SHAHID BILAL HASSAN-J: Succinctly, appellant/ plaintiff instituted a suit for possession through specific performance of agreement to sell dated 09.03.2009 alongwith permanent injunction, against the respondent No.1/defendant by stating therein that respondent No.1 entered into agreement to sell with the appellant with regards to the land measuring 24 Kanals for a consideration of Rs.3,600,000/- and received Rs.1,500,000/- as earnest money in presence of witnesses whereas the remaining amount was settled to be paid till 29.09.2009 at the time of registration of sale deed. It was further maintained that the appellant was always ready for performance of his part of agreement but the respondent No.1 avoided on one reason or the other and finally refused to execute the registered sale deed and during the pendency of the suit, respondent No.1 transferred the suit land to the respondent No.2 through registered sale deed dated 28.10.2010 who later on was impleaded as defendant No.2 in the suit.
The suit was contested by the respondents/defendants by filing separate written statements. The respondent No.1 admitted the execution of agreement to sell and receipt of earnest money; however, took the stance that the earnest money was returned in October, 2009. The respondent No.2 controverted averments of the plaint and prayed for dismissal of the suit.
The divergence in pleadings of the parties was summed up into as many as nine issues including "Relief" and evidence of the parties in pro and contra was recorded. After hearing arguments, on conclusion of trial, the learned trial Court decreed the suit vide judgment and decree dated 31.01.2015 in favour of the appellant. The respondent No.2 being aggrieved preferred an R.F.A.No.292 of 2015 before this Court, however, due to enhancement of pecuniary jurisdiction of the District Judge, the said R.F.A. was transmitted to the District Judge for decision. The learned appellate Court vide impugned judgment and decree dated 18.01.2018 accepted the appeal, set aside the judgment and decree passed by the learned trial Court and dismissed suit of the appellant for specific performance, however, held the appellant entitled to receive back earnest money Rs.1,500,000/- from the respondent No.1 in addition to withdrawal of any other amount deposited by him in compliance of judgment and decree dated 31.01.2015; hence, the instant regular second appeal.
2. Heard.
3. It is a settled proposition of law that to bestow the relief of specific enforcement of an agreement to sell pertaining to an immovable property is a discretionary relief as enunciated in section 22 of the Specific Relief Act, 1877; even in cases where the agreement to sell is validly proved by the plaintiff, the Courts may refuse to allow the relief of specific performance. Court is neither obliged to grant the relief of specific enforcement nor can the plaintiff claim it as a matter of right. Reliance is placed on Sheikh Akhtar Aziz v. Mst. Shabnam Begum and others (2019 SCMR 524), wherein it was held:- '16. Finally, there is no cavil with the proposition that relief of specific performance is discretionary in nature and despite proof of an agreement to sell, exercise of discretion can be withheld if the Court considers that grant of such relief would be unfair or inequitable.'
Further reliance can safely be placed on judgment reported as Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad (2017 SCMR 1696), wherein it has been held that:- '16. Perusal of section 22 of the Specific Relief Act, 1877 as interpreted by this Court makes it abundantly clear that the Court has discretion to decline specific performance of an agreement even in the absence of an obvious impediment in this behalf and despite the fact that such agreement may possess all necessary particulars entitling the specific performance of the contract. It declares that specific performance is essentially an equitable relief which can lawfully be declined if the Court comes to the conclusion that it is unjust and inequitable to do so.'
4. In this case, a minute perusal of the alleged agreement to sell Ex.P1 goes to divulge that the time was essence of the agreement as the cut-off date was fixed as 29.09.2009, however, the present appellant for the first time demanded execution of registered sale deed by approaching the respondent No.1 on 25.10.2009, meaning thereby he was not ready to perform his part of purported agreement to sell till the cut-off date. Moreover, after cut-off date, the appellant did not send any written notice to the respondent No.1 showing his readiness to pay the remaining amount and asking him to perform his part of agreement, despite the fact that as per terms and conditions of Ex.P1, if vendee (appellant in this case) fails to pay balance consideration amount till target date i.e. 29.09.2009, the agreement to sell will stand cancelled. Furthermore, the suit was filed by him on 05.11.2009 after the cut-off date but the appellant did not deposit the remaining sale consideration with the Court by moving an application in this regard, which was necessary to show his bona fide and readiness to perform his part of agreement. In a judgment passed in Civil Appeal No.1121 of 2018 titled "Ijaz Ul Haq v. Mrs. Maroof Begum Ahmed and others" decided on 16.08.2023, the Apex Court of the country has invariably held that: '7. It would be appropriate first to examine how the plaintiff discharged his pleading burden. The law governing this aspect of the matter is provided in Form No.47 and 48 of Appendix-A of the First Schedule to the Code of Civil Procedure, 1908. According to para-2 of Form 47, the plaintiff was to state in the plaint that he had applied to the defendants specifically to perform the contract on their part, but the defendants had not done so. Similarly, per para-2 of Form 48, the plaintiff was required to state in his plaint that on such and such date, he tendered an amount to the defendants and demanded a transfer of the property. Thus, in his suit for specific performance, the plaintiff ought to have pleaded and proved his readiness and willingness to perform his obligations under the contract (Ex.P.3). There is no denying that according to contract condition, the plaintiff was to pay the balance of Rs.6,850,000/- to the defendants on or before 18th March, 2023, subject to the registration/completion of property transfer documents by the defendants in his favour. The plaintiff did not pay this amount. The plaintiff's stance was that he had been ready to pay the balance, but, defendant No.1 procrastinated the matter and delayed the completion of the transfer documents, which led him to institute the suit. A perusal of the evidence suggests that the plaintiff could not prove his narrative.'
In the present case, the facts of the case are identical to the above referred judgment of the Apex Court, because in the present case, the appellant failed to prove his case as well as stance.
5. Additionally, perusal of Ex.D1 shows that on the back page No.2 of the registered sale deed copy of register Haqdaran Zameen has been shown and in last column, a note has been given, according to which, no injunctive order by any competent Court pertaining to suit property is on record; meaning thereby the respondent No.2 made an inquiry as to any encumbrance upon the suit property but when he found no entry of any restriction or injunction in the revenue record, he opted to purchase the suit property vide sale deed Ex.D1. In a judgment reported as Mst. Samina Riffat and others v. Rohail Asghar and others (2021 SCMR 7), it has been held that:- 'Since there is nothing on record to show, that the Appellants/defendants 2 and 3 committed any breach, mere observation of the appellate court that since the Defendants 2 and 3 did not issue any notice making time essence of the contract is not justified under facts and circumstances of the case, even if it is presumed no notice to such an effect was issued, very fact specific plea was raised in the written statement that for failure to make the payment of the balance sale consideration within stipulated period rendered the agreement rescinded and earnest amount forfeited is sufficient notice, such fact coupled with fact that the Plaintiff on one hand failed to offer sale consideration within agreed period, secondly, did not tendered the amount despite order of the learned trial Court dated 19.7.2005 and even after the suit was dismissed.'
In judgment reported as Rao Abdul Rehman (deceased) through legal heirs v. Muhammad Afzal (deceased) through legal heirs and others (2023 SCMR 815), the August Supreme Court invariably held that:- 'In the case of Bahar Shah and others v. Manzoor Ahmad (2022 SCMR 284), this Court held that an honest buyer should at least make some inquiries with the persons having knowledge of the property and also with the neighbors. Whether in a particular case a person acted with honesty or not will obviously depend on the facts of each case. The good faith entailed righteous and rational approach with good sense of right and wrong which excludes the element of deceitfulness, lack of fair-mindedness and uprightness and or willful negligence. The purchaser is required to make inquiry as to the nature of possession or title or further interest if any of original purchaser over the property in question at time of entering into sale transaction.'
As to point of "time essence" of agreement in this case, further reliance can be placed on case of Muhammad Aslam and others v. Muhammad Anwar (2023 SCMR 1371), wherein it has been held that:- '...... In these circumstances, the judgments and decrees passed by all the courts below ignoring the fact that the terms of the agreement show that time was essence of the contract when it was specifically mentioned the date for performance and its consequences for non-performance by the plaintiff-vendee and it will be cancelled and earnest money will be confiscated. Plaintiff admitted that he could not arrange the remaining consideration amount even on the date of performance and even three months thereafter and further dishonestly it is pleaded that plaintiff approached the legal heirs of vendor as he passed away before the date of performance which is factually incorrect whereas his own evidence as well as evidence of his witnesses contradict his pleadings.'
6. This a regular second appeal which has a very limited scope as provided under section 100, Code of Civil Procedure, 1908. The judgment of the learned appellate Court cannot be interfered with unless some procedural defects materially effecting such findings is pointed out by the appellant. Reliance is placed on Bashir Ahmed v. Mst. Taja Begum and others (PLD 2010 Supreme Court 906) and Muhammad Feroze and others v. Muhammad Jamaat Ali (2006 SCMR 1304).
7. For the foregoing reasons and while placing reliance on the judgments supra, it is observed that the learned trial Court has misread evidence on record, whereas the learned appellate Court has judiciously appreciated evidence of the parties and has reached to a just conclusion while passing the impugned judgment and decree; therefore, the appeal in hand comes to naught and the same is hereby dismissed. No order as to the costs.