MIRZA VIQAS RAUF, J. An agreement to sell was entered into between respondent No.1 (hereinafter referred as "respondent") and the petitioners alongwith their brother namely Raja Khurshid Ahmed (respondent No.2) wherein "respondent" agreed to sell his land measuring 25 Kanals situated in the revenue estate of Theekrian Tehsil Gujar Khan District Rawalpindi with sale consideration of Rs.3,75,000/-. As per agreement Rs.50,000/- was paid as earnest money and it was agreed that the remaining sale consideration will be paid to the vendor within two months. In case of failure, the earnest money shall be deemed to be forfeited. The petitioners instituted a suit for specific performance on the basis of agreement to sell averring therein that though they have fulfilled their obligations but "respondent" has failed to transfer the suit land in their favour as per terms and conditions of the agreement. The suit was resisted by "respondent", who submitted his written statement wherein he admitted the execution of the agreement to sell but as per his stance, since the petitioners had failed to pay the remaining sale consideration within stipulated period, so the agreement became non- enforceable. During the proceedings a petition for initiation of contempt proceedings was also preferred by the petitioners against the "respondent" alleging therein that despite interim injunctive order in their favour, "respondent" has interfered with their possession by ploughing the land forcibly. The application was also resisted by "respondent", who filed reply thereto. From the divergent pleadings of the parties, following consolidated issues were framed :- Consolidated Issues
1. Whether plaintif fs were ready to perform their part of contract on the given date as per agreement dated 05-06- 2006? OPP
2. Whether the plaintif fs committed defau lt by not paying the remaining consideration amount on the given date as per agreement? OPD
3. Whether as per terms of agreement, the suit agreement has been stood cancelled as the time was essence of the contract? OPD
4. Whether the plaintif fs have not come to court with clean hands? OPD
5. Whether the description of the suit property which is the subject matter of the suit has been incorrectly mentioned by the plaintif fs? OPD 1A.Whether respondent violated any order of the court, if so, what its ef fect? OPP
6. Relief.
After framing of issues, evidence of both the sides was recorded and finally suit as well as contempt petition was dismissed by way of judgment and decree dated 25 October , 2011. The petitioners, being dissatisfied from the said judgment and decree though preferred an appeal before the learned Additional District Judge, Gujar Khan but same was also dismissed by way of impugned judgment and decree dated 09 April, 2012, hence this petition under Section 1 15 of The Code of Civil Procedure (V of 1908) (hereinafter referred as "CPC").
2. earned counsel for the petitioners submitted that agreement was admitted between the parties. He added that the petitioners have been non-suited only on the ground that they have failed to pay the remaining sale consideration within time frame mentioned in the agreement to sell. Learned counsel contended that concurrent findings are the result of gross misreading and non-reading of evidence. It is emphatically argued that time was never the essence of the agreement and both the courts below, while non-suiting the petitioners have proceeded in a meaner, which is alien to law.
3. Conversely, learned counsel for "respondent", who is only contested party submitted that there are concurrent findings of facts recorded by both the courts below, which are based on proper appraisal of evidence. It is one of the contentions of learned counsel for "respondent" that relief of specific performance is a discretionary relief, which cannot be claimed as a matter of right. Learned counsel emphasized that there is no jurisdictional defect in the impugned judgments and decrees, warranting interference by this Court in exercise of revisional jurisdiction.
4. Heard. Record perused.
5. From the pleadings of the parties, it is an admitted fact that parties have entered into an agreement to sell dated 05'' June, 2006, which was tendered in evidence as Exhibit-P 1. The suit was resisted by "respondent" on the ground that the petitioners have since failed to pay the remaining sale consideration within specified time, so they were not entitled to claim specific performance of the agreement. In the nutshell, the moot question which arises from the divergent stance taken by both the sides is as to "whether time was essence of the agreement or not?"
6. While going through the impugned judgments, it is observed that both the courts below have proceeded on the premises that time was essence of the agreement and since the petitioners have failed to pay the remaining sale consideration within prescribed time, so they are not entitled for the decree of specific performance. In order to examine the propriety of the concurrent findings, it would be advantageous to observe that under the agreement to sell, it was settled between the parties that remaining sale consideration amounting to Rs.3,25,000/- will be paid by the petitioners (vendees) at the time of sale mutation and "respondent" was bound to transfer. the suit land within two months in favour of the petitioners (vendees).
Consequence to this effect was also provided that if the vendor fails to transfer the suit land to the vendees within the prescribed period, he will return the double of the earnest money. Similarly if the vendees failed to perform their part of agreement, the earnest money shall be deemed to be forfeited.
7. It is the claim of the petitioners that despite all their efforts, the "respondent" failed to perform his part of agreement. It is, however, admitted position that the petitioners did not pay the remaining sale consideration within stipulated period, however they sought extension in time, which was allowed to them.
This aspect is even admitted by the "respondent" in his written statement. Furthermore Shamas Tabraiz, who was one of the attesting witness of the agreement when appeared as DW3, he conceded that time was extended for the payment of remaining sale consideration. The intention of the parties is always to be gathered from their conduct. While granting further time to the petitioners to pay the remaining saleth th 1 consideration, the "respondent" himself acquiesced from the penalty clause mentioned in the agreement to sell. Intention to make time of the essence of the contract must be expressed in unmistakable language and it may be inferred from what passed between parties before, but not after the contract is made. A mere mention of a specified period in an agreement for completion of sale would ipso facto not make the time as essence of contract. It is common practice that in contracts of sale of immovable property, ordinarily time is not considered to be of the essence of the contract, unless it was expressly intended by the parties and the term of contract did not permit of any other interpretation.
8. Section 55 of The Contract Act, 1872 deals with the subject which reads as under :- "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 a specified time, or certain things at or before a specified times, 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.
Effect of such failure when time is not essential.-- if it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure.
Effect of acceptance of performance at time other than that agreed upon--If, in case of a contract voidable on account of the promisor's failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of such acceptance he gives notice to the promisor of his intention to do so."
The agreement in question was executed on 05 June, 2006 wherein two months time was though fixed for the performance of the same but said period was later on extended by the "respondent" on the request of the petitioners. After having an analysis of the available material as discussed above, I am of the considered view that time was never essence of the agreement. Guidance in this respect if needed can be sought from "MUHAMMAD TAJ versus ARSHAD MEHMOOD and 3 others" (2009 SCMR 114), "MUHAMMAD 1:A000B and others versus HAKIM ALI and others" (2004 SCMR 584).
9. In the case of "Mst. AMINA BIBI versus MUDASSAR AZIZ" (PLD 2003 Supreme Court 430) the Hon'ble Apex Court, while dealing with the similar proposition outlined the scope of Section 55 of The Contract Act, 1872 and laid down certain guidelines in the following manner:- "13. It is well-settled that intention to make time of the essence of the contract must be expressed in unmistakable language and it may be inferred from what passed between the parties before, but not after, the contract is made. A mere mention of a specified period in an agreement for completion of sale has been held as not to make the time of essence of the contract. In contracts of sale of immovable property, ordinarily, time is not considered to be of essence of the contract unless it was expressly intended by the parties and the terms of the contract do not permit of any other interpretation: Both the learned counsel have heavily relied upon Abdul Hamid v. Abbas Bhai Abdul Hussain (PLD 1962 SC 1), which reiterates the legal proposition as to whether the time was of essence of a contract. it may be inferred from what passed between the parties before but not after the contract is made. Equity will not assist where there has been undue delay on the part of one party to the contract and the other has given him reasonable notice that he must complete the contract within a definite time. In the case in hand, it has been found as a matter of fact that the appellant neglected to perform her part of the contract whereas the respondent had issued timely notice to her for discharge of her obligation by executing the relevant documents. Mr. Dogar agitated that it was incumbent upon the respondent to obtain No-Objection Certificate from the Society for transfer of the plot in his favour but as no,such plea was taken at the trial of the suit, we are not inclined to entertain the same at this stage. Refer Zaheer Ahmad v.
Abdul Aziz (1983 SCMR 559). Suffice it to observe, conduct cat the parties tends to reflect that theth respondent, though a property dealer by profession, was anxious for completion of the contract within the stipulated period. It was the appellant, who avoided and neglected to perform her part of contract with a view to frustrate the contract. Learned counsel submitted that by not tendering the balance consideration to the appellant, respondent had rendered the contract void and she was entitled to revoke the same. We do not feel persuaded to agree with the submission of the learned counsel, as concurrent findings of fact are against her which do not suffer from misconception of law or misconstruction of evidence. Learned counsel relied upon Bahawood-Deen v. 13.G. Desouza (PLD 1974 Quetta 36) and Ghulam Nabi v. Muhammad Yaqub (PLD 1983 SC 344). Both the cases reiterate the principle enunciated in the earlier judgments that mere mention of time in a contract for sale of immovable property for its performance does not necessarily mean that time was of essence of the contract. Intention of parties in that behalf can be gathered from the terms of the contract and facts and circumstances of the case. Besides the above said cases, rule of law was clearly laid down in Essabhoy v. Saboor Ahmad (PLD 1973 SC 93), Zaheer Ahmad v. Abdul Aziz (1983 SCMR 559), Muhammad Yaqub v. Muhammad Nasrullah Khan, (PLD 1986 SC 497), Mussarat Shaukat Ali v. Safia Khatoon (1994 SCMR 2189) and Sandoz Limited v. Federation of Pakistan (1995 SCMR 1431). In Zaheer Ahmad (supra), it was held that a party guilty, of prevention of completion of contract within time could not plead that time was essence of the contract. This principle was reiterated in Mussarat Shaukat Ali, (supra). Saeeduzzaman Siddiqui, J. (as his Lordship then was) speaking for the Full Bench observed as under:-- "It is open to the parties while entering the agreement of sale in respect of an immovable property to provide that the time for performance of the agreement will be treated as essence of the contract. In such cases, if the party seeking enforcement of the contract is shown to be in breach of the contract, the Court may in appropriate cases refuse to enforce the contract. However, in the absence of a provision in the agreement to sell an immovable property that the time fixed for performance of the contract is to be treated as the essence of the contract, the time fixed for performance of the contract is not treated as the essence of the contract. Therefore, specific performance of an agreement of sale relating to immovable property can be granted by Courts even after expiry of the period fixed in the contract."
10. After having arrived at the conclusion that time was never the essence of the contract, I feel no hesitation to hold that the petitioners were non-suited on extraneous grounds and the concurrent findings are the outcome of gross misreading and non-reading of evidence. Both the courts below have proceeded on the basis of misconception of well settled law and thus committed material irregularity.
11. Adverting to the contention of learned counsel for the "respondent" that concurrent findings are unexceptionable, suffice to observe that such findings are neither sacrosanct nor it is an inflexible rule that despite observing material flaws, the revisional court will abdicate to exercise its jurisdiction. The judgment of both the learned courts below are not based on proper appraisal of evidence and the learned Civil Judge, while dismissing the suit filed by the petitioners has grossly misread the evidence as already noted hereinabove. The learned lower Appellate Court, while maintaining the judgment of learned trial court also committed a material irregularity. Thus this Court under Section 115 of The Code of Civil Procedure (V of 1908) is obliged and fully competent to correct such error in exercise of its revisional jurisdiction as contemplated under the said provision of law. When once it is established on the record that concurrent findings are fraught with legal infirmities hedged in Section 115 of the Code ibid, it becomes the bounden duty of court exercising revisional powers to curb and stifle such illegalities and material irregularities. Reliance in this respect if needed, can be placed on "Malik MUHAMMAD KHAQAN versus TRUSTEES OF THE PORT OF KARACHI (KPT) and another" (2008 SCMR 428) and "IMAM DIN and 4 others versus BASHIR AHMED and 10 others" (PLD 2005 Supreme Court 418).
12. Though concurrent findings in the circumstances are not tenable and petitioners were non-suited on extraneous grounds but I am still cognizant of the fact that grant of decree for specific performance of contract is discretionary with the court and such discretion could not be exercised arbitrarily. In my estimation both the parties were at fault and time was never essence of the contract, which was the sole resistance to the suit in hand on the part of "respondent". As already observed that agreement to sell was executed on 05 June, 2006 and earnest money was received by "respondent" at the time of execution of the agreement wherein the target date for the completion of the same was fixed within two months. The suit was instituted on 30 November, 2006 and in the meanwhile there is notable hike in the prices of the property, so keeping in view all the attending circumstances and to avoid any prejudice to any of the parties to the lis, I deem it appropriate to direct the petitioners (vendees) to pay sum of Rs.2,44,000/- as additional consideration in view of devaluation of currency and price hike in the property in general. In this context, I am forfeited with the judgment of Hon'ble Apex Court in the case of "Mst. MEHMOODA BEGUM versus Sved HASSAN SAJJAD and 2 others" (PLD 2010 Supreme Court 952) and "MUHAMMAD HUSSAIN and others versus Dr. ZAHOOR ALAM" (2010 SCMR 286 ).
13. For the foregoing reasons, the instant petition is allowed, impugned judgments and decrees are set aside, as a result thereof, suit instituted by the petitioners shall stand decreed subject to payment of Rs.2,44,000/- in addition to the amount of Rs.3,25,000/-, which was yet to be paid by the petitioners to "respondent", through money order as remaining sale consideration within one month from today and in case of failure to pay said amount within specified period to the "respondent", suit shall be deemed to have been dismissed with no order as to costs.