submitted that the default in payment of dues of the society does not amount to imperfect title of the vendor. Learned counsel has submitted that the respondent has neglected to afford reasonable facility for performance of agreement. The respondent neglected to comply with the provisions of section 67 of the Contract Act, 1872. While placing reliance on the cases of Umar Farooq v. Province of Sindh 1989 CLC 760, Abdul Aziz and others v. Abdur Rehman and others 1994 SCM R 111 and Razia Sultana Bano v. Muhammad Sharif 1993 SCM R 804, it was contended that specific performance is discretionary relief and can be refused, even when execution of contract is proved.
4. Learned counsel for the respondent, on the other hand, has fully supported impugned decree.
Learned counsel has argued that the agreement, receipt of payment of earnest money and non- payment of development charges are admitted. Learned counsel referred to clause (5) of the agreement to contend that the clearance of all dues of the society was responsibility of the vendor.
In the event of default in payment of outstanding dues of Society, the property was not ready for its transfer to the respondent. The respondent was thus not liable to make payment of balance amount of sale consideration as the title of appellant was imperfect. Learned counsel has contended that the agreement was for the sale of immovable property and time for performance mentioned therein cannot legally termed as the essence of the contract. Learned counsel supported his contention by referring to the cases of Muhammad Yaqoob and others v. Hakim Ali and others 2004 SCM R 584, Sher Muhammad deceased through legal heirs and others v. Ghulam Muhammad and 3 others 2004 CLC 1212, Mst. Ghulam Jannat (deceased) through her legal representatives and another v. Allah Ditta 2003 YLR 981, Kaniz Fatima and another v. Sh.
Muhammad Sohail and 7 others 2003 CLC 923, Muhammad Rafique and others v. Mst. Bashiran Bibi and others 1998 CLC 265 and Ghulam Nabi and others v. Seth Muhammad Yaqoob and others PLD 1983 SC 344. Learned counsel contended further that the appellant has committed breach of contract, thus it is obligatory on him to prove his willingness to perform contract to support this contention. Learned counsel referred to the case of Messrs Aman Enterprises, Sialkot v. Messrs Rahim Industries Pakistan Ltd. Sialkot and another PLD 1993 SC 292, wherein it was held that non- payment of mortgage debt could hardly stand in the way of completing sale as the amount thereof can be adjusted against the price of property. It was contended that the learned trial Court has erroneously held that title of the appellant was imperfect.
5. Heard learned counsel for the parties and record perused.
6. The respondent instituted the suit for possession through specific performance of agreement to sell dated 17-6-2003. While seeking specific performance of agreement, the vendee is bound to prove that he was ready and willing to perform his part of contract at all times. It is settled law that a decree for specific performance cannot be granted only A because it was lawful to do so. It is reflected from the plaint that the plaintiff had not paid the balance amount of consideration and was not available for the transfer of plot on the target date, statedly for the reason that the development charges amounting to Rs,2,34,000 were not deposited by the defendant/ appellant.
There is no proof available on record to show that the respondent had addressed any communication to the appellant conveying therein that the vendee was ready for getting the property transferred to his name on payment of balance amount of sale consideration. Balance amount was payable as per clause (3), on or before 13-7-2003, at the time of transfer of plot it was admitted by the respondent (P.W.1) in the course of cross-examination, that the transfer of plot could be effected through registration of sale deed or before the society. Outstanding amount of development charges could have been paid even at the time of transfer of plot. P.W.1 has also admitted in his cross-examination that he had not purchased stamp paper (which was his responsibility under the contract) for the registration of sale deed. No notice was given to the appellant about the time, date and place of performance, under section 48 of the Contract Act, 1872. P.W.1 has answered the suggestion in affirmative that after 13-7-2003, the appellant was not conveyed in writing that he had not performed his part of obligation in the agreement. The respondent while appearing as P.W.1 stated that Shahzad (Property Dealer) had not informed him about 7 calls in the month of July and 21 calls in the month of August, from the appellant about transfer of plot. He also stated that his father-in-law had also not informed him about telephone calls of the appellant about registration of sale deed. P.W.2 (Muhammad Shahzad) had also admitted that various calls were received by him from the appellant. He also admitted that there is likelihood that he had made 21 calls. He however denied that these calls were regarding completion of agreement. His justification that wherever he used to visit appellant, on return he used to receive phone call, does not seem reasonable. General attorney of the appellant while appearing as DW.1 has stated in unequivocal terms that he made numerous calls to the property dealer and also father-in-law of the vendee (respondent) for completion of the agreement but his efforts went futile. He produced his phone bill as Exh.D.1, The evidence available on record shows that appellant was ready for the transfer of plot but the respondent had shown lack of interest in this respect. Respondent's tender of balance amount of sale consideration, on Court's direction, does not prove that vendee was willing to perform his contractual obligations throughout. His silence from July, 2003 to 1-9-2003, speaks otherwise. Learned trial Court while passing the impugned decree, ignored this aspect of the controversy. The respondent has failed to prepare stamped conveyance and tender the same to the seller for execution and registration. It is the duty of buyer to prepare conveyance and tender the same to the seller for execution and registration.
So was held in the case of Muhammad Boota v. Murad Ali 1992 CLC 932, No effort was made to verify from the record of society about payment of development charges. The statement of D.W.1 that in the 1st half of 2003, he had deposited a sum of Rs,2,00,000 towards development charges, remained un-rebutted. The above discussion brings us to conclude that the respondent (vendee) has failed to prove that he was ready and willing to perform his contractual obligation as vendee, at the time of performance of the agreement and this fact alone disentitles the respondent to claim specific performance.
7. It has been observed by the learned trial Court that the title of the appellant was imperfect. D.W.1 has stated that an amount of Rs,2 lacs was paid towards development charges in the 1st quarter of 2003. Without going into this aspect, perceiving that development charges were not paid, the membership of the appellant was intact and allotment of plot was not cancelled by the society.
The property on payment of instalment in default, becomes transferable, which was possible even at the time of transfer of plot. The vendee had not made himself available to get the property transferred. There is another angle to view this controversy. According to clause (5) of agreement, the payment of development charges upto 13-3-2003, is the responsibility of the vender/appellant.
The appellant can be held responsible for this payment, even when such payment is made by the vendee on behalf of the vendor. Parties can lead oral evidence to prove that what was intention of the parties about the manner of payment of the development charges. Learned trial Court while holding that no evidence can be led to establish that payment of dues of society was to be made, out of balance amount of sale consideration. The terms of written agreement can be explained through oral evidence, alongside the written agreement but not in derogation of written stipulation.
Even otherwise there is no evidence on record to show that the respondent was put in disadvantageous position or his interest was hammered by the act of omission on the part of the appellant to clear dues of the society. This cannot be a justification for resiling from performance of contractual obligation the eventualities, which are not covered by the agreement, should be read into it by examining the conduct of parties. As authority for this proposition, the reference can be made to the case of Dr. Amir Ali Malik v. Messrs Transpak Corporation, Ltd. 2002 CLC 129 and Lahore Development Authority v. Messrs Khalid Javed & Co. 1983 SCM R 718. Honourable Supreme Court of Pakistan, in the case of Sandoz Ltd. And another v. Federation of Pakistan and others 1995 SCM R 1431, has held as under:--- "14 ...It may be observed that it is well settled proposition of law that in case of any ambiguity in a contract document, the Court in order to resolve it and to ascertain the real intention of the parties, can have resort to the correspondence preceding and/or subsequent to the execution of the contract document, conduct of the parties and the attending circumstances...."
8. Whether or not the time was essence of the contract, was also, not dealt with properly by the learned trial Court. The parties agreed for' completion of agreement, within the time stipulated. The agreement has itself provided a penalty for non-performance of the agreement within the time stipulated. Time for performance was neither extended, nor a request in this respect was made by either of the parties. These factors lead to conclusion that the parties intended that time will remain the essence of the contract. The Court while determining the factum that the time is the essence of contract, has to examine the contract, its terms, penalty and conduct or acquiesce of the parties. Factum of the inflation D and increase in the price of the property are factors, which the Court is required to take notice. A Division Bench of this Court in the case of Mst. Shaheen Kousar (supra) has already expressed similar view:--- "8. Law regarding grant of decree in suit for specific performance is settled by this time, where under the same is discretionary with the Court and can be refused even if the entitlement of the plaintiff is proved. Respondent's rights to decree was not proved, but we taking note of inflation in the country and increase of prices of the properties during the interregnum period, from the date of agreement to sell, feel it harsh to maintain the decree of the trial Court, which even otherwise, is not sustainable for the reasons mentioned in the foregoing paragraphs."
9. Viewing the impugned judgment and decree from any angle, it is devoid of merit. The appeal is accordingly accepted and the impugned judgment and decree is set aside. The suit of the respondent on failure to prove his willingness and readiness to perform his contractual obligations for all material times, is dismissed with no order as to costs.