Ch. Muhammad Iqbal, J. Through this appeal, the appellant has challenged the judgment & decree dated 18.11.2009 whereby the suit for possession through specific performance of agreement to sell filed by the appellant has been dismissed by the learned Civil Judge, Lahore.
2. The appellant/plaintiff filed a suit for possession through specific performance of the agreement to sell dated 24.03.2000 in respect of House No.E-105/E New Super Town, Lahore (hereinafter called the suit property) against the respondents. According to the contents of plaint total sale consideration between the parties was settled Rs.38,00,000/- and the appellant/plaintiff paid Rs.5,00,000/- at the time of execution of agreement to sell and the target date for completion of agreement was fixed i.e. 04.07.2000 between the parties. The respondents contested the suit by filing written statement whereby they admitted the execution of agreement to sell but stated that the time was the essence of contract and the appellant did not pay the balance consideration within the target date and failed to perform his part of contract. The learned trial Court framed the following issues on 19.03.2001:-
1. Whether the defendants made an agreement dated 24/3/2000 to sell out the disputed property to the plaintiff against the consideration of Rs.38,00,000/- and received Rs.5,00,000/- as token money and plaintiff paid more amount of Rs.5 Lacs to the defendants and defendants have failed to perform their part of contract and the plaintiff is entitled to a decree for specific performance of the contract as prayed for ?OPP
2. Whether the plaintiff failed to perform his part of contract within the stipulated time and agreement stands recinded?OPD
3. Relief.
3. After recording the evidence the learned trial Court dismissed the said suit of the appellant vide impugned judgment & decree dated 18.11.2009. Being aggrieved, the instant appeal has been filed.
4. The learned counsel for the appellant submits that while passing the impugned judgment and decree, the learned trial Court did not consider the law and facts of the case; the learned trial Court has failed to appreciate that the time was not essence of the contract in this case; that the execution of agreement has been admitted by the respondents, he further submitted that it is established on record that a notice dated 03.07.2000 has been sent to the respondents / defendants intimating that the requisite documents have not been provided to the appellant/plaintiff but the learned trial Court did not appreciate the same, that the impugned order is illegal, void, ab-initio and is not sustainable in the eyes of law. The learned counsel further contended that the impugned judgment is based on misreading and non reading of material evidence.
5. Conversely, the learned counsel for respondents submits that in the agreement to sell dated 24.03.2000, it was settled between the parties that the appellant/plaintiff shall pay the remaining consideration on or before 07.04.2000 and the respondents/defendants then will execute the sale deed and if till the said date i.e. 04.07.2000 the plaintiff will not pay the balance amount within the stipulated period his earnest money shall be forfeited and agreement will become rescinded automatically, as such, the appellant failed to perform his part of contact and in consequence the earnest money was forfeited and the agreement become rescinded. Further the learned trial Court after appreciating the complete oral as well as documentary evidence passed the well reasoned judgment and decree by dismissing the suit of the appellant/plaintiff.
6. We have minutely considered the respective arguments of the learned counsel for the parties and have examined the entire record.
7. It is an admitted fact that the agreement to sell dated 24.03.2000
8. has been executed between the parties in respect of suit property. The appellant/plaintiff paid Rs.5,00,000/- as earnest money at the time of agreement to sell and it was settled between the parties that the remaining amount shall be paid by the appellant / plaintiff to the respondents/defendants within 14 weeks and according to the clause 3 of the agreement the time was essence of the contract, and it also entails the penal clause that if the appellant/plaintiff failed to perform his part of contract then the earnest money shall be forfeited and agreement would become rescinded automatically. The terms and condition of the agreement to sell dated 24.03.2000 are as under:- (1). That the total consideration amount regarding above said property has been fixed amounting to Rs.38,00,000/- (Rupees Thirty Eight Lacs only). Out of which the Party No.2 has paid the Rs.5,00,000/- (Rupees Five Lacs only) as earnest money to Party No.1. The receipt of which the Party No.1 does hereby acknowledge. The remaining amount shall be paid by the Party No.2 to Party No.1 within 14 weeks time of the signing of instant sale agreement i.e. 4 July 2000 (2). That it is settled between the parties that the parties to the agreement would complete the deal within the stipulated period mentioned above in any case if the Party No.2 would not pay the balance amount within the stipulated period his earnest money should be forfeited and agreement would become rescinded automatically and if the Party No.1 would not complete the deal according to the terms and conditions mentioned above in that eventuality the Party No.2 would be entitled to get the property transferred through Court of law on the risk and cost of Party No.1 in that eventuality the cost of the litigation shall be born by the Party No.1.
(3). That it is settled between the parties that the time period shall be the essence of the agreement in any case the deal would be finalized within the stipulated period mentioned above.
8. The appellant contended in the suit that he also paid additional Rs.5,00,000/- to respondents and to prove this fact, he produced PW.1 Nasir Abbas who stated that he is Personal Assistant of the plaintiff and on 04.06.2000 the appellant/plaintiff paid Rs.5,00,000/- to three persons. He stated as under:- {{URDU TEXT}}
9. According to statement of PW.1 the amount of Rs.5,00,000/- has not been given to the defendant.
The appellant appeared as PW.2 and stated that he purchased the house in question for Rs.38,00,000/- and paid Rs.5,00,000/- at the time of agreement to sell and target period was settled between the parties i.e. 14 weeks for the execution of sale deed. The respondents/defendants failed to deliver the title documents, and demanded some more amount i.e. Rs.5,00,000/-, the appellant / plaintiff paid the same in the month of June 2000 and he further stated that he is ready to pay the remaining amount of Rs.28,00,000/- for the completion of agreement to sell. PW-2 admitted in cross examination that firstly he paid Rs.500,000/- at the time of agreement to sell through cheque Ex.PW2/1. The respondents/defendants did not issue any receipt of further amount of Rs.500,000/- whereas PW-1 stated that Rs.500,000/- was received by three persons in his presence and even did not suggest that the defendant has received the amount. Both the statements are contradicted with each other which created doubt. Even otherwise the agreement to sell was written, earnest money was paid through cheque which was also mentioned in the said agreement. It is not believable that when all transaction is in shape of written document why he did not take receipt of this alleged amount or pay it through cheque.
10. The learned trial Court during the proceedings on 16.07.2001directed the appellant/plaintiff to file an affidavit to the effect that subsequent amount of Rs.500,000/- was paid through bank transaction but the appellant/plaintiff did not file any affidavit in this regard and in this way the appellant/plaintiff has not proved the amount of Rs.500,000/-.
11. It is important to mention here that in written statement, the respondents/defendants raised a preliminary objection No.8 in respect of willingness of the appellant/plaintiff, i.e. (8) "That the plaintiff may kindly be directed to deposit the remaining amount of Rs.33,00,000/- in order to check his bona fide." The appellant/plaintiff failed to show his bona fide during the pendency of the suit and did not deposit the balance amount in Court.
12. The defendant appeared as DW-5 and stated that we obtained all required documents i.e. Fard Malkiyat, NEC, Aks Shajra, Attested Copy of Sale Deed, Site Plan and Completion Certificate etc. and delivered copies of the same to the appellant/plaintiff. The defendants/respondents produced the above referred documents as Ex.D/1, Ex.D/2(dated 04.10.2004), Ex.D/5(dated 26.06.2000), Ex.D/6(dated 28.06.2000) and Ex.D/7(dated 07.06.2000), well before the target date i.e. 04.07.2000 and got prepared the same for the execution of sale deed, which shows the bona fide of the respondents/defendants that he was ready to perform his pat of contract, whereas the appellant/plaintiff did not perform its part of contract despite receiving the copies of above mentioned documents.
13. The DW.4 Rizwan Ahmad son of Muhammad Saleem Qureshi stated that they vacated the suit property for the execution of agreement to sell which is as under:- {{URDU TEXT}}
14. The respondents / defendants produced rent deed Ex.D/8 which proved the bonafide of the respondents/defendants.
15. Mian Muhammad Rafi has appeared as DW.1 and stated that the plaintiff paid only Rs.5,00,000/- and did not perform his part of contract within the stipulated period. He stated as under: - {{URDU TEXT}}
16. Mian Muhammad Zubair has appeared as DW.2 and stated that the plaintiff intentionally and deliberately did not perform his part of contract within time which was settled between the parties and stated as under:-
17. Muhammad Shafi Malik has appeared as DW.3 and stated that we provided all the required documents for the execution of the sale deed to the plaintiff and also sent reply of notice, the plaintiff could not perform his part of contract and he stated as under:- {{URDU TEXT}}
18. All the statements mentioned above proved the bonafide of the respondents/defendants in respect of performing their part of contract whereas the appellant/plaintiff did not prove his willingness and readiness through concreate evidence.
19. Plaintiff appeared as PW-2 and in his statement he contended that he has no knowledge that any notice was issued to the defendants for the execution of registered Sale Deed as well as for demanding some documents but later on he stated that notice was given to the defendants. The appellant/plaintiff failed to show bona fide on his part to perform of contract as well as willingness and readiness. The appellant/plaintiff has failed to prove that the additional amount of Rs.500,000/- was paid by him to the defendants/respondents and also failed to perform his liability within the stipulated period and according to the terms and conditions of agreement, time was the essence of contract and the plaintiff did not perform his part of contract within the stipulated period and also has not proved his case. After payment of earnest money on 24.03.2000, no additional amount received by the respondents/defendants and similarly no extension of time was granted. According to clause 3, it was settled between the parties that the time period shall be the essence of agreement. Reliance is placed on the cases reported as Mst. Shaheen Kausar Versus Shakeel Ahmad (2005 YLR 1347) and Sandoz Limited and another Versus Federation of Pakistan and others (1995 SCM R 1431).
19. It is settled law that grant of specific relief is always discretionary in nature. The Court always is not bound to decree the suit for specific performance in case where the agreement is proved. In this regard reliance is placed on the cases reported as Atlas Khan and others Versus Muhammad Nawaz Khan through L.Rs and others (2010 SCM R 1217), Bashir Ahmad through L.Rs. and another Versus Muham mad Ali through L.Rs, land another (2007 SCM R 1047) and Abdul Aziz and another Versus Abdul Rehman and others (1994 SCM R 111),
20. For what has been discussed above, we find no merits in this appeal, therefore, the same is dismissed.