' AMIN-UD-DIN KHAN, J.---Through this appeal, the appellant has impugned the judgment and decree dated 27-1-2011 passed by learned Senior Civil Judge, Kasur, whereby the suit for possession through specific performance filed by the plaintiff-appellant was dismissed.
2. The facts as arising out of this appeal are that on 6-7-2005 plaintiff-appellant filed a suit for specific performance of contract dated 27-4-2005. The written statement was filed, wherein the agreement was admitted but the suit was contested on the basis that plaintiff failed to perform his part of contract, therefore his advance money has been forfeited and the agreement has been cancelled. Learned trial court on 23-1-2007 framed the issues and invited the parties to produce their respective evidence. Both the parties produced oral as well as documentary evidence in support of their stands. After the closing of trial, vide judgment and decree dated 27-1-2011 learned trial court dismissed the suit finding that time was the essence of contract and plaintiff failed to perform his part of contract. Hence, this appeal.
3. Learned counsel for the appellant argues that neither the intention of parties was that time is the essence of contract nor it is borne out from the language of contract itself; that the plaintiff- appellant remained willing to perform his part of contract and on the maturity date of contract he remained present in the office of Sub-Registrar but the defendants-respondents did not turn up, therefore they refused to perform their part of contract and as such plaintiff was forced to file the suit in hand just one day after the maturity date of contract. Learned counsel has referred the contract which is an admitted document between the parties and the same was produced as Ex.P- 1; that when there was no issue with regard to time being the essence of contract, therefore the findings recorded by learned trial court are nullity in the eye of law. Learned counsel has also relied upon the judgments "2004 YLR 845 (Mst. Mehmooda Begum v. Syed Hassan Sajjad and 2 others), 2010 SCMR 286 (Muhammad Hussain and others v. Dr. Zahoor Alam), 2011 YLR 140 (Akbar Khan v.
Muhammad Din and 2 others), PLD 1999 Lahore 193 (Messrs Pioneer Housing Society (Pvt.) Limited through Managing Director, Bank Square, Lahore v. Messrs Babar and Company through Shakir Ali Khan and 2 others), 2005 SCMR 544 (Mst. Batul and others v. Mst. Razia Fazal and others), 2010 CLC 982 (Mehboob Alam v. Muhammad lqbal), 2000 YLR 378 (Muhammad Anwar and 8 others v. Bahan and another), 2010 YLR 1799 (Malik Tanveer Ali and another v. Sardar Ali Imam and 2 others), 2004 SCMR 584 (Muhammad Yaqoob and others v. Hakim Ali and others ), 2000 YLR 398 (Muhammad Ramzan v. Abdullah and others), PLD 1962 Supreme Court 1 (Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawater Wala), 1983 SCMR 559 (Zaheer Ahmad and another v. Abdul Aziz and others), 1988 CLC 1600 (Bashir Ahmad and 4 others v. Muhammad Ramzan and another), PLD 1999 Lahore '238 (Muhammad Nawaz Khan and another v. Mst. Farrah Naz), PLD 1983 Supreme Court 344 (Ghulam Nabi and others v. Seth Muhammad Yaqub and others) and 1992 MLD 1787 (ISSO and another v. Muhammad Ismail and 2 others)"
4. On the other hand, learned counsel for the respondents-defendants argues that the defendants were willing to perform their part of contract till the expiry date of contract and the plaintiff failed to perform his part till the expiry date i,e, 4-7-2005; that the defendants have rightly contested the suit and there is no illegality or infirmity in the findings recorded by learned trial court.
5. We have heard the learned counsel for the parties at full length and gone through the record as well as case-law referred to by learned counsel for the appellant.
6. We have gone through the agreement (Exh.P-1). It is now settled that in a contract for transfer of immovable property ordinarily time is not an essence of the contract but the same can be an essence of contract if it is incorporated in the contract and the intention of parties must be visible from the language of contract. We have seen no such intention of parties that time is the essence of contract as is visible from the language of contract, nor specifically it is mentioned that the time would be an essence of the contract. In a contract of immovable property if parties desire that strict adherence to the time should be ensured, then the terms of the agreement should be so specific which would leave no room of doubt that any deviation from the time clause would entail penal consequences. Similarly, the conduct of parties should be the evidence of fact that the violation of time clause would not be compromised. This can be ensured, if on the expiry of the stipulated time the vendee issues a notice for the rescission of contract. In the absence of any notice for the rescission of the contract it could not be assumed that the vendor had treated the time clause as essence of the contract. In the present case reference of language of contract (Ex.P-1) is necessary, therefore relevant part whereof is reproduced herein:-- {{URDU TEXT}} {{URDU TEXT}} In the agreement vendors/defendants are first party, whereas vendee/plaintiff is the second party.
It is clear that according to the language of Ex.P-1 defendants were bound to get the sale deed registered till 47-2005 by receiving the remaining consideration amount and for forfeiting the advance money or cancelling the agreement (Ex.P-1), refusal of vendee/plaintiff was A necessary.
For proving the refusal of plaintiff, service of notice by the defendants showing willingness for registration of sale deed on the expiry date was necessary and further notice of rescission of contract after the refusal by the plaintiff was necessary. No notice was served upon the vendee/plaintiff for the rescission of the contract. Even otherwise the record produced by the defendants-vendors with regard to their presence before the Sub-Registrar on 4-7-2005 has not been produced in accordance with the rules of evidence by exhibiting the same, rather the documents have been placed on the file as mark 'A' mark 'B' and mark 'C' which have no evidentiary value at all. The presence of vendors before the Sub-Registrar on the date fixed, the application which has been produced as mark 'C', was to be proved by summoning the Sub- Registrar who allegedly reported on 4-7-2005 but no such procedure has been adopted.
Furthermore, the plaintiff-appellant has filed the suit just one day after the expiry of date of maturity of agreement to sell. The evidence led by the parties also does not support the case pleaded by the defendants-respondents. In the light of case-law referred to by learned counsel for the appellant the findings, recorded by learned trial court are not sustainable under the law. When there was no issue that time was the essence of contract, therefore the findings of learned trial court are not only against the law but also against the settled principles of law laid down by the august Supreme Court of Pakistan referred supra.
7. In the light of what has been discussed above, we allow this appeal and set aside the judgment and decree dated 27-1-2011 passed by learned Senior Civil Judge, Kasur and decree the suit filed by the appellant-plaintiff subject to deposit of balance amount of Rs,84,85,000 (Eighty-Four Lacs and eighty-five thousand) mentioned in the agreement till 8-11-2013 with the trial court, failing which the suit will be presumed to have been dismissed. The appeal is allowed with costs throughout.