AMIN-UD-DIN KHAN, J. --- Through this appeal, the appellant has impugned the judgment and decree dated 18.5.2009 passed by the Additional District Judge, Bahawalnagar, whereby appeal filed by the appellant was dismissed and the judgment and decree dated 14.10.2008 passed by the Civil Judge 1st Class, Bahawalnagar, whereby the suit for specific performance filed by the appellant was dismissed.
2. Briefly, the facts as leading to this appeal are that the appellant-plaintiff filed a suit for specific performance on 3.5.2006 on the basis of written agreement to sell dated 9.10.2004 with regard to the suit land fully described in the head note of plaint. The suit was contested by the respondent- defendant. His main defence was that in, a contract the time was an essence thereof and according to this contract, last payment was to be made till 31.5.2004 and suit has been filed on 3.5.2006. Therefore, the plaintiff is not entitled to the decree, which is otherwise, a discretionary relief with the Courts.
From the divergent pleadings of the parties, Trial Court framed issues and invited the parties to produce their respective evidence. After completion of evidence and hearing the arguments of parties, vide judgment and decree dated 14.10.2008 suit was dismissed by the Trial Court. Feeling aggrieved thereby, an appeal was filed before 'the first Appellate Court, which also met with the same fate .Vide judgment and decree. Dated 18.5.2009, Hence, this second appeal.
3. Learned counsel for the appellant states that in an agreement with regard to immovable property, ordinarily time is not essence in the contract; that possession is with the appellant as he has paid Rs. 4,50,000/- at the time of agreement on 9.1.2004 and Rs. 2,00,000/- on 18.5.2004. Further stateshat Rs. 5,00,000/- was the balance amount has been further contended that the appellant has proved --- the agreement (Ex.P-1) and receipt (Ex.P-2 and Ex.P-3). Learned tinsel while referring some portion of statements of defendant (D.W-2) and his witness D.W-3 tried to make out a case that there was no interest to receive the balance amount at the date of performance with the respondent-defendant; that it was not a case whether the time was essence of the contract.
Learned counsel relied upon "2004 SCM R 584 (Muhammad Yaqoob and others Vs. Hakim All and others) and AIR 1962 Punjab 325 (Amrit Lal C. Shah Vs. Ram Kumar, Advocate)" showing that the appellant had sometime remained client of respondent and there was influence of respondent upon the appellant.
It is a second appeal. This Court cannot go into the factual controversy between the parties, as it has been discussed in the concurrent findings of facts in the matter recorded by the Courts below.
The pivotal point before this Court is whether the Trial Court was having right in holding that in this contract the time was an essence of the contract.
4. On the other hand, learned counsel for the respondent-defendant while relying upon "2004 SCM R 436 (Fazal-urRehman Vs. Ahmed Saeed Mughal and others), 2009 CLC 1084 (Asifa Khanum through L.Rs. Vs. Sheikh Abdul Ghafoor through L.Rs.), 2009 M LD 296 (Khushi Muhammad Vs. Rehmat All through Legal Heirs and others), 2008 SCM R 190 (Nazeer Ahmad Vs. Maqsood Ahmed), 2008 SCM R 855 (Muhammad lqbal and another Vs. Mukhtar Ahmad through L.Rs.) and 2008 SCM R 310 (Rana Ghulam Rasool Khan Vs. Wasim Gul, Proprietor Messrs Moon Enterprises and others)" states that the august Supreme Court has held with regard to immovable property the time can be the essence of contract. Further argued that to what extent this Court is entitled to exercise the jurisdiction vested in it u/S. 100 of the CPC while hearing the second appeal.
5. I have heard the learned counsel for the parties at full length and also gone through the record with their able assistance. I am also conscious of all the legal position raised by learned counsel for the respondent.
6. Admittedly, the agreement (Ex.P-1) and receipts (Ex.P-2 and Ex.P-3) are not denied between the parties . The only pivotal point determinable by this Court is whether the time was essence of contract in this case where immovable property is subject-matter of the contract and the suit. The case-law referred to by learned counsel for the appellant is not applicable to the facts of this case regarding the general principles that ordinarily in a contract with regard to immovable property, time is not the essence but it is not binding in all cases. There are exceptions in the general rules.
Time can be an essence in a contract of immovable property. Further, case-law referred to with regard to the relationship of Advocate and client is concerned. In this case it has not much relevance as the evidence in this regard is not sufficient that appellant-plaintiff was under influence of respondent-defendant
7. Now I come to the question that whether time was an essence in the contract There is mention in the agreement (Ex.P-1) that on such date, if not complied with, it will cease to exist. Moreover, at the margin side of second page of agreement, specific condition has been mentioned with final date as 31.5.2004. After that the contract will cease to have its effect and also the purchaser will not be entitled to ask for return of earnest money. This condition had again been signed by both the parties. It is also mentioned that on the cut-off date, if the purchaser failed to perform his part it will cease to have effect. This position has been reiterated in Ex.P-3 at the time of receiving of Rs.
2,00,000/- on 18.5.2004. Against this writing oral evidence has little value. I hold that against the written terms of an agreement, oral evidence against these terms cannot be considered, therefore, oral evidence of plaintiff against the terms of agreement is just ignorable. I agree with the Courts below that in this case the time was an essence of contract. In this view of the matter, learned counsel for the appellant failed to show any deviation by the Courts below from the Procedure or law, as the grounds are mentioned u/S. 100 of the CPC for interference in the findings of lower Courts.
8. The upshot of the above discussion is that the instant regular second appeal having no force is dismissed with costs. Learned counsel for the appellant states that the balance amount of Rs.
5,00,000/- was deposited in the Court by the appellant. If it is so, appellant will be entitled to receive back the same accordingly.
R.S.A. Dismissed.