' ABDUL SATTAR GORAYA, J.---This judgment shall dispose of R.S.A. No,70 of 2006 and R.S.A. No,71 of 2006 as both of them have arisen out of the consolidated judgment of the learned Addl; District Judge.
2. Facts in brief are that Mst. Afzal Jehan appellant instituted a suit for possession in respect of land measuring 4 Kanal and .2 Marlas situated in the revenue estate of Chak No,409/G.B Tehsil Tandlianwala fully described in the head note of the plaint. It was averred that an agreement to sell of the suit-land in favour of the respondent vide judgment dated 19-3-2007 was executed by the appellant for consideration of Rs,6,97,000 and in part performance of the agreement to sell, possession was delivered to the respondent.
(i) Whether the suit is not maintainable in its present form? OPD
(ii) Whether the plaintiff is estopped by her words and conduct to bring this suit? OPD
(iii) Whether the plaintiff has no cause of action or locus standi to file the instant suit? OPD
(iv) Whether the plaintiff's suit is not maintainable in its present form? OPD
(v) Whether the plaintiff has filed this suit only to harass and blackmail the defendants and defendants are entitled to get special costs under section 35-A of C.P.C? OPD
(vi) Whether the plaintiff has not come in the Court with clean hands? OPD
(vii) Whether the defendants have not fulfilled the agreement dated 19-3-1997 and were not ready to pay the rest amount to the plaintiff and to get the disputed land in their favour? OPD (viii)Whether the agreement dated 10-3-1997 stands cancelled and amount of Rs, 1.00,000 (one lac) iS confiscated in favour of plaintiff? OPD
(ix) Whether the plaintiff is entitled to get possession of the disputed land and obtain a decree in her favour? OPD
(ixA) Whether the plaintiffs in suit titled as "Haji Muhammad Siddique v. Mst. Afzal Jehan" are entitled to decree for Specific Performance of Contract dated 19-3-1997?
(ixB) Whether time was the essence of the contract dated 19-3-1997? OPD
(ixC) Whether plaintiffs in suit for Specific Performance have no cause of action to file that suit?
OPD (Afzal Jehan)
(ixD) Whether Haji Muhammad Siddique etc. Plaintiffs have not come in the Court with clean hands? OPD (Afzal Jehan)
(ixE) Whether suit of Haji Muhammad Siddique etc., plaintiffs is frivolous, vexatious and defendant Afzal Jehan is entitled to compensatory costs? OPD (Afzal Jehan)
(viii) Relief.
4. In nutshell vide judgment and decree dated 29-7-2004, the learned trial Judge, decreed the suit brought by the A appellant titled Mst. Afzal Jehan v. Haji Muhammad Siddique etc. And dismissed the suit brought by Haji Muhammad Siddique against Mst. Afzal Jehan for Specific Performance of Contract. Feeling dissatisfied by the judgment and decree afore-noted, respondents went up in appeal before the learned Additional District Judge, Faisalabad who accepted the same on 6-5- 2006. Resultantly, suit for Specific Performance of Contract was decreed against the appellant and the suit for possession brought by the appellant was dismissed. It was directed that the decretal amount should be deposited by 22-5-2006. Hence these two second appeals.
5. Learned counsel for the appellant maintained the appeals only on one point that the time was essence of the contract and in any case respondents were bound to B perform their part of contract till 1-101997, whereafter no decree could be passed in their favour.
6. Conversely the learned counsel for the respondents states that the time was not essence of the contract and the decree passed by the learned lower appellate Court was not suffering from any illegality or infirmity.
7. I have lent ears to the arguments advanced by the learned counsel for the parties. In fact issue Nos. 7, 8, 9 and 9-B are the core issues in whole case. Execution of the agreement (Exh.D-I) is not denied. The only question requires to settle by this Court is that when the specific date i.e, 1-10-1997 was fixed for performance of agreement to sell, the time was essence of the contract or not. Both the suits were consolidated and proceedings were recorded in suit for possession brought by the appellant. She appears in the witness-box as P.W.-1 and deposed in support of the plaint that it was a bounden duty of the respondents to perform the contract till 1-10-1997. She states that she had informed the respondents telephonically to get the sale-deed executed but she received no response from the respondents and the execution was postponed, for lack of money. She s'tated that she appeared in the office of the Sub-Registrar on the date fixed but none on side of the respondents turned up. In the cross-examination, when questioned that she had issued any notice to the respondents-suitors, the answer was in the negative. She also made a blunt statement that she made no application in writing to the Sub-Registrar to get her presence marked. She was put to question that injunctive order, in respect of the suit property had been issued but she denied the suggestions. Perusal of Exh.D-l shows that there is note appearing in the said instrument that the matter is under the encumbrances of the prohibitory order issued by the civil Court. This is stark reality that notices under section 55 of the Contract Act was not given by the appellant to make it essence of the contract. Section 55 reads as under.
"Effect of failure to perform at fixed time, in contract in which time is essential. When a party to a contract promises to do a certain thing at or before a specified time or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable, at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.
' Effect of such failure when time is not essential. If it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned of him by such failure.
' Effect of acceptance of performance at time other, than agreed upon. If in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time or such acceptance, he gives notice to the promisor of his intention to do so."
8. Appellant when appeared in the witness-box, made a blunt statement that no notice to perform the agreement to sell was given to the respondents. The endorsement appearing at the foot-note of the Exh.D-l that the matter was under the encumbrances of the injunctive order has not been denied. The explanation for not getting sale-deed furnished by the respondents-suitors in the suit for Specific Performance of the Contract finds support from the note appearing in the said instrument. The dispute in the case in hand necessarily relates to the immovable property. This question came up for consideration before the Supreme Court in case Seth Essabhoy v. Saboor Ahmad (PLD 1972 SC 39) to examine whether the contract in respect of the landed property could be the essence of the contract or not, the issue has been answered in the negative. Their lordships of the Supreme Court in the judgment aforenoted observed as under:-.
"It is a well-settled principle of law that in contracts relating to immovable property, time is not of the essence of the contract, and the claim of the appellant, even if it were accepted that he had given three days' notice to the respondent for completion of the contract, failing which it would come to an end, cannot at all be considered to be reasonable time."
9. I am also fortified in my view by Ghulam Nabi and others v. Seth Muhammad Yaqoob and others (PLD 1983 SC 344). ISSO and another v. Muhammad Ismail and others (1992 M LD 1787), and Muhammad Nawaz Khan and others V; Mst. Farrah Naz PLD. 1999 Lah. 238). Learned counsel for the appellant bitterly argued that conduct of the parties should be seen and the suitor can easily be non-suited to get the decree of Specific Performance of Contract because the relief being claimed was purely discretionary in nature. Reference has been made to Abdul Aziz v. Abdur Rehman (1994 SCM R 111). The contention has no force; in the case in hand nothing can be attributed to the respondents that they wilfully avoided to get the sale- deed executed. Sufficient evidence has been brought on the record to reach at a conclusion that the matter remained under the encumbrances of the injunctive order issued by the civil Court in respect of the suit property, which was instituted in respect of joint Khata. The judgment and decree passed by the learned lower appellant Court is rich in detail and each and every aspect has been dealt with minutely.
10. For what has been stated above, no case for interference by this Court is made Consequently, both the appeals fail and dismissed, parties are left to bear their own costs in the circumstances of the case.