' AMIN-UD-DIN KHAN, J, Through this revision petition the petitioner has challenged the judgment and decree dated 7-12-2006, passed by the learned Additional District Judge, Lahore, whereby appeal filed by the respondent/defendant was accepted and the judgment and decree dated 8- 11-2005, passed by the learned Civil Judge, 1st Class.Lahore, decreeing the suit of the petitioner/plaintiff for specific performance, was set aside.
2. Brief facts of the case are that on 19-12-1993, petitioner/plaintiff filed a suit for specific performance on the basis of agreement to sell dated 14-2-1992. Written statement was filed wherein objection was that the contract was not enforceable in law as the plaintiff had failed to pay full price of the land by the time fixed in the agreement. The learned trial Court framed the issues and invited the parties to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. After closure of the trial, the learned trial Court vide judgment and decree dated 8-11-2005, decreed the suit. Appeal was preferred and the same was accepted vide judgment and decree dated 7-12-2006, hence this revision petition.
3. Learned counsel for the petitioner argues that in the agreement, which has been produced as Exh. P-1, time for performance was fixed as 30-9-1992; that even on 27-9-1992, respondent/defendant received Rs.40,000 more and date for performance was fixed as 27-2-1993, and this was endorsed upon the back side of page 1 of Exh. P-1, which is duly thumb marked by the respondent/defendant and signed by the petitioner/plaintiff and one witness; that on 26-2-1993, respondent/defendant received Rs.18,000/- more and the date for performance was fixed as 28-4- 1993, which has also been endorsed beneath the first endorsement at page 1 of Exh. P-1, which is also thumb marked by the respondent/defendant and that on 26-4-1993, the date for performance was extended till 28-10-1993. This has also been endorsed at page 2 of Exh. P-1. This endorsement is also duly thumb marked by the defendant/respondent. States that as there was a dispute of the defendant/respondent with his brother, Muhammad Mansha, with regard to the suit property, therefore, his brother filed a suit for permanent injunction on 8-4-1992. This was the reason that the defendant was receiving the money and also requesting for extension of the performance period of Exh.P-1; that the copy of the said plaint has been produced as Exh. P-5, which was .Filed on 8-4-1992; that the written statement filed by the defendant in the said suit has also been produced as Exh. P-6 on the file; that the said suit was withdrawn by his brother on 12-2- 1994. Copy of the order has been produced as Exh. P-7; that on the last extended date of performance the defendant was not ready to perform his part of the contract, therefore, even the petitioner/plaintiff sent a notice to the defendant/respondent which is Exh. P-2 and the receipt of post office through which registered notice was sent is Exh. P-3 and acknowledgment due received back by the counsel for the plaintiff has been produced as Exh.P-4; that no reply of notice was given by the defendant/respondent, therefore, petitioner/plaintiff was forced to file suit for specific performance; that the agreement has not been denied by the defendant/respondent and all the payments alleged by the plaintiff/petitioner have been admitted by the defendant/respondent in his written statement as well as when he appeared as his own witness as D.W.2; that the petitioner/plaintiff produced Zulfiqar Ali P.W.1 and Muhammad Yaqoob P.W.2. One of whom is the marginal witness of Exh. P-1, despite that the agreement and its endorsements were not denied by the defendant/respondent; that the findings recorded by the learned trial Court are well founded and in accordance with the evidence on the file; that the learned 1st Appellate Court fell in error while holding that the last extended date, i.e. 28-10-1993, was essence of the contract, therefore, prays for setting aside the judgment and decree of the learned 1st Appellate Court and acceptance of the revision petition.
4. On the other hand, learned counsel for the defendant/respondent argues that even notice Exh.P- 2 was given after the expiry of the date of performance, it was fault of the petitioner/plaintiff, therefore, the 1st Appellate Court has rightly set aside the judgment and decree of the learned trial Court and the plaintiff/petitioner was not entitled to the discretionary relief of specific performance.
5. I have heard the learned counsel for the parties and have also gone through the evidence on the file with their able assistance as well as judgments and findings recorded by both the Courts below. The agreement is admitted one. Earnest money as well as other installments are also admitted. Total land is 1 Kanal and 4 marlas. Total agreed price is Rs.1,20,000. Rs.20,000 were paid at the time of execution of original agreement whereas Rs.40,000 were paid on 27-9-1992, and Rs.18,000 were paid on 26-12-1993. In this way Rs.78,000 have been received by the defendant/respondent and outstanding amount is Rs.42,000. In this way near about 2/3rd of the agreed amount has been received by the defendant/respondent and I have noticed that even possession of the land has not been delivered to the plaintiff/petitioner. I have also noticed that extension in time is admitted, the petitioner/plaintiff is paying money to the defendant/respondent without taking possession of the suit land and no reason on the part of the defendant/respondent has been advanced to prove that the plaintiff/petitioner was causing the delay. Record of litigation between the defendant/respondent and his brother has been produced before this Court, which ended on 12-2-1994, which is visible from Exh. P-7. The petitioner/plaintiff has filed his suit on 20-12- 1993. Prior to the end of litigation, which shows bona fide on the part of the petitioner/plaintiff and even prior to the filing of the suit the petitioner had issued notice dated 29-11-1993, in the name of the defendant/respondent, which is Exh.P-2 and acknowledgement due is also available as Exh.P-4.
Even the statement of the defendant/ respondent who appeared as his own witness as DW-2 is very interesting as he is claiming that the plaintiff has not paid the amount within the specified time, therefore, if he pays the present market price he is ready to transfer the land. He has admitted Exh. P-1 with all its endorsements to be true and further the statement of the witness produced by the defendant/respondent himself as D.W.1 Shahadat Ali is very relevant wherein he has admitted that the plaintiff/petitioner was visiting the defendant and asking him to perform his part of the contract and get the sale deed registered. This portion of the statement has been given by the witness of the defendant/respondent and is binding on the defendant. Further ordinarily in a suit for specific performance of immovable property time is not essence of the contract except specifically mentioned in the contract. In this contract as I have noticed that the defendant/respondent himself is receiving the money and extending the period and further that the defendant/respondent has never given any notice for termination of the contract on the basis that the time was essence of the contract and the plaintiff/petitioner could not perform his part of the contract. Without notice by the defendant/respondent time cannot be taken as essence of the contract as the defendant himself stated as DW-2 that if the plaintiff pays the current market price he is ready to transfer the suit land. Even otherwise in the circumstances of the case it cannot be gathered that the time was essence of the contract. The learned 1st Appellate Court fell in error while holding that the last date for extending the contract was essence of the contract. In this view of the matter, the findings recorded by the learned 1st Appellate Court are absolutely against the evidence as well as admissions on the part of the defendant/respondent and the same are not sustainable under the law.
' In view of what has been discussed above, the instant revision petition is accepted, judgment and decree dated 7-12-2006. Passed by the learned 1st Appellate Court are set aside and the judgment and decree dated 8-11-2005, passed by the learned trial Court are restored. Parties are left to bear their own costs.