' MAULVI ANWAIRUL HAQ, J.--- On 17-6-2005, respondent filed a suit against the appellant. It was stated in the plaint that the appellant is the owner of the land mentioned in para.1 of the plaint. He per agreed to sell the same to the respondent at the rate of Rs,2,75,000 pe Kanal, received a sum of rupees thirty lacs as earnest money, and executed an agreement on 10-1-2005. The respondent was to carve out plots and before that too, he had to pay an amount of rupees ten hundred thousand. The possession was to be delivered and after carving out of the plots, a sale-deed was to be executed. The rent of the two brick-kilns in the suit-land was to be paid by respondent hi the appellant at the rate of Rs,1,20,000 while after the execution of the sale-deeds, the brick-kilns were to be demolished and the Malba was to be delivered to the appellant by the respondent. It was stated that the respondent failed to deliver possession and consequently the said amount of rupees ten hundred thousand was not paid. It was complained that the appellant has refused to perform his part of the contract despite demands. A decree for specific performance was accordingly prayed for. We may note here that the consideration amount was assessed by the respondent at Rs,82,50,000.
2. Learned trial Court issued summons and also restrained the appellant from changing the nature of the suit-land. He put in appearance on 25-7-2005 and made a statement that in case the respondent pays the balance amount of consideration, the appellant is ready to transfer the land to him. Learned trial Court adjourned the case to 17-9-2005.
It was stated on behalf of the respondent that he will pay the consideration if possession is delivered. Learned trial Court accordingly directed the appellant to file written statement, which was filed on 15-10-2005. The appellant admitted the factum as well as execution of the agreement.
He however stated that the possession was delivered. It was further clarified that the respondent was already in possession of the land as a tenant and was running his brick-kiln there. He again stated he is still ready to perform his part of the contract provided respondent is put under some penalty for violation of the terms of the agreement inasmuch as the balance amount has not been paid to him within the stipulated period.
3. Learned trial Court proceeded to frame the following issues:---
(1) Whether the defendant did not deliver the possession of the suit-land under the agreement to sell dated 10-1-2005 to the plaintiff/OPP
(2) Whether the plaintiff did not perform his part of payment under the agreement dated 10-1- 2005? OPD
(3) Relief.
4. Evidence of the parties was recorded. Vide judgment and decree dated 18-1-2008, the suit has been decreed subject to deposit of Rs,52,50,000. We may note here that during the pendency of the suit under the orders of this Court, a sum of Rs,52,50,000 representing the balance amount of consideration was deposited by the respondent in Court on 17-2-2007. Regarding rupees ten hundred thousand, the learned trial Court held that the respondent shall be liable to pay the same after execution of the sale-deeds of the plots and in case he fails to do so, the appellant may file a suit to recover the same. The defendant-appellant has filed this R.F.A. To question the said judgment.
5. Mr. Ibad-ur-Rehman Khan Lodhi, learned counsel for the appellant states in the very beginning that the conduct of both the parties is apparent on the face of the record, which goes to show that whereas the appellant is always ready and willing to perform his part of the contract and it was the respondent who failed to pay the balance amount and thus he deprived the appellant of the user thereof whereas he himself remained in possession of the land. Relies on the judgment reported as Jamil Akhtar and others v. Las Baba and others PLD 2003 Supreme Court 494.
6. Mr. Mujeeb-ur-Rehman Kiani, learned counsel for the( respondent, on the other hand, has very frankly, stated tha notwithstanding the terms of the impugned decree, his client is willing to pay rupees ten hundred thousand before the execution and registration to the sale-deed in execution of the impugned decree. He has further tried to argue that the possession had not been delivered and as such, his clier was justified in not paying or tendering the balance of the consideration amount to the appellant.
7. We have gone through the records. Jabbar Khan respondent appeared as P.W.1 and stated in his very examination-in-chief th possession of the suit-land is with him and that his brother Shahbaz running a brick-kiln there. In his cross-examination, he has furth asserted that the brick-kilns were constructed by his brother and father and not the appellant. However, he admitted that the land belonged to t appellant. His witness Noor Rehman P.W.2 also admitted th, immediately after the agreement, the possession was delivered to the respondent by the appellant. Somehow or the other, there is admission in the statement of the appellant Muhammad Yaqoob D.W.1 that the respondent had been coming to him with the balance butt he had refused.
8. We have already noted above the proceedings that took place before the learned trial Court. We find that from the day one the appellant offered that the balance amount be paid and he will transfer the land. Even in his written statement, he reiterated the said offe However, respondent did not do so on the plea that the possession h not been delivered whereas it has come in his own evidence that t possession has been so delivered. Although the said admission in t statement of the appellant as to the tendering of price by the respondent appears to be out of context, yet we are inclined to give benefit of the same to the respondent. There is no justification for the persistent refused of the respondent to pay the balance amount after 25-7-2005 when the appellant had put in appearance and made the said offer. As noted abov the balance amount was deposited under the orders of this Court passed in F.A.O. No,11 of 2007 on 17-2-2007. Thus, for the period from 25-7- 2005 to 17-2-2007, the respondent' is liable to compensate t appellate. He is accordingly directed to pay profit at the rate of seven p cent per annum on Rs,52,50,000 to the appellant for a period fro 25-7-2005 to 17-2-2007. Apart from this, the respondent shall also liable to pay, as agreed by his learned counsel, the amount of rupees to hundred thousand prior to the execution of the sale- deed in his favour the appellant in execution of the impugned decree.
9. R.F.A. Is accordingly partly allowed and the impugned decres dated 18-1-2008 of the learned trial Court is modified inasmuch as appeal from the balance amount of consideration already deposited and to be withdrawn by the appellant, the respondent shall pay profit at, the rate of seven per cent per annum of Rs,52,50,000 with effect from 25-7-2005 to 17-2-2007 and he will also be liable to pay rupees ten hundred thousand to the appellant before the execution of the sale- deed by him in favour of the respondent/plaintiff. No order as to costs. The records be remitted back immediately.