MUHAMMAD SAJID MEHMOOD SETHI, J.- Through instant Regular Second Appeal ("RSA" ), appellants have assailed order dated 14.10.2013 and judgment & decree dated 24.10.2017, passed by learned Civil Judge and Additional District Judge, Lahore, respectively , whereby respondent No.1' s application under Section 151 C.P.C. for appropriate direction to respondent No.1 to deposit the remaining consideration amount of Rs.90,00,000/- as well as transfer and delivery of possession of the suit property in his favour , was disposed of in the manner that respondent No.1' s suit was decreed subje ct to payment of balance consideration amount i.e. Rs.90,00,000/- in the Court within fifteen clear days from the order of the Court, failing which, suit would result in per se dismissal.
2. Brief facts, discernible from averments of instant appeal, are that the agreement to sell dated 31.07.2012 was executed between appellants and respondent No.1, whereby bungalow bearing property No.454 Block-A, D.H.A.
Phase-V , Lahore Cantt., possessed and owned by the appellants, was agreed to be sold to respondent No.1 against consideration of Rs.2,42,00,000 /-. Out of said amount, Rs.32,00,000/- was paid by the purchaser / respondent No.1 as advance money / Biana on the same date i.e. 31.07.2012 to the sellers / appellants. As per clause 4 of the agreement, Rs.100,00,000/- were to be paid by respondent No.1 on or before 30.08.2012 and the remaining consideration amount of Rs.1,10,00,000/- was to be paid by respondent No.1 on or before 01.10.2012 at the time of transfer . As per clause 7 of the agreement, if respondent No.1 failed to pay the remaining consideration amount to appellants by the due dates, his earnest money would be treated as forfeited and according to clause 14 thereof, respondent No.1 shall be put into possession of the bungalow , subject to development of the area, as and when the balance consideration amount is paid by respondent No.1 to appellants. A further agreement to sell dated 01.09.2012 was executed between the parties, whereby the fact of payment of Rs.100,00,000/- was acknowledged. As per clause 4 of the subsequent agreement, it was once again stipulated that balance consideration amount of Rs.1,10,00,000/- shall be paid by respondent No.1 on or before 01.10.2012 at the time of transfer , as stipulated in the earlier agreement dated 31.07.2012 and by virtue of clause 5 of the latter agreement, it was agreed that the other terms and conditions of the agreement to sell dated 31.07.2012 will remain the same as operative and applicable on this agreement to sell. Respondent No.1 assertively failed to perform his part of agreement and paid only Rs.20,00,000/- instead of Rs.1,10,00,000/-. Appellants served a legal notice, through their counsel, upon respondent No.1, whereby respondent No.1 filed suit for possession through specific performance of agreement to sell dated 31.07.2012 along with permanent injunction. The said suit was contested by appellants by filing written statement. During the cours e of proceedings, respondent No.1 filed application under Section 151 C.P.C. for appropriate direction to respondent No.1 to deposit the remai ning consideration amount of Rs.90,00,000/- as well as transfer and delivery of possession of the suit property in his favour , which was disposed of vide order dated 14.10.2013 in the manner that respondent No.1' s suit was decreed subject to payment of balance consideration amount i.e. Rs.90,00,000/- in the Court within fifteen clear days from the order of the Court, failing which, suit would result in per se dismissal. Feeling aggrieved, appellants filed Regular First Appeal before learned Division Bench of this Court, which was returned / transferred to learned District Judge, Lahore after enhancement of the pecuniary jurisdiction. Appellants filed appeal against order dated 14.10.2013 before learned Additional District Judge, which was dismissed vide judgment & decree dated 24.10.2017. Hence, this RSA.
3. Learned counsel for appellants submits that impugned decisions of learned Courts below are based upon mis- reading and non-reading of available record. He adds that as per clauses 4 & 5 of the second agreement to sell dated 01.09.2012, it was agreed that the balance consideration amount of Rs.1,10,00,000/- would be paid by respondent No.1 on or before 01.10.20 12, at the time of transfer , and other terms and conditions of earlier agreement to sell dated 31.07.2012 would remain the same. Thus, clause 4 of the earlier agreement dated 31.07.2012 stood novated, but this mate rial aspect of the case has been overlooked while passing impugned decisions. He further submits that learned Courts below have misinterpreted and wrongly invoked the provisions of Order XII Rule 6 CPC. He further submits that learned counsel for appellants made a conditional statement dated 16.01.2013 to the effect that if respondent No.1 deposited the remaining consideration amount within 15-days, the suit of respondent No.1 be decreed and in case of default, the suit be dismissed. He adds that learned trial Court was required to frame issues in order to resolve the controversy instead of deciding the matter by invoking the provisions of Order XII Rule 6 CPC. He further submits that respondent No.1 must have been ready and willing to fulfill his part of the agreement and his refusal to make payment of balance consideration amount on frivolous ground of delivery of possession prior to payment of balance consideration amount, entails dismissal of the suit. He further submits that due to non-performance of his part of the agreement, respondent No.1 was not entitled to the equitable and discretionary relief of specific performance in terms of Section 22 of the Specific Relief Act, 1877. He further submits that the legal principle that time was generally not the essence of contract, cannot be indiscriminately applied. In support of his submissions, he has placed reliance upon Malik Muhammad Hayat Khan v. Subedar Yar Muhammad Khan (PLD 1966 Supreme Court 612), Gulzar Khan v. Mst. Shahzadi Bibi and another (PLD 1974 Supreme Court 204), Saudi-Pak Industrial and Agricultural Investment Company (Pvt.) Ltd., Islamabad v. Messrs Allied Bank of Pakistan and another (PLD 2003 Supreme Court 215), Rasheedur Rehman Khan v. Mian Iqbal Hussain (PLD 2006 Supreme Court 418), Mst. Maryam Bibi and others v. Muhammad Ali through L.Rs. (2007 SCMR 281), Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad (2017 SCMR 1696 ), Sheikh Rehmat Ilahi v. Mohammad Hayat Khan and others [A.I.R. (30) 1943 Privy Council 208], Abdul Soban v.
Purna Chandra Dey and others (PLD 1956 Dacca 29), Concentrate Manufacturing Company of Ireland and 3 others v. Seven Up Bottling Company (Private) Limited and 3 others (2002 CLD 77), Parveen Umar and 3 others v.
Sardar Hussain and 5 others (2003 YLR 3097 ), Bank Alfalah Limited v. Iftikhar A. Malik (2003 CLD 363), Muhammad Saleem and others v. Marry am Bibi and others (2007 CLD 1301 ), Mian Absar Akhtar and others v.
Zarai Taraqiati Bank Ltd. and others (2007 CLD 1620 ), Muhammad Naveed v. Teejays Exclusive (Pvt.) Ltd. through Managing Director and another (2009 CLC 883), Messrs Rana Ashfaq Rice Mills, Narowal through Managing Partner v. Director -General of Income-T ax, Sialkot and 2 others (2009 PTD 2159 ) and Mst. Ishrat Bano v.
Noor Hussain and 2 others (2010 YLR 2452 ).
4. Conversely, learned counsel for respondents defends the impugned decisions and submits that appellants failed to abide by the terms and conditions of the agreements to sell reached between the parties. They add that as per clause 4 of the agreement, the balance consideration amount of Rs.110,00,000/- was to be paid by respondent No.1 on or before 01.10.2012 at the time of transfer and as per clause 7 of the agreement, on failure of respondent No.1 to pay the remaining consideration amount to appellants by the above mentioned date, his earnest money would be treated as forfeited and according to clause 14, respondent No.1 shall be put into possession of Bungalow, subject to development of the area, as and when the balance consideration amount is paid by respondent No.1. He adds that the fact of payment of Rs.100,00,000/-, made through two cheques of Rs.50,00,000/- each dated 03.09.2012, was incorporated in a further agreement to sell and as per clause 4, it was once again stipulated that balance consideration amount of Rs.110,00,000/- shall be paid by respondent No.1 on or before 01.10.2012 at the time of transfer. In the end, they submit that appellants have failed to point out any illegality or legal infirmity in the impugned decisions, thus, same are liable to be upheld in circumstances. In support of their contentions, they have relied upon Naseem Akhtar v. Abdul Rehman Khan (2017 CLC Note 79) and Wazir and others v. Haji Dilbar and others (2017 CLC Note 83).
5. Arguments heard. Available record perused.
6. The main ground which prevailed upon learned courts below for invoking the provisions of Order XII Rule 6 CPC for passing decree on admission, was that the appellants were at fault in delivery of possession upon receipt of balance amount. The said reasoning, ex-facie is not supported from record, rather apparently based upon misreading and non-reading of relevant clauses. As per stance of appellants, balance consideration amount was not paid despite legal notice and offer of deposit within 15 days through statement dated 16.01.2013. In order to determine the factum of default of appellants qua delivery of possession, the relevant clauses 4, 7 & 14 of agreement to sell dated 31.07.2012 are reproduced hereunder:- "4. That the Sellers has agreed to sell and the Purchaser has agreed to purchase the above said Bungalow at a price of Rs.2,42,00,000/- (Rupees Two Crore Forty Two Lac Only) (With All Dues Cleared) out of which Rs.32,00,000/- (Rupees Thirty Lac only) has been paid as Biana in the following manners:- i. Rs.2,00,000/- (Rupees Two Lac Only) Cash. ii. Rs.30,00,000/- (Rupes Thirty Lac only) vide Cheque No.18007434, dated 30.07.2012, drawn on Habib Metropolitan Bank Lahore.
Receipt of which is hereby acknowledged by the Sellers . The balance amount of Rs.1,00,00,000/- (Rupees One Crore only) shall be paid by the Purchaser as Part Payment on or before 30-08-2012 . And the remaining balance amount Rs.1,10,00,000/- (Rupees One Crore Ten Lac only) shall be paid by the Purchaser on or before 01.10.2012 at the time of transfer .
7. That if the purchaser fails to pay the remaining amount to the Sellers by the above mentioned date his earnest money (biana) will be treated as forfeited. Likewise if the Sellers commits fault / default or refuses to transfer the Bungalow in favour of the Purchaser he will be liable to pay double amount of the biana to the purchaser .
14. That the purchaser shall be put into physical possession of Bungalow (subject to development of the area) as and when the balance amount is paid by the purchaser to the Sellers."
Likewise, clauses 4 & 5 of further agreement to sell dated 01.09.2012 are reproduced hereunder:- "4. Balance amount of Rs.1,10,00,000/- (Rupees One Crore Ten Lac only) shall be paid by the Purchaser on or before 01-10-2012 at the time of transfer .
5. Other Terms and conditions of the Agreement to sell a Bungalow (Biana) execu ted on 31 July 2012 will remain the same as operative and applicable on this extended Agreement as well."
7. The above clauses show that respondent No.1 paid Rs.32,00,000/- as earnest money . It was clearly mentioned in the former agreement that if respondent No.1 fails to pay the remaining consideration amount to the appellants by the target dates, his earnest money would be treated as forfeited and similarly , however , if the appellants commit fault / default or refuse to transfer the Bungalow in favour of respondent No.1, they would be liable to pay double amount of Biana to respondent No.1. As per clause 14, physical possession of the Bungalow in question would be handed over to respondent No.1, subject to development of the area as and when the balance consideration amount is paid by him to the appellants. Prima facie , clauses 4 & 5 of further agreement to sell dated 01.09.2012 show that upon receipt of balance payment delivery of possession is to be made. Undeniably balance payment was made during pendency of suit, after more than 6 months of the offer made by the appellants to respondent No.1 to deposit remaining consideration amount within 15 days. Even otherwise, it was a disputed question of fact, determination of which requires recording of evidence. The disposal of the case in a summary manner is unsustainable in the eye of law .
8. The statement dated 16.01.2013, of learned counsel of present appellants was misconstrued and misinterpreted by learned courts below in the impugned order and judgment while invoking provisions of Order XII Rule 6 CPC.
The said statement reads as under:- {{URDU TEXT}}
9. It is self evident that offer was firstly restricted for a period of 15 days only but respondent No.1 neither accepted the offer nor made the deposit, rather took up the plea that deposit could not be made because appellants failed to deliver possession as per the agreements. Since offer was time bound/ restricted, it was never made for an indefinite period of time. Offer thus automatically stood withdrawn on expiry of the time given by the appellants and in any case, it was never perfected through acceptance by the respondent No.1, in terms of section 2(b) of the Contract Act, 1872. Therefore, it never culminated into a binding contract between the parties, besides there was no offer when the appellants pressed for enforcing the consequences of the default on the part of the respondent No.1 in making the deposit within the time given in the said offer and in terms of the order of the court. Appellants, thereafter, had never given any consent for the extension / enlargement of the time, rather throughout had been insisting for the dismissal of the suit on account of respondent No.1's failure to make deposit within time. Despite that, the Court, on its own, granted extension and directed respondent No.1 to deposit the arrears of consideration in the Court by the next date of hearing, failing which, the suit would be considered to have been dismissed. Where one party had made an offer to the other for performance of an act within a particular period of time, and such act was not performed, the court, without the consent of the party, making an offer, could not enlarge time while exercising its powers under section 148 or 151, C.P.C. and it was only with the consent of party offering, that time could be further granted.
Present case was not covered by Order XII, Rule 6, C.P.C. or Order XV, Rule 1, C.P.C. and the respondent No.1 had never asked the court to pass the decree in terms of the offer of the appellant, rather joined the issue about delivery of possession. Court, in view of scheme of C.P.C. and in circumstances, should have decided the suit after holding trial.
10. Even otherwise, in order to attract provisions of Order XII, Rule 6, C.P.C. admission should necessarily be unequivocal, clear, unconditional and unambiguous. Court while dealing such application for grant of decree must exercise its discretion in a judicial manner, subject to qualification regarding maintainability of suit on any legal objection going to the very root of the matter. Court should not grant decree on admission without resorting to objections raised. While passing judgment and decree, real question in controversy remained undetermined which could not be decided without adducing evidence by parties on all issues including those two which were subject- matter of application under Order XII, Rule 6, C.P.C. Reference can be made to Amir Bibi v. Muhammad Khurshid (2003 SCMR 1261) and Col. Javed Iqbal Lodhi v. Lt. Col. Nadeem Ahmar (2007 CLC 831).
11. Article 10-A of the Constitution of the Islamic Republic of Pakistan, 1973 ("the Constitution") enshrines the right to fair trial and due process, which includes framing of issues in view of the divergent pleadings of the parties, recording evidence and hearing arguments. Any process falling short of the above ingredients not only constitutes patent illegality but violates the said provisions of the Constitution. A Court of law is under a legal obligation to hold fair trial as per Article 10-A of the Constitution.
12. Needless to observe here that in view of the commercial nature of the property business and trend of rapid increase in the prices of immovable property , the sellers could not be left at the mercy of buyer to bind him in an agreement to sell and then delay the completion of the contract for as long as he may wish hiding behind an archaic legal principle that in contracts involving immovable property , time is generally not of the essence of contract. The said rule had to be revisite d keeping in view the changed circumstances and time was not of the essence of contract could not indiscrimin ately be applied. Reference can be made to Muhammad Abdur Rehman Qureshi v . Sagheer Ahmad (2017 SCMR 1696 ).
13. In view of the above discussion, instant appeal is allowed. Impugned order and judgment passed by learned Courts below are set-aside and case is remanded to the learned trial Court for its decision afresh after framing issues and recording evidence and hearing arguments of the parties on controversial points involved in the case without being influenced by the finding recorded hereinabove, within a period of four months from the date of receipt of certified copy of this judgment under intimation to the Deputy Registrar (Judicial) of this Court.