MUHAMMAD IQBAL vs MEHBOOB ALAM

' MIAN SAQIB NISAR, J.---This appeal under Article 185(2)(d)(e) of the Constitution of the Islamic Republic of Pakistan, 1973 has been filed by the appellant, who was a defendant in the suit for specific performance initiated against him by the present respondent on 16-5-2003, which was dismissed by the learned trial Court vide judgment and decree dated 12-5-2004. Furthermore, the appeal by the respondent also failed on 5-11-2004. However he has succeeded, in the second appeal before the learned High Court and thus his suit stands decreed.

' The brief facts of the case are: that admittedly, vide agreement dated 1-4-2003, the appellant agreed to sell to the respondent the suit plot bearing No,37-A in Guldasht Town, Ghazi Road, Lahore and measuring one kanal for a total consideration of Rs,19,80,000. An amount of Rs,180,000 on account of advance money was received by the appellant at the time of execution of the agreement, whereas the sale was to be finalized upon payment of the balance amount of Rs,18,00,000 by the respondent till 15-5-2003. On 16-5-2003, as stated earlier, the respondent filed the suit for specific performance asserting that prior to the target date he approached the defendant (the appellant) and urged him to receive the aforesaid balance consideration and complete the transaction by executing sale deed in his favor, but that request was not acceded to, thus constraining him to file the suit. It is pertinent to mention here that along with the suit the respondent moved an application seeking interim injunction qua restraining the appellant from alienating the suit property which was granted by the learned trial Court, subject to deposit of the balance consideration; the same was duly deposited by the respondent in Court on 23-5-2003. Be that as it may, the appellant filed his written statement wherein the execution of agreement to sell, receipt of advance amount there under and other terms and conditions thereof were not denied, rather admitted. However, the key defence set out by the appellant/defendant was that since time was the essence of the agreement and by not making the balance payment within stipulated time (by the target date), the respondent himself violated the agreement rendering it unenforceable in law. The parties led evidence and upon conclusion of the trial, as mentioned above, the learned (Trial) Court dismissed the suit holding: that the original agreement had not been produced in evidence by the respondent/plaintiff; that time was the essence of the contract; and that on account of the default on part of the respondent/plaintiff in making the balance consideration within stipulated time the transaction could not materialize, therefore, he (plaintiff) is not entitled to grant of discretionary relief. This view was endorsed by the learned first Appellate Court. However, the learned High Court in second appeal found: that since agreement to sell is admitted by the appellant/defendant, its non-production in evidence carries little or no significance, that time was not the essence of the contract, as it is ordinarily not so (not the essence) in the transactions pertaining to immovable property(ies); and that the respondent has not violated the terms and conditions of the agreement to sell, so as to dis entitle him from the claimed discretionary relief of specific enforcement. Therefore, the learned High Court reversed the verdicts of the fora below impugned before it and allowed the respondent's suit. Hence this appeal.

2. Learned counsel for the appellant has argued, that it was the respondent who failed to make payment of the balance consideration or even offer to do so within time (by 15-5-2003), thus on account of his unwillingness to perform his part of the agreement, the enforcement of the same was rightly refused by the first two courts. He further argued that the respondent did not even approach the appellant for the purpose of purchasing the stamp papers nor for other requisites with completion of the sale in addition to the non-payment of the balance amount, he submitted that it is not proved on the record whether the respondent even possessed or had arranged for the amount required to pay the balance consideration, as sufficient funds were not available in his account maintained in Standard Chartered Bank, where from earlier the advance amount of Rs,1,80,000 was paid by him through cheque; sufficient funds have been shown in the account of Messrs Waqas Zarai Farm in MCB Bank, but since it is not an exclusive account of the respondent, therefore, any amount therein does not belong to him, and such account would be irrelevant for the said transaction; the certificate of MCB Bank (Exh.P2) produced in the above context has not been proved in accordance with law, as neither the Bank Manager nor concerned officer have been examined to prove the same. The learned counsel for the appellant maintained that the findings of the two Courts below have been reversed by the learned High Court without taking into account the reasoning/concurrent findings of the first two courts, without even dealing with such reasons, and in complete disregard of the evidence on the record; therefore, the impugned judgment is beyond the scope of a second appeal (see sections 100 and 101, C.P.C.). It was lastly submitted that while the second appeal was still pending the respondent withdrew the afore- mentioned amount which he had deposited with the trial court pursuant to its order, and this reflects seriously upon his conduct and intent vis-a-vis the grant of discretionary relief to him.

3. Heard. Before proceeding to examine the pleas urged by the learned counsel for the appellant, it is expedient to state that the execution of the agreement to sell (in question) and the terms and conditions thereof are admitted in the written statement filed by the appellant/defendant. Besides, no defence has been specifically set out therein (written statement) alleging that the respondent was not ready and willing to perform his part of the agreement or that he lacked the capability to do so. Obviously, therefore, no issue was framed by the IA trial Court in this regard, and even throughout the pendency of this lis the appellant never pressed for framing of such an issue. Thus the findings of the first two courts (particularly trial court which was not reversed by the first appellate court) that the respondent should be non-suited for non-production of the agreement in evidence and their concurrent view that he was not ready and willing to perform his part of the agreement, are in fact contrary to the position averred by the appellant/defendant in the written statement itself. It is a settled principle of law that a fact admitted needs no proof, especially when such admission has been made in the written statement (see PLD 1975 SC 242), and it is also settled that no litigant can be allowed to built and c prove his case beyond the scope of his pleadings. Therefore, only plea that remained to be determined; as set out by the appellant in his defence (written statement) was if the time was the essence of the contract or not. But neither from the contents of the agreement nor from the intent and conduct of the parties and/or from any evidence led by the appellant it has been established to be so. In relation to contracts of immovable property the rule is that time ordinarily is not the essence, however, this by no means is an absolute rule and it is always open to the party, who claims exception thereto, to establish otherwise from the contents/text, letter and spirit of the E agreement and/or from the intent and conduct of the parties, as well as the attending circumstances. The appellant/ defendant has failed to do so in the instant case.

4. Notwithstanding the above, when evaluating the conduct of the respondent in so far as his willingness to perform his obligation under the agreement to sell is concerned, and/or when examining his alleged failure to do so, it is pertinent to note that, regardless of the non-issuance of a notice by him and his inability to prove timely telephonic contact with the appellant (as averred in the plaint), that the respondent filed the suit on 16-5-2003, only a day after the target date i.e. 15- 5-2003, further it is conspicuous that in compliance with the court's order the respondent also deposited the outstanding consideration amount in court. This duly established his bona fide, promptness and also his readiness and willingness. On the contrary had the appellant also been willing to perform his obligations, he would have conceded the suit on the first available opportunity, accepted the money and finalized the transaction.

5. As far as the capability of the respondent to pay the balance consideration is concerned, he may not have had sufficient funds in that particular account maintained at the Standard Chartered Bank, but there was no stipulation or understanding between the parties that the balance consideration shall be paid or payable from that account only. It is proved by the respondent that he was also maintaining and operating another account titled Waqas Zarai Farm in MCB Bank which had adequate funds lying therein to cover the balance consideration payable.

With regards the appellant's argument that such account does not belong to the respondent and that the certificate Exh.P2 has not been proved by the respondent/plaintiff and that the said document was inadmissible in evidence thus much credence cannot be given to it., it suffices to say that since no objection as to its proof was raised by the appellant at the relevant time when it was taken in evidence by the court, therefore, it validly formed part of the respondent's evidence; and thus in law the appellant shall be considered to have waived his right to resist the mechanics of the proof thereof. Furthermore, we are not persuaded to hold that Exh.P2 was inadmissible in evidence, no provision of the Qanun-e-Shahadat Order, 1984 has been resorted to by the learned counsel for the appellant to this effect. If however the objection of the appellant is about the evidentiary value of Exh.P2, it was open to the appellant to have summoned the requisite record/officer of the concerned bank in rebuttal so as to controvert and refute the said instrument; but this was not done at any stage of the case.

6. Moreover, if the respondent had not sent a notice to the appellant demanding performance of the agreement before 15-5-2003, likewise the appellant also did not send any notice to the respondent demanding payment or notifying cancellation of the said agreement. The appellant did not resort to section 35 of the Specific Relief Act even after the institution of the suit for specific performance by the respondent.

7. From the above discourse it is quite clear that the first two courts have miserably failed to consider important aspects of the case as highlighted hereinabove. By ignoring the admission of the appellant in respect of the agreement to sell, the terms and conditions thereof, and in disregard of the fact that the defence set out by the appellant was never in relation to the willingness of the respondent rather it related to the plea time being the essence of the contract, the said courts in the garb of this plea have allowed the suit on propositions which were never in issue between the- parties. Unmistakably this brings the case within the purview of a decision being contrary to law, attracting the provisions of sections 100 and 101, C.P.C. Therefore, the learned High Court has rightly exercised its jurisdiction. We are also not persuaded to hold that in the facts and circumstances of the case the withdrawal of the amount of balance by the respondent during the pendency of his second appeal would have any reflection on his conduct in order to dis entitle him from the discretionary relief of enforcement of the agreement to sell.

8. Before parting, it may be mentioned (note: this fact has already been briefly mentioned above) that during the pendency of his second appeal before the learned High Court, the respondent had moved an application to the trial Court for the permission to withdraw the amount of Rs, 18,00,000 which he had deposited under the order of the Court dated 23-7-2003 and the learned Court vide order dated 7-12-2014 granted him the permission to withdraw the said amount. Thus while this judgment was being dictated in the Court and the appeal was being dismissed, Mr. Taqi Ahmed Khan, learned counsel for the respondent stated that as the learned High. Court while allowing his appeal has not passed any order directing the respondent to deposit the balance amount of consideration (Rs,18,00,000), thus he has requested that a direction be issued in this behalf and respondent may be allowed one month period from today to make such deposit. This has been objected to by the learned counsel for the appellant on the same pleas earlier urged by him on the subject. Be that as it may, we have questioned Mr. Taqi Ahmed Khan, learned Advocate Supreme Court that on account of the withdrawal and use of the money for such long period the respondent obviously stands enriched; the currency has devalued while the value of the suit property has considerably increased. If the said amount was not withdrawn and was invested by the court in some profit bearing scheme of the Government, the amount would have been doubled by now, the learned counsel promptly and voluntarily agrees that his client shall pay an amount of Rs,36,00,000 (i.e. Double of Rs,18,00,000). That being so, let the respondent deposit with the trial Court an amount of Rs,36,00,000 as the balance sale consideration within one month from today. However, this deposit in no way shall be deemed or considered or allowed to prejudice the rights of the appellant, if by now on account of the lapse of time, may be for factual and/or legal reasons the execution process/proceedings/petition of the respondent has been or shall be rendered barred by time. It may be pertinent in the above context to mention that from the record of the present case it does not transpire if after the institution of the instant appeal the operation of the impugned judgment was suspended/stayed by this court; and we are not sure if during the pendency of this matter the respondent has initiated any execution process. In view of the above, this appeal has no merit and is hereby dismissed.