' ABDUL SATTAR GORAYA, J.---By means of this second appeal, the judgment and decree dated 5- 11-2004 passed by the learned Additional District Judge, Lahore and that of the learned trial Judge dated 12-5-2004, have been brought under impeachment.
2. Mehboob Alam, appellant filed a suit for specific performance of contract and Permanent Injunction as a consequential relief was also prayed for. It was alleged that the respondent is owner of the plot measuring one Kanal bearing No,37-A situated in Guldasht Town Ghazi Road, Lahore.
According to the terms of the agreement, the bargain was struck for an amount of Rs,19,80,000 out of which Rs,1,80,000 were paid as earnest money through cross cheque and agreement of sale was reduced into writing on 1-4-2003. It was stipulated that the remaining amount of Rs,18,00,000 shall be paid to the defendant till 15-5-2003. It was averred that the appellant established contact with the respondent telephonically on 12-5-2003 and asked him to receive the remaining amount and perform contract on his part, but he had shown his inability to do so and again requested on 15-4- 2003 but all in vain. The respondent contested the suit. In the written statement, execution of the agreement of sale was not denied and it was pleaded that the time was essence of the contract and on account of passage of time, the said agreement rendered ineffective and that is not capable to be enforced in law. Divergent pleadings of the parties gave rise to the following issues:- --
(1) Whether the plaintiff has not come to this court with clean hands, hence the suit is liable to be dismissed? OPD
(2) Whether the suit is false, frivolous, vexatious, unfounded and baseless, hence, is liable to be dismissed under Order VII rule 11 of the C.P.C.? OPD
(3) Whether the plaintiff has no cause of action? OPD
(4) Whether the suit has been filed with ulterior motive and mala fide intention? OPD
(5) Whether the plaintiff is entitled for the decree of specific performance against the defendant?
OPP
(6) Relief."
' Issue No,5 in the whole case is the pivotal issue. The learned trial Judge answered the issue against the appellant and in favour of the respondent. Issues Nos.1, 3 & 4 were also answered against the defendant-respondent. In nutshell, the suit was dismissed by the learned trial Judge on 12-5-2004. Appeal was taken against the said judgment and decree before the learned Additional District Judge, Lahore which failed on 5-11-2004.
3. Learned, counsel for the appellant argued that the time was not essence of the contract and both the Courts below have committed illegalities ad infinitum in reaching at the impugned conclusion. Bitterly argued that the judgments and decrees of both the Courts below are the result of misreading and non-reading of evidence, which resulted in grave miscarriage of justice and the Courts below, arrived at incorrect conclusion.
4. Conversely, the learned counsel for the respondent defended the impugned judgments and decrees of both the Courts below on almost for the same reasons which have been given in the judgments of the Court of appeal. He further contended that the time was essence of the contract and the agreement of sale was not brought on the record.
5. I have heard the learned counsel for the parties and have gone through the record.
6. In paragraph No,15 of the judgment of the lower appellate Court, by which the findings receded by the learned trial Judge on issue No,5 were affirmed, it has been stated that the relief sought for in the suit for specific performance of contract is equitable relief and the suitor who claims equity must come to the Court with clean hands and must show his fairness in this respect. While returning finding on issue No,5, both the Courts below are unanimous on the point that the agreement to sell is admitted between the parties and the contents whereof have also not been denied except on one point that the time was essence of the contract. Mehboob Alam, appellant appeared as P.W.1 as a witness of his own and deposed in support of the averments made in the plaint. He stated that in faithful compliance of the order dated 23-7-2003, to prove his bona fide, he has deposited an amount of Rs,18,00,000 in the Court vide Exh.P.1, He further stated that the defendant was requested telephonically to get the remaining amount, and execute the sale-deed in his favour but he was reluctant. Certificates of Muslim Commercial Bank have also been brought on record as Exh P-2.
7. 1 have noticed that the appellant has been non-suited for the conspicuous reason that the agreement, of sale dated 1-4-2003 has not been formally exhibited. Perusal of the record shows that the said document was annexed with the plaint and upon that instrument; the seal of the Court and signatures of the learned trial Judge are appearing. Article 113 of the Qanun-e-Shahadat Order, 1934 in terms provides that facts which have been admitted in the pleadings need not be proved. In the written statement., there is a clear admission with regard to execution of the agreement of sale on behalf of the respondent which was written in his own hand and admission may be oral or documentary but in the case in hand, the admission is not only oral but it is also in writing which fact stands projected from the written statement. Mere fact that the document was not formally exhibited, it makes no difference at all. The contents of the document which contains the seal and signature of the learned trial Judge could have been seen and judicial notice could have been taken.
8. Now the question remains to be settled by this Court is that whether in the given situation, the time was essence of the contract or not. The answer is in the negative. The agreement dated 1-4- 2003 reduced into writing by Dr. Muhammad Iqbal discernibly shows that he had accepted the earnest money of Rs,1,80,000 through cheque bearing No,0658685 to be got encashed from the Standard Chartered Bank, Tufail Road, Lahore Cantt. It was agreed that the remaining amount would be paid till 15th May, 2003. The said instrument provides for no penalty that in case of non- performance of the contract by the appellant-suitor, the amount shall- be forfeited. Bare perusal of the agreement dated 1-4-2003 shows that the parties intended to perform their part of contract within reasonable time. Similar question arose in Seth Essabhoy v. Saboor Ahmad (PLD 1973 Supreme Court 39) in which it was held:--- "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. From the bare perusal of the agreement afore- noted, it is crystal clear that the time in respect of immovable property could not be treated to be essence of the contract, 1 am also fortified in my view by Muhammad Anwar and 8 others v. Bahan and another (2000 YLR 378), Ghulam. Nabi and others v. Seth Muhammad Yaqoob and others (PLD 1983 SC 344), ISSO and another v. Muhammad Ismail and others (1992 MLD 1787), Muhammad Nawaz Khan and others v, Mst. Farrah. Naz (PLD 1999 Lah. 238) and Anjuman-e-Islamia, Sialkot through Khawaja Mahmood Ahmad, President, Anjuman-e-Islamia, Sialkot v. Haji Muhammad Younas and 3 others (PLD 1997 Lah. 153).
10. Much emphasis has been laid that this being a case of equitable relief, it was sweet discretion of the Courts below and it was not necessary at all to decree the suit in favour of the appellant, even if execution of the document was proved. Contention has no force. Syed Arif Shah v. Abdul Hakeern Qureshi (PLD 1991 SC 905) is complete answer to the proposition. The discretion exercised under section 22 of the Specific Relief Act should never be arbitrary and where it has been found that the suitor is not at fault, the discretion cannot be exercised to the disadvantage of the plaintiff. In the case . In hand, no motive whatsoever has been attributed except that the appellant did not perform his part of contract till the target date. There is no evidence available on the record of unimpeachable character to dislodge the claim of the appellant. It was imperative upon the defendant-Muhammad Iqbal to give the appellant notice under section 55 of the Contract Act. The whole record is silent on this point. Section 55 of the Contract ActiD reads:--- "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 to 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 of such acceptance, he gives notice to the promisor of his intention to do so."
11. In any event, the position, therefore, which springs out of the record is that to make the agreement of sale, essence of the contract, no notice whatsoever was issued. The necessary implication would be that the parties intended to perform the contract within reasonable time and the time was not essence of the contract. This case necessarily relates to the landed property and there could be no possibility of fluctuation of the price in the market within the shortest time. Claim of the respondent and the plea put forward to defend the suit is wholly unjustified. Appellant had every right to get the agreement of sale performed through the Civil Court. Both the courts below have fallen in error and committed illegalities ad infinitum in non-suiting the appellant on the grounds, which are non-existent.
12. Consequently, I accept this appeal and set aside the impugned judgment and decree dated 5- 11-2004 passed by the learned Additional District Judge, Lahore and that of the trial Judge dated 12-5-2004. The suit stands decreed in favour of the appellant in the terms prayed for with costs throughout.