AMIN-UD-DIN KHAN, J.---Through this Regular First Appeal, appellant has challenged the judgment and decree dated 11.5.2012 passed by learned Civil Judge, Rawalpindi, whereby suit for specific performance and permanent injunction filed by plaintiff/appellant was dismissed.
2. The brief facts of the case are that plaintiff/appellant on 29.3.2007 filed a suit for specific performance and permanent injunction on the basis of agreement to sell dated 23.5.2005. Written statement was filed and sift was contested. Learned trial Court framed the necessary issues and invited the parties to produce their evidence. Both the parties produced their evidence both oral as well as documentary. Learned trial Court was pleased to dismiss the suit vide judgment and decree dated 11.5.2012, hence this appeal.
3. Learned counsel for appellant argues that time was not essence of the contract and there was previous litigation with regard to suit property, therefore, filing of the suit on 29.3.2007 was not defective despite the fact that in the agreement date for its performance was fixed as 23.8.2005.
Learned counsel for appellant has further referred to interim order passed by this Court on 7.10.2015, whereby it was noted on the objection of learned counsel for respondents that the money deposited by the plaintiff/appellant under the orders of this Court which were passed in FAO No,71 of 2008 when the application for temporary injunction filed by the plaintiff/appellant was dismissed by the learned trial Court and this Court ordered the plaintiff/appellant to deposit a sum of Rs,900,00000/-(rupees nine crores) in the trial Court. Same amount was withdrawn after dismissal of the instant suit, learned counsel states that it makes no difference. Learned counsel while relying upon "Muhammad Iqbal v. Mehboob Alam" (2015 SCM R 21) argues that withdrawal of the amount does not disentitle the plaintiff/appellant from granting of relief for specific performance.
4. On the other hand, learned counsel for respondents argues that the withdrawal of the amount shows the conduct of the appellant. Further states that though the agreement is admitted between defendants Nos.1, 2 and plaintiff but time was essence of the contract and it was clearly mentioned in the agreement about the previous litigation with regard to the suit property and further it was mentioned that if there will be any injunction order by the High Court, in the litigation relating to the suit filed by the third party and was dismissed prior to the agreement, which was filed for declaration. Further argues that not a single penny was received by the defendants/ owners while entering into agreement to sell.
5. We have heard the learned counsel for the parties at length, gone through the record as well as the findings recorded by the learned trial Court and the case-law referred by the learned counsel for parties.
5A. So far as question of withdrawal of the amounts deposited by the plaintiff/ appellant is concerned, admittedly at the time of entering into agreement to sell (Exh.P.l), not a single penny was paid to the owners. During the pendency of the suit when 'plaintiff/appellant pressed for grant of temporary injunction and the application was refused by the learned trial Court, plaintiff/appellant filed FAO No,71 of 2008 which was decided vide order dated 02.4.2010. Para No,2 of the order is relevant which is reproduced as under:-- "Today when the case came up for arguments, the learned counsel for the petitioner expressed his readiness to deposit the sum of Rs,9,00,00,000/- (rupees nine crores) till 15th of April, 2010. Both the learned counsel agree that the amount should be deposited in the trial Court. The same should be invested in the National Saving Certificates. The money so deposited along with the interest would go to the party that ultimately succeeds in the cause. With the concurrence of both the parties, this petition is disposed of with the observation that the petitioner should deposit the amount of Rs,9,00,00,000/- (rupees nine crores) in the trial Court till 15.4.2010. The learned trial Court shall invest the same amount in National Saving Certificates. In case the petitioner makes default in the payment of this amount, the injunction granted by this Court vide order dated 14.4.2009 and any injunction issued in favour of the petitioner at any level shall automatically stand vacated. With this observation, this petition stand disposed."
6. It is clearly visible from the order that the order was passed with the concurrence of the learned counsel for parties and the money was to be invested in the National Saving Certificates and the party entitled to receive the amount deposited was to be given the interest. After dismissal of the suit, plaintiff/ appellant withdrew the amount deposited by him, though in accordance with the judgment cited by the learned counsel for appellant, withdrawal of balance consideration amount makes no adverse effect upon the conduct of the plaintiff/ appellant. In the case in hand, the matter is slightly different, when the plaintiff/ appellant has deposited the amount with the concurrence of the learned counsel for parties and further that the amount was not balance consideration amount, it was even the first amount, i,e, part of consideration amount deposited in the trial Court. Therefore, the inference with regard to conduct of the appellant can be drawn keeping in view the act of withdrawal of the amount after dismissal of the suit without informing the Court.
7. We have gone through the agreement which has been produced as Exh. P.3. This agreement is between the plaintiff and defendants Nos.1 to 3. Admittedly, defendant No,3 is not the signatory to this agreement. The agreement is for the sale of immovable property, i,e, House No,96-D, Satellite Town, Rawalpindi. The agreement shows that the first party, i,e, defendants Nos.1 to 3 are stated to be the owners of this house. It is stated that one Mr. Habib-ul-Wahab-ulKhairi, Advocate filed a suit regarding property, subject-matter of the agreement titled "Al-Jihad Trust v. Sharafuddin Musleh Shami etc." which was dismissed by learned Civil Judge, Rawalpindi vide judgment and decree dated 25.4.2005 and it was agreed between the parties that total consideration amount of the suit property as agreed between the parties would be Rs,14,50,00,000/- (rupees fourteen crores fifty lacs) and not a single penny was paid at the time of agreement to the first party who is owner.
It was agreed that within three months, i,e, till 23.8.2005, the second party, the purchaser, will pay the total amount and get the suit property transferred through registered sale deed in his favour and will get the possession and the purchaser will be responsible for all the proceedings as well as departmental fees with regard to suit property and he himself will defend the same and will be responsible for all the benefits and losses. It was agreed that if any injunctive order is granted by the Court of Appeal/High Court with regard to transfer of the suit property, the second party/purchaser will pay Rs,20,00,000/- (rupees twenty lacs) per month for depreciation value with effect from 01.7.2005 till withdrawal of stay order. The condition (sic) of the agreement is important, which is reproduced as under:--- {{URDU TEXT}}
8. Admittedly, defendant No,3 is not the signatory to the agreement and further that it is not mentioned in the agreement that the first party, i,e, 03 owners; each owner to what extent is having share in the suit property. When confronted to the learned counsel that how the agreement is enforceable through the Court when one of the parties to the agreement is not the signatory to the agreement and other co-owners, i,e, the first party/defendants have not been the attorney of the said party. Third owner who is not signatory to agreement has filed his written statement whereby denied the agreement with the plaintiff for sale of the suit property, learned counsel lastly argued that to that extent the contract is not enforceable and he will press to the extent of 2/3rd for grant of decree afterwards the appellant will get the suit property partitioned. We have noticed supra that even none of the three owners is mentioned that to what extent each owner is shareholders in the suit property, therefore, on the basis of presumption only that each owner can be considered 1/3rd share holder of the suit property, but not on the basis of any record.
9. Now comes the question that whether time was essence of the contract or not. We have the honour to go through the judgment of the Hon'ble Supreme Court of Pakistan reported as "Liaqat Ali Khan and others v. Falak Sher and others" (PLD 2014 SC 506). The relevant para is reproduced as under:- "It is well accepted principle of interpretation of an instrument that for its proper comprehension and insight it is to be read as a whole and where its language is simple, clearly understandable and capable of no ambiguity, then the intention of the parties to such instrument is to be gathered from its contents alone without adverting to any other extraneous consideration and in normal course it should have precedence over any other option. In the present case, gist of the terms of sale agreed between the parties has already been discussed above, as spelt out from the contents of the agreement dated 2.4.1979, which reveals that two eventualities were provided in the agreement, which would absolve the appellants from their liability for the specific performance of the agreement. First condition of such nature was to become operative in case of non-payment of balance sale consideration amount to the appellants within the stipulated period fixed under the agreement i,e, 10.5.1979, and the other, where for any legal impediment specific performance of the agreement as per its terms was not possible between the parties. In this background, when we examine the oral as well as documentary evidence produced by the parties in the suit, we find that soon after the expiry of time frame under the agreement for payment of balance sale consideration amount, which admittedly respondents Nos.1 to 4 failed to honour, the appellants had issued the notices dated 13.5.1979 to them. The receipt of these notices is not denied by at least three respondents from respondents Nos.1 to 4, but still none of them bothered to give its reply.
Thus, this document is very material to show conduct of both the parties after the execution of agreement dated 2.4.1979, till the institution of the suit for specific performance before the civil Court on 7.10.1980. It is quite surprising that although the agreement dated 2.4.1979 contained a very clear and unambiguous term for payment of balance sale consideration amount to the appellants by 10.5.1979 and also entitled them for forfeiture of earnest money in case respondents Nos.1 to 4 failed in making compliance of this condition, still respondents Nos.1 to 4 did not bother to make any correspondence with the appellants showing their intention to keep the agreement alive for specific performance or to offer any explanation for non-payment of balance sale consideration within the agreed time. When respondent No,3 Noor Muhammad son of Muhammad Raman entered into the witness box in support of his claim and that of respondents Nos.1, 2 and 4, in his deposition, again a question as regards the importance of timeframe agreed between the two parties for the finalization of this agreement was put to him, to which he made a categorical answer that:-- {{URDU TEXT}} Thus, to lay stress upon the terms of the agreement, its language and import, and to hold the respondents Nos.1 to 4 defaulter in the fulfillment of their obligations under the agreement, no further discussion is necessary."
10. In the case in hand when it was settled between the parties that consideration amount will be paid up to 23.8.2005 if any injunctive order was not passed by the appellate Court/High Court.
Admittedly, no injunctive order was passed by the appellate Court/High Court though an appeal was filed by the third party i.e, Al-Jihad Trust, which was ultimately dismissed on 29.11.2011 and no injunctive order was issued in the said appeal. Therefore, in the light of the judgment of August Supreme Court of Pakistan, we have noted supra, that the terms of agreement were specific with regard to nonpayment wherein it was mentioned that the agreement will stand cancelled.
Admittedly, plaintiff/appellant had not paid a single penny at the time of agreement nor at the date fixed for performance of his part and there was no hurdle on 23.8.2005 for performance of the agreement and when the suit has been filed on 29.3.2007, which clearly showed conduct of the appellant. We have further gone through the judgment of the August Supreme Court of Pakistan reported as "Adil Tiwana and others v. Shaukat Ullah Khan Bangash" (2015 SCM R 828). According to this judgment, the wording of agreement to sell showing that the specific date for making payment of balance consideration amount is mentioned which date was absolute limit on which payment was to be made. In case in hand, we have repeatedly noted that total consideration amount was to be made on the specific date and not ,even a single penny was paid at the time of agreement.
We have further fortified by the judgment of the apex Court reported as "United Bank Limited and others v. Noor-un-Nisa and others" (2015 SCM R 380). The case-law referred by the learned counsel for appellant reported as "Fazal-ur-Rehman v. Ahmed Saeed Mughal and others" (2004 SCM R 436), "Muhammad Yaqoob and others v. Hakim Ali and others" (2004 SCM R 584) and "Muhammad Hussain and others v. Dr. Zahoor Alam" (2010 SCM R 286) is distinguishable as the seller party was to get his title cleared from any Government department, therefore, not applicable to the facts of this case and not helpful to the appellant. In the circumstances, when the agreement is defective one being not signed by one of the alleged seller and the share of this third seller is not specifically mentioned in the agreement and further that in the circumstances we hold that time was essence of the contract. Plaintiff/appellant has filed a suit for specific performance, the date for performance was 23.8.2005 whereas suit has been filed on 29.3.2007 and further they have withdrawn Rs,900,00,000/- (rupees nine crores) deposited in the trial Court, with the concurrence of the parties, just after filing of the instant appeal on 26.7.2012 without permission of the Court does not entitle him to grant of a decree for specific performance which is otherwise a discretionary relief with the Court.
10(sic). In this view of the matter, we see no merit in this appeal which stands dismissed.