' MUHAMMAD YOUNIS THAHEEM, J.---Through the instant appeal under Order XLIII, Rule 1 of Civil Procedure Code, 1908, the appellant had challenged the interim order dated 07.04.2014, passed by the learned Civil Judge-V, Peshawar, whereby his application for the grant of temporary injunction was dismissed.
2.Brief facts of the case are that present appellant instituted a suit for declaration, specific performance of contract/agreement No,Q-93 dated 27.03.2012, cancellation of agreement/lqrar Nama No,72 dated 27.06.2013 between respondents Nos. 1 to 3 and 4 regarding landed property measuring 28 kanal and 08 marla in Khasra Nos. 1047/650/1, 1024/653/654, 1026/ 652- 655, 1033/651, 1052/652, 1034/651 situated at Moza Pakha Ghulam. Appellant also filed application for the grant of temporary injunction against defendants/ present respondents for restraining from alienation of the suit property or changing its nature by raising construction.
3.In this respect defendants/present respondents Nos.1 to 3 were summoned who submitted their written statement, wherein they raised variety of factual and legal objections and asserted that they have sold the suit property to one Haji Wajid Ali son of Muhammad Ramzan/respondent No,4 vide agreement to sell deed No,72 dated 27.06.2013 and possession has been delivered to him upon which the present appellant moved an application for amendment of plaint which was allowed and he submitted amended plaint. In response to that amended plaint, present respondents Nos.1 to 4 submitted their joint written statement and also replication in response to application of plaintiff for the grant of temporary injunction.
4.The learned Civil Court seized of the matter after hearing parties allowed the application vide order dated 28.09.2013 which was challenged by filing civil appeal under Order XLIII Rule 1 of C.P.C. before the Court of learned District Judge, Peshawar which was returned vide order dated 26.03.2014 by the learned Court of Additional District Judge-X, Peshawar on the ground of lacking pecuniary jurisdiction as the value of subject matter was more than Rs,10,00,000/-. In the meanwhile the period of six months given in the impugned order dated 28.09.2013 lapsed, so the present appellant filed fresh application for grant of temporary injunction/extension on the same grounds mentioned in his application which after hearing was dismissed vide impugned order dated 07.04.2014. The present appellant feeling aggrieved from the order of learned Civil Judge-V, Peshawar dated 07.04.2014 filed instant appeal.
5.Learned counsel for respondents raised preliminary objection that the present appeal against interim order is not maintainable as no appeal lies against the impugned order. Upon this the learned counsel for the appellant submitted application/ C. M. No, 194-P/2016 on 25.04.2016 contending that against impugned order dated 07.04.2014 his application has been dismissed which is appealable order in view of Order XLIII Rule 1 of C.P.C. and instant appeal is against interim order, so he correctly filed appeal and if in the opinion of this Court impugned order is not appealable and is revisable, in that eventuality he prayed for converting of his appeal into revision petition. The learned counsel for appellant argued that the interim order passed by the learned subordinate Court by declining interim relief is against law and is the result of non-comprehension of facts and law on the subject. He added that the respondents Nos.1 to 3 vide agreement to sell dated 27.03.2012 were under legal obligation to have transferred suit property in his name for which respondents Nos. 1 to 3 had been already paid Rs,10,00,000/- as earnest money. He further argued that the selling of suit property vide impugned agreement No,72 dated 27.06.2013 to respondent No,4 is illegal, ineffective upon his rights as it was executed during subsistence of earlier agreement to sell in his favour. Plaintiff remained ever ready for the performance of agreement but the respondents Nos.1 to 3 were reluctant for performance on the pretext that there is dispute between them and the tenant, so after resolving of that dispute they would be able to transfer the same, so plaintiff/ appellant is not at fault. He added that once his application for the grant of temporary injunction was allowed and that order dated 28.09.2013 remained intact till its expiry, so the learned trial Court has erred in law by dismissing his application for extension of already granted temporary injunction vide impugned order dated 07.04.2014. He placed reliance on 1981 CLC 276, 2010 CLC 81, PLD 1990 Lab. 82 and 1986 M LD 95.
6. On the other hand, learned counsel for respondents vehemently contested the appeal by arguing that the impugned order dated 07.04.2014 is well reasoned based on proper appreciation of facts and law. He while admitting the execution of agreement to sell dated 27.03.2012 and receiving of earnest money worth Rs,10,00,000/- contended that time was essence in the agreement and the present appellant failed to perform his part within specific period of time i,e, within 06 months till 26.09.2012; on his failure they served notice upon plaintiff to pay the remaining consideration amount before the expiry of stipulated date otherwise agreement to sell will be terminated to which they were given deaf ear. To inform public at large, they also publicized about cancellation of agreement and forfeiture of paid earnest amount in daily "Mashriq" dated 19.04.2013. So, according to the terms and conditions after expiry of six months, they had acted in accordance with law and vide agreement dated 27.06.2013 sold the same suit property to respondent No,4. He further argued that the suit is liable to dismissal as he cannot seek contradictory relief of declaration and specific performance. Learned counsel for respondents placed reliance on 2010 SCM R 334, 2004 SCM R 436, 2005 YLR 1916, PLD 1987 SC 93 and 1985 M LD 1563.
7.Arguments heard and record perused.
8.It is admitted position that agreement to sell regarding suit property was executed between the parties vide deed No,Q-93 dated 27.03.2012, wherein time for performance and manner of payment of consideration amount was stipulated. The relevant part of agreement to sell' is reproduced as below:-- {{URDU TEXT}}
9. The available record reveals that the present respondents Nos.1 to 3 served notice through Mr. Muhammad Sohail, Advocate to the present appellant on 24.09.2012 well before the last date fixed in the agreement, after that the present respondents Nos.1 to 3 got published advertisement regarding cancellation of said agreement due to expiry of stipulated time. Afterward respondents Nos.1 to 3 sold out the suit property to Haji Wajid Ali respondent No,4 vide agreement to sell deed No,72 dated 27.06.2013 and handed over the possession of the suit property to the said respondent No,4.
10. A party seeking temporary injunction in his favour is required to establish a good prima facie case, balance of convenience in his favour, in case injunction is not granted he will suffer irreparable loss and lastly conduct of the parties in view of law envisaged under Order XXXIX Rules 1 and 2 of C.P.C.
11. From the available record it transpires that the conduct of present appellant/plaintiff remained negligent as he did not perform his part of obligation well before the stipulated date i,e, on 26.09.2012 as discussed earlier in view of specific clause appearing in the contract wherein the time was of essence and agreement had come to an end after stipulated date. The appellant could not take advantage of Article 113 by arguing that the prescribed period for specific performance of contract is 03 years as it is misconceived in view of rule enunciated by Hon'ble Supreme Court in case cited as PLD 2016 SC 199, that an agreement between the parties had the status of statute. So when agreed time is expired then contract become voidable upon the option of the parties, so suit for Specific Performance of contract where time is specifically stipulated then the prescribed period of limitation for filing suit is such which is given in the contract. Provision of Article 113 of Limitation Act is reproduced as under for comprehension:-- Description of suitPeriod of LimitationTime from which period begins to run 1 2 3
113. For specific performance of a contract.Three yearsThe date fixed for the performance or, if no such date is fixed, when the plaintiff has notice that performance is refused.
12. Similarly, when time limit is stipulated in the agreement, in that case the Provisions of Section 55 of Contract Act are attracted which are reproduced as below:--
55. Effect of failure to perform at fixed time in contract in which time is essential.---' When a party to a contract promises to do a certain thing at or before specified time; and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable, at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.
13. It is further noticed that the present appellant did not make any efforts to comply with the conditions of agreement dated 27.03.2012 well before or on the stipulated date i,e, 26.09.2012. Thus after tentative assessm ent of available record, we are of the firm view that time was of essence in the said admitted agreement and after expiry of date it became voidable, so, from the conduct of the appellant it prima facie transpires that he did not remain vigilant as for getting equitable relief the law aids the vigilant and not the indolent, so the learned trial Court correctly refused interim relief as plaintiff failed to establish his prima facie case. In this respect wisdom is derived in case "Mst. Gulshan Hamid v. Kli. Abdul Rehman and others" (2010 SCM R 334). The relevant portion is reproduced as under:-- "It is a settled principle of law that, to hold as to where time is of essence of the contract, it is always to be determined from the circumstances of each case and of each contract, It is simply written that some agreement is to be performed with a certain period, this by itself cannot be considered to be of essence of the contract. But when the non performance within such period entails upon certain consequences and such consequences are also given in the contract, the time becomes of essence."
14.So far as preliminary objection of respondents that against the impugned order appeal does not lie and is a revisable order, is concerned, suffice is to say that impugned order has been passed in view of Order XXXIX, Rules 1 and 2 of C.P.C. which is appealable order under Order XLIII, Rule 1 of C.P.C. So, the objection is not valid, hence is repelled. In this respect reliance is placed on 2008 CLC 930. So, C.M. No,194-P/2016 being unnecessary is disposed of accordingly. Similarly, C.M.
No,463-P/2014 to the extent of initiating contempt proceedings against respondents being not pressed and in view of above observations is dismissed.
15.The learned counsel for the appellant has not been able to establish his prima facie case before us and failed to point out any illegality or irregularity or wrong appreciation of facts and law in the impugned order passed by the learned trial Court, therefore there is no need of any interference with the impugned order, thus the appeal being without any substance is hereby dismissed.