RAUF AHMAD SHEIKH J.---The petitioner has assailed the judgment and decree dated 26-4-2005 passed by Mr. Arshad Hussain, learned Civil Judge 1st Class, Lahore, whereby a suit for specific performance of the contract filed by the petitioner against respondent No,1 was dismissed and the judgment and decree dated 7-7-2009 passed by Ch. Shahid Naseer, learned Additional District Judge, Lahore, whereby the appeal preferred by the petitioner against the said judgment and decree passed by the learned trial court was also dismissed.
2. The petitioner averred that an agreement to sell dated 15-12-2001 was entered into between him and respondent No, 1 . in respect of Plot No,157 Block-B Phase-V, measuring one Kanal, DHA, Lahore, for consideration of Rs,13,80,000 out of which a sum of Rs,1,50,000 was paid at the time of the execution of the agreement. It is stated that 20-1-2002 was fixed the date for completion of the sale but the defendant/respondent No,1 failed to provide the necessary documents and clearance certificate from the Society in spite of repeated requests and started negotiations with the third party for sale of disputed plot by ignoring the commitment made with him and in violation of the terms and conditions of the agreement. The petitioner filed a suit for permanent injunction on 8-4- 2002 and the same was fixed for 29-7-2002. It was alleged that the respondent No,1 was not ready to perform her part of the contract and execute the sale-deed on receipt of the remaining' consideration i,e, Rs,12,30,000. With these averments, a decree for specific performance of the contract dated 15-12-2001 was prayed for.
3. The defendant/respondent No,1 contested the suit and contended that she had explained to the plaintiff/petitioner that in order to liquidate her other financial obligations, she definitely required the payment of the remaining amount of Rs,12,30,000 on or before 20-1-2002 and the time would be essence of the contract. It was agreed that if the plaintiff/petitioner failed to pay the remaining amount by the above mentioned date then the earnest money would stand forfeited and the agreement would stand rescinded. According to her, she approached the petitioner several times to get the sale-deed executed after making the payment of the remaining consideration but he failed to perform his part of the contract within the time fixed by the parties, which was essence of the contract so the same stood rescinded on expiry of the time limit.
4. After framing the issues, recording the evidence and hearing the arguments, the learned trial Court dismissed the suit vide judgment and decree dated 26-4-2005. This judgment was assailed through an appeal, which met the same fate vide judgment and decree dated 7-7-2009 passed by the learned ADJ, Lahore.
5. The learned counsel for the petitioner has vehemently contended that the time was not the essence of the agreement and that even if the agreement in dispute is construed to bear the condition providing a stipulation for execution of the sale deed by a target date i,e, 20-1-2002, the petitioner cannot be deemed to be responsible for non-completion of the same and as such both the learned courts below erred in holding that he was not entitled to the decree for specific performance of the contract. It is urged that the evidence of DW-3 and the documents Exh.D.1 to D.4 have been manoeuvred just to create an excuse to avoid performance of the contractual obligations. In support of the contentions raised, reliance is placed on Mst. Amina Bibi v. Mudassar Aziz (PLD 2003 SC 430), Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCMR 2189), Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344), Shaukat Ali and 3 others v. Javeed Qureshi and 5 others (2007 CLC 1578), Basheer Ahmad v. Fazal Din (2006 CLC 694) and Shaukat Ali alias Shaukat Hayat and another v. Muhammad Hanif and others (2004 MLD 1868).
6. Controverting these arguments, the learned counsel for respondent No,1 has contended that the petitioner and the DWs belong to a group of exploiters who are apparently operating as property dealers in DHA, Lahore and have adopted a common practice that they pay nominal earnest money and then avoid performance of their part of the contract till they find next purchaser and in this manner exploit innocent people. It is contended that in spite of repeated requests, the plaintiff/petitioner did not make the arrangement for payment and the respondent No,1 was put to agony of financial constraints and finally she appeared before the DHA Authorities along with an application (Exh.D.1) accompanied by documents and a cheque of Rs,5,02,500 but the petitioner did not turn up so he failed to perform his part of the contract within the stipulated time, which was essence of the contract as explicitly and unmistakingly mentioned in the agreement. It is also stated that the petitioner had failed to perform his part of the contract as he did not have funds, which fact is fortified that even after filing of the suit, he was directed to deposit a sum of Rs,12,30,000 before 6-3-2003 but he could not deposit it within the said period and deposited the same on 17-3-2003. It is urged that the decree for specific performance of the contract is discretionary and the learned trial Court and the learned ADJ rightly held that the petitioner who was not willing to pay the remaining consideration and failed to perform his part of the contract was not entitled to the same. In support of the contentions raised, reliance is placed on Muhammad Sharif Dhariwal and another v. Mst. Sofia Begum and 9 others (1993 MLD 1118), Sarfraz Haider and another v. Mst. Khatija Bai and 4 others (1990 CLC 1649), All Muhammad v.. Shah Mohammad and others (PLD 1987 Lahore 607), Muhammad Yaqub v. Muhammad Nasrullah Khan and others (PLD 1986 SC 497), Ahmad Bakhsh v. Mst. Zeb Ilahi (PLD 1981 B.J. 60) and Younus Billoo v.
Mst. Piyari Begum (2007 YLR 992). Learned counsel for respondent No,2 has contended that respondent No,2 is a bona fide purchaser for valuable consideration as at the time of sale in his favour no lis was pending and he had no knowledge of the suit already dismissed.
7. It was specifically provided in clause-4 of the agreement to sell (Exh. P.1) that the remaining amount of Rs,12,30,000 shall be paid by the purchaser on or before 20-1-2002 and if the purchaser (promise) fails to pay the remaining amount to the A seller (promisor) by the above mentioned. date, his earnest money will stand forfeited and if the seller (promisor) fails to transfer the plot in record of the Society, the purchaser (promisee) can get it transferred through any court of law. It is, thus, obvious that the time was the essence of the contract in this case. The important question for determination before the learned courts below was if the plaintiff/ petitioner was ready and willing to perform his part of the contract and as such was entitled to get the decree for specific performance of the contract and both the learned courts below recorded concurrent findings in favour of the respondent No,1 and against the petitioner. No doubt even concurrent findings recorded by the two courts below can be set at naught by the High Court in its revisional jurisdiction as was held in Nazir Ahmad and another v. M. Muzaffar Hussain (2008 SCMR 1639) and Asmatullah v. Amanat Ullah through Legal Representatives (PLD 2008 SC 155) but this can only be done if it is proved that the findings recorded by the courts below are result of misreading or non- reading of evidence and any other material available on the record or erroneous assumption of facts, patent errors of law, excess or abuse of jurisdiction, arbitrary exercise of power or where unreasonable view has been taken. The appraisal of the evidence shows that the defendant/respondent No,1 used to ask the plaintiff/petitioner to come along with the money as is stated by him in witness box. He did state that he used to go Rawalpindi after making arrangement for the payment of the money lying with his brother/brother-in-law. He stated that Tanvir Khan, his brother used to keep the money ready. This gentleman is his brother- in-law and is alive. He has not come in the witness box to prove that, in fact, the money was ever arranged and offered. The contention that he had the money ready appears to be incorrect because when ordered by the court to deposit the money before 6-3-2003 he could not do so and deposited it only on 17-3-2010.
Another important clause of the agreement was that the seller (promisor) will make herself available to sign all documents in the office of the Society. The defendant/respondent No,1 remained present in the office of DHA on 21-1-2002 (20-1-2002 was Sunday) as is proved by DW-3 and is also fortified from the application (Exh.D.1). Had the petitioner made arrangement of the remaining consideration and ready to perform his part of the contract, he should have C appeared in the office of the DHA on the date fixed and got the plot transferred by making the payment of the remaining consideration. The contention that it could have not been alienated without no demand certificate has no force as Exh.D.3 clearly provides that on payment of the total dues, the transfer could be made. DHA, Lahore, approves transfers of the plots on appearance of the parties and payment of the dues. Had the petitioner been willing to get the plot transferred, he would have appeared in the office of DHA along with the remaining consideration. Both the learned courts below have properly appraised the evidence in this respect and rightly held that the plaintiff/petitioner has failed to perform his part of the contract and as such was not entitled to a decree for specific performance of the contract. The findings in this respect do not suffer from any illegality or infirmity.
8. However, it is an admitted fact that the earlier suit for permanent injunction was still pending when the instant suit for specific performance of the contract was filed and thereafter the earlier suit was withdrawn. In these circumstances, the present suit was not barred under Order XXIII Rule 1 Sub-Rule (3), C.P.C. or Order II Rule 2, C.P.C. Nevertheless the principle of res judicata would also be not applicable in these circumstances. In this respect, reliance is placed on 2002 CLC 694. The findings of the learned trial Court and the learned ADJ in this regard are not sustainable and are reversed.
9. For the reasons supra, the revision petition is without merits and the same is hereby dismissed.
However, the parties . are left to bear their own cost.