' MAULVI ANWARUL HAQ, J---- On 10-4-2004 the respondent filed a suit against the appellant In the plaint it was stated that the appellant agreed to sell the suit house mentioned in the plaint to the respondent for a consideration of. Rs,5,00,000. He received a sum of Rs,2,10,000 as earnest money on 11-9-2001 and executed an agreement. Out of the balance amount of Rs,1,00,000 was to be paid on 11-10-2001 and Rs,1,90,000 on 11-11-2001 when the sale was to be completed. According to him he paid Rs,1,00,000 through cheque on 8-10-2001 and also paid the remaining Rs,1,90,000 whereupon an endorsement was made on the agreement by the appellant. The possession was delivered. The appellant has refused to perform his part of the contract and a decree for specific performance was prayed for. The appellant in his written statement admitted the execution of the said agreement and receipt of the amount of the earnest money as also a further sum of Rs, 1,00,000. He however, denied having received the balance amount. According to him he issued a notice to the respondent for payment of the said amount but it was not paid. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit on 14-11-2006. A first appeal filed by the respondent had been allowed by a learned Additional District Judge on 24-4-2007 who has decreed the suit subject to penalty of Rs,25,000.
2. The learned counsel for the appellant argued that the plea regarding the payment of the balance amount of Rs, 1,90,000 having been found to be false. It will be deemed that the respondent was not ready and willing to perform his part of the contract and as such was not entitled to discretionary relief of specific performance.
3. The learned counsel for the respondent, on the other hand, contends that the time was not essence of the contract and as such mere fact that his client has not been able to prove the payment of the balance amount the said balance amount would not lead to the penalty, of dismissal of the suit.
4. I have gone through the trial Court's records with the assistance of the learned counsel for the parties. As noted by me above, there is no denial of the factum of the agreement and the payment of an amount of Rs,3,10,000 out of the total agreed consideration of Rs,5,00,000. There is also no denial that the possession was delivered under the agreement. Both the Courts below have concurrently found that the payment of Rs, 1,90,000 as alleged by the respondent has not been proved. The learned trial Court proceeded to dismiss the suit with the observation that issue No,4 as worded has not been proved. I may reproduce here the said issue No,4:- "4. Whether defendant received a sum of Rs,2,00,000 as earnest money in lieu of agreement to sell dated 11-10-2001 reached between the parties in consideration of Rs,5 lac and defendant received the remaining consideration of Rs,l lac through cheque on 11-10-2001 and a sum of Rs, 1,90,000 on 11-11-2001 and plaintiff is entitled to the decree for specific performance of said contract? OPP"
' According to the learned trial Court since the portion of the issue pertaining to payment of Rs, 1,90,000 has - not been proved the suit is liable to be dismissed.
5. The learned Court of appeal while coming to the same conclusion upon a reading of evidence has correctly held that payment of entire price has not been proved by the respondent. However, this could not have led to the dismissal of the suit as there is nothing on record to show that time was of the essence of the contract. The learned Additional District Judge accordingly directed the payment of the said balance amount and also imposed a penalty of Rs,25,000 upon the respondent. Sh. Naveed Sheharyar, Advocate for the respondent has relied on the case of Mst.
Amina Bibi v. Mudassar Aziz (PLD 2003 SC 430) which does go to support the impugned judgment and decree of the learned Additional District Judge in the circumstances of the case. However, I do find that the possession had been delivered under the agreement and as held by the learned Courts below that the respondent had failed to prove the payment of said amount of Rs, 1,90,000.
The suit was also brought almost on the last date of the limitation available under the, law. In the said circumstances, I enhance the said amount of compensation to Rs, 1,00,000. Learned counsel informs that the balance amount of consideration and the said amount of penalty has already been deposited. If this is so, after adjustment a sum of Rs,75,000 shall be deposited by the respondent with the learned trial Court within thirty days from today. No order as to costs in this RSA. The trial Court's record be returned back.