' JAVED IQBAL, J.--The above captioned appeal and Civil Petition for leave to appeal are being disposed of by this judgment involving the similar questions of law and facts and arising out of the same judgment.
2. The facts of the case have in some detail been set out in the impugned judgment and need not therefore, be reproduced here in extenso.
3. Two suits for specific performance and rescission of agreement were filed by the parties which were consolidated and in view of divergent pleadings, issues framed, the parties led the evidence pro and contra and the suit filed by Syed Hussain Sajjad (respondent/plaintiff) decreed subject to deposit of Rs,37,00,000 and suit filed by Mst. Mehmooda Begum (appellant) was dismissed vide judgment impugned, concluding portion whereof is reproduced herein below for ready reference:- - "11. For all that has been discussed above, findings recorded by the learned trial Court on all issues are confirmed and decree for specific performance of the agreement dated 25-6-1995 is upheld.
However, respondent No,1 shall take all steps to make a deposit of Rs,3,00,000 in the trial Court within 30 days of this judgment. The amount so deposited under the decree of the Court may be withdrawn by the appellant from the learned trial Court. The decree dismissing the suit filed by the appellant is also upheld. RFA No,121/2001 is accordingly dismissed while RFA No,120/2001 is disposed of in terms stated above."
4. Heard Mr. Gulzarin Kiani, learned ASC on behalf of appellant (Mst.Mehmooda Begum) whose main contention also mentioned in the memorandum of appeal seems to be that "agreement for sale was executed on 25-6-1995. Date for completion of transfer was fixed as 25-8-1995. Sale price was fixed at Rs, fifty lacs. Rs, ten lacs was paid as earnest money to the owner. Balance sale price in the sum of Rs,forty lacs was payable on or before 15-8-1995 positively. Date for payment of balance price and completion of transfer was extended till 15-10-1995. The agreed balance was not paid by the due date. Mst. Mehmooda Begum gave notice dated 3-9-1995 to respondent No,1, informing him of his failing and consequent rescission of agreement for sale and forfeiture of earnest money.
As a counter blast; respondent No,1 gave notice dated 10-7-1996 to Mst. Mehmooda Begum which was duly replied to by her. Despite that filing of suit for specific performance was delayed till 12-11- 1996 by respondent No,1. From the date of agreement i,e, 25-6-1996, till todate, value of real estate in Islamabad and elsewhere had risen manifold and money value decreased due to inflation/deflation. Respondent No,1 withheld the payment of balance sale price. Appellant remained ever ready to complete the transfer of property upon payment of balance price Respondent No,1 had no money with him to make the payment in time and delayed the matter to suit his own convenience. In the circumstances, the plaintiff was not entitled to the discretionary relief in equitable jurisdiction of the Court. In view of the above, whether the learned Courts below were right in exercising the discretion in favour of respondent No,1 for decreeing specific performance of the contract for sale upon payment of Rs, forty lacs, when the real price of the house/property ran into more than a crore of rupees."
5. Syed Hassan Sajjad (respondent No,1) remained present in person and supported the judgment impugned for the reasons enumerated therein with the further submission that the judgment impugned being well based hardly warrant interference and besides that in view of the agreement admitted by the parties, the question of any further compensation or enhancement in consideration does not arise.
6. We have carefully examined the above mentioned contentions as agitated on behalf of the parties in the light of relevant provisions of law, record of the case and perused the judgment impugned carefully. It revealed from an in depth scrutiny of the record that there are certain admitted facts of the case such as that the property in question was devolved upon Mst. Mehmood Begum and Imran Haqqani jointly, the execution of agreement (Ex.P/1), receipt of Rs,10,00,000 (earnest money) and Rs,3,00,000 (Ex.P/2). In our considered view it would be an exercise in futility at this stage to consider the question as to whether in such like cases "time is the essence of contract or otherwise". It is, however, well settled by now that in such like cases time is not the essence of contract, performance whereof depends on various factors A such as attending circumstances, unforeseen eventualities and intention of the parties which is to be ascertained from the contents of agreement executed between the parties. Reference in this regard be made to the dictum laid down in the following cases:-- ' Abdul Hamid v. Abbas Bhai Abdul Hussain Sodawaterwala (PLD 1962 SC 1), Seth Essabhoy v.
Saboor Ahmad (PLD 1973 SC 39).
7. There is no denying the fact that an amount of Rs,3,00,000/- has been received and acknowledged(Ex.P/2). It is also an admitted feature of the case that an amount of Rs,10,00,000 was received as an earnest money. There could be no hesitation in one's mind qua acceptance of Rs,40,00,000 pursuant to the agreement (Ex.P/1) executed between the parties. It is an admitted reality that value of property has gone up and thus the amount paid does not commensurate with the prevailing market price. Now here at this juncture the question would arise as to whether the amount of consideration can be enhanced or otherwise? Before dilating upon the said question, it may be kept in view that "section 22 provides that the jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so, but the discretion of the Court is not arbitrary but sound and reasonable guided by judicial principles and capable of correction by a Court of appeal." (Abdul Karim v. Muhammad Shafi. 1973 SCMR 225). It hardly needs any elaboration that "grant of decree for specific performance of a contract is a discretionary relief and the Court is not bound to decree such a suit merely because it is lawful. The Court has also to see the conduct of the person asking for such relief as also his readiness and willingness and capacity to make payment. "(Emphasis provided). Ali Muhammad v.
Shah Mohammad PLD 1987 Lah. 607, Bank of Bahawalpur, Ltd. v. Punjab Tanneries, Wazirabad Ltd.
PLD 1971 Lah. 199 and Sree Lal v. Hariram AIR 1926 Cal. 181).
8. As mentioned herein above, grant of relief in such like cases is somewhat discretionary and therefore, the question as mentioned herein above can be answered by keeping in view the overall scenario of the case. The terms and conditions as enumerated in agreement (Exh.P/1) were to be fulfilled by 15-8-1995 which could not be done by both the parties. The balance amount of Rs,40,00,000 could not be paid within stipulated period by the respondent and the appellant also failed to honour his commitment qua delivery of possession for whatever the reason may be. The respondent had obtained the possession of basement which remained in his occupation. In the same wake of events, it has been observed that the appellant had utilized the entire house (except basement) and thus they cannot be considered as deprived parties but the degree of deprivation of respondent is lesser as compared to Mst. Mehmooda Begum (appellant) in view of the prevalent market price. However, the conduct of both the parties cannot be ignored being an important factor to be considered in such like controversies. It is worth mentioning that "under section 24(b) of the Specific Relief Act the plaintiff must first allege and then, it is traversed, prove that he had performed all the conditions which lie was bound to perform and that he had been ready and willing at all times to perform his part of the contract and a repudiation by the plaintiff need not be express and it may be inferred from his conduct which, may include, his insisting on a condition, to which he is not entitled under the contract" (ILR 1949 Nag.581). Similarly, it is also kept in view that "person who asked for equity must himself do equity. Plaintiff having exercised his option to purchase the property as per terms of agreement was required to have deposited the amount of sale at the time of suit. He having failed to do so deprived the defendant of the profits while he himself continued earning profit for all the time. Plaintiff was directed to pay interest at the rate of Rs,20% per annum to the decree. Being a discretionary relief, a Court of Law has full discretion to allow or refuse specific performance. If circumstances justify such refusal although the contract may be free of any legal defect. The Court has its discretion to refuse specific performance even though it might be lawful. Specific performance should only be granted if it is just in all the circumstances and equitable to do so. It is also absolutely within Courts discretion to grant specific relief. There are no rigid rules as to when and where the discretion is to be exercised. However, the discretion of the Court in granting the relief of specific performance has to be exercised in accordance with settled and fixed principles and if the contract is unobjectionable in its nature and circumstances specific performance is as much a matter of course and therefore of right as are damages. A mere hardship of the results will not affect the discretion of the Court" (Emphasis provided) (M. Imamuddin v. Bashir Ahmad 1989 CLC 2309, Mohammad Taqi v. Muhammad Anwar Khan Ghauri 1983 CLC 1085, Nazir Hassan v. Ejaz Ahmad Khan 1981 SCMR 684, Nawab Meah v.
Ezazuddin Ahmed PLD 1962 Dacca 655, Abdul Hamid v. Abbas Bhai Abdul Hussain PLD 1962 SC 1, Hari Krishna v. K.C. Gupta AIR 1949 All. 440). It is to be kept in view that "although specific performance is not granted ex debito justitiae , that is, as a matter of right on mere proof of a legal contract, the discretion to grant or refuse such relief must be governed by sound and reasonable principles, for the exercise of the discretion is itself a judicial issue. The circumstances and principles which would justify a refusal of the relief cannot be specified in a short compass, although, generally speaking they are by now well settled. But the categories of such principles cannot be said to have been exhausted, having regard to the exigencies and needs of a changing society. In a sense, however, it would be correct to say that the relief will not be refused unless sound principles justify such a course. The dominant principle in such cases has always been that equity will only grant specific performance if under all the circumstances it is just an equitable so to do. A specific performance of an agreement cannot be refused on the ground that higher price is offered after the contract is concluded. The general rule of equity is that if a thing is agreed upon to be done though there is a penalty annexed to secure its performance, yet the very thing itself must be done." (Mr, Hashmat Ali v. Birendra Kumar Ghosh PLD 1965 Dacca 56, Abdul Hamid v. Abbas Bhai Abdul Hussain Sodawaterwala PLD 1962 SC 1 and Sadiq Hussain v. ANUP Singh AIR 1924 Lah. 151).
9. As we have also pointed out above this Court is competent to consider the conduct of the parties to the agreement and circumstances attending its execution and if specific performance will give an unfair advantage to the plaintiff over defendant. It should be refused as held in case titled Jethalal N. Modi v. Bachu (AIR 1945 Bom,481). However, the judicial consensus seems to be and it is otherwise well entrenched legal proposition that "inadequacy of consideration is by itself, not a ground for refusing specific performance of an agreement. There is no justification for relieving one of the parties from its obligation only for the reason that it might give some monetary loss to the other. Although section 22 of the Specific Relief Act, 1877, does empower the Court to refuse specific performance of the agreement in cases of hardship but the hardship contemplated by that provision is of the nature which could not be foreseen by the parties at the time of agreement. In the case of Imanakchand v. Puma (AIR Madh. Par.235) it was held that where the price is so grossly inadequate as to shock the conscience of the Court and either by itself or in conjunction with other circumstances such as illiteracy, oppression etc, it evidences fraud or that undue advantage was taken by the other side, the Court will refuse specific performance". Sir Edward Fry in his book "A Treatise on Specific Performance of Contracts" at page 210, states:- ' Inadequacy of consideration, if only amounting to hardship or even great hardship is no ground for relieving a man from a contract which he has wittingly and willingly entered into; but that it may be so enormously great as to be a conclusive evidence of fraud, and that it is then a ground for setting aside the transaction affected by it."
' Referring to a case of Close v. Trecothic (9 Ves. 246) Fry has relied upon the following passage of the judgment of Lord Eldon:-- "Unless the inadequacy of price is such as shocks the conscience and amounts itself to conclusive and decisive evidence of fraud in the transaction, it is not itself a sufficient ground for refusing a specific performance."
' Reliance can be placed upon the case of the Administrator General of Bengal v. Juggeshwar Roy and others. The Privy Council while considering the defence of inadequacy of consideration, relied upon the judgment of Lord Westbury in the case of Tenant v. Tenants and quoted his observations in the following manner:-- "Lord Westbury very shortly and clearly stated the law upon this subject. He says, "it is true that there is an equity which may be founded upon gross inadequacy of consideration, but it can only be where the inadequacy in such as to involve the conclusion that the party either did not understand that he was about, or was the victim of some imposition". (ILR 3 Ca1.192, LR 2 Scot Ap.6, Ali Muhammad Khan v. Riazuddin Khera PLD 1981 Kar. 170, Muhammad Boota v. Muhammad Sarwar 1987 CLC 211)". Also see the Specific Relief Act, 1977, edition 2002 by M.Mahmood."
10. The upshot of the above discussion would be that the appeal and petition being devoid of merits are dismissed with the modification that an amount of Rs,30,00,000 (rupees thirty lacs) shall be paid by Syed Hassan Sajjad (respondent No,1) within one month as additional consideration in view of the devaluation in currency and rise in the price of the property irrespective of their location in entire Islamabad as it would be in the interest of justice, fair play and equity.