1. ' KHILJI ARIF HUSSAIN, J.--Against the judgment and decree granting relief of specific performance of an agreement of sale, the appellant preferred this appeal.
2. Brief facts for the purpose of deciding this appeal are that the appellant agreed to sell the property by an agreement of sale, dated 13-10-2003 and the respondent agreed to purchase his property bearing No,44 measuring 1000 Sq. Yds. Situated at 14th Street, Phase-V, Defence Housing Authority, Karachi for a total sale consideration of Rs,12,000,000 out of which a sum of Rs,2,000,000 was paid to the appellant at the time of signing of the IA agreement of sale and balance sale consideration was payable on or before 30-12-2003 at the time of registration of the conveyance deed.' As per respondent, time for the performance of the agreement was extended twice, first on 15-2-2004 and then on 14-4-2004 as the appellant had not completed the documents required for the transfer of marketable title.
3. 'After service of notice/summons, appellant filed written statement and alleged that time was made essence of the contract and was not extended twice as alleged. The appellant's case was that the respondent could not complete the transaction within the stipulated period as he did not posses sufficient fund and for such reason the respondent failed to complete transaction as such not entitled for the relief of specific performance of the agreement.
4. ' After learning of issues, and recording of evidence, learned Single Judge decreed the suit for specific performance, however, directed the respondent not only to deposit the balance sale consideration of Rs,10,000,000 but also to pay additional amount of Rs,4,800,000 being the element of interest with the Nazir of this Court within 30 days from the date of order.
5. ' Heard Mr. Anwar Muhamm Siddiqui, learned Advocate for Appellant.
6. ' Mr. Naveedul Haq, learned, Advocate for the respondent.
7. ' Mr. Anwar Muhammad Siddiqui, learned Advocate for Appellant, vehemently argued that the respondent was not entitled for the equitable relief of specific performance as he failed to perform his part of obligation on 30-12-2003 for want of sufficient fund. The time for performance was extended up to 5-2-2004 but respondent failed to perform his part of obligation thus not entitled for the relief of specific performance. Learned Single Judge committed error of law in decreeing the suit. In support of his contention, learned advocate for the appellant relied upon the cases of Abdul Hamid v. Abbas Bhai-Abdul Hussain PLD 1959 (W.P.) Kar. 629, Muhammad Sharif v. Mst. Fujji alias Phaji Begum through Legal Heirs and another, 1998 SCMR 2483, Muhammad Sharif v. Mst. Fajji and others, 1996 CLC 883, Koyana Suryanarayana Reddy v. C. Chellayyamma, 1990 MLD 443, Tasawar Khalil and another v. Matinur Rahman, PLO 1993 Kar.
8. 780.
9. On the other hand, Mr. Naveedul Haq, learned counsel for the respondent, argued that appellant failed to make out marketable title of the property and on his failure to perform his part of obligation, the respondent filed suit for specific performance. It was contended by the learned advocate for the respondent that as per terms of the agreement of sale, the appellant was required to provide before execution of registered sale-deed in favour of the respondent, B-Lease of the property in question and completion certificate issued by the Cantonment Board. The appellant applied for completion certificate on 5-11-2004, which was granted to him on 27-4-2004 whereas loan giving agency in December, 2003 sanctioned the loan in favour of the respondent and the respondent was always ready and willing to perform his part of obligation but due to failure of the appellant to make out a marketable title, the respondent filed suit for specific performance. Learned advocate in support of his contention relied upon the case of Mst. Amina Bibi v. Mudasar Aziz, PLD 2003 SC 430.
10. We have taken into consideration arguments advanced by the learned advocates for the parties, perused the record. The preamble of agreement of sale provided that vendor has already been applied for completion certificate of the said property and will also apply for B-Lease. From the recital of agreement of sale, it appears that the appellant was required not only to obtain and provide completion certificate of the property in question but also to provide B-Lease which DHA issued after completion certificate was issued by the competent authorities. From the evidence on record it is established that completion certificate was issued on 22-4-2004. As regards B-Lease, which is a document by which Pakistan Defence Officers Housing Authority granted 99 years' of lease in favour of the allottees, admittedly was not issued in favour of the appellant till filing of the suit. The appellant in cross-examination admitted that in terms of A-Lease he was allowed to raise construction on the subject plot and also admitted that on filing of application for completion certificate on 5-1-2004 Exh.P/7 the authority demanded a sum of Rs,1,48,809 from him which amount he had deposited on 7-2-2004. The appellant also admitted that NOC was not issued by the D.H.A. However he stated that it was not necessary to obtain such certificate.
11. A registered conveyance deed can be executed only after B-lease issued by the Pakistan Defence Officers Housing Autohirty and admittedly such lease was not issued in favour of the appellant till filling of the suit and the appellant was not in a position to perform his part of obligation neither on 30-12-2003 nor on 15-2-2004. Clause (1) Agreement of Sale provided that appellant will transfer marketable title in favour of the respondent against total sale consideration of Rs,1,20,00,000.
12. ' As regards contention of Mr. Anwar Muhammad Siddiqui, learned Advocate for appellant that the respondent was not in a position to pay the balance sale consideration. The respondent produced letter of Bank Al-Falh Ltd., dated 1-12-2003 by which said bank agreed to finance a sum of Rs,75,00,000.
13. ' In the case of Tasawar Khalil and another (supra), it was held that "time fixed under the agreement though not mandatory yet party shall oblige to comply with its part of contract within a reasonable time and suit for specific performance was dismissed as out of eleven requirements listed in the agreement of sale, not less than six were to be applied by the plaintiffs which they failed to fulfil including even such basic requirements as, payments of transfer fee, membership of society and publication of public notice in newspapers inviting objections to the sale as per terms of agreement of sale.
14. ' The case of Messrs Koyana Surayanayana Reddy (supra), relates to making time essence of the contract under section 55 of the Contract Act it was held that mere extension of time even though after time is made essence of the contract would not operate as waive of essential condition as to time,.
15. ' The case of Muhammad Sharif (supra), relates to contract whether time was made essence of the agreement as it provided that in a case of failure to perform the agreement in time the earnest money paid would stand forfeited.
16. ' It was held that whether time is essence of the contract or not depends upon the facts and circumstances of each case.
17. ' None of the case-law relied upon by the learned advocate for the parties attracted to the facts of this matter.
18. ' Agreement of sale though between the parties provided that registration of sale-deed by transferring marketable tile and execution of registered conveyance deed before sub-Registrar of the property free from all encumbrances charges etc. Clause 13 of the agreement provided only that each party shall perform their part under this agreement not later than 13th December, 2003 which period was admittedly at least extended up to 15th February, 2004 if not upto 15th April, 2004 as alleged by the respondent. Though Clause 13 does not provide consequences of failure to perform either of the party their part of obligation under the agreement to make time essence of the contract nonetheless the respondent discharge burden that he was in a position to pay balance sale consideration by producing a letter of Bank of Al-Falah Ltd., that the said bank had agreed to grant finance facilities for a sum of Rs,72,00,000 whereas the appellant was not in a position to perform his part of obligation upto 30-12-2003 or 15-2-2004 or 15-4-2004, as neither the appellant obtained completion certificate nor B-lease was issued by the Defence Housing Authority in his. Name which appellant as per term of agreement was required to provide before execution of sale-deed and were necessary for transferring marketable title in favour of the respondent.
19. ' In the case of Mst. Amina Bibi (supra), the Honourable Supreme Court held that: "we are firmly of the view that payment of the balance amount on the part of respondent was required to be made at the time of documentation leaving transfer of the plot in suit before the authorized officer of the society. If the appellant did not make herself available before the society or did not take requisite step, for transfer in favour of the respondent or his nominee she was not entitled to receive the balance sale consideration as misunderstood.
20. ' The Honourable Supreme Court further held that:-- "It is well-settled that intention to make time of the 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. A mere mention of a specified period in an agreement for completion of sale has been held as not to make the time of essence of the contract. In contracts of sale of immovable property, ordinary, time is not considered to be of essence of the contract unless it was expressly intended by the parties and the terms of the contract do not permit of any other interpretation. Both the learned counsel have heavily relied upon Abdul Hamid v. Abbas Bahi Abdul Hussain (PLD 1962 SC 1), which 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 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 appellant neglected to perform her part of the contract whereas the respondent had issued timely notice to her for discharge of her obligation by executing the relevant documents. Mr. Dogar agitated that it was incumbent upon the respondent to obtain No- objection Certificate from the Society for transfer of the plot in his favour but as no such plea was taken at the trial of the suit. We are not inclined to entertain the same at this stage. Refer Zaheer Ahmed v. Abdul Aziz (1983 SCMR 559). Suffice it to observe, conduct of the parties tends to reflect that the respondent, though a property dealer by profession, was anxious for completion of the contract within the stipulated period. It was the appellant, who avoided and neglected to perform her part of contract with a view to frustrate the contract. Learned counsel submitted that by not tendering the balance consideration to the appellant respondent had rendered the contract void and she was entitled to revoke the same. We do not feel persuaded to agree with the submission of the learned counsel as concurrent findings of fact are against her, which do not suffer from misconception of law or misconstruction of evidence.- Learned counsel relied upon Bahawood- Deen v. B.G. Desouza (PLD 1974 Quetta 36), and Ghulam Nabi v. Muhammad Yaqoob (PLD 1983 SC 344). Both the cases reiterate the principle enunciated in the earlier judgments that mere mention of time in a contract for sale of immovable property for its performance does not necessarily mean that time was essence of the contract. Intention of parties in that behalf can be gathered from the terms of the contract and facts and circumstances of the case. Besides the above said cases, rule of law was clearly laid down in Essabhoy v. Sabhoor Ahmed (PLD 1973 SC 497), Zaheer Ahemd v.
21. Abdul Aziz (1983 SCMR 559), Muhammad Yaqub v. Muhammad Nasrulolah Man (PLD 1986 SC 497); Zaheer Ahmed v. Abdul Aziz (1983 SCMR 559), Muhammad yaqub v. Muhammad Nasrulolah Khan (PLD 1986 SC 497), Mussarat Shaukat Ali v. Safia Khatoon (1994 SCMR 2189), and Sandoz Limited v.
22. Federation of Pakistan (1995 SCMR 1431). In Zaheer Ahemd (supra), it was held that a party guilty of prevention of completion of contract within time could not pleaded that time was essence of the contract. This principle was reiterated in Mussarat Shaukat Ali (supra). Saeeduzzaman Siddiqui, J, (as his Lordship for the Full Bench 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, the Court may in opposite cases refuse to enforce contract. However, in the absence of a provision in the agreement to sell the immovable property that the time fixed for performance of the contract is not treated as the essence of the contract. Therefore, specific performance of the agreement of sale relating to immovable property can be granted by Courts even after expiry of the period fixed in the contract."
23. For the foregoing reasons, we are of the view that the appellant failed to make out a case for interference in the judgment and decree passed by the learned Single E Judge. The appeal is dismissed in limine.
24. ' These are the reasons of our short order, dated 16-12-2008.