' KHAWAJA NAVEED AHMED, J.---This appeal is directed against the judgment dated 28-2-2007, passed by learned IVth Addl. District Judge, Karachi (East) in Civil Appeal No,212 of 2003 and judgment dated 16-8-2003 passed by learned IIIrd Senior Civil Judge, Karachi (East) in Suit No, 431 of 1978, whereby both the Courts below dismissed the Civil Suit and Civil Appeal in favour of the respondents, hence the appellants have filed the present appeal with the prayer to set aside the aforesaid judgments and allow the appeal of the appellants.
2. The facts giving rise to the present appeal, as mentioned in the pleadings are that one Mst.
Hajiani Hajra Bai widow of (late) Haji Abdul Karim, predecessor of respondents Nos.1 to 7 had filed Suit No,431 of 1978 in this Court for Specific Performance of Contract seeking enforcement of Agreement dated 27-2-1978 in respect of a double storeyed Bungalow constructed on Plot bearing No,JM-943/5, situated at No,2;Clayton Road, commonly know as Rahim Mansion, Karachi, (hereinafter referred to as the "Suit Property"). This sale agreement was executed by the parties thereof for the sale of the aforesaid property for a total sale consideration of Rs,500,000 on the terms and conditions stipulated in the said agreement. According to the appeal, a sum A of Rs,175,000 out of the total sale consideration referred to above was said to have been paid by the plaintiff in the Suit to the defendants in the suit.. However, as per the plaintiff in the suit, the defendants did not execute the sale-deed and refused to transfer the property in pursuance of the said sale agreement. Confronted with the situation, the plaintiff had filed a Civil Suit bearing No,431/1978 in this Court against the defendants for specific performance of the sale agreement dated 22-2-1978, the defendants filed joint written statement dated 5-3-1979. The defendants, in nutshell besides questioning the very maintainability of the suit, pleaded that although the referred agreement of sale was executed by the parties thereto and the payments mentioned in paragraphs 1, 2, 3 and 4 were made by the plaintiff but as specifically promised by the plaintiff, balance amount of consideration was not paid on or before 8-3-1978, hence the said sale agreement was cancelled. Since the original property documents were also with the plaintiff in the suit, on cancellation of the agreement, the same were also asked to be returned to the defendants.
At the same time, the plaintiff was also asked to take back the amount paid by her to the defendants in the suit. In nutshell, the defendants in the suit refused to sell and transfer the property in question.
3. That miscellaneous proceedings were made in the suit during about 20 years of its pendency in the High Court and except framing of issues, no evidence could be recorded. At one stage, as per transfer of jurisdiction the said suit was also transferred to the District Court Karachi (East) and finally it came on the file of .The learned VIlth Senior Civil Judge Karachi (East) for disposal according to law.
4. That on 2-3-2002, the plaintiff examined PW-1, Haji Abdul Razzak, and he was cross-examined on 4-372002. The said suit thereafter did not proceed further because the plaintiff in the suit avoided to adduce any evidence or even to disclose if at all they were interested in producing any other witnesses and if so who would be the same.
5. That the plaintiffs in the suit were in possession of first floor of the suit premises as tenant of the defendants. However, during the pendency of the suit, some of the plaintiffs had shifted from the said tenement and in their place they illegally installed one Haji Javed (responded No,10 herein) as their subtenant and who is residing there in such capacity. The plaintiff also failed to pay the agreed monthly rent to the defendants. It is pertinently mentioned here that only Afzal Ali Khan, predecessor of appellants, was residing in the suit premises on the ground floor and the roof of the first floor was also in his possession. On his death, his legal heirs, the appellants herein, are continuously residing having full control over the entire- property except first floor which is under tenancy referred to above. Since the plaintiffs in the suit were found defaulter and since they had unauthoriesdly sublet a portion of the tenement to Haji Javed, respondent No,10 and since the accommodation in the possession of the appellants was insufficient for their use. An Ejectment Case bearing No,247 of 1998 was filed by the appellants before the VIIIth Senior Civil Judge/Rent Controller, Karachi (East) for the eviction of the respondents Nos.1 to 7 as also aforesaid Haji Javed subtenant. The said rent case was finally allowed by order dated 31-7-2002, whereby not only the respondents Nos.1 to 7 but even the sub-tenant Haji Javed, respondent No,10 was directed to be evicted from the tenement referred to above.
6. That the appellants in their written statement, which was filed by Afzal Ali Khan and others had taken the plea that suit, as framed is not maintainable and there is no cause of action against the defendants. It was further stated that the plaintiff has violated the terms and conditions of the sale agreement and sale consideration of the suit property was not paid within stipulated time.
However, the execution of sale agreement was admitted. The mode of payment mentioned in the agreement was also not disputed. The receipt of Rs,100.,000 was not denied by the defendants.
Receipt of Rs,15,000 was also admitted but it was stated that it was taken as an additional amount.
The payment of Rs,35,000 on 19-3-1978 is also admitted by the defendants, however, the defendants had stated that no payment has been received by them on 8-3-1978. The receipt of legal notice dated 9-3-1978 is- admitted but it is stated that the same was sent with mala fide intention and was subsequently withdrawn. It is further stated in the written statement that the plaintiff has performed his part of the contract in pursuance of clause 5 of the agreement dated 27-8-1978 and has not taken steps for finalization of the agreement and was insisting upon the defendants to accept the part payment and extend the contract. Receipt of payment on 18-4-1978 is also accepted in the written statement but it is stated that the acceptance was subject to the condition that sale-deed shall be completed by 30-4-1978 positively and no further extension shall be granted. It is stated in the written statement that on 7-5-1978 a legal notice was given to the plaintiffs by the defendants asking them to, collect Rs,175,000 paid by them and returned the original documents of suit property. The legal notice dated 7-5-1978 to the defendants by the plaintiffs is accepted by the defendants. The defendants in the written statement had prayed for dismissal of the suit.
7. On the pleadings of the parties, following issues were originally framed by the High Court (as the suit was originally filed in the High Court):--
(i) What amount of sale consideration was agreed between the parties?
(ii) Whether the defendants are liable for specific performance of the agreement, as alleged?
(iii) Who committed breach of the agreement?
(iv) What should the decree be?
8. Subsequently, the High Court by order dated 4-11-1991 holding that the contents of written statement dated 16-8-1989 which are in conflict or inconsistent with the amended written statement dated 5-3-1979 shall be ignored and deemed non-existence for all purposes. By the said order the following consent issues were framed and adopted on 1-4-1979:--
(i) Whether the plaintiff performed her part of the contract?
(ii) Relief?
9. The trial Court had replied Issue No,1 in the affirmative and had decreed the suit. The trial Court in the concluding paragraph had observed that it was an admitted fact that the defendant in the suit had extended time, obviously for the performance of the contract upto 8-5-1978 under his own hand-writing and his signatures. The trial Court had observed that the subject sale agreement does not make time as essence of the contract and had relied upon the case reported as Amina Bibi v. Mudassir Aziz (PLD 2003 SC 430). The Court had observed that if intention to make time as the essence of the contract there must be specific expression in unmistakable language. Mere mention of a specific period in an agreement for completion of sale would not make the time as the essence of contract. There was a compromise also during the course of proceedings between the plaintiff and defendants Nos. (a) and (b) to the extent of their 1/3rd share in the suit property and as such the plaintiff stepped into the shoes of defendants Nos.3 (a) and (b), the contesting defendants in the suit property. The Civil Judge had passed judgment and decree in favour of the plaintiff.. Against this judgment, the appeal was filed in the Court of IVth Addl. District Judge Karachi
(East) vide Civil Appeal No,212/2003. The learned IVth Addl. District Judge, Karachi (East) in his order again discussed the entire evidence led by the parties. He has perused the documents, produced by the parties and has applied his mind. He has at length referred to the case law on the subject and has observed in paragraph 19 of the judgment that the authorities referred by him clearly show that in the matter of immovable property ordinarily time is not to be treated the essence of the contract and it should be required to be performed within reasonable time. He has further observed that from the pleadings and admitted facts in the present case it is clear that the plaintiff showed his willingness to perform his part of the contract and had never backed out for the performance of her contractual obligation. The learned IVth Addl. Sessions Judge, Karachi (East) has observed in paragraph 21 of the judgment asunder:-- "21. The result of the above discussion is that the appeal finds no merit and the impugned judgment and decree is unexceptionable under the circumstances and is accordingly upheld. The appeal is, therefore, dismissed with no order as to cost."
10. Before me the advocate for the appellants was absent when the case was called while the advocate for the respondents along with a lady, who was well conversant with the facts of the case, was present in the Court. The lady herself had argued her case before me. Later on, Mr.'
Mustafa Lakhani, advocate for the appellants, had submitted his written arguments, wherein he had stated that respondents Nos.8 and 9, being daughter and son of the deceased-defendant No,3 Mst. Khadija Bai sold out their 1/3rd undivided share in the suit property to the attorney of respondents Nos.1 to 7 (respondent No,10) through a compromise dated 7-8-2002, filed in the Court. This compromise dated 7-8-2002 was entered into between respondents Nos.8 and 9 and respondent No,10, the attorney of responnets Nos.1 to 7 and the suit was decreed to the extent of 1/3rd undivided share of respondents Nos.8 & 9 and Civil Misc. Appeal No,23 of 2002 was dismissed against which Revision Application No,35/2004 was filed which is still pending in the Court.
11. Learned counsel for the appellants in his written arguments has submitted that both the impugned judgments and decrees passed by the learned IIIrd Sr. Civil Judge and IVth Addl. District Judge Karachi (East) are against the evidence, oral as well as documentary, on record and hence liable to be set aside. He has further submitted that both the Courts below have misread the evidence, oral as well as documentary and the impugned judgments and decrees have been rendered of no legal effect and liable to be set aside. He has further argued that both the Courts below have failed to appreciate that the predecessorin-interest of respondents Nos. 1 to 7 failed to perform her part of the contract within stipulated time and committed breach of the contract of sale of the suit property.
12. Learned counsel for the appellants has further submitted that both the Courts below have failed to take into consideration the fact that the balance amount of sale consideration was not paid within stipulated time by the predecessor-in-interest of the respondents Nos.1 to 7 and no specific performance of, the contract can be granted to them. He has further submitted that the Appellate Court erred in holding that the evidence of witness Abbas Ali Khan on behalf of the appellants was based on hearsay as at the time of sale agreement he was child of few months. He has further submitted that at the time of recording of evidence Abbas Ali Khan was major, aged about 25 years and his evidence was based on documents.
13. Learned counsel for the appellants has further urged in the written statement that both the Courts below erred in allowing the production of Muhammad Irshad,- Assistant Excise & Taxation Officer as no plea was raised by predecessor-ininterest of the respondents Nos.1 to 7 regarding non-payment of property tax and the objection of the appellants to the effect that the witness cannot be examined which objection was ordered by the Courts below to be decided at.# the time of final arguments, which has not been decided. It is further submitted that the appellants had paid the upto-date property tax as stated by the witness. Both the Courts below failed to notice that the time was essence of the contract and the predecessor-in interest of the respondents Nos.1 to 7 failed to perform her part of the contract within the stipulated time and hence the suit was liable to be dismissed. Learned counsel for the appellants has further submitted in his written arguments that both the Courts below failed to notice that during the proceedings of the suit, respondents Nos.8 and 9 compromised the suit by selling their alleged 1/3rd undivided share to respondent No,10 and grant of specific performance of sale of 2/3rd undivided share of the appellants. It is most respectfully submitted that the suit was for specific performance of the contract for the sale of the entire property and the judgment and decree for 2/3rd undivided share is erroneous. He has relied upon the cases reported as Noor Muhammad v. Muhammad Yousaf (2000 CLC 1138) and Ali Gohar Khan v. Sher Ayaz (1989 SCMR 130).
14. Learned counsel for the appellants has further submitted in his written arguments that both the Courts below have failed to take into consideration the fact that no specific performance can be granted keeping in view that the price of the suit property at present is valued at Rs,140,000,000. He has lastly argued in his written statement that both the Courts below erred in relying on the evidence of the respondents' witnesses and both the judgments and decrees have been rendered unsustainable and liable to be set aside.
15. In support of the above arguments, learned counsel for the appellants have relied upon the following case law:--
(i) Ali Gohar Khan v.Sher Ayaz (1989 SCMR 130);
(ii) Noor Rehman v. Muhammad Yousaf (2000 CLC 1138);
(iii) Inam Ahmed v. Hakimuddin (2000 CLC 1140); and
(iv) Amina Bibi v. Mudassir Aziz (PLD 2003 SC 430).
16. On the other hand, advocate for the respondents has stated that the judgment of both the Courts below are absolutely correct and are based upon the evidence adduced on behalf of the parties and material available on record. It is further submitted that the judgments have been passed after proper reading and appreciation of the evidence. It is abundantly clear that the evidence, arguments and law has been properly assailed and appreciated by both the Courts below and judgment and decree passed by the trial Court and upheld by the first appellate Court are proper. He argued that defendant No,1 (appellant No,6) has admitted in his evidence receipt of Rs,175,000 on 18-4-1978. Furthermore, the plaintiff had deposited the balance sale consideration of Rs,325,000 with the Nazir of this Court pursuant to order dated 1-4-1979. In the circumstances the Courts below have rightly observed that the respondents Nos.1 to 7 were ready and willing to pay the sale price in their favour. The learned Courts below have not erred in deciding the suit as well as the appeal.
17. In the cases of specific performance of contract of sale of immovable property intention to make time essence of the contract must be expressed in unmistakable language. A mere mention of a specific period in an agreement for completion of sale has been held by the superior Courts as not to make the time essence of the contract.. The reported case of Abdul Hamid v. Abbas Bhai Abdul Hussain (PLD 1962 SC 1) reiterates the legal position as to whether the time was of essence of a contract, it may be inferred from what passed between the parties before but not after the contract is made. Equity will not assist where there has been undue delay on the part of one party to the contract and the other has given him reasonable notice that he must complete the contract within a definite time. In the case in hand it has been found as a matter of fact that the respondents had issued timely notice to the appellant for performance of the contract but the appellant had neglected to perform his part of the contract. Reliance is also placed on the cases of Zaheer Ahmad v. Abdul Aziz (1983 SCMR 599), Bahawood-Deen v. B.G. Deesoouza (PLD 1974 Quetta 36) and Ghulam Nabi v. Muhammad Yaqub (PLD 1983 SC 344). Besides the above referred cases, rule of law was clearly laid down in Essabhoy v. Saboor Ahmad (PLD 1973 SC 93), Zaheer Ahmad v.
Abdul Aziz (1983 SCMR 559), Muhammad Yaqub v. Muhammad Nasrullah Khan (PLD 1986 SC 497), Mussarat Shaukat Ali v. Safia Khatoon (1994 SCMR 2189) and Sandoz Limited v. Federation of Pakistan (1995 SCMR 1431), In these authorities it has been held that a c party guilty of prevention of completion of contract within- time could not plead that time was essence of the contract. In the case of Mussarat Shaukat Ali (supra) his lordship Mr.Justice Saeeduzaman Siddiqui, J., (as his lordship then was) speaking for the Full Bench has observed as under:-- ' "It is open to the parties while entering the agreement of sale in respect of an immovable property to provide that the time for performance of the agreement will be treated as essence of the contract. In such cases, if the party seeking enforcement of the contract is shown to be in breach of the contract, the Court may in appropriate cases refuse to enforce the contract.' However, in the absence of a provision in the agreement to sell an immovable property that the time fixed for performance is not treated as the essence of the contract. Therefore specific performance of an agreement of sale relating to immovable property can be granted by Courts even after expiry of the period fixed in the, contract. "
18. I am not persuaded by the written arguments of the advocate for the appellants as concurrent findings of the fact are against the appellants, which do not suffer from misconception of law or misconstruction of evidence. The case law referred by learned counsel for the appellants in his written arguments are based on different footings and even the facts are altogether distinguishable from the facts and circumstances of the case in hand.
19. I have perused the contents of plaint, written statement, evidence of the parties, contents of the sale agreement, judgments of the Courts below, written arguments placed by Mr. Mustafa Lakhani, advocate for the appellants along with case law relied upon by him as well as arguments of Mr. Rehman Aziz Malik, alongwith the lady in person.
20. In view of the above facts and case law discussed above, I have reached on the conclusion that the appellants have failed to establish their case for interference in the orders passed by both the Courts below. There are concurrent findings on the facts. Both the Courts below have not erred in law. There is no scope for interference in the concurrent findings of both the Courts below. I accordingly dismiss this appeal with no order as to costs.
' IInd Appeal No,15 of 2007 stands disposed of along with C.M.A. 1522 of 2007.