AMIN-UD-D1N KHAN, J. - Through this civil revision petitioners have challenged the judgment and decree dated 24.06.1997 passed by learned Additional District Judge, Jampur, whereby the appeal filed by the respondent was accepted and the judgment and decree dated 19.12.1995 passed by learned Civil Judge 1st Class, Jampur dismissing the suit for specific performance filed by the plaintiff/respondent was set aside.
2. Learned counsel for the petitioners, al the very out set, states that he will press only the point that whether time was essence of the contract. Learned counsel states that the agreement to sell is admitted between the parties and plaintiff/respondent was bound under the law to make the remaining payment till 15.10.1993 and agreement is dated 5.6.1993. The total sale price was Rs.
65,000/- whereas Rs. 45,000/- was paid at the time of agreement and Rs. 20,000/- was remaining sale price. Learned counsel states that respondent/plaintiff has not paid the remaining price within the stipulated period and as in the agreement the date for performance is specifically mentioned and it is mentioned that if the purchaser i.e. Plaintiff will not pay the remaining price within stipulated period the agreement will be cancelled and the purchaser will return the possession of the suit land to the petitioners/defendants, therefore, states that the findings recorded by the learned first Appellate Court are against the evidence available on the file. Learned counsel for the petitioners has relied upon "Muhammad ldrees JAG v. Mst. Unezah Shahid and another" (2004 M LD 1033 (LHR) and Mst. Gulshan Hamid v. Kh. Abdul Rehman and others (2010 SCM R 334).
3. On the other hand, learned counsel for the respondent states that the agreement is admitted one. The possession was delivered in part performance of the agreement and he has paid the major portion of the transaction to the petitioners and within two months from the date or performance he has filed the suit. He remained ready every time to pay the remaining price but due to the construction raised by the plaintiff/respondent and the hike in the price of the land it was the petitioners who refused to receive the remaining price and perform their part of contract, therefore, states the learned first Appellate Court has ordered to pay Rs. 20,000/-, the remaining price as well as Rs. 3200/- more as a penalty which otherwise compensate the petitioners.
4. I have heard the learned counsel for the pieties and gone through the record, the evidence and the findings recorded by both the Courts below.
5. Ordinarily time is not an essence of the contract in a contract for sale immovable property but time can be essence if it is the intention of the parties. The intention of the parties can be gathered from the language of the agreement. The intention must be in clear words that the essence of this contract is time factor. I have noticed that there is no such factor mentioned in this contract which has been produced as Exh.P-1. No doubt in the contract it is mentioned that date for performance is fixed for non-payment of the remaining price on the date fixed by the vendee earnest money will be confiscated and he will be bound to return the possession of the suit land and in case the vendors failed to perform their duty the vendee will be entitled to file a suit for specific performance. In these circumstances of this case the total sale price is Rs. 65,000/- out of which Rs.
45,000/- was paid at the time of agreement which is not disputed. Only Rs. 20,000/- was remaining price and it is also admitted that plaintiff/respondent raised construction over the suit property and as he has pleaded and made the statement that Rs. 10,000/- more was paid by him to the petitioners but as this fact has not been established by him and the learned first Appellate Court has not admitted this fact, therefore, ordered for the payment of the remaining price alongwith Rs.
3200/- as compensation. The suit has been filed within two months from the date of performance of the agreement. Even the vendors have not issued any notice about their plea that time is this contract the time was not an essence of the contract and it was not the intention of the parties.
The terms mentioned in this contract can be termed to stick the parties to perform the contract at specific date but it is not equal to, time as essence of contract. The law relied by the learned counsel for the petitioners is, therefore, not applicable to the facts of this case. In view of the matter, I am clear in my mind that the time was not an essence of contract in this case, therefore, the decree granted by the learned first Appellate Court in a suit for specific performance filed by the respondent is in accordance with law even for the delay of payment of two months the petitioners/defendants has been compensated. In view of the matter, no misreading, non-reading or defect in the judgment has been shown.
6. In view of the matter no case for interference by this Court while exercising jurisdiction under Section 115 of the C.P.C. Is made out. This petition is dismissed with no order as to costs.