' This is an appeal under section 21 of the Sind Rented Premises Ordinance, 1979 (hereinafter called the Ordinance) and is directed Whig in Suit No, 510 of 1973, whereby the respondent's suit for specific performance of a sale agreement and possession in respect of immovable property, was decree with cost. The property in suit is a plot with structure thereon bearing No, M. 305/ VII-D-276, situated in New Town, Karachi. The undisputed facts relating to the suit and this appeal was as under :- "The appellant is owner of the property described above. On 4th of May, 1970 he agreed to sell this property to the respondent for Rs, 2,35,000. Such sale agreement was executed between the parties on the same date. In pursuance of this agreement the appellant also received Rs, 30,000 as advance, the balance of Rs, 2,05,000 being payable from the respondent to the appellant at the time of the registration of the sale deed. On the same date i,e, 4th May, 1970 the appellant also executed a receipt for Rs, 30,000 in respect of the advance received by him from the respondent.
2. The terms and conditions of the sale agreement, inter alia were as under :-
(a) That the appellant shall furnish all documents including income-tax clearance certificate etc. For the purpose of registration of the sale deed within four months of the agreement.
(b) That the appellant shall obtain at his own expense income-tax certificate, gift tax certificate and other clearance certificates and shall produce the original documents including receipts for all payments made to the K. M. C., K. D. A. And other Government agencies upto the date of registration of the sale deed.
(c) That if the appellant failed to perform his part of the contract in any way whatsoever, the respondent shall be entitled to have the agreement specifically performed through Court of law.
(d) That in case the entire contract frustrates as a result of any act done deliberately or otherwise by the appellant, the vendee i,e, the respondent in such event, shall be entitled to the refund of earnest money together with any damage or damages he may claim for such frustration of the contract.
(e) That after obtaining all necessary certificates and documents etc. Within five months the vendor i,e, the appellant would intimate the respondent of the same and give him option to register the sale deed within one month thereafter and in case the latter wanted extension of date of registration, then the appellant shall have no objection to the extension of time by four months provided the respondent paid him a further amount of Rs, 15,000 towards the sale price and the balance of Rs, 1,90,000 at the time of the registration.
(f) that if the vendee/respondent still failed to get the sale deed registered within the extended period of nine months, then it will be at the option of the vendor/appellant to refund the whole amount to the vendee/respondent less 10 per cent. Of the amount given to him and then cancel the sale agreement.
3. On 3rd October, 1970 i,e, almost five months after the date of execution of the sale agreement the appellant addressed a letter (Exh. 1/8) to the respondent saying that due to hospitalisation of his wife for a major operation he (appellant) had been unable to obtain the requisite income-tax clearance certificate etc. He, therefore, requested the respondent to extend the time for obtaining these certificates and get the sale deed registered by four months. The respondent sent a reply to this letter of the appellant on 22nd October, 1970 saying : "Without prejudice to the terms of the agreement I give you an extension of two months only within which you will kindly comply with all the requirements as contained in clauses 3 and 8 of the agreement without any further delay."
' This reply of the respondent is document (Exh. 1/19) in the original Court's record. In spite of extension of this time the appellant did not take any step to obtain the necessary clearance certificates. The respondent was, therefore, constrained to address the appellant another letter on 19th February, 1971 whereby the appellant was reminded that he has failed to get the requisite documents within the extended time of two months, although he was orally reminded several times in this behalf. The respondent further enclosed income-tax forms with the said letter in order to expedite the matter and advised the appellant in the following words exerting upon him to take further steps :- "In order to avoid further delay in the matter, I am forwarding herewith two forms Nos. I. T. 173 'the Application for a Certificate under section 3 of the Transfer of Property (Pakistan) Ordinance, 1947' and advise you to submit the same to the Income-tax Officer with required information's and documents, without losing further time on it."
' The appellant kept silent even after receiving this letter and the enclosed income-tax forms. At last on 10th November, 1973 the respondent served a notice by registered post upon the appellant saying that the sale deed should be got registered within 15 days, failing which legal proceedings shall be instituted. This notice which is Exh. 1/13 on the record and was sent by registered post to the appellant, was returned by the Postal Authorities with the endorsement "Refused". The respondent, therefore sent a telegram on 19th November, 1973 reminding the appellant that the registered notice was returned undelivered with the remarks that it was refused. The appellant was further called upon to complete the sale deed within 15 days failing which action in Court will follow. Even after this telegram, the appellant kept silent. Consequently the respondent filed suit in this Court on 24th December, 1973 which was registered as Suit No, 510 of 1973. The respondent sought following reliefs in his suit :-
(a) Judgment and decree for Specific performance of the Agreement of Sale dated 4th May, 1970 directing the defendant to execute the final Sale Deed in favour of the plaintiff in respect of property bearing No, J. M. 305/VII-D-276, situated in New Town, Karachi after obtaining the Income- tax Clearance Certificate and after performing all other legal formalities, on receiving the balance of sale consideration amounting to Rs, 2,05,000 (Rupees two lakh and five thousand only).
And on failure of the defendant the Nazir of this Hon'ble Court be directed to execute the final Sale Deed in favour of the plaintiff on payment of balance of sale consideration.
(b) A decree for possession be passed against the defendant directing him and all persons acting for, through and under him to hand over vacant and peaceful possession of the said property to the plaintiff at the time of execution of final-Sale Deed.
(c) Cost of the Suit may also be awarded.
(d)Any other relief which this Hon'ble Court may deem fit and proper under the circumstances of the case may also be awarded."
4. In his written statement the appellant admitted having executed the sale agreement but alleged that he was "induced to enter into an agreement of sale dated 4th May, 1970 with the plaintiff in respect of property bearing No, J. M. 308/VII D-276, New Town, Karachi as a result of misrepresentations made by the plaintiff regarding price and several other factors, and "that the plaintiff also took undue advantage of the distressing financial condition of the respondent and his failing health to exercise undue influence upon him and otherwise induced him to enter into an agreement of sale in respect of the said house property which he did not want to, in fact could not, sell for sentimental and other immutable reasons". He, therefore, pleaded that the respondent had manoeuvred to extort consent of the appellant for a thoroughly inadequate consideration. The appellant admitted that he had addressed the letter to the respondent requesting for extension of four months, time to obtain income-tax clearance certificate. He further pleaded that the respondent knew that the appellant was attending to his ailing wife and was unable to obtain the income-tax certificate and other documents and, therefore, respondent himself undertook to obtain these certificates on his behalf and that to this extent the agreement dated 4th May, 1970 stood modified. The plea of the appellant appears to be that it was orally agreed between the parties that it would be the responsibility of the respondent himself to obtain income-tax clearance certificate etc. On behalf of the appellant, but he does admit that he had received the letter dated 19th February, 1971 (Exh. 1/11) with which the income-tax form was enclosed.
5. The appellant denies that the notice dated 10th November, 1973 which is said to have been returned by the Postal Authorities with the endorsement of refusal, was ever received by him. But there is no specific denial of the receipt of the telegram (Exh. 1/17) dated 19th November, 1973. It is also not denied that even after receiving this notice the appellant did not take any step to get the sale deed registered. Before the filing of the suit, the appellant did not repudiate the sale agreement on the ground that it was got executed through misrepresentation etc. Nor did he protest that the respondent himself had failed to perform his part of the agreement in view of the alleged oral modification of the sale agreement. However, in para-6 of his written statement the appellant alleged that the respondent himself is responsible for breach of agreement of sale in more than one respect. He does not elaborate as to what were the terms and conditions of the agreement which the respondent had failed to comply with. The appellant further stated that the appellant was entitled to forfeit the advance which in fact he had forfeited. He further stated that the agreement cannot be specifically enforced and that he was not prepared to perform it because it was obtained fraudulently.
6. On the above pleadings following issues were framed by the Court :-
(1) "Whether the agreement of sale dated 4th May, 1970 was executed by the defendant under inducement, undue influence and on fraudulent misrepresentation made by the plaintiff ? Or the agreement was executed by the parties voluntarily ?
(2) Whether the defendant has committed breach of the agreement dated 4th May, 1970 ? If so, whether the plaintiff is entitled to specifically enforce the same ?
(3) Whether the suit is barred by limitation ?
(4) Whether the suit is not properly framed ?
(5) Whether the suit is not maintainable ?
(6) Is the plaintiff's suit barred by the Registration Act, the Transfer of Property Act, the Contract Act, the Stamp Act and other provisions of Statutory law and equity ?
(7) Whether the Agreement dated 4th May, 1970 lapsed and not being extended, has no validity for purposes of Specific Performance ? If so, to what effect ?
(8) Whether the plaintiff committed breach of contract in terms of the agreement dated 4th May, 1970 ? If so, what are its effects in favour of the defendant ?
(9) Whether the plaintiff will gain unfair advantage over the defendant who will suffer undue hardship by specific performance ?
(10) Whether the plaintiff has right to sue ? If so, to what result ?
(11) If the plaintiff by his own conduct and act disentitled himself to specific relief ? If so, what will be the results ?
(12) What should the decree be ?"
7. On issue No, 1 the finding of the learned Single Judge was that the sale agreement was executed by the appellant voluntarily. While taking this view the learned Single Judge also referred to certain stipulations of the sale agreement which were against the interest of the respondent. He particularly referred to Article 9 of the agreement which stipulated that if the respondent failed to get his part of the contract performed then the appellant shall have option to refund the earnest money less 10 per cent and cancel the agreement. It was, therefore, held that if the agreement had been the result of undue influence or misrepresentation, then the respondent would not have agreed to incorporation of any stipulation which was against his interest.
8. Issues No, 2, 6, 9, 10 and 11 being connected were decided together by the learned Single Judge and it was held that the appellant was responsible for committing breach of the agreement and that the respondent was entitled to the relief of specific performance.
9. Issue No, 3 regarding limitation was also decided in favour of the respondent. It was held that the appellant was to perform his part of the contract within five months and that thereafter a period of four months was to be allowed to the respondent to perform his part of the contract. Thus the time of limitation, according to the learned Single Judge, shall be calculated from the expiry of period of nine months from the date of the sale agreement i,e, 4th May, 1970. The suit was filed on 24th December, 1973. If the period of nine months for performance of the contract, according to clause 9 of the sale agreement, is taken into consideration, then the suit, as held by the learned Judge, shall be deemed to have been filed within time i,e, on 24th December, 1973.
10. Issues Nos. 4 and 5 were also decided against the appellant and it was held that the suit was properly framed and was maintainable. On issue No, 7 it was held that since the appellant himself had failed to obtain Income-tax Certificate and other clearance certificates, therefore the question of paying Rs, 15,000 by the respondent to the appellant under clause 8 of the agreement, did not arise nor the sale agreement could be deemed to have lapsed on that account.
11. In view of the above findings the learned Single Judge decreed the respondent's suit for specific performance with costs. The respondent was directed to deposit the balance of sale consideration of Rs, 2,05,000 within six months and it was further directed that in case of his failure to do so the suit shall stand dismissed with cost. The judgment of the learned Single Judge has been challenged by the appellant, inter alia, on the following grounds :-
(1) That the suit was time-barred and should have been dismissed as it was filed beyond three years from the time fixed in the contract for performance of the contract.
(2) That the learned Single Judge has allowed the question of limitation to be affected by the irrelevant consideration as to whether time was of the essence of contract or not.
(3) That in the interest of equity and justice, discretion should have been exercised in favour of the appellant by refusing to enforce specific performance of the sale agreement as specific performance would work great hardship upon the appellant in view of the spiral rise in prices.
(4) That the silence of respondent for more than two years and eight months before filing the suit amounted to acquiescence, abandonment and waiver of his claim.
(5) That due to valuation of currency as a result of fall of East Pakistan, the value of immovable property in Karachi had increased and provided unfair advantage to respondent over the appellant and that it would be harsh case for the appellant if specific performance was enforced ; and lastly.
(6) That it was not considered whether damages for breach of contract were not adequate remedy in the circumstances of this case instead of specific performance.
12. From the above grounds it would appear that the appellant has abandoned the plea that the sale agreement was result of undue influence, inducement or fraudulent misrepresentation on the part of the respondent. However, during the arguments Mr. Khalid M. Ishaque, learned counsel for the appellant, attacked the judgment of the learned Single Judge on the following three grounds only
(1) That the suit was barred by limitation.
(2) That as a result of devaluation consequent upon fall of East Pakistan, the value of the suit property has increased due to which the contract between the parties must be deemed to have been frustrated.
(3) That looking to the hardship which the appellant shall incur as a result of specific performance, discretion in this case should have been exercised in favour of the appellant by refusing to enforce specific performance and that damages would have been the appropriate remedy to be awarded to the respondent,
13. So far as the point of limitation is concerned, the terms and conditions of the sale agreement which have been reproduced in para 2 above, disclose that the appellant was to perform his part of the contract within five months. He was required to obtain Income-Tax Certificate and other clearance certificates within this period and inform the respondent accordingly. It is an admitted fact that the appellant did not do this within five months. It is also admitted that the appellant addressed a letter dated 3rd October, 1970 (Exh. 1/81 requesting the respondent to extend the time by four months to enable him to obtain the requisite certificates. The respondent had all along been keen to get the formalities performed expeditiously so that the sale deed could be registered without any further delay. This fact would be evident from the letter of respondent (Exh. 1/11) the receipt of which has not been denied by the appellant. By this letter the respondent allowed two months' time to the appellant to comply with all the requirements as contained in clauses 3 and 8 of the sale agreement. Alongwith this letter the respondent also enclosed an application form for certificate of Income-tax clearance, so as to enable the appellant to act promptly in the matter.
The letter (Exh. 1111) was received by the appellant on 22nd March, 1971. The plea of Mr. Khalid M.
Ishaque is that the respondent was entitled at the most to the benefit of 7 months from the date of agreement in the matter of calculating the period of three years of limitation under Article 113 of the Limitation Act. According to this article, three years' time of limitation for a suit for a specific performance is to be counted from the date when specific performance is refused or when the performance was due. According to him, the contract should have been performed by 4th December, 1970, if the period of 7 months is taken into consideration from the date of the sale agreement, and that as the suit was filed on 24th December, 1973, it was beyond the period of three years as envisaged by Article 113.
14. It was also argued by Mr. Khalid M. Ishaque that due to failure of the appellant to obtain clearance certificates within the stipulated period, clause 8 of the agreement did not become operative. This clause provides that after getting the requisite certificates within five months the appellant shall allow further 4 months' time to complete his part of the contract. It was argued that since the appellant had not obtained the requisite certificates within the stipulated period and even after the extended period hence the question of allowing further 4 months time to the respondent to perform his part did not arise. According to him, the respondent was not entitled to the benefit of adding 4 months to the original period of 5 months fixed for the performance of the original contract and in view of this, clause 9 of the agreement did not become operative which provides that if the vendee failed to get the sale deed registered within the extended period of 9 months, then it will be at the option of the vendor to refund the whole amount to the vendee less 10 per cent of the amount and cancel the sale agreement.
15. We are not inclined to accept the argument canvassed by the learned counsel for the appellant.
Clause 9 categorically stipulates that the entire agreement was to be performed by both the parties within a period of 9 months from the date of the agreement. The period of 9 months envisaged in para 9 of the agreement has not been made subject to clause 8 being effective.
Reading clauses 8 and 9 of the agreement together one is left in no doubt as to the fact that both the parties had to perform their parts of the contract within a period of nine months from the date of the agreement. The learned Single Judge was, therefore, justified in holding that the time of limitation for filing suit for specific performance shall be calculated from expiry of 9 months from the date of the sale agreement i,e, 4th May, 1970 and that if this period is taken into consideration, then the suit was filed well within time. We do not see any reason to take exception to this finding of the learned Single Judge be deemed to have been frustrated due to circumstances, viz. The fall of East Pakistan, devaluation in Pakistan currency and consequent rise in the value of the suit property. It may be stated that the plea of frustration of the contract has been set up by the learned counsel on behalf of the appellant for the first time during arguments. No such plea was raised before the trial Court. Even in the memo of appeal no such ground was raised. He was, therefore, not entitled to take this plea at the 'hearing of this appeal. Mr. Khalid M. Ishaque has cited number of cases in support of his plea relating the doctrine of frustration of contract. It is not necessary to refer to those cases since we are not inclined to hold that the circumstances pleaded by the learned counsel, would have the effect of frustrating the contract.
17. The last point urged in support of the appeal by Mr. Khalid M. Ishaque is that the relief of specific performance is a discretionary relief and that in this case the proper remedy for the respondent would have been damages rather than specific performance. In support of this plea he has relied on clause II of section 22 of the Specific Relief Act. The above clause states that if the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its nonperformance would involve no such hardship on the plaintiff, then the Court may properly exercise discretion not to decree specific performance. The learned counsel has further referred to illustration (i) to the above clauses which is to the following effect :- "(1) A, a lessee of mines contracts with B, his lessor, that at any time during the continuance of the lease may give notice of his desire to take the machinery and plant used in and above the mines, and that he shall have the articles specified in his notice delivered to him at a valuation on the expiry of the lease. Such a .Contract might be most injurious to the lessee's business, and specific performance of it should be refused to B."
18. It has further been urged that the relief of specific performance should be refused also on the ground of laches on the part of the respondent because he waited for about 2 years after his last letter dated 19th February, 1971 (Exh.1/11), before filing this suit and that during this period there had been abnormal rise in the prices of real property. It was, therefore, argued that the respondent should not be allowed to take advantage of his laches in remaining silent for two years and coming to the Court at a time when specific performance of the contract would entail great hardship to the appellant. The learned counsel further argued that due to traumatic events which led to the bifurcation of the country in December, 1971, there had been devaluation of Pakistan currency as a result of which the value of the property in dispute had increased, according to the counsel, ten-fold and as such respondent should not be allowed to take advantage of this situation.
19. So far as the first plea regarding applicability of section 22 of the Specific Relief Act is concerned, it may be stated that a person who seeks discretion to be exercised in his favour, should come to the Court with clean hands and must himself be prepared to do equity if he expects the opposite party to do equity to him. In order to determine how far the conduct of the appellant himself has been fair, it would be necessary to refer to his written statement which he had filed before the trial Court. In the first place he resisted the claim of the respondent on frivolous ground that the sale agreement was the result of misrepresentation, that undue influence was exerted upon him and that the respondent had manoeuvred to extort his consent for a thoroughly inadequate consideration. He also pleaded that his signature on the letter dated 3th October, 1970 (whereby he had requested for 4 months further time to get the sale-deed registered) had been obtained by the respondent by fraud. Later on this frivolous plea was altogether abandoned by the appellant.
When the respondent Muhammad Anwar Khan Ghori came into the witness-box, no question was asked from him about undue influence or misrepresentation or fraud as alleged in the written statement. Even in his deposition (Exh. 3) the appellant did not state that the respondent had perpetrated any fraud upon him or had extorted his signature on the sale agreement by fraud or misrepresentation. He did not even state that his signature on the letter dated 3rd October, 1970 was obtained by the respondent by fraud or misrepresentation.
20. Secondly, in spite of the specific stipulation in the sale agreement regarding the appellant's responsibility for obtaining Income-tax Certificate and other certificates. The appellant took the plea that the agreement was orally amended later and that the respondent himself had accepted the responsibility of obtaining the above certificates. He further raised the false and frivolous plea that the respondent himself had bee responsible for breach of contract by not obtaining the certificates and as such he was not entitled even to the refund of the earnest money. There was no evidence even in support of this plea except the bare word of the appellant in his deposition that the respondent had assured him that he would obtain the certificates on his behalf ; but no question was put to the respondent in cross-examination that there had been an oral agreement whereby the sale agreement was modified to the extent that the responsibility of obtaining the requisite certificates would be on the respondent. It is thus established from the record that the sale agreement was never modified, that the responsibility for obtaining the requisite certificate was of the appellant, that till the date of the filing of the suit the appellant had not complied with this requirement and that he was manifestly responsible for breach of the contract. In spite of this, the appellant stated in his written statement that "the plaintiff being in breach of the agreement of sale in more than one respect, is liable to have the advance paid forefeited." He further stated in the written statement that "the plaintiff is in breach of the agreement, which agreement had even otherwise been obtained fraudulently in the circumstances stated earlier". In his deposition the appellant stated as under :- "I refuse to sell the property because the plaintiff did not comply with sale within time. My last talk with the plaintiff was when the plaintiff gave me two months more time. I am not willing to sell the property as the value of the money has depreciated very much and the needs If my family have grown also. I: have no othe' house to live in."
' From the above plea it would appear that the conduct of the appellant had been inconsistent. He first pleaded that the agreement was based on fraud and misrepresentation etc. In the same breath he pleads that the agreement was duly executed but it was the respondent who had been responsible for committing breach thereof. From the record it would appear that this plea is absolutely frivolous. It is established that the appellant had failed to perform his part of the contract, still he had no intention even to return the advance of Rs, 30,000 which he had received from the respondent.
21. From the record it also transpires that from the very start the appellant had no intention to comply with the sale agreement. He never applied to the Income-tax Authorities for clearance certificate in spite of the fact that the necessary application forms were delivered to him by the respondent duly completed. He refuted to accept the notice which was sent to him by registered post A. D. On 10th November, 1973 (Exh. 1/13). Although he has denied that any such registered letter was refused by him, the envelop (Exh. 1/15 which was properly addressed to the appellant clearly proves that he had refused to accept this notice. Thereafter telegram (Exh. 1/7) dated 19th November, 1973 was sent to him by the respondent calling upon him to complete the sale within 15 days. In the written statement the receipt of this telegram has not been specifically denied. It must, therefore, be presumed that the appellant had received the telegram. In spite of this he remained silent. He did not protest that it was the respondent who had committed the breach of the agreement or that the agreement had been frustrated or ceased to be effective for any reason. Till the date of the filing of the written statement the appellant did not ever protest to the respondent that any fraud or misrepresentation ha been practiced upon him, or that there was any default on the part of the respondent in the performance of his part of the contract.
22. All the above circumstances lead to the clear conclusion that the appellant had been responsible for flagrant violation of the sale agreement and that for ulterior motives he had been blaming the respondent for breach of the contract and also wanted to forfeit the advance of Rs, 30,000. In such circumstances it cannot be said that he has come to the Court with clean hands or that he is prepared to do equity, to the other side. He is, therefore, not entitled to press his claim for discretion of the Court to be exercised in his favour under section 22 of the Specific Relief Act. So far as illustration (i) quoted above is concerned, it is not at all relevant to his facts of the present case.
23. So far as the plea of leaches is concerned, the rule laid down by the Supreme Court in the case of Habibullah Khan and others v. Kazi Mohammad Ishaq and others referred to by the learned Single Judge in his judgment, is complete answer to it. The record shows that the respondent had from the very start been very eager to get the sale completed. He addressed several letters to the appellant in this behalf and also issued legal notices and sent telegram to him to complete the sale. As a last resort-the respondent filed suit within the period of limitation which he was entitled to do. For the above reasons the plea of laches has no substance whatsoever.
24. It was next urged that due to the devaluation of the Pakistan currency, the price of real property had abnormally increased and that the respondent cannot be allowed to take advantage of this situation. It was stated by Mr. Khalid Muhammad Ishaque that after separation of East Pakistan in December, 1971 the value of Pakistan currency had depreciated which had resulted in the increase of the value of property in suit by ten times and that the respondent now cannot be allowed to purchase the property worth Rs, 30,00,000 for an amount of Rs, 2,35,000 stated in the sale agreement. It may be stated that the sale agreement was executed in May, 1970 whereas the event of separation of East Pakistan had taken place after 19 months of the above date. At least during these 19 months there had been no appreciable increase in the value of the real property. It was open to the appellant to have completed the sale within this period of 19 months. If he did not do so and due to the traumatic events that followed the bifurcation of the country; the prices of the real property increased, the appellant is to blame himself. Had he acted diligenity after the sale1 agreement to comply with the requirements necessary for registration of the sale-deed, there would have been no occasion for him to complain that the situation had changed which did not warrant specific performance. The appellant cannot be allowed to take advantage of his own act.
He himself delayed the completion of the sale. It was on account of this delay that the situation had changed as a result of which the value of the property had increased. In such circumstances if specific performance is refused on the ground that the value of the property has gone abnormally high, it would amount to giving the appellant advantage of his own wrong. If the appellant committed breach of the agreement and allowed a period of three years to lapse without having taken a single step towards performance of his part of the contract, he cannot be allowed to plead that due to lapse of time the value of the property has increased and that specific performance of the sale agreement would give undue advantage to the respondent.
25. Learned counsel for the respondent has referred to the case of Ali Mohammad Khan v.
Riazuddin Khera in support of the plea that inadequacy of consideration is no ground for refusing specific performance of a sale agreement. In the above case also claim of the specific performance was resisted on the ground that due to rise in the price of the property hardship will be caused to the vendor. The plea was rejected by Saleem Akhtar, J. Who delivered judgment in the above case. Following observations made in the above case may be reproduced here with advantage.
(12) The appellant has not alleged any of the aforesaid circumstances except that due to rise in price hardship will be caused to him. The question of hardship must be judged as on the date of transaction and not in the light of subsequent events. Section 22 (ii) of the Specific Relief Act refers to hardship which should be collateral to the contract and not in relation to a term of contract. In the case of Bijoy Krishna Saba v. Dukiram Karmaker where subsequent to the date of the contract to sell land and before the time of its purchase Partition of India took place which brought about a phenomenal rise in the price of landed property, the Court refused to apply section 22 (2) of Specific Relief Act and specific performance was granted. Reference can be made to AIR 1959 Pat.
132, AIR 1956 Tray.-Co. 93 and AIR 1933 Mad.
735.
' To the same effect is the following passage appearing in para. 434, at page 303 in Vol. 36 of Halsbury's Laws of England, 3rd Edition : ' It is 'now established that mere inadequacy of consideration is not in itself a ground for resisting the Specific Performance unless it is so gross as to amount to conclusive fraud, or there are other circumstances which, combined with the inadequacy, will induce the Court not to enforce the contract,' and again, `Where the question of inadequacy of consideration is raised it must be determined as at the date of the contract, and not in the light of subsequent events.'
' To the same effect observations were made in the case of S. V. Sankaralinga Nadar v. P. T.
Ratnaswa mi Nadar. Mr. A. A. Fazeel the learned counsel for the respondents has relied upon the case of Mulla Badruddin v. Master Tufail Ahmad where it was observed as follows : `If the transaction was for proper consideration at the time it was entered into and the value of the property had considerably risen subsequently, that does not affect the enforceability of the contract. The validity of a transaction should on principle be judged as on the date of transaction."
' The case referred to in the above observations namely, Bijoy Krishna Saba v. Dukhiram Karmaker is the case of S. V. Sankaralinga Nadar v. P. T. Ratnaswami Nadar and that of Mulla Badruddin v.
Master Tufail Ahmad. The above decision is on all fours with the facts of the present case and in view of the principle laid down by the D. B. Of this Court in the above case, the claim of the respondent for specific performance cannot be refused.2 3 4 5 ' Reliance has also been placed by Mr. Haider Ali Pirzada learned counsel for the respondent on the case of Messrs Alopi Par shad v. Union of India. Following observations were made by the Supreme Court of India on the question as to how the change of events would effect the right of party claiming specific performance of as agreement : - "The parties to an executory contract are often faced, in the course of carrying it out, with a turn of events which they did not at all anticipate- a wholly abnormal rise or fall in prices, a sudden depreciation of currency, an unexpected obstacle to execution, or the like. Yet this does not in itself affect the bargain they have made. If, on the other hand, a consideration of the terms of the contract, in the light of the circumstances existing when it was made, shows that they never agreed to be bound in a fundamentally different situation which has now unexpectedly emerged, the contract ceases to bind at the point not because the Court in its discretion thinks it just and reasonable to qualify the terms of the contract, but because on its true construction it does not apply in that situation. When it is said that in such circumstances the Court reaches a conclusion which is 'just and reasonable' (Lord Wright in Constantine Steamship Line Ltd. v. Imperial Smelting Corporation Ltd. 1942 A. C. 154 at page 186) or one 'which demands' (Lord Sumner in Hirfi Mului v.
Cheong Yue Steamship Co., Ltd., (1926) A. C. 497 (510) this result is arrived at by putting a just construction upon the contract in accordance with an 'implication..... From the presumed common intention of the parties' : speech of Lord Simon in British Movietonews Ltd. v. London and District Cinemas Ltd. 1952 A C 166 at pp. 185 and 186.
(22) There is no general liberty reserved to the Courts to absolve a party from liability to perform his part of the contract, merely because on account of an uncontemplated turn of events, the performance of the contract may become onerous. That is the law both in India and in England, and there is, in our opinion, no general rule to which recourse may be had as contended by Mr. Chatterjee, relying upon which a party may ignore the express covenants on account of an uncontemplated turn of events since the date of the contract.-
26. Mr. Khalid M. Ishaque has argued that in this case award of damages would be the appropriate remedy for the respondent. While setting up this plea it is admitted by implication that the appellant had been responsible for breach of the contract. If this is so, then the question will be whether the sale agreement falls within the category of those agreements the breach of which can be adequately compensated in money.
' In this connection reference may be made to the Explanation of section 12 of the Specific Relief Act. In this explanation it is provided that until and unless the contrary is proved the Court shall presume that the breach of a contract to transfer an immovable property may not be relieved by compensation in money. We are fully convinced that the case of the respondent is covered by the said explanation. The agreement between the parties relates to transfer of an immovable property.
There has been no plea on behalf of the appellant at any stage of the suit that compensation for breach of this agreement would be an adequat relief. Had the appellant at the very outset pleaded frankly that he irresponsible for breach of the contract and that he is prepared to pay corn sensation for the breach, then in that even an issue would have been framed to enable the 'parties to lead evidence for and against the issue. But from the very inception the plea of the appellant had been that the contract was based on fraud or in the alternative had ceased to be effective by reason of the breach on the part of the respondent. There is no evidence on record whatsoever to the effect that compensation I money would be an adequate relief for the appellant. We therefore, repeal the argument that this is a case in which damages to the respondent and not specific performance would be the appropriate remedy for the respondent.
26-A. During the pendency of the appeal an application was moved on behalf of the appellant under Order XL rule, 57, C. P. C. For permission to lead additional evidence. Learned counsel for the appellant, during his arguments, pressed for an order on this application also. The only ground6 taken in this application is that the value of the currency of Pakistan had suffered on account of inflation and that "unfortunately evidence in regard to the precise dimension or devaluation/inflation was ' not brought on record to enable the Court to pass a judgment on the issue on merits, apart from the admission of the plaintiff that at the time of the contract the value of the property was much less." The suit remained pending before the learned Single Judge for about 3i years It was filed in December, 1973 and was decided in February, 1977. The respondent had closed his evidence in February, 1976. Thereafter the case was fixed for the evidence of the appellant who had about 12 months time for the purpose. During this period he did not care to produce any witness except himself and one Muhammad Azam Ghori. The appellant had full opportunity to lead evidence on the issue to prove his hardship. There was a specific issue on this point; namely Issue No, 9 quoted hereinabove. In support of this issue he was at liberty to prove that due to fall in the value of currency of Pakistan on account of inflation, the prices of properties have risen and that the appellant shall suffer undue hardship if specific performance is enforced.
But he did not lead any evidence on the above point. In this connection learned counsel for the appellant has referred to the case of Muhammad Siddiq Muhammad Umar and another v. The Austrlasia Bank Ltd.. Following observations made by the Supreme Court in the above decision have been specifically relied upon :- "The present case is clearly distinguishable, for, as we have already pointed out, the learned Judge calling for additional evidence had clearly indicated in his order the nature of the evidence required and further clarified by his subsequent order that the purpose for which the evidence was required was to find out whether the person who had presented the plaint had been authorised to do so and as to whether the suit had been competently instituted. There were sufficient 'factual reasons even within the principle laid down in the above-mentioned decision for the admission of additional evidence.
"It is true that in the case of Parsotim and others v. La! Mahar and others the judicial Committee had observed that the provisions of this rule were 'clearly not intended to allow a litigant who has been unsuccessful in the lower Court to patch up the weak parts of his case and fill up omissions in the appellate Court,' but even in this case it was conceded that if the appellate Court finds the additional evidence 'needful' it may be admitted when some 'inherent lacuna or defect becomes apparent' to the Court. This defect may also be pointed out by a party, but 'the requirement must be requirement of the Court upon its appreciation of the evidence as it stands.'
"The rules of procedure are not made 'for the purpose of hindering justice' as stated by the Privy Council itself in the case of Indrajit Pratab Sahi v. Amar Singh and others and, as such, we should not give such a restricted intepretation to the provisions of rule 27 of Order XLI of the Code of Civil Procedure as would, in effect, amount to lying down the hands of the appellate Court and stand in the way of doing complete justice in a cause. The rule merely prescribes that the requirement must be a genuine one and that the need for the additional evidence must be felt by the Court itself after it has examined the evidence already on the record and come to the conclusion that there is apparent some inherent lacuna or defect which hinders the due administration of justice. If it comes to this conclusion, then it has the power to call for additional evidence subject to the condition that it must record its reasons for doing so, in order that a higher Court may be able to ascertain that the need was not merely imaginary but based upon factual grounds. In the present case, all these conditions are satisfied. It is significant that even the Court originally hearing the appeal had felt the necessity of such evidence and had even offered to give time to the parties to produce the same, but the parties had not themselves availed of this opportunity."
' The case of Parsotim and others v. Lai Mohar and others referred to in the above observations, is 1958 I A 254 while the case of Indrajit Pratab Sahi v. Amar Singh and others is in 1950 I A 183. The above cases are not of any assistance to the case of the appellant because there is already7 sufficient material on the record on the point on which additional evidence is to be produced. The Court can take even judicial notice of the fact that after separation of East Pakistan from the parent country there had been inflation and a consequent rise in the value of the real property. It has already been held that even if this fact is taken into consideration, it would not defeat the claim of the respondent for specific performance. However, learned counsel for the respondent has relied on the case of Abdul Hamid v. Khurshid Begum in which it was observed by Sajjad Ahmad, J. That unsuccessful litigant cannot be permitted to fill up omissions and patch up weak part of his case by producing additional evidence at appellate stage, In taking this view the learned Judge had relied en a Supreme Court decision in the case of Sh. Mohammad Ikhlas v. Muhammad Ismail. The above observations are fully attracted to the facts of the present case. We are, therefore, not inclined! To grant the application of the appellant for additional evidence.
' The respondent has already deposited the sale consideration in pursuance of the order of the learned Single Judge. The question has now been raised as to who is entitled to the interest that has accumulated on the above amount which is lying in Bank for the last so many years. It may be stated that the appellant is still enjoying possession of the property in dispute although, the moment the sale consideration was deposited by the respondent in Court, the possession should have been delivered to him. The appellant cannot be allowed the benefit of possession of the house and also to appropriate the interest which is accumulated on the amount of the also consideration. In this view of the matter the interest should be refunded to the purchaser i,e, the respondent, while the appellant is not entitled to receive anything more than the sale consideration deposited by the respondent, according to the sale agreement. In support of this view learned counsel for the respondent has relied on the case of Firzada Nazir Hassan v. Major (Reid.) Ejaz Ahmad Khan in which it was observed as under :- "Admittedly according to the basic agreement of sale executed between the parties, a sum of Rs, 3 lakhs was paid in advance by the respondent to the petitioner against its execution on the 29th of June, 1974 and according to one of the terms of this agreement, the remaining sale price of Rs, 6 lakhs had to be paid by the respondent to the petitioner at the time of the registration of the sale deed before the Sub-Registrar and the delivery of the possession of the Bungalow to him within 45 days. Evidently the petitioner had failed' to exercise his part of the agreement and the respondent had to file the suit for enforcement of the agreement through Court. On the 22nd of November, 1974, the trial Court decreed the suit of the plaintiff-respondent for specific performance of the agreement on deposit of Rs, 6 lakhs by him before the 21st of December, 1974. The respondent deposited the sum of Rs, 6 lakhs due from him in Court. But then the execution of the decree was stayed in appeal by the High Court at the instance of the petitioner. It was eventually on the 26th of July, 1978 in course of the execution proceedings that the necessary sale-deed was got executed and registered in favour of the respondent and the petitioner became entitled for the first time to receive the sum of Rs, 6 lakhs lying in deposit as the balance of the sale price. Before this execution of the sale deed through Court the petitioner was not entitled in law to withdraw the money from the Court without having executed the sale deed in favour of the respondent. In this view of the matter therefore, we have no doubt in our mind that the petitioner was not entitled to the interest that had accrued on the sum of Rs, 6 lakhs for the period before the 26 of July, 1978."
' The above observations are fully attracted to the facts of the instant case.
' For the reasons stated above the appeal is dismissed with costs. PLD 1966 SC 505 PLD 1981 Kar. 170 I L R 1955 Cal. 63 AIR 1952 Mad. 3898 9 10 1 2 3 4 AIR 1963 Madh. Pra. 31 AIR 1960 SC 588 PLD 1966 SC 684 p L D 1965 Lah. 197 PLD 1963 SC 466 1981 SCMR 684