ANWAR ZAHEER JAMALI, J. --- This civil appeal is directed against the judgment dated 10.6.1999, in regular first appeal (R.F.A.) No. 25 of 1998, passed by a learned Division Bench of the Lahore High Court, Multan Bench, Multan, whereby the said appeal, filed by the respondents No. 1 to 4 was allowed; judgment and decree dated 28.11.1987, in Suit No. 1116 of 1980., challenged therein, were set aside and consequently the suit for specific performance of contract dated 2.4.1979 was decreed, subject to deposit of a sum of Rs. 4,26,625/- by the vendees/respondents No. 1 to 4 before the Trial Court on or before 15.7.1999.
2. The facts forming background of this litigation are that on 2.4.1979, appellants M/s. Liaqat Ali Khan, Aurangzeb Khan and Akbar Ali Khan all sons of Anwar Ali Khan entered into a registered agreement to sell (Ex.P/1) (in short "agreement") with .Respondents No. 1 to 4, Ws. Falak Sher, Ahmad Ali, Noor Muhammad and Ali Ahmad all sons of Muhammad. Ramzan. Since the whole gamut of controversy in the present litigation, inter alia, revolves around the interpretation and applicability of this admitted document, for ease of reference, in the first place, its contents are reproduced as under:- {{URDU TEXT}} (Some underlining is made by us for ease of reference).
3. Admittedly, this transaction could not materialize as per stipulations made in the agreement.
Thus, to seek its enforcement, on 7.9.1980, the respondents No. 1 to 4 Falak Sher, Ahmad Ali, Noor Muhammad and Ali Ahmad, filed a suit for specific performance of contract against the appellants and M/s. Khurshid Bibi and Abdul Majeed Khan respondents No. 5 and 6 herein, as two other formal defendants in the suit. In the plaint, they stated that after entering into the agreement they wanted its implementation and execution, but the vendors/appellants avoided to do so. Moreover, due to some other litigation initiated by two formal defendants No. 4 & 5 in the form of their respective suits, which resulted in grant of interim injunctions as regards the suit land, finalization of this deal could not take place. Finally, when the vendees/respondents No. 1 to 4 approached the appellants for this purpose they avoided to honour the agreement on flimsy grounds, which necessitated the filing of suit for specific performance of the agreement.
4. The appellants, who were defendants No. 1 to 3 in the suit filed their joint written statement in the suit on 30.7.1981, wherein they admitted the execution of the agreement and contended that, as evident from the language of the agreement, time was essence of such agreement for its performance, but due to the failure of vendees/respondents No. 1 to 3 in making payment of balance sale consideration amount upto the agreed date i.e. 10.5.1979, this agreement was revoked/cancelled, therefore, the claim of specific performance was no more enforceable before the Court of law. The appellants, however, did not dispute the terms of the agreement dated 2.4.1979 and the fact that before such agreement some litigation was started against them by Respondent No. 5, who was defendant No. 4 in the suit, wherein subsequently interim injunction was also granted in her favour as regards two portions of the suit land. The respondent No. 5, Mst.
Khurshid Bibi filed her separate written statement in the suit on 20.2.1982, wherein. She conceded to the claim of respondents/vendees in toto.
5. On the basis of divergent pleadings of the parties, as summarized above, the Trial Court of learned Civil Judge 1st Class Pakpattan, framed five issues in the suit, which read as under:--- "(1) Whether the description of the suit land has not been given correctly in the plaint, if so, what is its effect?
(1-A) Whether the plaintiffs are estopped by their words and conduct to file the suit? OPD (1-B) What was the real essence of the Contract as to enforceability of the Contract? OPP
(2) Whether the plaintiffs are entitled to the decree for specific performance of the contract in question, if so, on what terms and conditions". OPP
(3) Relief."
6. In support of their claim for specific performance, from the side of plaintiffs/respondents No. 1 to 4, four witnesses, PW-1 Jan Muhammad, PW-2 Faiz Muhammad, PW-3 Ilam Din and PW-4 Noor Muhammad were examined, who produced twenty-seven documents. In addition to it, in rebuttal PW-5 Malik Akhtar Ali was also examined on their behalf. The present appellants on their turn also examined five witnesses DW-1 Muhammad Hussain, DW-2 Ghulam Bheek, DW-3 Syed Atta Moinuddin, DW-4 Chaudhry Muhammad Chiragh and DW-5 Liaqat All (one of the appellants) and produced nineteen documents in their evidence. After the conclusion of proceedings in the suit, during the arguments issue No. 1 relating to description of the suit land was not pressed by the appellants, while on the basis of evidence, other issues were decided against the respondents, precisely, with the observation that time was after the expiry of agreed time for payment of, balance in terms of- the agreement, on 13.5.1979, a registered notice to rescind the agreement and forfeiture of earnest money was sent by the appellants to the respondents No. 1. To 4, which remained un-responded/replied till the institution of suit by them on 27.9.1980.
It is also an admitted fact that before the execution of agreement dated 2.4.1979, on 3.1.1979 and 11.3.1979, two civil suits were instituted by respondent No. 5, Khursheed Bibi, in respect of two different portions of the suit land, wherein, in one suit on 24.4.1979, and in the other suit on 9.4.1979, interim injunction was granted, which continued upto the date of dismissal of both these suits for want of prosecution on 26.7.1984.
It is again .An admitted fact that a criminal complaint was also lodged against the appellants, wherein they were subsequently discharged.
Keeping in view the above-noted facts, the which need to be adjudicated now are as under:- Whether as per the language of agreement dated 2.4.1979 time was not the essence of the agreement?
Whether after admitted non-payment of balance sale consideration amount, respondents No. 1 to 4 were still entitled for grant of relief of specific performance in their favour, although more than 34 years have lapsed, while all along the appellants are in cultivating possession of the suit land?
Essence of the agreement (Ex.P/1). Accordingly the suit was, dismissed, vide judgment dated 28.11.1987.
7. Respondents No. 1 to 4/plaintiffs in the suit, aggrieved by the judgment of the Civil Court, preferred R.F.A. No. 25 of 1988 before the Lahore High Court, Multan Bench, which was heard by a learned Division Bench of the Lahore High Court and allowed in terms of the impugned judgment. In their favour as the Appellate Court found the present appellants responsible for non- implementation of the agreement.
8. We have heard the arguments of Mr. Gulzarin Kiani, learned Sr. ASC for the appellants, Ch. Mushtaq Ahmad Khan, learned Sr. ASC for the respondents No. 1 to 4 and have also the benefit of going through the concise statements of their respective written submissions filed in Court. We have also carefully examined the material placed on record by the parties in the paper book of this appeal as well as the original record and proceedings of the suit and the appeal file.
9. Some salient features of the case, narrowing down the scope for discussion of present controversy to a great extent, which need to be addressed and adjudicated in this appeal, are summarized as under:-
(a) The execution of registered agreement to sale dated 2.4.1979, its contents and signatures of all the parties over this document are admitted.
It is an admitted position that the agreement could not be concluded/implemented between the parties within the stipulated period upto 10.5.1979, though timeframe was categorically incorporated and agreed to by both the parties in the words and form, as reproduced in the earlier part of this judgment.
(c) As conceded by Ch. Mushtaq Ahmad Khan, learned Sr. ASC for the respondents No. 1 to 4 508 Pakistan Supreme Court Cases (c) Whether at all the relevant times respondents No. 1 to 4/vendees were willing and ready to perform their part of the agreement?
(d) What could be the effect of the operation of interim injunction in the pending suits of respondent No. 5, upon timeframe under the agreement dated 2:4.1979 qua stipulation of cancellation of agreement due to some legal impediment in its performance?
11. Mr. Gulzarin Kiani, learned Sr. ASC for the appellants in his written synopses of arguments (paragraphs No. 1 to 7) has given the whole history and background of this litigation from the perspective of appellants, which seems to be useful for understanding their case properly, the same is, therefore, reproduced as under:-- "1. Mst. Khurshid Bibi daughter of Sardaj respondent No. 5 was owner of land measuring 216 kanals, 19 marlas, situated in mauza Siddique of Tehsil Pakpattan. She was resident of Mauza Qamaruddin Hanse, Tehsil & District Bahawalnagar. Mst. Jannat Bibi widow of Sardar Ali is mother of Mst.
Khurshid Bibi. She also owned 100 kanals of land in mauza Siddique in joint khata with her daughter.
Land owned by daughter and mother was part of joint khata No. 9 measuring in all, 952 kanals, 14 marlas. It appeared that the two ladies had inherited above piece of land on the demise of Sardar Ali. Mst. Khurshid Bibi appointed her mother Mst. Jannat Bibi as her general attorney, vide registered deed dated 16.10.1978. On the basis of said general power-of-attorney, Mst. Jannat Bibi gave land measuring 108 kanals 91/2 marlas of 216 kanals, 19 marlas owned by Mst. Khurshid Bibi in exchange to Muhammad Akbar Khan (appellant No. 3 (who was then shown a minor) in return for his land measuring 32 kanals 13 marlas situated in Chak Sandhe Khan of Tehsil Pakpattan through a registered exchange deed dated 4.11.1978. Exchange deed is at pages 161-163. Similarly, vide deed, registered on 1.11.1978, Mst. Jannat Bibi gave remaining 108 kanals 10 marlas of Mst. Khurshid Bibi in exchange to Liaqat Ali Khan appellant No. 1 for his 32 kanals, 13 marlas in mauza Ch. Sandhey Khan, Tehsil Pakpattan. Exchange Mutation Ex.P21 dated 19.2.1979 is at page 151. Mst. Jannat Bibi herself exchanged her 100 kanals of land in mauza Siddique in Tehsil Pakpattan to Aurangzeb Khan appellant No. 2 for his 32 kanals 13 marlas land in Chak Sandhey Khan. Exchange deed Ex.D6 is at pages 173-175. Thus, appellants came to on 316 kanals 19 marlas of land in mauza Siddique, where they did not on land prior to exchanges.
2 That on 3.1.1979 at the instance of and collusion with respondents 1 to 4 who are real brothers and residents of mauza Siddique, Mst. Khurshid Bibi instituted a civil suit for revocation of exchange deed dated 4.11.1978 made in favour of Muhammad Akbar Khan (appellant No. 3) on the ground of fraud, misrepresentation and lack of authority in Mst. Jannat Bibi, against, Mst. Jannat Bibi her mother and Muhammad Akbar Khan (then shown as minor) through his real mother Mst. Lrshad Begum as guardian ad item. Plaint, Ex.P2 is at pages 114-119. Initially plaint did not accompany application for temporary injunction restraining alienation pendente lite. However, on 8.4.1979, such an application Ex:p3 (page 120-121) was filed in the Trial Court whereupon, on 24.4.1979 defendants to, the suit were restrained from further alienation of land-in-suit. Stay order continued and was confirmed on 26.5.1981 (Ex.P4 to P10 pages 122 to 132) eventually, suit was dismissed for default in appearance on 26.7.1984 (Ex.P11 at page 133). No suit was filed, however, in respect of transaction made in favour of Aurangzeb Khan.
That on 11:3.1979, Mst. Khurshid Bibi, respondent No. 5, filed yet another civil suit for declaration for annulment of registered exchange deed dated 1.11.1978, in favour of Liaqat All Khan appellant No. .1 at the instigation of respondents No. 1 to 4, on similar allegations of fraud, misrepresentation and lack of authority in Mst. Jannat Bibi in respect of 108 kanals, 10 marlas. Plaint Ex.P11 is at pages 134-
138. An application for a restraint order was filed on 9.4.1979 (Ex.P12 at pages 139-140). Interim restraining order was passed on 9,4.1979 (Ex.P13, page 141). Restraint order continued till the suit was dismissed for default in appearance on 26.7.1984 (Exh. P13 to P18, at pages 141 to 146). Purpose behind the two suits pertaining to 216 kanals, 19 marlas, owned by Mst. Khurshid Bibi exchanged by her with Liaqat Ali Khan and Akbar All Khan, was to pressurize the appellants No. 1 & 3 to part with their land for a throw away consideration. No suit was filed ,by Mst. Jannat Bibi, for cancellation of exchange of land made by her, because she was being used as an instrument in the civil suits filed by Mst. Khurshid Bibi as her general attorney and impleaded also as defendant No. 1 in the suit to serve the desired purpose. Pressure by the respondents had originated soon after the making of exchanges and later materialized in the two suits by Mst. Khurshid Bibi.
4. That, on 2.4.1979, appellants, namely Liaquat Ali Khan, Aurangzeb Khan and Akbar Ali Khan entered into an agreement for sale of 316 kanals, 19 marlas in favour of respondents No. 1 to 4 for sale consideration of Rs. 356625/- at the rate of Rs. 9000 per acre; received Rs. 30000/- as earnest; balance in the sum of Rs. 326625/- was payable by 10.5.1979, when the sale-deed was to be registered; Rs. 4000/- as price for bricks was also payable on 10.5.1979. In default of payment of due date, it was mutually agreed that earnest money shall be deemed to have been forfeited and sale agreement rescinded.
5 That, as the vendees-respondents No. To 4 had not paid the balance sale consideration and were not ready to go ahead with sale in their favour, appellants served notice (Ex.D1 page 167) dated 13.5.1979 upon them that agreement stood rescinded and earnest forfeited. Respondents No. 1 to 4, despite receipt of notice did not respond.
6. That, on 9.12.1979 through a registered deed Ex.P24---pages 155-157). Mst. Khurshid Bibi sold her, 65 kanals, 6 marlas land (taken in exchange) situated in Chak Sandhe Khan to Abdul Majid son of Hazir Khan a close relation of appellants for Rs. 50000/-. Similarly, Mst. Jannat Bibi also sold her 32 kanals, 13 marlas taken in exchange to said Abdul Majid on 1.11.1979, through a registered sale-deed Ex.P25 (pages 158-160).
7. That, respondents No. 1 to 4 again managed a suit for pre-emption filed by Mst. Khurshid Bibi against the sale of land by her mother Mst. Jannat Bibi in the Court of Civil Judge at. Pakpattan Sharif on 9.11.1980. Suit was contested, and, vide order dated 6.12.1986, pre-emption suit was dismissed. Copy of order dated 6.12.1986 is annexed. Likewise, a suit for pre-emption was managed to have been filed in respect of sale of land measuring 65 kanals, 6 marlas by Mst. Khurshid Bibi, through her; minor son namely, Akhtar Hussain, acting through her grand-mother Mst. Jannat Bibi as his next friend. Suit was contested by the vendee Abdul Majid. Upon trial, suit was dismissed as collusive on 11.4.1985 by learned Trial Court. Appeal against the judgment was also dismissed on 12.4.1987 by learned Additional District Judge-II, Pakpattan Sharif Copy of judgment is annexed.".
12. Making reference to the above synopses, the gist of the submissions of Mr. Kiyani is that whole barrage of such litigation against the appellants was at the behest of respondents No. 1 to 4, with the collusion of respondents No. 5 & 6, as evident from the case record, therefore, benefit of their on misdeed and mischief cannot be extended to them by granting them now the relief of specific performance in the suit, which was belatedly instituted by them after more than one year and four months from the agreed final date for specific performance of the agreement. He further contended that the narrated facts are sufficient to show that grant of interim injunction against the appellants in respect of some portions of the suit land was also collusive. Moreover, if it was considered as some legal hurdle in specific performance of the agreement, then otherwise too it stood automatically cancelled as the agreement specifically Contained such stipulation, which reads as under:---- {{URDU MISS}}
13. He also stressed about the conduct of respondents No. 1 to 3/vendees with reference to the notice dated 13.5.1979, issued to them by the appellants, which admittedly remained un- responded. Further, he referred to the impugned judgment of the Division Bench of the Lahore High Court to show patent misreading of evidence of PW-4 Noor Muhammad, who had categorically stated on oath that {{URDU TEXT}} 11,A15"P 1" 10- 05- 79 but it was wrongly recorded as ,,t "P1"' {{URDU TEXT}} due to interpolation in the original Court record. He stated that such conduct of respondents No. 1 to 4/vendees, who tampered with the original Court record by incorporating the word in- between the words ''"" and '7"-- {{URDU TEXT}} in the deposition of Noor Muhammad, PW-4, further disentitle them for grant of an equitable relief. Finally, in support of his submissions as regards the exercise of discretion in terms of Section 22 of the Specific Relief Act, etc learned Sr. ASC placed reliance on the following cases:--- (i)Muhammad Sharif v. Fajji (1998 SCM R 2485)
(ii)Amina Bibi v. Mudassar Aziz (PLD 2003 S.C. 430)
(iii)Bootay Khan v. Muhammad Rafiq (PLD 2003 S.C. 5 18)
(iv)Chand Rani v. Kama' Rani (AIR 1993 S.C. 1742)
(v)Gulshan Hamid v. Abdul Rehman's (2010 SCM R 334)
(vi)K. S. Vidyanadam v. Vairavan (AIR 1997 S.C. 1751)
(vii)Muhammad Yaqub v. Muhammad Nasrullah Khan (PLD 1986 S.C. 497)
(viii)Rab Nawaz v. Mustaqeem Khan (1999 SCM R 1362)
(ix)Firm Ramdhonedas v. Obambabala Dassi (AIR 1954 Calcutta 440)
(x)Narasappa v. Shaik Hazrat (AIR 1960 Mysore 59)
In the end, learned counsel submitted that although the earnest money paid by respondents No. 1 to 4 to the appellants in terms of the agreement dated 2.4.1979, was deposited in Court at the earliest opportunity through proceedings under Section 4 of The Punjab Relief of Indebtedness Ordinance, 1960, but still in order to show their bona fides and following the principles of equity and fair play, they are ready to pay a sum of Rs. 30,00,000/- the respondents No. 1 to 4 as compensation or any other reasonable figure, as deemed just, equitable and fair by the Court.
14. Conversely, relying upon the same admitted facts of the present case, Chaudhry Mushtaq Ahmad Khan, learned Sr. ASC for respondents No. 2 to 4 strongly submitted that firstly; since the agreement dated 2.4.1979 was in respect of the sale of some immovable property, thus, as per settled law, time fixed in it was not the essence of such agreement; secondly, the respondents No. 1 to 4/ vendees were willing to perform their part in terms of the agreement but they were handicapped due to the pendency of two civil suits wherein interim injunction was operating against the appellants. However, he did not dispute that notice dated 13.5.1979 (Ex.D/1) was not responded or replied by the vendees till the institution of suit on 27.9.1980. Moreover, no other steps were taken by them, showing their willingness for the performance of the said agreement by tendering the balance sale consideration amount to the appellants vendors. To a query, he also conceded that two civil suits were instituted by respondent No. 5 before the execution of agreement dated 2.4.1979, therefore, pendency of these suits may be within the knowledge of respondents No. 1 to 4, while in her written statement filed in the present suit Mst. Khursheed Bibi she had admitted the claim of the respondents No. 1 to 4. Besides, these suits were not in respect of whole of the subject-matter of the agreement dated 2.4.1979, which was agreed to be purchased by the respondents No. 1 to 4. Learned Sr. ASC for the respondents No. 1 to 4 in his written synopses of arguments made reference of following case-law in support of his submissions:- Sandoz Limited v. Federation of Pakistan (1995 SCM R 1431) lnam Naqshband v. Ijaz Ahmad (PLD 1995 S.C. 314)
Sinaullah v. Muhammad Rafique (2005 SCM R 1408)
Muhammad Sadiq v. Muhammad Ramzan (2002 SCM R 1821)
Emssabhoy v. Saboor Ahmad (PLD 1972 S.C. 39)
Khan Bahadur A.G. Khan v. Shujauddin Qureshi (PLD 1961 S.C. 1)
Mussarat Shaukat Ali v. Safia Khatoon (1994 SCM R 2189)
Sughran Bibi v. Aziz Begum (1996 SCM R 137)
Naseer Ahmed Siddique v. Aftab Alan (PLO 2011 S.C. 323)
Muhammad Hussain v. Zahoor Alam (2010 SCM R 286)
(xi) Mehmooda Begum v. Hassan Sajjad (PLD 2010 S.C. 952).
15. Chaudhry Mushtaq Ahmad Khan, learned Sr. ASC, while pressing the claim of his clients for specific performance and responding to the offer made by the learned Sr. ASC for the appellants on their behalf for payment of compensation, also offered on behalf of respondents No. 1 to 4 to enhance the amount of compensation from Rs. 1,00,000/-, as ordered in the impugned judgment, to any other reasonable sum as fixed by the Court. Although respondents No. 1 to 4, after the impugned judgment dated 10.6.1999 have already deposited the balance sale consideration amount in the High Court within the stipulated time allowed to them.
16. Keeping in view such counter offers made on behalf of the contesting parties to this appeal, on the date when this appeal was heard and judgment was reserved, both the learned Sr. ASCs were afforded one week's further time to strike some amicable settlement between the parties with intimation to this Court, but, as subsequently jointly conveyed by them, there has been no progress in this regard despite their best efforts. Thus, efforts for compromise to resolve the dispute have failed.
17. Proceedings with this case on merits, in the first place, it will be useful to reproduce here Section 22 of the Specific Relief Act, 1877, registering some guiding principles for the Court in the exercise of its discretion, which reads thus:--- "22. Discretion as to decreeing specific performance. 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.
The following are cases in which the Court may properly exercise a discretion not to decree specific performance:--- I. Where the circumstances under which the contract is made are such as to give the plaintiff an unfair advantage over the defendant, though there may be no fraud or misrepresentation on the plaintiffs' part.
II. Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff.
Ill. Where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.".
18. A plain reading of above reproduced statutory provision leads to a definite conclusion that the relief of specific performance claimed by respondents No. 1 to 4 in their suit is purely discretionary in nature and the Court is not bound to grant such relief merely as it is lawful to do so. At the same time, the discretion to be exercised by the Court shall not be arbitrary, but it should be based on sound and reasonable analysis of the relevant facts of each case, guided by judicial principles and capable of correction by a Court of appeal. Moreover, in sub-paragraphs No. Ii & i.e of Section 22
(ibis) some instances have been given, where the Court can refuse to exercise its discretion to pass a decree for specific performance. A careful reading of these instances, which are self-explanatory, further amplify vast powers of the Court in the matter of exercise of its discretion for ordering specific performance or otherwise. When the above reproduced provision to law is read in conjunction with the case-law cited at the Bar by both the learned Sr. ASCs, the things as regards powers of the Court in exercising its discretion, become even more clear that there is no two plus two, equal to four formula available with any Court of law for this purpose, which can be applied through cut and paste device to all cases of such nature. Conversely, it will be the peculiar facts and circumstances of each case, particularly, the terms of the agreement between the parties, its language, their subsequent conduct and other surrounding circumstances, which will enable the Court to decide whether the discretion in terms of Section 22 (ibid) ought to be exercised in favour of specific performance or not. Besides, some well articulated judgments on the subject, have further broadened the scope of exercise of such discretion of the Court by way of awarding reasonable compensation to the parties, keeping in view the other surrounding circumstances, such as rate of inflation, having direct bearing the value of suit property, inordinate delay/passage of time, and change in the circumstances or status of the subject property etc. To further amplify the aspect of exercise of discretion, here a reference may also be made to the language of Section 19 of the Specific Relief Act, 1877, which reads thus:- "19. Power to award compensation in certain cases. Any person suing for the specific performance of a contract may also ask for compensation for its breach, either in addition to, or in substitution for, such performance.
If in any such suit the Court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant and that the plaintiff is entitled to compensation for that breach, it shall award him compensation accordingly.
If in any such suit the Court decides that specific performance ought to be granted, but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff it award him such compensation accordingly.
Compensation awarded under this Section may be assessed in such manner as the Court may direct.
Explanation.---The circumstance that the contract has become incapable of specific performance does not preclude the Court from exercising the jurisdiction conferred by this Section ."
19. Having discussed the legal position as regards the powers of the Court to award decree for specific performance or otherwise, when we revert to the facts of the present case; firstly, we find that the factual aspects of the case as recorded in the earlier part of this judgment in subparagraphs No. (a) to (e) to paragraph 9, are undisputed. This position makes the language and the terms of agreement dated 2.4.1979 very important for the purpose of grant or refusal of the relief of specific performance. It will be seen that the earlier purchase of suit land through three exchange transactions in favour of the appellants has its on chequered history, as detailed in paragraph 11 (supra), therefore, both the parties seem to be extra cautious/careful in settling the terms of the agreement between them. Keeping in view this aspect of the case, we find that out of total area of 316 kanals, 19 marlas at Mauza Siddique, which was purchased by the appellants through three exchange mutations of different dates, from Mst. Khurshid Bibi and her mother Mst.
Jannat Bibi, two pieces of land admeasuring 108 kanals, 91/2 marlas each were agreed to be sold by the appellants No. 1 & 3 in favour of respondents No. 1 to 4 at the rate of Rs. 9,000/- per acre and the third piece of land admeasuring 100 kanals was agreed to be sold by appellant No. 2 (Aurangzeb Khan) at the same rate i.e. For a total sale consideration of Rs. 3,56,625/-. Out of this total sale consideration, at the time of execution and registration of agreement, a sum of Rs.
30,000/- was paid on behalf of respondents No. 1 to 4 to the appellants, which fact was acknowledged by them in the agreement. The contents of the agreement further reveal that at two places it was specifically agreed and mentioned that the parties have entered into this agreement in proper health and full application of mind and have understood and accepted its terms. The contents of this agreement as regards the payment of balance sale consideration amounting to Rs. 3,26,625/- further reveal that it was categorically incorporated in the agreement and accepted by both the parties with their free will that the said sum was to be paid by respondents No. 1 to 4 to the appellants by 10th of May, 1979 to get the deed registered in their favour. The matter as regards the payment of balance sale consideration amount had not ended here, as the parties had further agreed in terms of the agreement that in case respondents No. 1 to 4 failed to pay the balance sale Consideration amount within the stipulated period. Then the earnest money shall stand forfeited and tqsale transaction will come to an end. Conversely, for the purpose of penalizing the appellants in case of their default. In the agreement it was also provided that if they failed or resiled from the agreement then the buyers/respondents No. 1 to 4 will have right to seek specific performance of the agreement through the Court of law. Obviously, such strict terms for payment were got incorporated by the parties to make their intention clear that time was the essence of the agreement. Apart from it, some bricks were also lying over the suit land and for that too it was recorded in the agreement that its price, Rs. 4,400/- will be separately paid by respondents No. 1 to 4 to the appellants. As per contents of the agreement dated 2.4.1979., the matter had not ended even here, because mindful of the past history of the suit land; conduct of the parties and pending litigation, the parties further mutually agreed for cancellation of the agreement due to any legal hurdle or defect hampering the performance of the agreement as per its terms and in that eventuality respondents No. 1 to 4 were made entitled for refund of their earnest money. It is again important to r )(P that and agreed to be sold by the appellants to respordent No. 1 to 4 had also one tube-well in running condition and some other useable machinery, which the appellants were entitled to remove and take away and the possession of the suit land was to be delivered after the execution of registered deed, but thereafter nothing happened in this regard. It is well-accepted principle of interpretation of an instrument that for its proper comprehension and insight it is to be read as a whole and where its language is simple, clearly understandable and capable of no ambiguity, then the intention of the parties to such instrument is to be gathered from its contents alone without adverting to any other extraneous consideration and in normal course it should have precedence over any other option. In the present case, gist of the terms of sale agreed between the parties has already been discussed above, as spelt out from the contents of the agreement dated 2.4.1979, which reveals that two eventualities were provided in the agreement, which would absolve the appellants from their liability for the specific performance of the agreement. First condition of such nature was to become operative in case of nonpayment of balance sale consideration amount to the appellants within the stipulated period fixed under the agreement i.e. 10.5.1979, and the other, where for any legal impediment specific performance of the agreement as per its terms was not possible between the parties. In this background when we examine the oral as welt as documentary evidence produced by the parties in the suit, we find that soon after the expiry of timeframe under the agreement for payment of balance sale consideration amount, which admittedly respondents No. 1 to 4 failed to honour. The appellants had issued the notices dated 13.5.1979 to them. The .Receipt of these notices is not denied by at-least three respondents from respondents No. 1 to 4, but still none of them bothered to give its reply. Thus, this document is very material to show conduct of both the parties after the execution of agreement dated 2.4.1979.
Till the institution of the suit for specific performance before the Civil Court on 7.10.1980. It is quite surprising that although the agreement dated 2.4.1979 contained a very clear and unambiguous term for payment of balance sale consideration amount to the appellants by 10.5.1979 and also entitled them for forfeiture of earnest money in case respondents No. 1 to 4 failed in making compliance of this condition, still respondents No. 1 to 4 did not bother to make any correspondence with the appellants showing their intention to keep the agreement alive for specific performance or to offer any explanation for non-payment of balance sale consideration within the agreed time. When respondent No. 3 Noor Muhammad son of Muhammad Ramzan entered into the witness-box in support of his claim and that of respondents No. 1, 2 and 4, in his deposition, again a question as regards the importance of timeframe agreed between the two parties for the finalization of this agreement was put to him, to which he made a categorical answer that:--- 11,;:".1S"Pl" e),.t",10-05-79 {{URDU TEXT}} Thus, to lay stress upon the terms of the agreement, its language and import, and to hold the respondents No. 1 to 4 defaulter in the fulfilment of their obligations under the agreement, no further discussion is necessary.
20. Another important aspect of the case is the conduct of both the parties to the agreement, subsequent to its execution as mere willingness of a party to seek specific performance of the agreement at one particular time after lapse of more than one year and six months to the execution of such agreement and more than one year and three months from the date of expiry of the stipulated time agreed for remaining payment under the agreement will not entitle him for the relief of specific performance, for the lone reason that suit so instituted was within the period of limitation. In this context, the appellants in their written statement have come out with a very specific plea regarding the institution of litigation against them by respondents No. 5 at the behest nd her collusion with respondents No. 1 to 4, which fact is amply visible from the material available on record. It will be seen that both the suits filed by respondent No. 5 were instituted before the execution of the agreement in question between the parties, on 3.1.1979 and 11.3.1979, therefore, in none of these suit respondents No. 1 to 4 were party. It has also come on record that not only in the present proceedings respondent No. 5 conceded to the claim of respondents No. 1 to 4 against the appellants, but on 26.7.1984 both the suits were also withdrawn unconditionally. In case respondent No. 5 had any genuine grievance against the appellants regarding exchange transactions then she would have definitely pursued and contested her suits and she would not have been privy to subsequent litigation in favour of respondents No. 1 to 4. Apart from it, the appellants have also brought on record sufficient material to show that criminal proceedings were also initiated against them by respondents No. 5 & 6 with the full support of respondents No. 1 to 4 and their henchmen so as to create a justification for their cause of action in the present suit at a belated stage.
Another important aspect of the case regarding which specific question was put to learned Sr. ASC for respondents No. 1 to 4, but received no satisfactory answer, is the fact that only two specific portions of the suit land were subject-matter of the suits instituted by respondent No. 5 before the execution of the agreement, but despite being not party to such litigation respondents No. 1 to 4 did not even bother to initiate any proceedings or even to make some correspondence with the appellants about such remaining piece of land admeasuring 100 kanals, for which if they were willing to seek specific performance some via media could have been found to resolve the issue at the earliest as this piece of land was exclusively owned by Appellant No. 2, who was not party in either of the two suits and there was also no stay operating over said portion of the suit land.
Moreover, admittedly, the suit for specific performance was instituted by the appellants on 7.10.1980 i.e. After more than one year and four months to the agreed 'date, but even at that stage, in order to show their bona fide they did not make offer before the Civil Court to deposit the remaining sale consideration amount, which was more than 92% of the total sale consideration agreed between the parties.
21. Further scanning of evidence adduced by the parties before the Civil Court reveals that on behalf of respondents No. 1 to 4, they had examined PW-1 Jan Muhammad, PW-2 Faiz Muhammad, PW-3 Ilam Din, PW-4 Noor Muhammad and PW5 Malik Akhtar Ali and produced documents P-1 to P-27. As against it, the appellants had examined DW-1 Muhammad Hussain, Sub-Inspector CIA, DW-2 Ghulam Beg DW-3 Syed Atta Mohyuddin, DW-4 Ch. Muhammad Chiragh and DW-5 appellant Liaqat All and produced documents Ex.D-1 to D-19. On the one hand, evidence of PW-4 Noor Muhammad, one of the signatory to the agreement dated 2.4.1979 fully affirmed the contents of the agreement without any variation in its terms and he has also categorically admitted that Liaqat Ali had orally offered him to return the earnest money, which offer he refused to accept and that the agreed date for last payment under the agreement was a definite and clear term of the agreement Ex.P-1. As against it, Liaqat Ali DW-5, one of the appellants in his deposition narrated in detail the conspiracy hatched up against the appellants by respondents No. 1 to 4 in connivance with respondent No. 5, through uncalled for litigation before the Civil Court and also to demonstrate the bona fide conduct of the appellants throughout as against the mala fide conduct of respondents No. 1 to 4, which. Disentitle them from seeking specific performance of the agreement.
In this regard, it is also important to note that despite specific stance of the appellant Liaqat All in his deposition about the underhand tactics of respondents, such assertions on material point remained unchallenged from the side of respondents No. 1 to 4 and thus lend full support to the claim of the appellants that respondents No. 1 to 4 themselves were instrumental in not making payment of the balance sale consideration amount within the stipulated period or seeking specific performance in accordance with law.
22. To and more, it is significant to mention here that three appellants had acquired ownership of 316-kanals, 10-marlas of the suit land in Moza Siddique through three different deeds of exchange executed by them with Met. Khurshid Bibi for self as well as attorney of her mother -Mst. Jannat Bibi.
Subsequently, said Mst. Khurshid Bibi had challenged the validity of the two exchange deeds in respect of 108 kanals and 91/2 marlas each, which were executed by her in favour of appellant Liaqat Ali Khan and Akbar Ali Khan, while throughout this litigation initiated by her, the third piece of and got in exchange by appellant Aurangzeb Khan, admeasuring 100 kanals remained unaffected and undisputed. Significantly although the two suits were instituted by Khurshid Bibi at two different dates in respect of two different pieces of subject land part of the agreement on the ground of fraud, misrepresentation and lack of authority in her favour by Mst. Jannat Bibi. But at the same time, she did not withdraw her claim from the exchanged land conveyed by Liaqat Ali Khan and Akbar Ali Khan in her favour as sale consideration for these two exchanged pieces of land admeasuring 108-kanals, 91/2 marlas each, which she subsequently on 9.12.1979 sold to the extent of 65 kanals 6, marlas to Abdul Majid, relative of appellants for Rs. 50,000/- and similarly Mst.
Jannat Bibi sold her 32-kanals, 13-marlas exchanged land to Abdul Majid on 1.11.1979 through registered sale-deed Ex.P-25. All these undisputed facts go a long way to show the collusion between the respondents and their mala fide conduct so as to fix the appellant from all four corners and squeeze them instead of honouring the terms of the agreement in its letter and spirit in a fair and equitable manner.
23. Another important document demonstrating bona fide conduct of the appellants, which was got exhibited as Ex.P-19, is the application under Section 4 of the Punjab Relief of Indebtedness Ordinance, 1960, dated 25.7.1979, moved by the appellants, which provision of law reads as under:-- - "4. Deposit in Court.---(1) Any person who owes money may at any time deposit in Court a sum of money in full or part payment to his creditor.
(2) The Court on receipt of such deposit, shall give notice thereof to the creditor and shall, on his application pay the sum to him.
(3) From the date of such deposit, interest shall cease to run on the sum so deposited.".
In this application of the appellants against the respondents No. 1 to 4 filed by them before the Court of Civil Judge, 1st Class, Pakpattan, they had categorically stated about the agreement dated 2.4.1979 between the parties; its last agreed date for payment as 10.5.1979; stipulation of rescinding the agreement due to litigation etc; their registered notice dated 13.5.1979, addressed to respondents No. 1 to 4; its refusal by one of them, and their request for depositing in Court the earnest money paid by respondents No. 1 to 4 so that it may be paid back to them. As it further appears from the record, notices of these proceedings were issued to respondents No. 1 to 4, but they did not respond to it and ultimately in terms of the Court order passed in the year 1982, this application was adjourned sine die, till the decision of pending suit. However, to show that in terms of such application under Section 4 (ibid) the appellants had deposited the earnest money of Rs.
30,000/- in Court, there is clear admission of PW-4 Noor Muhammad who deposed that:--- {{URDU MISS}} As against it, the conduct of respondents No. 1 to 4 is that though they had instituted the suit for specific performance of the agreement on 7.9.1980, but they had not bothered to deposit the balance sale consideration amount of Rs. 3,26,625/- in Court to demonstrate their willingness, bona fide and good faith for seeking specific performance, and the said sum was only deposited by them in Court in the year 1999 in compliance of the impugned judgment. While examining the question of exercise of discretion in terms of Section 22 of the Specific Relief Act, all these factors are material to see as to which party is entitled to the equitable relief claimed in the suit. To fortify this view, here a reference to Section 24(b) of the Specific Relief Act is also pertinent, which reads as follows:--- "24. Personal bars to the relief. Specific performance of a contract cannot be enforced in favour of a person:---
(a) .............
(b) who has become incapable of performing, or violates, any essential terms of the contract that on his part remains to be performed;
(c) ..................... (d)......................"
24. When we go into further details of the case from another angle, we find that initial burden to prove that after the execution of agreement dated 2.4.1979, at all times the respondents No. 1 to 4 were willing to perform their part of the agreement or that time was not the essence of the agreement, though specifically agreed to, was on them but all the three witnesses examined by them as PW-1 to PW-3, who were either their relatives or otherwise interested, remained totally silent and did not state much about their conduct in this regard. As against it, the conduct of the appellants is quite clear from their written notice dated 13.5.1979 'addressed to the respondents No 1 to 4, sent just three days after the expiry of the time agreed under the agreement, and -Thereafter filing of application in terms of Section 4 of the Punjab Relief of Indebtedness Ordinance, 1960. Not only this, but even thereafter throughout they remained consistent in their stance, firstly, that time agreed for performance was essence of the agreement, which stood frustrated due to non- payment of balance sale consideration within the stipulated period, irrespective of the pendency of the two earlier suits as the said suits were instituted before the execution of agreement between the parties and secondly/alternatively, due to clear stipulation in the agreement that if any legal impediment comes in the way of specific performance of the agreement in its agreed terms then it shall be deemed to have been cancelled.
25. Keeping in view the facts and circumstances of the present case, as discussed above, we have also carefully gone through the judgments cited by both the learned ASCs in support of their respective contentions, particularly, as regards the question as to whether in a suit for specific performance of contract in respect of some immovable property time is not the essence of the contract and what are the fundamental principles regulating the exercise of discretion by the Court in granting the requisite relief within the legal frame of Section 22 read with Sections 23 and 24 of the Specific Relief Act. The pith and substance of the cases cited above is that primarily it would entirely depend upon the specific terms/language of the agreement and the relevant facts and circumstances of each case at the time of entering into the agreement and thereafter, which will enable the Court to decide whether the stipulation of specific time for performance of an agreement was not the essence of the contract or the Court while exercising its discretion in this regard could brush aside such agreed stipulation of timeframe merely for the reason that the agreement relates to a transaction involving sale of immovable property. Moreover, as regards the scope of Section 22 (ibid) the Court has vast discretion to exercise in favour of specific 1 performance or its refusal, but such discretion is to be exercised on sound judicial principles and not in an arbitrary manner or for the reason that it is permitted by law to do so. Keeping these legal principles in mind, at the cost of repetition, when we again revert to the facts of the present case, we find that the agreement dated 2.4.1979 between the parties was entered into at a time when two civil suits, challenging/disputing the title of the vendors, were already pending before the Civil Court. Prima facie, it was for this reason that in the written agreement specific stipulation of timeframe was agreed to between the parties for the payment of balance sale consideration with consequential penalty clause of forfeiture of earnest money qua vitiation of agreement in favour of vendors or filing a suit for specific performance in the other situation, which is by itself sufficient to show clear intention of the parties that time was the essence of the agreement. In addition to it, another stipulation as regards cancellation of the agreement was also mutually agreed between the parties on account of any legal impediment or difficulty due to which the parties were unable to complete the transaction as per stipulation in the agreement. In this regard interpretation of word "(3)1If" (legal defect/impediment) cannot be confined or limited to defect in the title of the suit land alone, but any other unforeseen legal eventuality, which may impede or obstruct the performance of the agreement as per its agreed terms. The timeframe upto 10.5.1979 for payment of balance sale consideration and relating to registration of sale-deed from the vendors has also been conceded by PW-4 Noor Muhammad in his deposition, which has been misread by the Appellate Court in its impugned judgment due to interpolation in the record. Had it been a case where the word was available in-between the words and from the beginning, no such reference would have been available in the judgment of the Trial Court in so much clear terms. This conclusion further finds support from the perusal of the original deposition of PW-4 Noor Muhammad, as discussed in the earlier part of the judgment. In our opinion, in such circumstances when there was clear stipulation of the type incorporated by the parties in the agreement having regards to it, while exercising discretion such agreed terms cannot be disregarded by the Court.
26. Now, the next important issue for consideration before us is regarding payment of compensation, if any, to be made to either of the two parties in terms of this judgment. In this regard, as discussed in the earlier part of the judgment, from the side of the appellants, their learned ASC has candidly offered to pay a sum of Rupees Three Million to respondents No. 1 to 4, as compensation as against payment of Rs. 30,000/- in the year 1979, which sum too they had deposited in the Court at the earliest opportunity, or any other reasonable amount of compensation as deemed fit by the Court. Conversely, learned ASC for respondents No. 1 to 4 has also offered to enhance amount of compensation as deemed fit by the Court. Keeping in view such counter-offers, an opportunity was afforded to the concerned parties to find out some amicable settlement for this purpose, but this exercise has failed. In any case, from the above discussion we are clear in our mind that in the above discussed facts and circumstances, equitable and fair exercise of discretion is that respondents No. 1 to 4 are not entitled for the specific performance of agreement in question due to their conduct and default. However, keeping in view the generous offer made by the appellants, we deem it appropriate to award them compensation of Rupees Five Million, which sum will be paid in addition to the sum of Rs. 30,000/- paid by them in terms of the agreement, and refund of balance sale consideration amount, which they had deposited in Court in terms of the impugned judgment.
27. For the foregoing reasons, this appeal is allowed; the impugned judgment dated 10.6.1999, passed by the learned Division Bench of the Lahore High Court, Multan Bench, is set aside; and, consequently the suit for specific performance of contract filed by respondents No. 1 to 4 is dismissed with no order as to costs, but in the above stated terms.