MIAN SHAHID IQBAL, J.---This judgment will dispose of R.F.A. No,261 of 2006 and R.F.A. No, 324 of 2006 and cross-objections filed through Diary No,58641 of 2010 by Aqeel Ahmed through Mr. Ahmed Waheed Khan, Advocate.
2. Brief facts of the case are that one Attique Ahmed son of Abdul Hafeez filed a suit on 4-9-1994 for specific performance of agreement dated 1-8-1991 in respect of land measuring 336-Kanals, 11- Marlas fully described in paragraph No,1 of the plaint. It was also settled that price of the land shall be Rs, 2,52,000 per acre. At the time of said agreement plaintiff paid Rs,38,00,000 to the defendant No,1 on the day of execution of the sale agreement i,e, 1-8-1991, balance price of Rs,57,76,00,000 was to be paid on or before. 10-3-1992 i,e, the date of expiry of the agreement, defendant No, 1 showed his inability to execute the sale-deed, but received a sum of Rs,2,00,000 in respect of the said bargain on 3-3-1992 and executed a receipt thereof, thus extended the time of agreement till 15-4- 1992. Once again on 9-4-1992 defendant No,1 visited the office of the plaintiff and showed his inability to execute the sale-deed and requested for extension of time, at that moment he received a sum of Rs,7,00,000 in addition to the earlier amount received thus extended the date of agreement till 25-4-1992. It was further agreed on the said date that time for execution of the sale- deed would start from obtaining of the "Fard" from Patwari. The defendant No,1 on 22-4-1992 after receiving a sum of Rs,2,00,000 against a valid receipt admitting his inability to execute the sale- deed, for the reason to obtain a clearance certificate of land in question and also to settle the dispute with the person to whom the land was given for the purposes of brick kiln. He acknowledged that a sum of Rs,47,00,000 has been received by him and promised that by 10-5- 1992 the land would be free from all encumbrances, as such he would execute the sale-deed of the land in question possession of which is already with the plaintiff. Once again on 10-5-1992 the defendant No,1 approached the plaintiff, informed him that clearance certificate from the bank could not be obtained nor the dispute pertaining to the other matters could be settled as such requested for extension of time and executed a document dated 10-5-1992. It was also admitted by defendant No,1 that till the above mentioned date he had received Rs,47,00,000 towards the sale price of the land in question and balance of Rs,48,76,000 was to be received by him, thus extended the period to execute the sale-deed till 31-5-1992. Later on, on 30-5-1992 defendant No,1 again approached the plaintiff and asked for payment of money, therefore, a sum of Rs,3,76,000 was paid to the defendant No,1 by this time defendant No,1 acknowledged that total sum of Rs,50,76,000 has been received by him which includes Rs,3,76,000 and time for execution of the sale-deed was extended till 17-6-1992. Once again the time was extended till 15-7-1992 on the lame excuse on behalf of defendant No,1 to complete the formalities in order to get the property transferred in the name of plaintiff. The defendant No,1 once again approached the plaintiff on 14-7-1992 who disclosed that there is a stay order granted by the Civil Judge Kasur in which the next date of hearing is 26-7-1992 as such he is unable to get the sale-deed registered, till the said order is not vacated, therefore, time for execution of the sale-deed was extended till 31-8-1992. On 14-7-1992 when the time was being extended defendant No,1 received a sum of Rs,2,00,000 and executed another receipt acknowledging payment of the said amount.
3. Since 31-8-1992 was final date for the execution- of the sale-deed but on the said date as the requisite sale-deed was not executed for the reason of clearance of bank dues and other matters, therefore, defendant No,1 undertook with the plaintiff that he would issue a notice in writing to the plaintiff within 15 days from the clearance of charge and thereafter plaintiff would be entitled to get the sale-deed executed within three months from the date of receipt of said notice. It was also settled that time limit would start from the date of notice i,e, three months. Thereafter, plaintiff approached the defendant No,1 on many occasions and defendant No,1 also have been visiting the plaintiff for the purposes of payment of money, by that time a sum of Rs,26,93,00,000 was received by the defendant No,1 on different occasions against execution of different receipts which were acknowledged by the defendant No,1 and an amount of Rs,79,40,000 was transferred to him out of total consideration of Rs,95,76,000, thus only Rs,16,52,000 was left as remaining amount for the transfer of sale-deed. Thereafter, plaintiff has been visiting the defendant No,1 and requesting him to transfer the suit-land and receive the remaining amount but he came to know that defendant No,1 by virtue of an oral gift transferred the land vide Mutations Nos.9905 and 9926 dated 30-6- 1994 and 10-7-1994 respectively to his real son defendant No,2 which gave the cause of action to the plaintiff to file the instant suit.
4. During the course of proceedings in the titled suit one Aurangzeb filed application under Order I Rule 10, C.P.C. on 19-1-2005 which application was not contested by the plaintiff rather the counsel for the plaintiff made a statement on 2-2-2005 thereby allowing the applicant to be made a party to the proceedings as he had no objection, as such Aurangzeb was arrayed as defendant No,3 in the said suit. Needless to mention here that earlier to the making of defendant No,3 as a party, the defendants Nos.1 and 2 had already filed their written statements. but after the 'arraying of Auranzeb as defendant No,3 all the three defendants filed joint written statement on 21-2-2005.
5. In the said written statement the agreement was not denied rather it was submitted that plaintiff did not abide by the terms of the agreement which he was bound to, as such on his failure to pay the remaining amount of the sale consideration the agreement automatically expired and for that reasons the defendant No,1 transferred the suit property in the name of his son Asim Latif. The stance of the defendant No,3 in the said written statement was that he had purchased the property for valuable consideration without notice of any litigation between the parties because at that time as per the Revenue Record nothing was entered therein in the record that neither there was some litigation pending nor some stay order was issued in respect of the suit property, as such defendant No,3 being bona fide purchaser has got a right created in his favour by virtue of registered ,sale-deed. Hence to that extent the case cannot proceed.
6. After submission of written statement the learned trial court framed 22 issues on 5-4-2006 subsequently vide order dated 22-9-2004 Issues Nos.16, 17 and 18 were reframed on 1-7-2000 and on their place new issues numbering 16, 17, and 18 having been framed by the above said order, whereas Issue No,19 was framed on 16-2-2005. After framing of issues parties were asked to, produce their evidence.
7. In order to prove the case, plaintiff himself appeared as P.W.1 and also tendered documents as Exh. P1 to Exh.P22 in his statement. He also produced Abdul Rehman as P.W.2, Muhammad Tahir Khalid as P.W.3. Vide statement dated 11-5-2005 plaintiff conclude his evidence except in rebuttal and documentary On 15-6-2005 the learned counsel for the plaintiff further produced documents as Exh.P-22 to Exh.P-43 in his statement and concluded his documentary evidence. On the reverse defendant No,1 appeared as DW-1 and also produced Ghulam Jillani as DW-2, Muhammad Asim as DW-3. The defendant No,3 himself appeared as DW-4 and produced Mirza Iqbal as DW-5. The defendants closed their oral evidence on 10-3-2006 whereas on 15-3-2006 they tendered documents as Exh.D-4 to Exh.D-13. After final conclusion of evidence the learned trial court vide its judgment and decree dated 19-4-2006 decreed the suit subject to the payment of remaining amount of Rs,43,00,000 to the defendant No,1 within one month failing which the suit would be deemed to have been dismissed. Hence, against the judgment and decree dated 19-4-2006 all the concerned parties filed above mentioned R.F.As. against which cross objections were filed by Aqeel Ahmed (respondent No,1).
8. With the able assistance of the learned counsel for the parties we have gone through the evidence.
9. Plaintiff appeared as P.W.1; he fully supported the contents of the plaint. During his cross- examination he stated that Rs,38,00,000 were paid at the time of execution of agreement Exh.P-1 in presence of Malik Abdul Rehman and Muhammad Tahir Khan P.W.3. He further stated that he could not give the details with regard to the writing of the other documents which he did produce in his statement as Exh.P-1 to Exh.P-43. He further admitted that the above said witnesses who had singed the agreement to sell Exh.P-1 were his employees; none of the receipts was signed by him.
During cross-examination all the documents were'put to him, he gave detail summary of each one.
He also identified the signatures of Abdul Latif on the documents which he had tendered during his cross-examination. He denied the suggestion that execution of the agreement was to expire on 31- 8-1992 but said that it was 10-3-1992. He also admitted in cross-examination that from time to time for 7/8 times the period for execution of the agreement to sell was extended. In the last no specific date was determined for getting the execution of agreement to be completed. He also narrated in cross-examination that his possession was forcibly taken over by the defendant No,1 and in that regard he got registered an F.I.R. He denied the suggestion that agreement to sell was made through the good office of one Muhammad Arshad property dealer. He also denied the suggestion that receipts produced by him are forged and fabricated. He further denied the suggestion that instant suit was got restored due to the reason, that price of the property had gone up which prompted him to file restoration application.
10. P.W.2 Abdul Rehman one of the witnesses of the agreement to sell gave all the details of the documents signed by him. He further narrates in examination-in-chief the execution of Exh.P-4 to Exh.P-14, Exh.P-l8, Exh.P-20, Exh.P-21 and gave details of signatures of all the executants on the said documents. In cross-examination he stated that Exh.P-1 was signed by him; at the time of execution of said agreement the same was read over to the executants. He also admitted that Exh.P-2 bears his signature; Exh.P-3 is also signed by him. He further stated in cross-examination that the receipts were written by a retired old man who hails from Niaz Baig Thokar, all the documents were got written by the plaintiff. The revenue receipts on the said receipts were pasted in the office. All the receipts on which he is one of the witnesses were written in the office of one Aqeel. All these receipts were written by said old man from Niaz Baig Thokar and Exh.P-3 was also written by said person. He gave complete details of the receipts which were put to him during cross-examination. He denied the suggestion that receipts/, documents put to him are forged. He further stated that in the last no period for execution of the sale agreement was made. He could not tell whether the defendant No,1 and others against whom plaintiff got registered a criminal case were acquitted or not. He also had no knowledge about the mortgage of the property with the bank and also could not tell that plaintiff got some blank papers signed from Abdul Latif in order to get the property alienated.
11. The third witness produced by the plaintiff was Muhammad Tahir Khalid who is also one of the witnesses of the Exh.P-1. In cross-examination he stated that document was signed over by him and the same was read over to the parties. At the time of execution of agreement to sell Rs,38,00,000 was received by defendant No,1 in his presence; execution took place in the office; he identified signatures of the plaintiff. He also admitted in cross-examination that he is one of the witnesses of Exh.-P21 and identified his signatures. In cross-examination he further narrated that he signed Exh. P-1 at one place, Awais signed all along with him. Exh.P-11 was signed by him at time of noon; Exh.P-21 was signed by him after reading it. He further states that he does not know who wrote this document; through Exh.P-21 defendant No,1 received cheque. He denied the suggestion that documents are forged.
12. On the reverse, defendant No,1 appeared as DW-1. In his examination he admitted that agreement to sell was executed by him but further narrates that he received Rs,3,00,000- only as earnest money. He further narrated that agreement to sell was arranged through a property dealer Arshad Ali; he also admits in cross-examination that total price of land was settled as Rs,95,00,000.
He further states that Aqeel executed receipt on behalf of Arshad Ali which is Exh.D-1 (under objection). He further states that after the expiry of agreement, he transferred the property to his son by way of gift and also the possession which is still with him. He further states that no suit was pending at the time of making of gift and even no stay order was in existence. He further states that they were acquitted in the criminal case. He singed 4/5 blank papers for obtaining Fard which were given to plaintiff and those have been converted into receipts. It is further alleged that receipts are forged and fabricated. In the last he states that had the plaintiff paid him the amount in time he would have executed the sale-deed; as he is not owner now as such he cannot transfer the property after the expiry date. In cross-examination DW-1 admits that Exh.P-1 is the same agreement which was executed and thumb-marked by him, same was signed in presence of the plaintiff. It is also admitted that neither Exh.P-1 is signed by Irshad nor in the body of the agreement there is anything mentioning of the said person. He further admits that Exh.P-2, Exh.P-3, Exh.P-4 Exh.P-7, EXh.P-8, Exh.P-10 and Exh.P-12 are singed by him whereas, Exh.P-6, Exh.P-7 and Exh.P-8 are also thumb-marked by him. He denies signatures on Exh.P-12, Exh.P-18, Exh.P-19 and Exh.P-21. Along with his denial he further explains that these documents were got signed by plaintiff in blank which have now been reduced into writing. He further admits that Exh.P-2/5 is in his writing. It is also admitted by DW-1 that in paragraphs 3, 4 and 6 of the written statement he has admitted receipts of cheques. He denies the suggestion that as per receipts the time for completion of the agreement was extended s and it was only due to the reason that since the documentation for the sale-deed was not completed as such the time was extended. He only admits that time for completion of the agreement was extended to 31-8-1992. It has been denied by him that due to injunction orders issued by the civil court in a suit filed by Brig. Qaiser Ali completion of the agreement could not be finalized. He admits in cross-examination that no notice was given for cancellation of the agreement to sell. He admits in cross-examination that in order to correct the entries of Khasra Girdawri he moved an application to D.C., Kasur. He does not remember that the same was decided in favour of the plaintiff. Finally, he admits this fact that no suit was filed for cancellation of documents.
13. Ghulam Jillani DW-2 appeared and admitted the agreement to sell. He further narrates in examination-in-chief that same was arranged through the office of one Arshad. He further narrates that possession of the property is with Asim. He admits that only Rs,3,00,000 were paid by the plaintiff to the defendant No,1 regarding the remaining amount. In cross-examination he states that he does not know who wrote agreement and who are the witnesses of the said agreement. He admits that defendant No,1 signed the agreement. In cross-examination he further shows his ignorance that he has no knowledge that whether Brig. Qaiser Ali had filed suit in respect of the property or not. He admits in cross-examination that defendant. No,1 did sign one or two blank papers and explains that these blank papers were signed by defendant No,1 for issuance of Fard and electric connection.
14.Asim Ali DW-3 appeared and stated that property was transferred to him by his father as gift.
At the time of transfer he was of a tender age; he got possession of the suit property. He further admits that 16-Acres of land was transferred to him by defendant No,1 through gift. Some other portion of land was also given in exchange to his wife. He further narrates that he was not in the knowledge of dispute at the time of making of gift. In cross-examination he states that he was at the age of 16/17 years when the gift was made. He further narrates that two years back he transferred property to defendant No,3 by virtue of sale and about four years have passed when he exchanged property with his wife. He has shown his ignorance regarding the pendency of the present proceedings when the exchange between him and his wife was made. He admits the fact that he and his father live together. He denies the suggestion that in order to save the property the defendant No,1 gifted the same to him. He further reiterates that he had no knowledge of the pendency of suit. Evidence of the defendant was closed on 27-1-2006.
15. Defendant No,3 who is a subsequent purchaser appeared as DW-4. In his examination-in-chief he admits that he purchased land measuring 160-Kanal and 17-Marlas 1 3/4 years ago from defendant No,2 and his wife Farhat alias Nasreen for Rs,50,00,000. He further gives detail that land measuring 6/5 3/4 Acres was purchased from defendant No,2 for Rs,20,00,000 and land measuring 10-Acres from Farhat alias Nareen for Rs,30,00,000 by virtue of sale-deeds which are Exh.D2 and Exh.D3. He further narrates that no injunction or suit was pending at the time of transfer of the property. He was not in the knowledge of any agreement between the parties. He took over the possession at the time of transfer of property. It is the claim of defendant No,4 that he purchased the property for valuable consideration in good faith after selling his other land. In cross- examination he narrates that after purchase of the suit property he filed an application in the titled suit for becoming a party. He has shown his ignorance regarding from what time suit is pending. In cross-examination he admits that he came to know regarding pendency of the suit when he filed application Under Order I Rule 10, C.P.C. He further narrates that after making inquiry the application was moved. He admits that he is now in complete knowledge of the litigation going in respect of the suit property. He denies the suggestion that suit property was purchased by him in connection with defendants Nos. 1 and 2.
16. Defendant No,3 produced two witnesses DW-5 and DW-6. DW-5 happens to be his real brother who narrates in examination-in-chief regarding his relation-ship. He further narrates that 2/1-3/4 years ago property was purchased by his brother from defendant No,2 and his wife Farhat as no injunction order was pending. At that time defendant No,2 did not tell them about pendency of the suit; his brother purchased the property for valuable consideration in good faith. In cross- examination he further narrates that the amount was given to the defendant No,2 was brought from the bank. He denies the suggestion that no payment was made in respect of the property transferred to him. He also denies the suggestion that defendants Nos. 1 and 2 gave him complete detail of the pendency of the suit before execution of the sale-deed in his favour. He admits that he did not inquire about the pendency of the suit at the time of transfer of the property. He admits that he came into knowledge of the suit when he was called for evidence. DW-5 closed his evidence on 10-3-2006.
17. Learned counsel for the appellant of R.F.A. No,261 of 2006 submits that as time was essence of the contract hence, after expiry of same appellant was under no obligation to abide by the agreement to sell Exh.P1, as a result of that he gifted the suit property to his son as no bar existed against the same. Further submits that as the respondent No,1 failed to make the total consideration hence, the agreement to sell automatically expired with the result that amount paid through earnest money was forfeited by him; further submits that property was transferred through gift in favour of his son when neither the suit was in existence nor any stay order was granted. Hence, transfer of suit property was under no charge or lien, therefore, he was legally entitled to do the same. Learned counsel further submits that respondent No,1 got a case F.I.R.
No,438 of 1997 registered against the appellant in which he was honourably acquitted, hence judgment and decree cannot hold the field. Further submits that as per execution of agreement respondent No,1 got few blank papers signed by the present appellant hence receipts created on the basis of said document are forged and fabricated, therefore, suit could not proceed on the basis of the said documents, as a result of that judgment and decree was not sustainable.
Learned counsel for the appellant of R.F.A. No,261 of 2006 not only supports the case of appellant of R.F.A. No,324 of 2006 but further submits that appellants are bona fide purchaser of property without notice hence the impugned judgment and decree is not sustainable and is liable to be set aside.
18. On the reverse, learned counsel for the respondent No,1 submits that agreement Exh.P1 has been admitted by the appellant of R.F.A. No,261 of 2006, receipts Exh.P2 to Exh.P12 have also been admitted. It is also admitted that Exh.P6 to Exh.P8 have also not been denied, only Exh.P12, Exh.P18, Exh.P19 and Exh.P21 have been denied with an explanation that blank papers were signed and they have been subsequently reduced into writing. Further submits that learned trial court after proper appraisal of evidence has decreed the suit especially in the circumstances, when agreement is admitted. Even otherwise, Abdul Rehman P.W.2 and Muhammad Tahir Khalid P .W.3 through their examination-in-chief and cross-examination stood to the test of cross-examination wherein they have clearly and in ambiguous terms stated that agreement was signed in their presence and subsequent payments were also made through different receipts which is even not denied by the present appellant of R.F.A. No,261 of 2006. Hence, in the presence of vague denial judgment and decree cannot be interfered with. Further submits that delay, if any regarding the execution of the agreement to sell Exh.P1, was on the part of appellant of R.F.A. No,261 of 2006 who had been postponing the matter as he had to clear the bank dues as well as had to conclude a civil litigation which was pending between him and one Major Qaiser Ali whichever is not denied. Hence, judgment and decree passed by courts below cannot be interfered with. In support of his contention he has referred to 2010 SCM R 286, 2009 SCM R 114, PLD 2003 SC.430, PLD 1983 SC 344 and PLD 2009 SC 419.
19. We have heard learned counsel for the parties and with their able assistance also gone through the evidence and documents on record.
20. Firstly, from the record it is not denied that Exh.P1 was not executed between the parties and there was an agreement to sell. The only thing which has been submitted by the appellant of R.F.A.
No,261 of 2006 was that since the respondent No,1 failed to pay the amount within the stipulated period, hence on the expiry of said period the agreement was automatically cancelled with the result that he was under no charge or obligation to further allow time to respondent No,1 for completion of same, hence transferred the same. These arguments of the learned counsel for appellants cannot be accepted in the light of fact that initially this property was transferred by way of gift through Mutations Nos.9905 and 9926 dated 30-6-1994 and 10-7-1994 to his real son which shows the reason that appellant wanted to create all types of legal bar and hurdle so as to withhold respondent No,1 from making claim against the property in question which is even evident from the cross-examination of the appellant who appeared as DW-1 and submitted that property in question has now been transferred to respondent No,2 and it is no more in his name. Hence, these contentions of the learned counsel for appellants in these circumstances would not hold the field.
21. The next submission made by learned counsel for the appellants was that as time was essence of the contract and as respondent No,1 within the stipulated period failed to complete the said agreement resultantly on the expiry of given period the agreement automatically lapsed with the result that amount was forfeited, not only respondent No,1 could claim execution of the agreement but even the amount could not be claimed. The evidence placed on record shows that appellant from time to time had been extending time for the execution of agreement to sell and during all this period as he has been receiving the amounts most of which are not disputed total of which comes to Rs,79,40,000 till the suit was filed. Though the total amount was not agreed by the learned trial court but as in cross-examination the appellant of R.F.A. No,261 of 2006 had admitted the execution of agreement to sell and Exh. P4 to Exh.P21. In presence of admission of these documents the learned trial court had finally concluded that time was never essence of the contract hence the suit was decreed.
22 . Moreover, it is not denied on record that appellant of R.F.A. No,261 of 2006 did not issue any notice in writing but the cancellation was conveyed orally showing his intention regarding same, these arguments of learned counsel for the appellant of R.F.A. No,261 of 2006 are also not sustainable in the light of evidence placed on record, in a latest judgment it has already been held that in order to make time to be the essence of contract it is necessary and binding upon the parties to issue notice and in absence of that the time was never taken to be the essence of contract. Reliance is placed on 2010 CLC 982. Abstract of which is reproduced as under:-- "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 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 are 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 and infinitum in non-suiting the appellant on the grounds, which are non-existent".
2000 YLR 383 "It is also settled proposition of law that in respect of agreement of sale qua immovable property time is not of the essence of the contract even though mentioned in the agreement itself unless written notice is addressed by one party to the other".
Even for the sake of arguments if this plea is accepted (though not) even then it has been held in PLD 1973 SC 39, that since, time was not essence of the contract hence notice issued for 3 days would not be taken to be a completion in the said matter.
Reference is made to PLD 1973 SC 39. Relevant portion is reproduced as under:-- "It is a well-settled principle of law that in contract 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."
Hence, these arguments of learned counsel for the appellants of R.F.A. No,261 of 2006 in this regard also fail.
23. Learned counsel for the appellant of R.F.A. No,261 of 2006 has also alleged that as in a criminal case hence it would affect the proceedings in the civil matter. We are not in agreement to the arguments of learned counsel for the appellant of R.F.A. No,261 of 2006 as it is settled law that criminal proceedings are to be decided on its own facts and civil on its own, thus this ground of learned counsel for the appellant also fails.
24. As far as the arguments of learned counsel for the appellants of R.F.A. No,324 of 2006 are concerned, that they are bona fide purchaser without notice. We are afraid that, these arguments of learned counsel for the appellant cannot be accepted as appellant of R.F.A. No,261 of 2006 during his cross-examination had admitted the fact that respondent No,1 after execution of agreement to sell Exh.P1 got the same incorporated in the Revenue Record regarding execution of agreement between appellant of R.F.A. No,261 of 2006 and respondent No,1 which application was moved by the appellant of R.F.A. No,261 of 2006, in case the appellant of R.F.A. No,324 of 2006 had made certain preliminary inquiries from the Revenue Record they could have easily worked out regarding earlier execution of agreement between the parties and before entering into any agreement appellant of R.F.A. No,261 of 2006 should have verified these facts. In absence of that it can safely be said that appellant of R.F.A. No,324 of 2006 was in knowledge of the same and he purchased the property during subsistence of said agreement, therefore, it F cannot be said that appellant of R.F.A. No,324 of 2006 was a bona fide purchaser without notice. Hence, the grounds taken by the appellant that they were bona fide purchaser are not borne out from the Record which, shows that in the Revenue record it was incorporated that appellant of R.F.A. No,261 of 2006 had entered into an agreement hence these facts could have easily been known from the said public record if some inquiry was made. In the light of evidence on record nothing has been proved that appellants of R.F.A. No,324 of 2006 were bona fide purchaser without notice, therefore, their contentions also cannot hold the field.
25. Learned counsel of both the R.F.As. have submitted that during the transfer of property neither civil suit was pending nor any injunction order was in existence, hence transfer made is legally protected, judgment and decree passed by courts below are not sustainable. We are afraid that this contention of the learned counsel for appellants cannot hold the field that suit was restored after its dismissal for non prosecution hence lis would be deemed' to be pending from the date of institution, as such all the proceedings and actions taken during that period will be subject to result in the said lis. Reliance is placed on PLD 2009 SC 419, relevant portion of which is reproduced as under:-- "---Pending suit, property cannot be disposed of and if some one opts to do so, he shall be responsible for such deeds---If a transaction of sale had taken place after the institution of the suit, the rights of the decree holder shall be protected".
26. In all the above judgments referred to by learned counsel for the appellant Hon'ble Supreme Court of Pakistan has categorically held that in order to make time essence of the contract the same is to be gathered from the language of agreement executed and surrounding circumstances. The judgments so laid down in all four corners applied to the case in hand.
27. The upshot of above discussion is that R.F.A. No,261 of 2006 and R.F.A. No,324 of 2006 stand dismissed. The cross-objections filed through Diary No,58641 of 2010 are upheld with the result that judgment and decree passed by the learned trial court is sustained.