' MAHMOOD AHMAD BHATTI, J. --- This second appeal has been preferred against the judgment and decree dated 28.02.2005 passed by the learned Additional District Judge, Dera Ghazi Khan, whereby he reversed and overturned the judgment and decree dated 20.01.2004 pased by the learned Civil Judge, Dera Ghazi Khan, thereby dismissing the suit for possession through specific performance instituted by the appellant, whereas a similar suit instituted by Syed Ali Raza Shah, predecessor-ininterest of respondents Nom. & 3 was decreed.
2. The facts, in brief, are that Miraj-ul-Hassan, the appellant instituted a suit for possession through specific performance, averring therein that Khalid Latif [(now being represented by respondents No. 1 (i), (ii) & (iii)] entered into an agreement to sell dated 23.01.1992 (Exh.P.10) with him for the sale of a property measuring 2 1/2 Marlas, situated in Block No. 9, Dera Ghazi Khan for a consideration of Rs. 3,25,000/- out of which an amount of Rs. 1,00,000/- was received by him as earnest money. The balance sale consideration was to be paid by 08.04.1992, whereupon Khalid Latif was to execute a sale-deed and get it registered in favour of the appellant. When this suit got under way, Syed Ali Raza Shah, predecessor-in-interest of respondents Nos. 2 & 3 also brought a suit for specific performance, seeking specific performance of an agreement to sell dated 09.10.1991 (Exh. D.1) regarding the very same property. This suit was instituted by him on, 10.11.1993: Interestingly enough, in his written statements, late Khalid Latif admitted the execution of both the agreements to sell dated 23.01.1992 (Exh. P.10) and 09.10.1991 (Exh. D.1) executed in favour of the appellant and late Syed Ali Raza Shah, respectively. His stance was that the ve.Ndees failed to fulfil their part(s) of their respective agreements and the suits were liable to be dismissed.
3. Both the suits were consolidated by the learned Trial Court the following consolidated, issues were framed:--- ISSUES:-
(1) Whether the defendant entered into a contract to sell the suit property to the plaintiff (Miraj-ul- Hassan) vide agreement to sell dated 23.01.1992 for a consideration of Rs. 3,25,000/? OPP.
(2) Whether the defendant received Rs. 1,00,000/ as an earnest money from the plaintiff Miraj-ul- Hassan? OPD.
(3) Whether the plaintiff is ready and willing to perform the remaining party of the contract? OPP.
(4) Whether the plaintiff Miraj-ul-Hassan is entitled to the decree of specific performance of the contract? OPP.
(5) In case the contact of Miraj-ul-Hassan with Khalid Latif defendant dated 23.01.1992 is not proved then whether the defendant entered into contract with the rival plaintiff (Syed Ali Raza) to sell the suit property to him for a consideration of Rs. 2,50,0001-vide agreement to sell dated 09.10.1991?
OPRP
(6) Whether the defendant received Rs, 50,000/- from Syed All Raza, the rival plaintiff as an earnest money? OPRP.
(7) Whether the rival plaintiff is ready and willing to perform the remaining part of the contract?
OPRP.
(8) Whether the rival plaintiff Syed All Raza is , entitled to the decree of specific performance of contract? OPRP
(9) Whether the plaintiffs have got no cause of action, as against the defendant? OPD
(10) Whether the plaintiffs are estopped by their word and conduct to file the present suit? OPD
(11) Whether the suit is not maintainable in its present form? OPD (11-A) Whether the time is essence of the contract and its effect? OPD.
(12) Relief.
4. The appellant/plaintiff, Miraj-ul-Hassan examined Aziz-ur-Rehman as P.W.1, Muhammad Irshad as P.W.2, Abdul Ghaffar Postman as P.W.3, Muhammad Usman as P.W.4 and Muhammad Sharif, General Attorney of the plaintiff deposed as P.W.5. The plaintiff also placed on record documents Exh.F.1 to Exh. P.11 in support of the claim put forward by him. On the other hand, defendant No. 1 Khalid Latif himself appeared as D.W.1, whereas defendant No. 2 himself appeared as D.W.2 and also examined Raham All as DW.3. The defendants also tendered Exh. D.1 to Exh. D.3 in support of their versions.
5. The learned Trial Court decreed the suit of the appellant vide judgment and decree dated 20.01.2004, whereas it dismissed the suit of Syed Ali Raza Shah, holding the purported agreement to sell dated 09.10.1991 (Exh. D.1) in his favour to be a fake document, which was brought into existence just to defeat the rights of the appellant arising from his agreement to sell dated 23.01.1992 (Exh.
P.10).
6. Feeling aggrieved by the aforesaid judgment and decree, Syed Ali Raza preferred an appeal, which was allowed by an Additional District Judge, Dera Ghazi Khan vide the impugned judgment.
And decree dated 28.02.2005. Primarily, it was held by it that the agreement to sell dated 09.10.1991 (Exh. D.1) in favour of Syed All Raza was prior in time and when its execution was admitted by late Khalid Latif, it was to take precedence over the agreement dated 23.01.1992 (Exh. P.10) executed in favour of the appellant. However, given the fact that the vendor had also admitted the execution of the agreement to sell dated 23.01.1992 (Exh. P.10), he was held entitled to getting back the earnest money of Rs. 1,00,000/- from Khalid Latif, the vendor.
7. In support of the appeal, learned counsel for the appellant has contended that the judgment passed by the learned Appellate Court is contrary to facts and law. There was overwhelming evidence to prove that the appellant had all along been willing and ready to fulfil his part of the agreement and it was the vendor, late Khalid Latif who had been dragging his feet. In this respect, support has been sought from the two notices, Exh. P.3 and Exh. P.4 addressed to him, impressing upon him to make a transfer of the suit property to the appellant. It is added by him that in order to show his bona fides, the appellant had appeared before the Sub-Registrar, Dera Ghazi Khan on 08.04.1992, which was the cut-off date for execution and registration of the sale-deed as per the terms of the agreement, Exh. P.10 dated 23.01.1992. This fact was proved by Exh. P.1., which was an application made by the appellant to the Sub-Registrar, who appeared as P.W.1. He has also made the argument that the purported agreement to sell, Exh. D.1 dated 09.10.1991 in favour of Syed Ali Raza Shah deceased was a fake, ante-dated document and was brought into being with the connivance of late Khalid Latif just to defeat the rights of the appellant. It is pointed out that Syed Ali Raza Shah had instituted a suit for specific performance on the basis of the aforesaid agreement on 10.11.1993, months after the institution of the suit of the appellant. This fact establishes that had the alleged agreement to sell dated 09.10.1991, Exh. D.1 been in existence, a suit for specific performance could have been filed on its basis much earlier and not long after the institution of the suit on the part of the appellant. He has also advanced the argument that it was wrongly held by the learned Appellate Court that the agreement dated 09.10.1991 (Exh. D.1) being prior in time was enforceable at law, whereas the agreement dated 23.01.1992 (Exh. P.10) executed in favour of the appellant being latter in time was to give way to it and at best the appellant was entitled to the returning of the amount paid by him as earnest money to Khalid Latif.
8. Learned counsel for respondents Nos. 2 & 3 has controverted and refuted the arguments advanced by the learned counsel for the appellant. It is vehemently argued by him that the findings recorded by the learned Appellate Court are eminently just and are rooted in the evidence produced by the parties. It is underscored by him that Khalid Latif had admitted the execution of the agreement to sell dated 09.10.1991, Exh. D.1 in favour of Syed Ali Raza Shah. This being so, it was to take precedence over that of the dated 23.01.1992, Exh. P.10 'executed in favour of the appellant. In short, he has supported the impugned judgment and decree passed by the learned Appellate Court.
9. Learned counsel appearing for' the legal heirs of Khalid. Latif did not make any arguments. Since these respondents have chosen not to prefer an appeal against the impugned judgment and decree dated 28.02.2005 passed by the learned Court below, it may well be presumed that they have acquiesced in the same.
10. I. Have heard the learned counsel for the parties at length and perused the record with their assistance.
11. Since the learned Appellate Court had disagreed with the findings recorded by the Court of first instance, it was incumbent upon it to advert to the reasoning given by it and to meet it before taking another view; as was held by the Hon'ble Supreme Court of Pakistan in the cases reported as 'Madan Gopal and 4 others v. Maran Bepari and 3 others' (PLD 1969 SC 617) and 'Province of the Punjab through Collector District Khushab, Jauharabad and others versus Haji Yaqoob Khan and others (2007 SCM R 554). When the impugned judgment passed by the learned Appellate Court is put in juxtaposition with that of the learned Trial Court, it becomes clear that the learned Appellate Court followed the afore-mentioned law laid down by the apex Court more in breach than its observance.
12. Since Late Khalid Latif had admitted the execution of the agreement to sell Exh. P.10 as well as the receipt of Rs. 1,00,000/- as earnest money from the appellant, it would be sheer waste of time to dwell upon this aspect of the case as to how the execution and validity of this documerithas been proved. In this respect, suffice it to make reference to the latest judgment of the Hon'ble Supreme Court of Pakistan reported as 'Muhammad lqbal v. Mehboob Alam' (2015 SCM R 21) in which it was held:--- ' 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)."
' Article 113 of the Qanun-e-Shahadat Order, 1984 is also to the same effect. The real question Is whether the appellant had failed to fulfil his part of the agreement or whether he Was always willing and ready to carry out his part of the bargain. In order to prove his readiness regarding the fulfilling of his part of the agreement dated 23.01.1992, Exh.P.10, the appellant tendered in evidence an application in original moved by him before the Sub-Registrar, Dera Ghazi Khan as Exh. P.1. After marking his presence on Exh. P.1, the Sub-Registrar, Dera Ghazi Khan returned it to the appellant.
This is not all. He sent telegrams to late Khalid Latif, the copies whereof were produced as Exhs. P.2 to P.S. He, also sent him notices, urging upon him to receive the balance sale consideration and to execute sale-deed in his favour. This is evident from a perusal of Exhs. P.6 to P.9. The sending of telegrams and the registered envelope containing notice to the vendor was also proved by examining Muhammad Irshad (P.W.2), Incharge Telegraph Office, Dera Ghazi Khan and Abdul Ghafar, a Postman (P.W.3). Finding no way out, the appellant instituted the suit for specific performance on 08.04.1992, reflecting the keenness, and the dispatch with which he was pursuing the vendor vigorously and relentlessly. In comparison, Syed Ali Raza Shah did not institute the suit until 10.11.1993.
' Undoubtedly, late Khalid Latif admitted the execution of the agreement dated- 09.10.1991, Exh. 'D.1, executed, ,in his favour but it cannot go unnoticed' that when he filed written statement in the suit filed by the appellant, the vendor did not make mention of the agreement dated 09.10.1991, Exh. D.1 to have been executed in favour of Syed Ali Raza Shah. Had this document been in existence at the time of filing written statement by him, he would have definitely set out the details thereof and sought the dismissal of the suit instituted by the appellant on this very ground, contending that since he had already executed an agreement to sell in favour of one Syed Ali Raza Shah, he was unable to make a transfer of the suit property to the appellant. In order to cover his tracks, the vendor came up with an untenable explanation. He took the stance that he had returned the advance made by Syed All Raza Shah to him, thereby putting an end to the agreement to sell dated 09.10.1991, Exh. D.1. I am also struck by the fact that late Khalid Latif had agreed to sell the suit property. To to the appellant for a consideration of Rs, 3,25,000/- on 23.01.1992 vide Exh. P.10 and received an amount of Rs, 1,00,000/- as earnest money. Contrarily, the sale consideration mentioned in the agreement to sell dated 09.10.1991, Exh. D.1 is Rs, 2,50,000/- and the earnest money was stated to be Rs, 50,000/-. It is incredible that within a matter of three months, the price of the suit property had gone up so rapidly. This is a pointer to the collusiveness between late Khalid Latif and late Syed All Raza Shah.
13. From a perusal of the record, it is also evident that unlike the appellant, Syed Ali Raza Shah never sent a notice to the vendor, prevailing upon him to transfer the suit property to him. His inaction for so long a time reflects adversely on the bona fides of his claim. This is not all. In the judgment dated 20.01.2004 passed by the learned Trial Court, the following observations regarding the genuineness of Exh. D.1, the purported agreement to sell dated 09.10.1991 allegedly executed in favour of Syed Ali Raza Shah are worth reproducing:- ' The perusal of this agreement shows that on certain parts of it, especially back side of first page where signature and identity card of the purchaser were marked has been destroyed by black ink.
It is not clear that who had purchased this stamp paper. In the same way on the last page of this agreement, the place of signature has been destroyed by black ink and these things make the execution of this agreement doubtful, especially when no explanation has been given for this placing of ink on the different parts of the agreement.
14. I have myself examined Exh. D.1 and I fully endorse the above observations. I would hasten to add that these are not small marks or blots, In order to cover up the identity of the purchaser and the actual date of purchase of the stamp papers, a large number of thumb impressions have been affixed in such a manner that they appear to be a work of Art. Obviously, there is a method in the madness and it cannot be said that the blots covering the area of 3/4 inches was the result of an accidental fall of some drops of ink by a pen or otherwise. Regrettable as it is, this aspect of the case was not attended to by the learned Appellate Court, but it cannot be swept under the carpet.
Had Syed Ali Raza Shah produced the stamp vendor, who sold the stamp papers in question alongwith his register, he could have succeeded in dispelling the above impression. His non- production in evidence is an added reason to hold that Exh. D.1 was not in existence at the time of the execution of the other agreement to sell dated 23.01.1992, Exh. P.10 in favour of the appellant.
15. Taking all the circumstances surrounding the execution of the two agreements to sell into consideration, I tend to agree with the finding recorded by the learned Trial Court that the agreement dated 09.10.1991, Exh. D.1 did not reflect any genuine transaction made between the vendor and Syed Ali Raza Shah. Therefore, it cannot be preferred over the agreement to sell dated 23.01.1992, Exh. P.10 executed in favour of the appellant. Since it was the stance of late Khalid Latif, the vendor that time was the essence of the agreement, I would like to address this question at this stage. To begin with, there is nothing in Exh. P.10: from which it can be inferred that at the time of entering into the agreement to sell dated 23.01.1992, Exh. P.10, it was in the contemplation of the vendor and the vendee that time would be the essence of the agreement. No other circumstances have been brought to the notice of the Court to hold otherwise. To state the obvious, the appellant filed suit on 08.04.1992, the cutoff date specified in the agreement to sell. Therefore, he cannot be blamed for any inaction or slackness. He cannot be faulted either for not keeping the date assigned in the agreement. In the case of 'Muhammad Iqbal v. Mehboob Alam' (2015 SCM R 21), it has been held that:--- ' "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 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."
16. In view of the discussion made above, this appeal is allowed by setting aside the impugned judgment and, decree dated 28.02.2005 passed by the learned Appellate Court, restoring that of the learned Trial Court dated ,20.01.2004, 'thereby decreeing the suit of the appellant for specific performance, while dismissing the rival suit instituted by. Late Syed Ali Raza Shah, with no order as to costs.