' FAKHRUDDIN H. SHAIKH, J.-This High Court appeal has arisen out of Suit No, 95 of 1973 filed by respondent Ahmadul Haq Siddiqui against the present appellant for specific performance of a sale-agreement, dated 23rd December, 1972 executed by the appellant in favour of the respondent. The suit was decreed by a learned, Single Judge of this Court by his judgment dated 8th November, 1978.
2. The sale-agreement referred to above relates to a commercial plot bearing No SD-36 measuring 1000 sq. Yds. Situated in Block "Q", North Nazimabad, KDA Scheme No, 2, Karachi. The appellant is owner of this plot. On 23rd December, 1972 the appellant agreed to sell this plot . To the respondent for a total sale consideration of Rs, 60,000 and such sale-agreement was executed on the same date by the appellant after having received Rs, 23,000 as advance towards the sale-consideration.
There was a stipulation in the sale agreement (which is Exh. 7/1 in the record of the trial Court) that a further sum of Rs- 7,000 shall be paid to the Vendor/ Appellant in the next week and a separate receipt shall be issued to that effect. The balance of Rs, 30,000 was agreed to be paid on registration of the sale-deed or on execution of an irrevocable general power of attorney in favour of the Vendee/Respondent. The appellant had also undertaken to obtain all necessary clearance certificates which were necessary for registration of the sale-deed.
3. The case of the respondent was that he wanted to pay Rs, 7,000 to the appellant as per terms of the agreement but the latter became 'scarce'. Ultimately the respondent succeeded in tracing out the appellant on 9th January, 1973 with the help of the Mohalla people. On this date the appellant agreed that either he shall return the amount of Rs, 23,000 to the respondent on 25th January, 1973 or receive Rs, 7,000 from the respondent and execute a receipt to that effect. Such endorsement was made by the appellant below the sale-agreement in his own hand and signed by him. It was also signed by the Mohalla people namely, Rashiduddin, Mirza Wilayat Ali Baig, Mujibur Rehman, Sabir Husain and others. It will be advantageous to reproduce this endorsement which is claimed to be a part of the sale-agreement and is Exh. 7/3 in the record of the trial Court :- [Not reproduced in copy supplied]
4. The respondent alleges that after the above agreement, dated 9th January, 1973 he wanted to pay Rs, 7,000 to the appellant but again the appellant became 'scarce' and was not available, due to which neither he could pay Rs, 7,000 to him nor the appellant returned the amount of Rs, 23,000 to him on the due date i,e, 25th January, 1973. The respondent waited for about one week more.
Then on 1st February, 1973 he sent a notice to the appellant by Registered Post A.D. By this notice the respondent informed the appellant that "he (respondent) has already performed a considerable portion of his part of the agreement and is ready and willing to go through the remaining part of his obligations as well and expects you (appellant) to perform your part of agreement as early as possible." The respondent further called upon the appellant to finalise the transaction as envisaged in the agreement, dated 23rd December, 1972 by performing his part of the agreement and get the sale-deed registered. The receipt of this notice, which is Exh. 7/4, is admitted by the appellant who sent a reply through his Advocate which is Exh. 717, dated 12th February, 1973. The appellant stated in this reply that it was the respondent who had failed to pay Rs, 7,000 to him by 30th December, 1972 and thus committed breach of the agreement. He further called upon the respondent to receive Rs, 23,000 from him and return the documents to him relating to the plot. It may be stated that no amount was sent by the appellant to the respondent along with this reply by way of cheque or any other mode. Thereafter the respondent sent a further notice, dated 22nd February, 1973, which is Exh. 7/8, through his Advocate to the appellant calling upon the respondent "To finalise the transaction envisaged in the agreement, dated 23rd December, 1972 by performing his part of the contract."
' It was also made clear that it was the appellant who had refused to accept Rs, 7,000 from him by making himself 'scarce'. The receipt of this notice is also admitted by the appellant who sent a reply, dated 26th February, 1973 through his Advocate, in which he reiterated the same averments which he had made in his earlier reply, dated 12th February, 1973 (Ex. 7/7). The appellant again blamed the respondent for breach of the sale-agreement and called upon the respondent to receive Rs, 23,000 and return the documents relating to the plot.
5. The respondent thereafter filed civil suit in this Court being Suit No, 95/1973 on 7th March, 1973 for specific performance of the sale-agreement. Before filing the suit the respondent had also published three notices in the newspapers purporting to intimate the general public that the appellant had agreed to sell the plot in dispute to the respondent and that no other person should deal with the appellant in connection with the above plot.
6. The appellant contested the claim of the respondent by filing written statement alleging therein that it was the respondent who was responsible for breach of the agreement, as he bad failed to pay Rs, 7,000 within the stipulated period of 7 days and that it was wrong that the appellant had made himself 'scarce' at any time, About the endorsement, dated 9th January, 1973 on the sale- agreement, as stated by the respondent in para. 6 of the plaint, there is no specific denial. This is what the appellant has stated in reply to the averment in para. 6 of the plaint :--- "As a matter of fact the defendant brought with him a number of persons known to him and met the defendant at his house. Since the plaintiff had failed to perform his part of the contract by not paying the amount of Rs, 7,000 by 30th December, 1972 the agreement was broken and it was decided that the defendant be returned to Own plaintiff,"
' It was further alleged that it was the respondent who had avoided to receive Rs, 23,000 from him. It was also denied that the respondent had been willing throughout to perform his part of the agreement and that he was not interested in specific performance of the contract. It was also alleged that the respondent has waived his right to specific performance by agreeing to receive Rs, 23,000 from the appellant. This plea in the written statement also needs to be reproduced in extenso for a proper appreciation of the appellant's case. It is as under :- "This attitude of the plaintiff about the refund of amount continued even after the reply, dated 26th February, 1973. On 1st March, 1973 the plaintiff accompanied by Mr. Rashid Ahmed approached Mr. Iqrar Ahmed Zaidi a prominent person of the locality and inquired about the refund of Rs, 23,000 which he wanted. Mr. Zaidi informed the defendant about this and on the same day the defendant provided the said amount for payment to the plaintiff for which purpose he deposited the amount with one Haji Ghulam Nabi in the presence of Mr. Sami Ahmed, Mr. Abdul Hakim, Mr. Iqrar Ahmed Zaidi, Saeed Ahmed Khan, Mirza Wilayat Ali Beg and Mr. Mansoor Ali Usmani. It is pertinent to note that the last two persons are the same as have been listed by the plaintiff as witnesses to writing, dated 9th January, 1973. That later the plaintiff demanded interest also on the amount of Rs, 23,000 besides the amount. The above amount of Rs, 23,000 remained with the said Mr. Haji Ghulam Nabi till 10th March, 1973 when finally the plaintiff disclosed that he had filed a suit."
' On the above pleadings following issues were settled by the Court
(1) Whether the plaintiff was ready and willing to perform his part of the contract ?
(2) Whether the defendant committed breach of the contract ?
(3) Whether the plaintiff waived his right of specific performance of the contract ?
(4) Whether the plaintiff agreed to receive back the money and subsequently demanded interest ?
(5) Whether the plaintiff is entitled to specific performance of the agreement ?
(6) What should the decree be ?"
7. In support of his case the respondent examined himself (Exh. 7), Haji Rashid Ahmed (Exh. 8) and Sabir Husain (Exh. 9). In rebuttal appellant Bashir Ahmed examined himself (Exh. 10) and D. W.
Wilayat Ali Baig (Exh. 11). One conspicuous fact in the evidence produced on behalf of the appellant is non-examination of Ghulam Nabi with whom the appellant is alleged to have deposited Rs, 23,000 for refund to the respondent.
8. Respondent Ahmedul Haq Siddiqui has in his evidence stated the same thing as narrated above.
He has produced the sale-agreement, dated 23rd December, 1972 (Exh. 7/1), receipt -for Rs, 23,000 accepted by the appellant on the same date (Ex. 7/2) endorsement of the appellant on the sale- agreement dated 9th January, 1973 (Exh. 7/3), copy of the notice, dated 1st February, 1973 (Exh. 7/4), acknowledgement receipt (Exh. 7/5), reply of the respondent to the said notice, dated 12th February, 1973 (Exh. 717), second notice of the respondent, dated 22nd February, 1973 (Exh. 7/8), reply of the appellant to the second notice, dated 26th February, 1973 (Exh. 7/11) and three notices published in the newspapers (Exhs. 7/11, 7i12 and 7/13). P.W. Haji Rashid Ahmed (Exh. 2) is an attesting witness to the sale-agreement (Exh. 7/1). He has further stated that the appellant had taken a loan from Robson Road Branch of the National Bank of Pakistan and deposited documents of title pertaining to the plot in question with the Bank. The witness had acted as guarantor for the appellant for repayment of the loan. The appellant repaid the loan to the Bank after realising the money from the respondent under the sale-agreement (Exh. 7/1) and thus the witness stood discharged as guarantor of the appellant. Such intimation was given by the Bank to the witness by a letter, dated 21st May, 1973 which has been produced by this witness who stated that he does not know of any other subsequent agreement between the parties in respect of the plot in question.
9. P.W. Sabir Hussain (Exh. 9) is also an attesting witness to the sale-agreement, dated 23rd December, 1972. He has identified his signature on the original sale-agreement (Exh. 7/1). He further stated that the respondent had complained to him that the appellant was not fulfilling his part of the agreement nor he was accepting Rs, 7,000 from him. He further says that the respondent sought his assistance to persuade the appellant to fulfil his part of the contract and that on 9th January, 1973 the witness had accompanied the respondent and gone to the appellant who was persuaded to settle the matter, whereupon the appellant made endorsement in Urdu in his own hand. The witness had also attested this endorsement and put his signature below it as an attesting witness. He further stated that the endorsement dated 9th January, 1973 was not at all intended to terminate the sale-agreement. In cross-examination he has denied that the appellant had deposited an amount of Rs, 23,000 with Ghulam Nabi.
10. In his evidence appellant Bashir Ahmed admits having executed the agreement (Exh. 7/1), dated 23rd December, 1972 and having accepted Rs, 23,000 as part of the sale-consideration of Rs, 60,000. He also admits that the endorsement, dated 9th January, 1973 (Exh. 7/3) is in his handwriting and states that before the stipulated date i,e, 25th January, 1973 he had approached the respondent with an amount of Rs, 23,000 but the latter refused to accept the money. He further stated that the respondent asked him to keep the money with Haji Rashid Ahmed for which a receipt shall be issued later but he refused to do so. He goes on to say that the respondent had approached Mr. Iqrar Ahmed Zaidi Advocate who lives in the vicinity. The appellant had also gone to Mr. Zaidi with an amount of Rs, 23,000 who asked the appellant to deposit the money with Ghulam Nabi, in whose presence the money shall be refunded to the respondent. He further states that the respondent had accompanied him alongwith Mr. Iqrar Ahmed Zaidi, Sami, Wilayat Ali Mirza, Mansoor and Hakim Saheb to the house of Ghulam Nabi and deposited Rs, 23,000 with him in presence of the above persons. He did not get any receipt from Haji Ghulam Nabi for this amount.
He continues to state that P.W. Haji Rashid Ahmed had approached him later and informed him that the respondent wanted interest on the amount of Rs, 23,000. The appellant expressed his willingness to pay the interest. According to the appellant the amount remained with Ohulam Nabi upto 11th March, 1973.
11. In cross-examination the appellant admits that he had obtained a loan from National Bank of Pakistan on the guarantee furnished by Haji Rashid Ahmed. He had paid up the loan to the Bank on 4th January, 1973 after receiving the amount from the respondent in pursuance of the sale- agreement (Exh. 7/1). He further admits that after 9th January, 1973 he never sent any notice to the respondent nor remitted the money to him after 25th January, 1973. It was suggested to the appellant that he had never attempted to And the amount of Rs, 23,000 to the respondent between 9th and 25th of January, 1973. The appellant replied in the negative to this suggestion.
12. The learned Single Judge considered the oral and documentary evidence produced by the parties in support of their respective claims and came to the conclusion that it was the appellant who was responsible for breach of the contract. The learned Single Judge was of the view that non-payment of Rs, 7,000 by the respondent to the plaintiff within the stipulated date i,e, 25th January, 1973 cannot be termed as breach of contract on the part of the respondent because so far as the payment of this amount was concerned, time was not of the essence of the contract. The learned Single Judge referred to the endorsement, dated 9th January, 1973, which has been reproduced above in Urdu, and concluded that it was the appellant who was bound to refund the amount within stipulated date i,e, 25th January, 1973, while so far as the payment of Rs, 7,000 is concerned no specific date for its return can be spelt out from the endorsement. The learned Single Judge also referred to para. 5 of the sale-agreement (Exh. 7/1) which stipulated that the agreement is irrevocable and that the time prescribed for completion of .The transaction is of the essence of the contract. According to the sale agreement two months time was prescribed for completion of the transaction. It was also held by the learned Single Judge that the appellant had failed to prove that the respondent had agreed to termination of the sale-agreement on receipt of interest on the amount paid to him. He further concluded that the respondent had always been ready and willing to perform his part of the contract and that it was the appellant who was responsible for breach of the contract by failing to complete the sale-transaction. In view of the above findings the learned Single Judge decreed the suit of the respondent for specific performance of the sale-agreement. The appellant however, was held to be entitled to simple interest at the rate of 7% per annum on the sum of Rs, 7,000 from 1st January, 1973 to 9th May, 1973, when the balance of sale-consideration was deposited by the respondent in Court.
13. Aggrieved by the above decision the defendant/appellant filed the present High Court Appeal on 3rd February, 1979. During the pendency of the appeal an application was moved on behalf of the appellant under Order XLI, rule 27, C.P.C. With the prayer that the appellant may be allowed to lead additional evidence by examining two witnesses namely Mr. Iqrar Ahmed Zaidi and Mr. Ghulam Nabi. Before adverting to the merits of the appeal it would be proper to dispose of the said application. According to rule 27 of Order XLI the parties to an appeal shall not be entitled to produce additional evidence in the appellate Court except in the following cases namely
(a) The Court from whose decree the appeal is preferred has refused to admit the evidence which ought to have been admitted, or
(b) The appellate Court requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for . Any other substantial cause.
' So far as the ground (a) is concerned, it is not pressed. It has nowhere been stated in the application under Order XLI, rule 27, C.P.C. Or in the accompanying affidavit of the appellant that the trial Court had refused to record any evidence which was sought to be produced before it. The only ground which has been pressed in support of the application is that the examination of the above witnesses is necessary to enable the Court to pronounce judgment.
14. We are not inclined to hold that without recording the evidence of the above two witnesses this Court shall not be able to pronounce judgment or to determine the points of controversy between the parties. Ground (b) stated above contemplates that the necessity to examine further evidence should be felt by the Court. Rule 27 of Order 41, C. P. C. Does no envisage filling up of the lacunas left by a party in the evidence before the trial Court. Additional evidence under the above rule may be allowed to be recorded if the appellate Court itself so requires. Additional evidence cannot be allowed in order to enable a party to patch up the weaker part of its case or to fill up omissions or to enable it to raise a new point. It can be allowed only if it is required by the appellate Court itself on the basis of its own appreciation of the evidence already on record.
' In support of this view reference may be made to the cases of Messrs Muhammad Siddiq, Muhammad Umer and another v. Australasia Bank Ltd. (I), Khan Iftekhar Ahmed v. Messrs Ghulam Nabi Corporation (2) and Secretary to Government of West Pakistan and another v Gulzar Ahmed(3).
15. In view of the above legal position we are not inclined to hold that it is necessary in this case to allow the appellant to produce any additional evidence. The application is, therefore, dismissed.
16. So far as the merits of the appeal are concerned, Mr. Yousuf Rafi learned counsel for the appellant has contended that this was a fit case in which the discretionary jurisdiction to order the specific performance of the sale-agreement should not have been exercised, that it was the respondent who should have been held responsible for breach of the contract and that by virtue of the writing, dated 9th January, 1973 the respondent had waived his right to specific performance.
17. So far as the plea of breach of contract on the part of the respondent is concerned, it is alleged that by virtue of the agreement (Exh. 7,1) the respondent was supposed to pay him Rs, 7,000 within a week of the agreement, dated 23rd December, 1972, which the respondent failed to do. It has further been argued that by virtue of the writing (Exb. 7/3) dated 9th January, 1973 it was agreed between the parties that either the appellant shall refund the amount of Rs, 23,000 to the respondent by 25th January, 1973 and in case of his failure to do so, the respondent shall pay Rs, 7,000 to the appellant and obtain a receipt from him. On the basis of this endorsement which is admittedly in the handwriting of the appellant, it is contended that the respondent did not pay Rs, 7,000 to the appellant by 25th January, 1973 and that for this reason also the respondent should be held to have committed breach of agreement.
(1) PLD 1966 SC 684 (2) PLD 1971 SC 550
(3) PLD 1969 SC 60
18. There is no substance in the above contention. So far as the main agreement is concerned, it was decided according to para. 1 thereof that Rs, 7,000 shall be paid to the appellant within one week from the date of agreement. However, by a subsequent writing this period was extended. The subsequent agreement is the endorsement dated 9th January, 1973 whereby no time has been fixed for payment of Rs, 7,000 to the appellant by the respondent. On the contrary, a date has been prescribed for the respondent to refund the amount of Rs, 23,000 to the respondent viz., 25th January, 1973. Now it is established from the record that the appellant did not refund the amount to the respondent as agreed by him under his own handwriting dated 9th January, 1973, by the due date i,e, 25th January, 1973. Under such circumstances it cannot be said that there was any breach of contract on the part of the respondent who had all along been clamouring for specific performance of the contract. The learned trial Judge has also rightly held that although time was of the essence of the contract, so far as c the main agreement was concerned, but in respect of payment of Rs, 7,000 by the respondent to the appellant by virtue of the writing, dated 9th January, no time was fixed.
19. It is also established from the record that the respondent had all along been anxious to perform his part of the contract. Immediately after the expiry of the due date i,e, 25th January, 1973 mentioned in the subsequent endorsement, dated 9th January, 1973 made by the appellant, the respondent served a notice upon the appellant on 1st February, 1973 calling upon the appellant to receive the balance from the respondent and get the sale-deed registered. The receipt of this notice is not denied by the appellant who had sent a reply (Exh. 7/7, dated 12th Febuary, 1973) in which he made counter allegations against the respondent of non-payment of R. 7,000 and further asserted that he was prepared to refund the advance money of Rs, 23,000 to him. It may be stated that actually no amount was remitted by the appellant alongwith this reply.
20. The keenness of the respondent to have the transaction finalised would be further apparent from the second notice (Exh. 7/8) dated 22nd January, 1973 whereby the respondent again reminded the appellant to finalise the transaction.
' This notice was also received by the appellant to which he sent a reply, dated 26th January, 1973 which is Exh. 7/11. In this reply also he has repeated the same thing as stated in his earlier reply.
Besides the above notices given by the respondent, he had also published notices in three newspapers which are Exh. 7/12, 7/13 and 7/14 on the record intimating the general public that the respondent had agreed to purchase the plot in question from the appellant. From the above documents it would appear that initiative had, at every stage, been taken by the respondent towards persuading the appellant to finalise the transaction. The appellant did not give any notice to the respondent of breach or termination of the contract. If the respondent had actually been responsible for committing breach of the contract, the appellant would have immediately given notice to the respondent of this fact and would have at the same time refunded the advance money that he had received from the respondent. The appellant all along kept silent and did not address any letter to the respondent except by way of reply to the latter's notices.
21. Again it transpires from the record that the appellant was not in a position to refund the amount of Rs, 23,000 by the stipulated date i,e, 25th January, 1973. From the evidence of P. W. No, 2 Haji Rashid Ahmed it is proved that this witness has acted as guarantor for the appellant for payment of Rs, 15,000 to National Bank of Pakistan by the appellant who had borrowed the same from the Bank. This witness has stated that the appellant bad repaid the amount of Rs, 15,000 to the Bank after realising the money under the agreement in question from the respondent. This fact has not been denied by the appellant. It was, therefore, rightly concluded by the learned trial Judge that the appellant was not at all in a position to refund Rs, 23,000 to the respondent by 25th January, 1973 in pursuance of his endorsement, dated 9th January, 1973. Nor there is, any proof that he deposited this amount with Ghulam Nabi for refund to the respondent. No exception therefore, can be taken to the finding of the learned trial Judge that the appellant had committed breach of the contract, whereas the respondent had always been ready and willing to perform his part of the contract.
22. The next question is whether the writing, dated 9th January 1973 in the hand of the appellant which has been reproduced above (Exh. 7/3) in Urdu, amounts to a waiver on the part of the respondent of his right to specific performance ? It may be stated that this writing is unilateral i,e, written by the appellant himself in his own hand and under his own signature. It has not been signed by the respondent. Again it is not written on the original agreement but is on the copy of the sale-agreement. However, it does not make any difference whether it is on the original agreement or on the copy thereof. The fact remains that it was written by the appellant and accepted by the respondent who has produced it in his evidence as Exh. 7/3. The question, therefore, would be whether by this subsequent writing the respondent should be deemed to have given up his right to specific performance ? Mr. Yousuf italic, learned counsel for the appellant has contended that by accepting the endorsement, dated 9th January, 1973 whereby the appellant was to refund Rs, 23,000 to him by a particular date, it would be presumed that the respondent was no longer anxious to have the agreement specifically enforced. According to the learned counsel, the endorsement dated 9th January, 1973 constituted a separate agreement between the parties whereby it was agreed that the advance shall be returned to the respondent by 25th January, 1973 and that thereafter the sale-agreement shall be deemed to have come to an end.
23. In support of the above contention Mr. Yousuf Rafi has relied on the case of Anwar Ali Khan v.
Abdus Sattar Abubakar (1). In this case the purchaser of an immovable property under a sale- agreement had written a letter to the vendor asking him to pay damages for breach of the contract. It was held by a learned Single Judge of this Court in the above case that the letter of the purchaser amounts to a waiver on his part to claim specific performance of the sale-agreement.
The principle laid down in the above case is not attracted to the facts of the present case. The respondent never claimed damages from the appellant. Nor did he give any writing to the appellant that he was no longer interested in specific performance of the contract. On the contrary the writing, dated 9th January, 1973 shows that in case o failure on the part of the appellant to refund the amount of Rs, 23 by the due date i,e, 25th January, 1973, the sale-agreement shall deemed to be intact and enforceable. This inference is clearly deducible from a plain reading of the endorsement, dated 9th January, 1973
(1) PLD 1968 Kar. 154 (Exh. 7/3). The next case relied upon by Mr. Yousuf Rafi in support of his contention is of Ardeshir H.
Mama v. Flora Sasoon (1). In this case it has been held by the Judicial Committee that in a suit for specific performance the plaintiff must show his readiness to do his part of the contract up to the date of the decree. This case is also of no help to the appellant because it is proved that the respondent had all along been willing and ready to perform his part of the contract. The various notices referred to above, the filing of the suit immediately after the second notice on 7th March, 1973 and by depositing the entire balance of sale consideration of Rs, 23,000 in Court are proofs of the respondent's willingness to do more than what he was expected to do in pursuance of the agreement. The respondent was supposed to pay only Rs, 30,000 (Rs, 23,000 plus Rs, 7,000) in terms of the agreement in the first instance while the balance of Rs, 30,000 was to be paid at the time of registration of the sale-deed. Although the sale-deed has not been executed and the respondent was no more liable to pay any amount in excess of Rs, 23,000 plus Rs, 7,000, in spite of that he deposited the entire balance amount in the Court immediately after filing the suit.
24. On the other hand reliance has been placed upon the case of Abdul Karim v. Muhammad Shaft and others (2). In this case there was a stipulation in the sale-agreement that in case of breach of the agreement, the vendor shall pay to the vendee a specific amount by way of penalty. The contention was raised in the case that in case of breach of the contract on the part of the vendor, the vendee was not entitled to anything except the specific amount mentioned in the agreement by way of damages. The contention was repelled by the Supreme Court and it was held that notwithstanding the stipulation in the sale-agreement in respect of specific amount payable by way of penalty in case of breach of contract, the vendee was entitled to have the sale-agreement specifically enforced.
25. The principle laid down in the above case may be applied to the endorsement, dated 9th January, 1973 which is by way of addendum to the main agreement that if the amount is not refunded by the particular date the vendor shall refund the advance money to the vendee. Another case relied upon by Mr. Abrar Hassan, learned counsel for the respondent, is of Muhammad Shahabuddin v. Khushi Muhammad and another (3). This was a case decided by a learned Single Judge of this Court in which it was held that repudiation or rescission of a contract must be total, absolute and clear. We are in respectful agreement with the above observations. The sale- agreement itself in the present case provides in para. 5 that the time prescribed for completion of the transaction shall be essence of the contract.
It is now established law that in an agreement relating to sale of immovable properties time shall not be deemed to be the essence of the contract. In support of the above view reference may be made to the case of Abdul Hameed v. Abbas Bhai Abdul Husain (4). We are,. Therefor F of the view that the endorsement, dated 9th January, 1973 made by the appellant on the copy of the sale- agreement does not amount to repudiation of the agreement on the part of the respondent.
(1) AIR 1928 P C 208 (2) 1973 SCM R 225
(3) 1981 CLC 1556 (4) PLD 1962 SC 1
26. The last contention raised by Mr. Yousuf Rafi, learned counsel for the appellant was that specific performance is a discretionary relief which in the present case should not have been granted to the respondent by the learned Single Judge. Reference in this connection has been made to section 22 of the Specific Relief Act, 1877 which provides that a specific performance shall not be enforced of a contract where the circumstances are such as to give to the plaintiff an unfair .Advantage over the defendant or where the performance of the contract involves some hardship on the defendant which he did not foresee whereas its non-performance would involve no such hardship on the plaintiff. The burden of proving unfair advantage to the plaintiff or the unforeseeable hardship to the defendant was upon the appellant. The appellant has not led any evidence to the effect that there will be any hardship to him if the agreement is specifically enforced or that the respondent shall acquire any unfair advantage on account of the specific performance. The appellant has failed to bring his case within the four corners of subsections (1) and (2) to section 22 of the Specific Relief Act. Reference may also be made to section 12 of the Specific Relief Act which provides that a contract shall be specifically enforceable in case pecuniary compensation cannot be got for non-performance of the act agreed to be done.
Explanation to the above section provides that :- "Unless and until the contrary is proved, the Court shall presume that the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money, and that the breach of a contract to transfer movable property can be thus relief."
' It would thus appear that the burden was upon the appellant to prove that damages would have been the proper remedy for breach of contract in this case. There is nothing on the record to lead to such an inference.
' From the above discussion it is proved that the appellant has committed breach of the contract.
He did not take any action for completion of the sale-agreement viz. Obtaining Income-tax Certificates and other necessary clearance certificates as provided in para. 3 of the agreement. It is also proved that this is not a case in which the conduct o the respondent has disentitled him to the discretionary relief of specific " performance. We, therefore, do not find any substance in the appeal which is dismissed with costs.