Through this civil revision, the petitioner seeks setting aside of impugned judgment and decree dated 4.11.2009 passed in appeal by the learned Additional District Judge, Kabirwala, by which, the judgment and decree of trial court dated 2.12.2004, whereby a suit for specific performance of contract had been partially decreed, has been reversed/set aside.
2. Brief facts of the case are that petitioner/plaintif f Ashfaq Ahmad filed a suit for possession through specific performance of contract against the respondents before the learned Civil Judge, Kabirwala claiming that the respondent/defendant No.1 Muhammad Asif through a written agreement dated 25.9.1994 agreed to sell 24 Kanals land situate in Mouza Chah Peepal Wala, Tehsil Kabirwala, District Khanewal to the petitioner for Rs.2,40,000/- after receiving Rs.50,000/- as earnest money in the presence of witnesses. Subsequently another written agreement dated 2.11.1994 was executed between the parties, whereby time for final execution was extended. As per agreed terms of first agreement to sell, respondent No.1 was to finally execute the registered sale deed within a month after receiving the remaining amount of consideration Rs.1,90,000/- It was stated in the plaint that respondent No.1 subsequently received Rs.1,22,000/- from the petitioner and promised to transfer the suit land through registered sale deed or mutation till 1.2.1995 after receiving outstanding amount of Rs.68,000/- It was also stated in the plaint that respondent No.1 further received Rs.20,000/- from the petitioner on 27.11.1994 and in this way Rs.48,000/- was only left to be paid. It was alleged in the plaint that instead of transferring the suit land to the petitioner the respondent No.1 secretly transferred 18-Kanals 17 Marlas out of 24-Kanals suit land to respondents No.2 to 4 through sale mutation No.619 dated 18.8.1996 without giving notice to the petitioner, which was required to be cancelled and declared inoperative against the rights of the petitioner. Since respondent No.1 failed to abide by terms and conditions of agreements to sell above said, therefore, the petitioner was constrained to file suit for specific performance of contract. The respondents contested the suit. Respondent No.1 in his written statement took the stance that indeed two agreements to sell dated 25.9.1994 and 2.11.1994 were executed between the parties but the petitioner failed to pay the outstanding amount of Rs.68,000/- within stipulated time, on account of which, his paid earnest amount stood forfeited. Respondents No.2 to 4 in their written statement took the stance that they had purchased the part of suit land bonafidely for lawful consideration without notice, therefore, the suit of the petitioner was liable to be dismissed. Out of the divergent pleadings of the parties, issues were framed. Evidence of the parties was recorded. After finalization of the trial, the learned Civil Judge, Kabirwala, decreed the suit partially in favour of the petitioner vide judgment and decree dated 2.12.2004 in the following terms:- "In view of my findings on the foregoing issue No.7, the suit of the plaintiff for specific performance of agreement to sell against defendants No.2 to 4 is hereby dismissed. As an alternative, the plaintiff has also prayed for decree of recovery of earnest money paid to defendant No.1. In view of my findings on issue No.3, the payment of Rs.1,92,000/- by plaintiff to defendant No.1 is since proved, therefore, the plaintiff is thus entitled to get decree for recovery of earnest money of Rs.1,92,000/- against the defendant No.1. In view of above discussion, the suit of the plaintiff for recovery of earnest money Rs.1,92,000/- is hereby decreed against the defendant No.1 with costs.
Only respondent No.1 filed appeal, which was accepted by the learned Additional District Judge, Kabirwala vide judgment and decree dated 4.11.2009 thereby prompting the petitioner to file this civil revision against the judgments of two courts at variance.
3. The learned counsel for the petitioner has argued that the impugned judgment and decree passed by the learned first appellate court is against law and facts as the said court totally ignored the established law enunciated by the superior courts of the country that in the matters relating to immovable property, time has never been essence of the contract as the court was required to see only reasonable time in which the contract was to be performed and intention of the parties was to be gathered from the attending circumstances of the case. Further argued that the learned first appellate court also paid no heed to the fact that in the instant case the time for performance of the agreement to sell was extended with the express consent of respondent No.1 through second agreement to sell due to which the Article 113 of the Limitation Act, 1908 was fully attracted in this case. Similarly, respondent No.1 was not authorized to transfer the suit land to respondents No.2 to 4 till the time his obligation with the petitioner was discharged. Further argued that the learned appellate court committed the mistake of misreading and non-reading of evidence and based his findings on surmises and conjectures, thus the impugned judgment is required to be set aside and the fair judgment of trial court be restored. Reliance placed on Muhammad Yaqoob & others Vs Hakim Ali & others (2004 SCMR 584), Muhammad Taj Vs Arshad Mehmood & 3 others (2009 SCMR 114), Mst. Amina Bibi Vs Mudassar Aziz (PLD 2003 SC 430), Mst. Mehmooda Begum Vs Syed Hassan Sajjad and 2 others (2004 YLR Lahore 845), Bashir Ahmad and others Vs Akbar Ali and others (2005 MLD Lahore 283) and Muhammad Sharif Vs Mst. Faji and others (1996 CLC Lahore 883 ).
4. The learned counsel for the respondents have opposed the civil revision by supporting the impugned judgment and decree of the first appellate court.
5. Arguments heard. Record perused.
6. Execution of two agreements to sell dated 25.9.1994 and 2.11.1994 on the basis of which the petitioner instituted suit for specific performance of contract were not disputed or denied by respondent No.1 during the trial of the suit. Still in support of his claim, the petitioner examined four witnesses including his own statement as PW-1. In documentary evidence, the agreements to sell dated 25.9.1994 and 2.11.1994 (Exh.P-2 and Exh.P 4), original receipt of payment of earnest amount (Exh.P-5), challenged mutation No.619 (Exh.P-6) and copies of record of rights and Khasra Girdawari (Exh.P-7 and Exh.P-8) were produced. In rebuttal, respondent No.1 examined himself as DW-1 and two other witnesses Nazar Hussain, DW-4 and Muhammad Ali, DW-5 and in documentary evidence produced copy of mutation No.619 (Exh.D- 2), copy of record of rights (Exh.D-3), copy of Khasra Girdawari (Exh.D-4) and copy of Roznamcha Waqiati (Exh.D-5).
As regards the part payment of Rs.1,92,000/- from the petitioner to respondent No.1, there was no serious dispute between the said parties as the petitioner by examining the relevant witnesses in whose presence respondent No.1 received the above said amount established this fact and the learned trial court correctly decided issue No.3 in favour of the petitioner .
7. The learned trial court while deciding issues No.4 and 5 considered the different versions of the petitioner as well as respondent No.1 as the petitioner alleged that he had been ready to fulfill the remaining conditions of agreements to sell within stipulated period, while respondent No.1 disputing such assertion raised a plea that the petitioner miserably failed to pay the outstanding amount within agreed time to seek transfer of suit land through sale deed. The learned trial court after comparing the versions of the two parties in juxta position decided the above said two issues partially in favour of the petitioner and ordered respondent No.1 to return earnest money of Rs.1,92,000/- to the petitioner vide its judgment. As mentioned earlier the petitioner did not assail the judgment of learned trial court in appeal, which means that he was content upon the portion of relief earned by him.
8. The learned appellate court while deciding the appeal relying upon the statement of the petitioner as PW-2 in which he had conceded before the trial court that he had not gone to Kabirwala for the purpose of registry on 1.2.1995, considering time as the essence of the contract finally held the petitioner disentitled for the return of earnest amount and accepted the appeal. Whether such assessment of evidence of the petitioner in isolation of other documented facts available on record by the learned first appellate court was fair and legal? To find the answer, the documentary evidence of the parties requires to be seen and analyzed in the light of substantive and precedent law. First agreement to sell dated 25.9.1994 (Exh.P-2) was executed between the petitioner and respondent No.1 admittedly in which it was clearly stated that the petitioner will seek transfer of suit land through registered sale deed or mutation within a period of one month after paying the remaining consideration amount of Rs.1,90,000/- and in the event of default the earnest amount already paid shall stand forfeited. It would mean that agreement to sell (Exh.P-2) was valid till 25.10.1994. After expiry of this time, the petitioner and respondent No.1 then entered into another agreement to sell dated 2.11.1994 (Exh.P-4) through which the time for final execution of agreement to sell was extended till 1.2.1995. Meaning thereby that respondent No.1 himself subverted earlier agreement to sell (Exh.P-2) and consented to a new agreement to sell as well as time frame.
For such a situation as in this case, the august Supreme Court of Pakistan has laid down dictum in case titled Muhammad Taj Vs Arshad Mehmood and 3 others (2009 SCMR 114) reading as under: - "Contracts where time was of the essence of contract, as stipulated under Section 55 of Contract Act, 1872, was generally not attracted to transactions involving sale of immovable property. Merely mentioning of a specific date for performance of agreement would not make time the essence of contract but such intention was to be gathered from terms agreed amongst the parties contained in contract in the light of facts and circumstances of the case".
In a Division Bench judgment of this Cour t in the case titled Mst. Mehmooda Begum Vs Syed Hassan Sajjad and 2 others (2004 YLR Lahore4 845), it has been held: - "Now it is well settled that in the matter of immovable property time is never to be essence of a contract. Further reference be made to the cases of Abdul Hamid V. Abbas Bhai Abdul Hussain Sodawaterwala PLD 1962 SC 1 and Seth Essabhoy v. Saboor Ahmad PLD 1973 SC 39. Another settled point is that merely because date and time is fixed in the contract for performance would not make the time essence of the contract. Rule applicable is that contract has to be performed in a reasonable time and further intention of the parties had to be gathered from attending circumstances of the case as to whether they intended time to be of the essence of the contract.
Muhammad Ramzan v . Assadullah 200 YLR 398".
In another Division Bench judgment of this Court titled Bashir Ahmad Vs Akbar Ali and others (2005 MLD Lahore 283) it has been held: - "The fact that the original right for completion of the transaction was successively enlarged would disclose two fact:- (a) that the time was not regarded as the essence of the contract, and (b) that the completion of the sale transaction could only be made when the encumbrances on the property viz. the mortgage was redeemed.
Construing the agreements to sell in this context, it leaves no manner of doubt that time, even though fixed in the first agreement, ceased to remain the essence of the contract. The period of limitation under the first limb of Article 113 of the Limitation Act would thereof, not commence. The case of the respon dent would thus, fall within the purview of the second limb of Article 113 of the Limitation Act. The limitation period of 3 years for filing the suit for specific performance would thus, run from the date when the plaintiff had knowledge that the performance was refused. Computed from the final refusal of the appellant, the suit brought by the respondent for specific performance was well within time".
9. The learned trial Judge after correct appreciation of parties oral and documentary evidence and in line with established law enunciated by the superior courts of the country through well reasoned findings held the petitioner entitled to only partial relief of return of earnest amount while the learned first appellate court taking a contrary view unsupported by the substantive as well as precedent law on erroneous assumptions unduly reversed the correct findings of learned trial Judge, which is also found to be suffering from jurisdictional defect as well and thus not sustainable.
10. In view of the above, allowing the civil revision, the impugned judgment and decree dated 4.11.2009 passed by the learned Additional District Judge, Kabirwala is set aside, as a result of which, the judgment and decree passed by the learned Civil Judge, Kabirwala dated 2.12.2004 shall stand restored.