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 of the consolidated judgment of the learned Additional District Jude.
2. Facts in brief are the Mst. Afzal Jehan appellant instituted a suit for possession in, respect of land measuring Kanals 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 agreement dated 19.3.1997 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, Rs. 1,00,000/- was received as an earnest money and it was agreed that after deduction of the said amount, the remaining amount shall be paid on 1.10.1997 at the time of attestation of the sale date.
3. In the agreement to sell (Ex.D-1), it was stipulated that if the appellant resiled from his commitment and would not honour the agreement to sell an amount of Rs. 2,00,000/- shall be paid as penalty to the respondent. Maqbool Ahmad etc., respondents in the meantime also brought a suit for Specific Performance of Contract. The appellant in the written statement emphatically denied the averments of the plaint, and came out with the plea that the time was the essence of the contract and the respondent- plaintiff are not entitled to the decree for Specific Performance of Contract, Divergent pleadings of the parties gave rise to the following issues:---
(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 (i.e) 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 Cdurt 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? OPP
(viii) Whether the agreement dated 10.3.1997 stands cancelled and amount of Rs. 1,00,000/- (Rupees one lac) is confiscated in favour of plaintiff? OPP
(ix) Whether the plaintiff is entitled to get possession of the disputed land and obtain a decree in her favour? OPP i -A) 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?
(ix-B) Whether time was the essence of the contract dated 19.3.1997? OPP (ix-C) Whether plaintiffs in suit for Specific Performance have no cause of action to file that suit? OPD (Afzal Jehan) ix-D) Whether Haji. Muhammad Siddique etc. Plaintiffs have not come in the Court with clean hands? OPD (Afzal Jehan).
(ix-E) Whether suit of Haji Muhammad Siddique etc. Plaintiffs is frivolous, vexatious and defendant Afzal Jehan is entitled to compensatory costs? OPP (Afzal Jehan).
(x) Relief.
4. In nutshell vide judgment and decree dated -'9.7.2004, the learned Trial Judge, decreed the suit brought by the 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 the judgment _rid decree afore-noted, respondents went up in appeal Lefore 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 perform their part of..
Contract till 1.10.1997, 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 issues Nos. 7, 8, 9 and 9-B are the core issues in whole case. Execution of the agreement (Ex.D-1) 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 the proceedings were recorded in suit for possession brought by the appellant. She appeared in the witness-box as PW-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 stated 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 stated 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 Ex.D-1 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 promise, 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 promise is entitled to compensation from the promisor for any loss occasioned 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-perforrnance 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 Ex.D-1 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 S.0 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 afore:noted 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."
7. I am also fortified in my view by Ghulam Nabi etc. v. Seth Muhammad Yaqoob etc. (PLD 1983 S.0 344), ISSO and another v. Muhammad Ismail etc, (1992 M LD 1787), and Muhammad Nawaz Khan etc. v. Mst. Farah Naz (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's (1994 SCM R 111) The contention has no force in the case in hand nothing car be attributed to the respondents that they wilfully avoided I get the sale-deed executed. Sufficient evidence has be brought on the record to reach at a conclusion that t matter remained under the encumbrances of the injuncti order issued by the Civil Court in respect of the suit proper which was instituted in respect of joint Thata, The Judgme and decree passed by the learned lower Appellate Court 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 out.
Consequently, both the appeals fail and dismissed. Parties are left to bear their on costs in the