' MUHAMMAD MUZAMMAL KHAN, J.---Instant first appeal assailed judgment/decree dated 16-3- 2005 passed by the learned Civil Judge, Gujranwala, whereby suit for specific performance filed by respondent No,1 was partly, decreed.
2. Succinctly, relevant facts as deciphered from the record are that Mst. Bilqees Begum respondent No,1 filed a suit for specific performance of an agreement to sell dated 20-1-1998 with the averments that appellants being owners in possession of land measuring 48 Marlas and 8 Sarsahis situated at 32-A, Civil Lines, Gill Road, Gujranwala, agreed to sell it in her favour for a total consideration of Rs,61,35,750 and after receipt of Rs,18,00,000 as earnest money, executed a written agreement to sell on 20-1-1998. It was further pleaded that agreement to sell, arrived at between the parties, was to be performed within a period of six months and she remained willing/ready to discharge her obligation by paying balance sale price but appellants did not come forward to perform their part of contract by execution/registration of sale deed. Respondent No,1 further asserted in her plaint that she issued a legal notice besides calling them through publication in press on 1-7-2001 to perform their part of contract but without any success, necessitating institution of suit.
3. Appellants being defendants in the suit, opposed the same by filing their written statement wherein defendants Nos.1 to 3 and 6 admitted execution of agreement to sell dated 20-1-1998 and receipt of earnest money thereunder but they denied that defendants Nos.4 and 5 were parties to the transaction. Appellants pleaded that failure of respondent No,1 to pay the outstanding sale price within the time stipulated i,e, till 7-7-1998 resulted in rescission of agreement and forfeiture of earnest money. Suit by respondent No,1 was prayed to be dismissed being barred by limitation.
Controversial pleadings of the parties necessitated framing of issues and recording of evidence.
The learned Civil Judge, seized of the suit, after doing the needful partly decreed the suit of respondent No,1 awarding her decree to the extent of land measuring 27-1/4 Marlas subject to deposit of proportionate balance consideration of Rs,18,78,750 on or before 16-4-2005, failing which her suit was ordered to be dismissed vide judgment/decree dated 16-3-2005. Appellants being aggrieved of the decree passed in favour of respondent No,1 by the trial Court, filed instant first appeal which was admitted to regular hearing and after completion of record, has now been fixed for final hearing.
4. We have heard the learned counsel for the parties and have examined the record of the trial Court. Bargain of sale of land measuring 48 Marlas and 8 Sarsahis situated at 32-A, Civil Lines, Gill Road, Gujranwala, for a total consideration of Rs,61,35,750 is admitted between the parties and appellants, excluding Naseem Aslam and Salah-ud-Din. Do not deny receipt of earnest money of Rs,18,00,000. Terms of sale were reduced to writing through an agreement to sell dated 20-1-1998 which was signed by the appellants except two of them, above noted. This document clearly shows that parties had settled between them that it will be performed within the specified period and there is a specific clause to this effect therein. Time for performance of the agreement was mentioned as six months which was further specified by giving date i,e, till 7-7-1998. Though from the date of execution of agreement (Exh.P.1) period of six months would have lapsed on 20-7-1998 yet last date for performance being mentioned as 7-7-1998 relates back to oral bargain whereunder token/earnest money of Rs,3,50,000 was received by the appellants on 13-1-1998. Any way, result of miscalculation of period of six months is immaterial, as intention of the parties was to make the time essence of the contract because they by the end of the agreement, again emphasized that time is essence of the contract, by mentioning that the sale-deed shall be executed according to the settled schedule and with these understanding and prefixed mind to this effect, document Exh.P. I was written. The circumstances of the case also, suggest that parties to the agreement (Exh.P.1) intended to stick to the language of the agreement because neither the time fixed therein was subsequently extended nor any part of outstanding sale price was paid/received by any of them. P.W.3 Amjad Ali, who is marginal witness of Exh.P.1 also deposed while in the witness box that the date fixed for execution of sale-deed was 7-7-1998 and at that time, there was no dispute pending in any Court, regarding suit property. Respondent's attorney Sabir Ali appeared as P.W.5 and made statement similar to that of P.W.3. Law on this point is firmly settled by this time, where-under it has repeatedly been held by the apex Court that generally time is not essence of the contracts concerning immovable properties but in case parties thereto settle between them that time will be essence of the contract and they subsequently stick to it, then it will become operative even in the contracts of immovable properties. The Honourable Supreme Court in the case. Of Sandoz Limited and another v. Federation of Pakistan and others 1995 SCM R 1431 repeated the earlier view, graciously expressed in Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344 that in cases of sale of immovable property, time does not become essence of the contract by merely so mentioning in the agreement and mandated that the parties to the agreement may make it essence of the contract by so mentioning or using such words which may manifest their intention, in this behalf. It was further observed in this erstwhile judgment that as to whether time is essence of the contract or not, can be determined from the nature of the contract and the attending circumstances etc. The apex Court, in another case of Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430 while interpreting provisions of section 55 of the Contract Act, 1872, graciously held that generally speaking specific performance of a contract of sale of immovable property has to be granted by the Courts although there has been a failure to keep the dates assigned by it, if justice could be done between the parties and if nothing in (a) the express stipulation of the parties, (b) the nature of the property, or (c) the surrounding circumstances make it inequitable to grant the relief. It was further held in this judgment that intention to make time essence of the contract must be expressed in unmistakable language and it may be inferred from what passed between the parties before but not after the contract is made and mere mention of a specific period in an agreement for completion of sale would not make the time essence of the contract.
' In another case of Muhammad Yaqoob and others v. Hakim Ali and others 2004 SCM R 584 it was again held on the basis of provisions of section 55 of the Contract Act, 1872 that since the seller at the time of execution of the agreement was not vested with full ownership rights which he had to perfect by deposit of Government dues and this fact being in the knowledge of the parties, time fixed in the agreement was riot intended to be the essence. In this case, date fixed in the agreement was held to be tentative reflecting desire of the parties to complete the transaction within this period.
' In the case of Fazal-ur-Rehman v. Ahmed Saeed Mughal and others 2004 SCM R 436 parties had intended to make time essence of the contract and they had settled that in case of default in payment of any instalment, earnest money already paid would stand forfeited. In this case it was held that even if the plaintiff was conferred with the right either to rescind or maintain contract, he did not exercise the right of rescission thus he was bound to perform the agreement at the due date. The Honourable Supreme Court in light of terms of agreement; conduct of ^ parties and their behavior, maintained the judgments 'of the Courts below to the effect that time was essence of the contract and suit of the plaintiff was dismissed on account of his failure to perform his part of contract within the stipulated period.
The Honourable Supreme Court in yet another case of Mst. Batul and others v. Mst. Razia Fazal and others 2005 SCM R 544 approved earlier view taken in the case of Mst. Amina Bibi (supra) and summarized the issue in hand by holding that an agreement to sell of immovable property, time is not its essence when it, stood extended time and again. Ratio of all these judgments is that, normally simple fixation of time in the agreement for execution of sale-deed of immovable property simpliciter, would not be essence of the contract but in case the B parties with a clear understanding make the time essence of the contract and subsequently demonstrate it by their conduct, it will become' essence of the transaction. Applying this principle to the case in hand, one can easily conclude that parties to the agreement dated 20-1-1998 intended to make the time essence of the contract, as they wanted to complete the execution/ registration of sale-deed by 7th of July, 1998, for the reasons noted in the foregoing paragraphs.
5. Now if the time was essence of the contract reduced to writing on 20-1-1998 we will have to examine that as to whether parties thereto were ready /willing to perform their respective part of contract within the time fixed i,e, till 7-7-1998 and in case answer be in negative who out of them was at fault. Respondent herself did not appear in the witness box to support her case that she was willing/ready to perform her part of contract within the time stipulated in the agreement and instead produced her attorney Sabir Ali son of Atta Muhammad as P.W.5. As per statement of P.W.5 respondent lived in Norway and used to visit Pakistan after a year or so. He further deposed. That agreement between the parties was to be performed within six months time and earlier to the last date fixed for performance, he had asked 2/3 times to his broker to complete the transaction but did not issue any written notice. This witness further went on to state that his son had contacted the defendants/appellants who undertook to complete the matter earlier to the date fixed in the agreement. Statement of P.W.5 is not only uncorroborated by any other evidence on the file regarding his demand of completion of transaction through broker but his stance is also negated by statement of Mr. Zahid Mirza, Advocate (P.W.4) who deposed that availability of. The respondent during the crucial period for performance of agreement, was not known to him. Since, the respondent was the purchaser and had to pay the balance price, it was for her to demand execution of sale-deed from the defendants/ appellants but there is not an iota of evidence on the file to this effect. Respondent No,1 according to our estimation, should have clearly proved that she was available in Pakistan; she was ready/willing to pay the balance sale price and had established contact with the appellants for execution of the sale-deed. Halfhearted statement of P.W.5 that they contacted 2/3 times to the broker for performance, was not enough to prove the issue involved, especially when the same was not supported by any other witness, in whose presence such demand was actually made. Both the witnesses of the respondent i,e, P.W.4 and P.W.5 are unanimous about issuance of the only notice to the appellants for the first time on 29-6-2001 i,e, after lapse of a period of about three years from the last date fixed for performance of the agreement namely 7-7-1998, in itself was proof of the fact that respondent No,1 was not ready/willing to have the sale-deed executed till then. Her plea of deferring this matter on account of issuance of injunction by the Civil Court, on a suit by third party, was of no avail because it did not absolve her to discharge her obligations under the agreement, even if the suit was not maneuvered.
6. According to the terms of sale incorporated in the agreement dated 20-1-1998, the executants had undertaken responsibility of getting sale-deed executed on behalf, of Messrs Naseem Aslam and Salah-ud-Din, as they had not signed the agreement to sell; they were to retain the debris of the structure over the land in question and were to raise wall towards north of the plot. Respondent No,1 was also supposed to retain in touch with the appellants whether they had arranged due execution of sale-deed on behalf of Messrs Naseem Aslam and Salah-ud-Din and removal of debris/construction of wall on northern side but she brought no evidence on the file in this behalf Asim Aslam Mir one of the appellants appeared as D.W.2 and categorically deposed that all of them were ready to perform their part of contract but respondent No,1 did not contact them.
According to him, time was essence of the contract as they intended to start some business by investing sale proceeds but on account of non-payment of outstanding sale consideration, they could not complete their project. He was also categorical about rescission of the contract that the same stood cancelled on 7-7-1998. This deposition was duly supported by D.W.1 Fasahat Ali.
Statements of both these witnesses of the appellants could not be repelled by evidence produced by the respondent and their veracity remained unshattered inspite of lengthy cross-examination, on her behalf. Scan of evidence on the file proved that appellants were ready and willing to perform their part of contract within the time stipulated in the agreement but respondent No,1 was not ready and avoided execution of sale-deed on account of scarcity of funds or her non- availability in the country. Though the trial Court had not discussed this aspect of the case, yet irresistible conclusion out of appraisal of evidence on the file is that respondent No,1 defaulted in abiding the terms of agreement and after sleeping over her rights for about three years, got issued unfounded notices through Mr. Zahid Nazir, Advocate and publication in the press when the agreement under its own terms, had come to an end.
7. As earlier noted, two co-owners of the suit property did not associate the bargain and had not signed Exh.P.1 thus performance of it cannot be enforced against them. The trial Court has also given a finding in support of this proposition. The entire suit property is joint and share of both the non-signatory appellants is not identified and cannot be separated without resort to partition proceedings by metes and bounds. Besides it, land measuring 16 Marlas out of the plot in question was resumed by the then Deputy Commissioner for utilization of Kachi Abadi and respondent's snit to this extent was dismissed by the trial Court through the judgment/decree impugned. In this manner, respondent No,1 was granted decree for specific performance of a part of the suit land measuring 27-1/4 marlas subject to deposit of proportionate balance sale consideration of Rs,18,78,750 on or before 16-4-2005, without directing removal of structures/debris as per agreement, above referred. Shares of Messrs Naseem Aslam and Salah-ud-Din have not been identified out of the total suit land measuring 4$ Kanals and 8 Marlas. Under section 15 of the Specific Relief Act, 1877, where a party to a contract is unable to perform the whole of his part of it and the part which must be left unperformed, forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. Applying the underlying principle of this provision of law to the case under discussion, respondent No,1 remained unsuccessful in proving her entitlement to the decree granted by the trial Court, as she had not expressed her willingness to relinquish her claim to further performance or to compensation etc: of the part of the suit land not given to her. It was clear from the terms of the contract that parties had contemplated only a single and D indivisible transaction of sale with immediate delivery of possession and for effecting a conveyance the time stipulated was expressly mentioned to be of the essence of the contract, thus it could not be said that the part to be specifically enforced, stood on a separate and independent footing from the remaining part of the contract. In these circumstances, section 16 of the. Act of 1877 had no application but was incorrectly invoked by the trial Court, without giving any finding to this effect.
As a matter of fact, this section identifies an exception to the bar of specific performance of part of contract, in the cases covered by sections 14 and 15 of the Act (ibid). According to our humble view case of the respondent was not covered under any of the exceptions enunciated by any of these provisions.
8. Attending to the objection of the appellants that the suit filed by the respondent No,1 was barred by limitation and thus the same could not have been decreed. Suit for specific performance of a contract is governed by Article 113 of the Limitation Act, 1908 which prescribes period of three years for filing of such a suit, from the date fixed for performance in the agreement and where no such date is fixed, then from the time plaintiff gains knowledge/notice of refusal of performance. As a matter of fact, Article 113 of the Act (ibid) has its two parts. Under first part, starting point of three years limitation for filing E of suit, is the date given in the agreement itself for its performance, whereas under its second part. Case for specific performance can be filed within a period of three years from the date when plaintiff gains notice that performance is refused. Since a specific date for performance of the agreement dated 20-1-1998 has been particularly given, the starting point of limitation in the case in hand will be 7-7-1998, the date so fixed. Respondent filed her suit on 9-7- 2001 but three calendar years with 365 days each from 7-7-1998 lapsed on 7-7-2001, meaning thereby that suit was filed beyond the prescribed period of limitation and was barred by two days.
Reliance of the learned counsel for the respondent No,1 on the judgment by the apex Court in the case of Inam Naqshband v. Haji Shaikh Ijaz Ahmad. PLD 1995 SC. 314 is of no utility to his case, as in this case, no particular date was expressly fixed by the parties for performance of the agreement and they had provided that agreement will be performed within one week from the date of agreement, whereas in the case in hand we have already held that parties entered into the agreement with clear intendment that agreement shall be performed within a period of six months and they had given a specific date for this purpose. F Appellants had successfully proved that they were not obliged to perform their part of contract on account of lapse of the respondent No,1 to pay the balance sale price within the stipulated time.
9. We are alive to the fact that appellants have not denied receipt of huge amount of earnest money (Rs,18,00,000) in spite of the fact that two co-sharers namely Naseem Aslam and Salah-ud- Din were not present at the time of execution of the admitted document Exh.P.1 and had not signed it. Terms of contract conferred right to the respondent No,1 of getting forcible registration of sale- deed but in the meanwhile 16 Marlas of land, besides the share of non-signatory appellants, stood excluded on account of its resumption as noted above and part performance cannot be granted to respondent No,1 thus we are of the view that she is not entitled to specific performance of the agreement dated 20-1-1998 in terms of section 65 of the Contract Act, 1872 but she is certainly entitled to get back her advanced money of Rs,18,00,000 with profit/interest at the bank rate. Scan of record and appraisal of evidence on the file leads to irresistible conclusion that judgment/decree dated 16-3-2005 passed by the trial Court for G specific performance of the agreement dated 20-1-1998 is not maintainable and deserves to be reversed, whereas respondent's suit to the extent of recovery of her earnest money of Rs,18,00,000 is to be decreed.
10. For the reasons noted above, instant appeal is partly I allowed and judgment/decree dated 16- 3-2005 passed by the trial Court is modified into a money decree for Rs,18,00,000 G with profit/interest at bank rate till its recovery, declining specific performance of the agreement dated 20-1-1998. Parties are left to bear their own costs.