' FAISAL ZAMAN KHAN, J. --- This appeal assails judgment & decree dated 26.03.2009 passed by Civil Judge 1st Class Lahore. Facts giving rise to the present appeal narrated in the plaint are that appellants/defendants are the owners in possession of Bunglow No. 30-P measuring 1- Kanal situated in Gulberg-II Lahore. Through agreement to sell dated 15.02.2003, appellants No. 1 to 7 through their general attorney and appellants No. 8 and 9 (during course of proceedings, defendant No. 9 died, now represented by her legal heirs) with the respondent/plaintiff for a total sale consideration of Rs. 4,800,000/- out of which Rs. 600,000/-was received as earnest money and it was decided that the date for the execution of sale-deed will be 30.6.2003. As the appellants had inherited this property from their late father and a decree in this regard was obtained from the Civil Court, this was also decided that appellants shall get the property transferred in their name in the record maintained by Lahore Development Authority (LDA). It was also one of the term of the agreement that period of agreement can be extended for one month with the mutual consent of the parties. This was further averred in the plaint that due to non-transfer of the property in the record of LDA, the period was mutually extended till 28.7.2003.
2. That respondent on 24.07.2003 sent a notice through TCS to the appellants showing his willingness to perform the agreement. It was further averred that he remained present before the Registrar on 28.7.2003 for execution of the sale-deed but none appeared on behalf of the appellants. Thereafter, he repeatedly approached the appellants but they did not perform their part of the contract because of which he had to file the suit.
3. Written statement was filed by the appellants in which they conceded to the execution of the sale-deed but their defence was that time was the essence of the contract and the same cease to exist on 30.06.2003 as the respondent failed to perform his part of the contract within stipulated time, hence he is not entitled to any relief. They categorically denied the stipulation of extension of period of performance of agreement as alleged in the plaint.
4. Out of the pleadings of the parties, seven issues were framed whereafter, both the parties led their oral as well as documentary evidence.
5. During his statement while appearing as PW-1, respondent deposed that he lost the original agreement to sell and sought an opportunity to produce secondary evidence, upon which he was granted an opportunity. He moved an application before the Trial Court under Section 151, C.P.C.
Disclosing that agreement was executed in triplicate (original and 2 photocopies all signed in original) and he may be allowed to produce one of the copies. Appellants in their reply to the extent of execution of agreement in triplicate, conceded, however the stipulation of extension in time for the performance of agreement to sell was vehemently denied. It was also prayed that application may be dismissed. This application was accepted and the respondent was allowed to produce on record photocopy of the agreement to sell, which was produced and exhibited as Ex.P1, which was objected to by the appellants. Subsequently an application was also filed by the appellants for de-exhibiting the document which remained undecided.
6. Lahore Development Authority (LDA), who was also one of the defendants filed their written statement taking a stance that the decree in favour of the appellants was placed in the record of LDA without any specific commitment and appellants have been intimated through letter dated 02.07.2003.
7. Vide judgment & decree dated 26.03.2009, suit of the respondent was decreed by the Trial Court, hence this appeal.
8. The learned Trial Court while decreeing the suit to start with took the application of de-exhibiting of document and rendered a finding that the order to produce photocopy, of the agreement was never challenged before any forum and moreover as it was an admitted document and signed by the parties and their witnesses hence it is considered a primary evidence and cannot be de- exhibited.
9. It was further held that the condition of transfer of property in the record of LDA was never fulfilled on the date of culmination of agreement (30.6.2003) which is clear from the written statement of LDA and as the appellant were not the owners of the property on the said date, ho could they transfer the said property. It was also held that the stipulation at the back of the agreement regarding extension was duly witnessed and the same stood proved. The version of the appellants was disbelieved on the score that n independent evidence has been produced. It was conclude that if the agreement came to an end and appellants were ready to return the earnest money, no action was taken by them hence the suit was decreed.
10. It is contended by the learned counsel for the appellants that time was the essence of the contract and by 30.06.2003 the respondent was obliged to perform his part of the contract but as he failed to do so, the agreement came to an end. He further argues that the Trial Court placed total reliance on Ex.P1 which was the photocopy of agreement to sell and was exhibited under objection. It is his case that an application was filed for de-exhibiting of the said document but the same has not been decided and judgment and decree has been passed. He has also argued that the contents of the application for secondary evidence alongwith documents appended, filed by the respondent would show that there are material discrepancies between the dates of loss of document, application before the police and the report lodged by the police and the Trial Court without any cogent reason allowed the respondent to lead secondary evidence. In this regard, he relies on PLD 2003 SC 410 [Amirzada Khan and others v. Ahmad Noor and others]. He emphasizes that when the agreement to sell was lost prior to the filing of the suit, why was this fact not disclosed in the plaint. This according to him is a negative circumstance against the respondent.
Keeping this in view, he argues that fact which is not alleged in the plaint, evidence on the same cannot be led. He relies on 1987 CLC 157 [Mst. Akhtari Begum v. Muhammad Qasim], 2005 CLC 628 [Mst. Khurshid Begum v. Muhammad Ashraf], 2000 MLD 251 [Noor Muhammad and another v.
Muhamamd lshaq and another] & PLD 1976 SC 469 [Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad]. Learned counsel further argues that in case the original agreement was lost, it was incumbent upon the respondent to have summoned the other two photo-copies originally signed, through Court and he could not have asked for production of the same as secondary evidence. In the end, he argues that the judgment & decree passed by the Trial Court is not sustainable and the same is liable to be set aside.
11. Conversely, learned counsel for the respondent submits that the agreement between the parties is admitted and while placing contents of the plaint in juxta position with the averments of the written statement, agreement alongwith the stipulation of extension stood proved and nothing further was required. He relies on 2005 MLD 283 [Bashir Ahmed and others v. Akbar Ali and others], 1999 SCMR 2633 [Muhammad Ashraf v. Abdul Ghafoor and 4 others]. 2008 SCMR 1639 [Nazir Ahmad and another v. M. Muzaffar Hussain], 1996 CLC 79 [National Bank of Pakistan v. General Tractor and Machinery Co. Ltd. And another], PLD 2007 Lah. 300 [Louise Anee Fairley v. Sajjad Ahmed Rana], 2002 SCMR 326 [Mst. Baswa r Sultan v. Mst. Adeeba Alvi] and PLD 2011 Lahore 522 [Mehmood Ahmad and 8 others v. Malik Abdul Ghafoor] to argue that admitted facts need not to be proved. He also argues that contents of the agreement makes it clear that time was not the essence_of the contract as appellants did not get the property transferred in their name prior to 30.6.2003 and they were not in a position to transfer the property in favour of the respondents. He heavily relies on the stipulation made in the agreement that period of execution could be extended for a month with the mutual consent of the parties. In this backdrop, he argues that extension was rightly agreed upon by the general attorney of the appellants. He relies on PLD 1962 SC 1 [Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala], 2009 SCMR 114 [Muhammad Taj v. Arshad Mehmood and 3 others], PLD 1983 SC 344 [Ghulam Nabi and others v. Seth Muhammad Yaqub and others], PLD 2003 SC 430 [Mst. Amina Bibi v. Mudassar Aziz] and 2014 CLC 499 [Mst. Fayyaz Bano and 9 others v. Tariq Mehmood and 3 others] to argue that in cases of immovable property time is normally not the essence of contract. He also emphasized that when the respondent appeared as a witness, a suggestion was given by the counsel for the appellants that the signatures on the back of Ex.P1 about extension were obtained through fraud which the respondent denied is an index to the fact that appellants indirectly acknowledges the stipulation of extension, relies on 2003 CLD 80 [Mian Sajidur Rahman v. Messrs Granulars (Private) Limited through Manager Commercial, Lahore].
Lastly he argues that as the price of the property had enhanced, appellants were not willing to perform their part of the contract hence the judgment & decree passed by the Trial Court is legal and should be upheld and the appeal may be dismissed.
12. We have heard the learned counsel for the parties and have perused the record.
13. It is admitted between the parties that they did enter into an agreement to sell and for execution of sale-deed, the date was fixed as 30.06.2003. The only controversy is that appellants deny the stipulation regarding period of extension for the execution of sale-deed till 28.7.2003 and emphasize that time was the essence of the contract which came to an end on 30.6.2003.
14. The most important issue which needs to be decided in this appeal is that as to whether, time was the essence of the contract. We have examined the agreement keeping for a while stipulation of extension in time aside/being non-existent. This is noted by us that it was a categoric stipulation in the agreement that prior to execution of sale-deed, appellants will get the property transferred in their name in the record of LDA, on the strength of decree in their favour. This was also one of the stipulations that time for the execution of the sale-deed can be extended for one month with the mutual consent of the parties. While examining the written statement and the evidence of the appellants we have further noted that it has been admitted by the appellants that till 30.06.2003, the property was not transferred in the name of the appellants in the record maintained by the LDA. A categoric suggestion was given to the attorney of the appellants appearing as PW2 that property was not transferred in the names of the appellants till 30.6.2003, which he did not deny.
This stipulation is also supported by the written statement filed by LDA.
15. We are of the view that the agreement arrived at between the parties was a contingent contract which was based on the contingency of transfer of title in the name of the appellants in the record maintained by LDA which admittedly till the date of completion of the agreement (30.06.2003) was not done which automatically extends the agreement and belies the contention of the appellants that time was the essence of the contract. Even otherwise, there is a clear stipulation in the agreement that with the mutual consent of the parties, time could be extended. This itself would show that appellants were ready to extend the time for execution of sale-deed which clearly takes out this agreement from the ambit of an agreement wherein time can be said to be the essence of the contract. In our view, the stipulation regarding extension of time at the back of the agreement, denied by the appellants become immaterial when the admitted contents of the agreement arrived at between the parties make the contract contingent and auto extendable. Had the time being the essence of the contract, there should have been a clear intention of the parties regarding the date of execution and penal consequence entailing non-performance on the fixed date, which in the present case are missing. Even otherwise, appellants' title to transfer the property was not perfect on the fixed date i.e. 30.6.2003.
16. There is another interesting stipulation in the agreement that in case agreement is extended for one month and even then the agreement is not performed, parties will amicably and mutually suggest a way for completion of agreement. This stipulation further fortifies the finding rendered by us that time was not the essence of the contract.
17. The resume of facts would signify that stipulation of transfer of title in LDA coupled with intention to extend the time of execution would clearly signify that time was definitely not the essence of the contract. We have gone through the judgments cited by the learned counsel for respondent and subscribe to the view rendered by the august Supreme Court of Pakistan that in cases of immovable property, time is normally not the essence of the contract unless there is a clear stipulation followed by a clear intention and penal consequence in case of nonperformance.
18. We are also of the view that if time was the essence of the contract and appellants were really serious, then they at least should have given a notice to the respondent, prior to 30.6.2003 signifying their willingness and consequence of failure of the respondent. Had the intention of the appellants was that noble, they could have issued a notice immediately after the transfer of title in their name in the record maintained by LDA, which they never did? Non issuance of notice by the appellants showing their willingness for performance of their part of the agreement can term to be another negative circumstance against them. Reliance in this regard can be placed on PLD 1962 SC 1 [Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala], 2009 YLR 2359 [Karachi] [Noor Muhammad v. Fazal Mahmood and others] & PLD 2011 Lah. 522 [Mehmood Ahmad and 8 others v.
Malik Abdul Ghafoor] & 2013 CLC 1406 [Mst. Ghazala Yasmeen and 3 others v. Sarfraz Khan D'ura
19. The argument of the learned counsel for the appellants that his application for de-exhibition of agreement to sell remained undecided is belied from the judgment passed by the Trial Court. In the judgment and decree under challenge, the Trial Court at the outset has dilated upon the contents of the application and has given a finding.
20. This Court is of the view that appellants have failed to prove that time was the essence of the contract. In view of our finding rendered in the previous paras, the objections raised by the appellants that respondent has failed to prove extension in agreement, non-disclosure of exact details of loss of the agreement and non-giving of reasons for producing secondary evidence become immaterial and technical in nature. The stipulation regarding extension in contract denied by the appellants even if proves to be true that will not override the contents of the agreement which are self-explanatory and admitted by the appellants For what has been discussed above, we find no merit in the appeal and the same is dismissed with no order as to costs. R. F.A.
Dismissed.