PARVEZ AHMAD, J.--- The present revision petition has arisen from the judgment and decree passed by the Addl. District Judge, Chiniot dated 27.11.1995 by virtue of which the judgment and decree of the Trial Court dated 20.4.1995 was set aside and the suit of the present petitioners, the plaintiffs before the Trial 'Court, for specific performance of the agreement to sell was dismissed.
2. The facts in brief are that Zahoor Ahmad and others brought a suit for specific performance of an agreement to sell alleged to have been entered into in-between them and the defendant on 28.3.1977 for the sale of the property given in the head note of the plaint for a consideration of Rs.
23.000/- out of which an amount of Rs. 3,000/- was paid in advance and the remaining consideration of the amount of 'Rs. 20,000/- was agreed to be paid at the time of the registration of the sale-deed. It was alleged that the defendant in spite of repeated contract in this regard has failed to perform the agreement, hence present suit. The defendant submitted his written statement by virtue of which he admitted the execution of the agreement to sell dated 28.3.1977. He also admitted to have received the earnest money amounting to Rs. 3,000/-. However, it was alleged on merits that the period for performance of the contract was settled as 15 days, which was fraudulently altered by the plaintiffs and enhanced to as period of 2 months and 15 days and even in spite of this forgery the plaintiffs have failed to make payment of the remaining amount and to get the property transferred in their names, as such the suit be dismissed. Apart from this situation it was also alleged that Zahoor Ahmad, the plaintiff, is contesting the suit alone whereas the other plaintiffs, is contesting the suit alone whereas the other plaintiffs in the plaint have not authorized him to file the present suit. On the pleadings of the parties, the Trial Court framed the following issues:---
(1) Whether the plaintiffs have no cause of action or locus standi to bring the OPD
(2) Whether the plaintiffs are stopped by their own conduct to bring the suit? OPD
(3) Whether the plaintiffs have waived their right? OPD
(4) Whether the plaintiffs are entitled to the relief as claimed for? OPP
(5) Whether the alleged general power-of-attorney is not applicable to the facts of the present case, if so, its effect? OPD
(6) Whether the plaintiff No. 1 has no authority to institute the suit on behalf of the plaintiffs Nos. 2 to 4, if so, its effect? OPD
(7) Whether the suit is liable to be dismissed to the extent of plaintiffs Nos. 2 to 4 on the basis of preliminary objection No. 4 of the written statement ? OPD
(8) Whether the plaintiffs have defaulted in the specific performance of the impugned agreement, if so, its .Effect? OPD
(9) Whether the plaintiffs have forged the alleged agreement to the extent of the duration for execution of the same? OPD.
(10) Whether the alleged agreement is deemed to have been cancelled due to the alleged conduct of the plaintiff? OPD
(11) Relief.
The Trial Court recorded the evidence of the parties and after hearing their arguments came to the conclusion that the suit of the plaintiffs was liable to be decreed in their favour, hence passed the judgment and decree dated 20.4.1995. The present respondent, who was a defendant before the Trial Court, feeling himself aggrieved by the above-said judgment and decree of the Trial Court, filed an appeal before the Appellate Court from where his appeal, was allowed, the, judgment and decree of the Trial Court dated 20.4.1995 was set aside and, resultantly the 'suit of the plaintiffs/petitioners was dismissed on 26.11.1995. With this background the present petitioners has approached this Court with the present revision petition.
3.' The revision petition was admitted to regular hearing on the consideration of judgments of both, the. Courts below being at variance and the respondent was issued a notice to contest this revision petition. Both the learned counsel for the parties have made submission keeping in view of their respective pleas with regard to the suit and the present revision. The record available before this Court has also been perused.
4. The parties irrespective of the findings of the Court and that of the Appellate Court on different issues are at variance with regard to the question of authority of Zahoor Ahmad, petitioner No. 1, to file the suit on behalf of his other brothers and vith regard to the fact that in the agreement to sell the time settled was forged at a dater stage by the present petitioners/plaintiffs or not and even if it was not so forged whether the time was essence of the contract of sale and if so whether due to the expiry of this period the plaintiffs have lost their right for the discretionary relief of specific performance. As above-said while stating the facts of litigation in-between the parties that the agreement Ex.P1 dated 28.3.1977 is admitted in-between the parties. The payment and receipt of the amount of Rs. 3,000/- as earnest money has also been admitted. There is no dispute with regard to the fact that the amount of Rs. 20,000/- stands to be paid by the petitioners/plaintiffs to the respondent/defendant for claiming a decree for specific performance. Whether the time is essence of the contract of sale, It is a question which is tp be assessed and ascertained from the intention of the parties by the expressed words used in the agreement. The agreement Ex.P.1 does not reveal that the time was intended to be or was settled as the essence of the contract of sale in-between the parties and there is nothing on record that in the event of the expiry of the period settled no claim will even be lodged by the plaintiff/petitioner against the defendant/respondent. As above-said there is another aspect of the case, which alleges commission of forgery by the plaintiffs in the period settled for the performance of the, contract. Even if it be assumed that a forgery was committed even then as above-said there, being nothing on record to the effect that the time was essence of the contract of the sale, it will make no difference to the case of the parties. Apart from this situation nothing has been made available in very clear and explicit term to prove the allegation of forgery, as such it is held that the time was not the essence of the contract of sale and commission or omission of forgery and mentioning and non-mentioning of the period fixed for performance makes no difference.
5. As above-said there is another. Aspect of the case as to whether Zahoor Ahmad had any authority or not on behalf of the other plaintiffs to file the said civil suit, the record reveals that vide power-of-attorney dated 03.02.1976 Zahoor Ahmad, was authorized to file civil suit with regard to the entire Sikini' property of the plaintiffs situated at Chiniot.
The suit property although not being property yet located and situated at chiniot. It appears that the intention of the parties was with regard to the whole of the property situated at Chiniot. Apart from this aspect, the agreement to sell Ex.P.1 was executed in-between Zahoor Ahmad and the defendant above and Zahoor Ahmad only signed it although the names of other plaintiffs are recorded. The amended plaints was filed without any objection by the defendant on the impleadment of the legal heirs of Manzoor Ahmad and they also prosecuted with the suit. At no stage, a notice was issued to the remaining plaintiffs to confront them with this situation. It amply proves that Zahoor Ahmad was authorized to file the suit.
6. In view of the above, the judgment and decree passed by the Addl. District Judge is not in consonance with facts and law and is not liable to be maintained, therefore, the present revision petition is allowed, the impugned judgment and decree of the Appellate Court is set aside and that of the Trial Court decreeing the suit of the petitioners/plaintiffs is maintained. There. Is no order as to costs . .