1. ' This first appeal is filed by the appellant/defendant against the judgment and decree of IX Th Senior Civil Judge, First Class, Karachi, in Suit No, 262/73 filed by respondent/plaintiff for specific performance of an agreement of sale dated 11th June, 1973.
2. ' The respondent's husband Muhammad Salim was a tenant in respect of ground floor portion of the double-storeyed house constructed on plot No, 10, Row No, 7, Sub-Block 7 Block 5, Nazimabad, Karachi, measuring 216 Sq. Yards owned by the appellant. In the year 1972 the appellant instituted rent case No, 2607/72 against the said Muhammad Salim for his eviction from the portion of house occupied by him. During the pendency of the said rent case the appellant entered into an agreement, dated 11th June, 1973 with the respondent to sell the house constructed on plot No, 10, Row No, 7, Sub-block 7, Block 5, Nazimabad, Karachi, to her for a lump sum price of Rs, 44,000 on the terms and conditions mentioned in the agreement. Thereafter on 16th July, 1973 a compromise was filed in the Rent Case No, 2607/1972 and the case was disposed of in terms of the compromise between the appellants and respondent's husband. The agreement of sale between the appellant and respondent provided that the sale shall be completed within a period of one year from the date of execution of the agreement and the appellant was required to obtain at his own costs Income-tax clearance certificate and such other documents as were required in connection with the execution of the sale deed. The appellant also undertook to pay all rates, cesses and assessm ents due in respect of the property upto the date of execution of the sale deed in favour of respondent. It is an admitted position that until 11th June, 1974 which was the last day for completion- of sale, the appellant had not obtained the income-tax clearance certificate as provided in the agreement of sale. It is also not disputed that before expiry of the period mentioned in the agreement for completion of sale, the respondent called upon the appellant through letter, dated 7th May, 1974, to complete the sale in accordance with the terms of agreement and receive the balance of the sale consideration. The appellant was asked in that letter to obtain all the documents including the income-tax clearance certificate and completion plan of the said house at least 3 weeks before expiry of time mentioned in the agreement of sale to enable him to execute the sale deed. The appellant was again reminded by letter, dated 22nd May, 1974 to complete the sale in accordance with the agreement and to receive the balance amount and was also informed that the respondent had already published a public notice in the daily 'Jung' of 25th April, 1974 and the draft sale deed was ready. Copy whereof was forwarded to the appellant for his approval. He was once again reminded to obtain the necessary income-tax clearance certificate and the completion plan in respect of the house under intimation to respondent to enable him to complete the formalities of execution of sale deed. None of the two letters referred to above were replied by the appellant. It appears that the requirements of obtaining income-tax clearance certificate were dispensed with by an amendment in the Transfer of Property Act which came into effect from 1st July, 1974, but no further correspondence was exchanged between the parties thereafter in the matter until 2nd December, 1974, when the appellant sent a letter to respondent alleging that her husband had approached him for extension of time for performance of the agreement of sale to which he did not agree and therefore the agreement of sale, dated 11th June, 1963 is no longer valid and stands cancelled forthwith. It was also alleged in that letter that as the failure to perform the contract was on the part of the respondents, she was not entitled to the return of earnest money paid by her. It was further alleged in that letter that the agreement of sale was brought about as a result of decree. The respondent on 6th July, 1974 replied the above letter of appellant through his counsel in which she denied all the allegations made by the appellant. It was asserted that her husband never approached the appellant for extension of time mentioned in the agreement of sale and claimed that she was always ready and willing to pay the balance of the sale consideration in accordance with the agreement entered into between the parties. It was also alleged that the appellant had deliberately delayed the execution of sale deed in order to make out a ground to wriggle out of the contract. The appellant was called upon in that letter to complete the sale within 7 days of the receipt thereof failing which it was threatened that action both in criminal and civil Court would be initiated against him. This letter was replied by the appellant on 13th December, 1974 reiterating that the respondent's husband had approached the appellant for extension of the time mentioned in the agreement which was extended for 3 months but when he again approached for further extension of time it was not agreed by the appellant. He, however, in the end offered as a last chance to respondent, to complete the sale by 21st December, 1974 and asked her to send her husband with a bank draft of Rs, 40,000 between 9-00 a. m. To 4-00 p. m. On 18/19 December, 1974. The letter was replied by the respondent's counsel on 28th December, 1974 in which it was once again denied that the respondent ever sought any extension of time. It was claimed that the demand made in the above letter of the appellant was impossible of being complied with as it was received by the counsel in the 'afternoon of 19th December, 1974 and the finalization and stamping of the draft sale deed alone would require 2 to 3 days. It was also complained that the copy of completion plan of the house and the receipts showing payment of dues was also not supplied which was required in connection with the finalization of sale deed. The respondent offered to pay the balance of sale consideration in cash before the Sub-Registrar as agreed in the sale agreement. The appellant thereafter sent another letter on 1st January, 1975 to the respondent's counsel which was not produced in the evidence before the trial Court but a copy thereof is filed in this court with the memo of appeal along with an application under Order XLI, rule 27, C. P. C. Read with sections 197 and 151, C. P. C. In this letter the appellant had offered that if the husband of respondent denies the allegation made by him on Holy Qur'an within a week of receipt of the letter he would executed the sale deed failing which the agreement would stand cancelled.
3. In this background the respondent filed Suit No, 262/75 on 30th January, 1975, seeking specific performance of agreement of sale entered into between the parties on 11th June, 1973. In the written statement the appellant/defendant took the plea that the breach of agreement was on the part of respondent which was validly terminated by the appellant and therefore she was not entitled to specifically enforce the same. The trial Court after recording evidence of the parties came to the conclusion that the respondent was all along ready and willing to perform his part of the contract and therefore the breach if any was on the part of appellant and accordingly decreed the suit as prayed.
4. ' The learned counsel for the appellant contended before me that the agreement dated 11th June, 1973 could not be specifically enforced against the appellant as the time mentioned in the agreement was the essence of the contract. It is contended that on account of inordinate delay on the part of respondent she was disentitle to seek its specific performance. It is also contended by the learned counsel that the price of the suit property had gone very high in the meantime and therefore it was inequitable to enforce the agreement of sale against the appellant in the changed circumstances. None of the contentions raised by the learned counsel has any substance. It is not disputed that under the agreement of sale the responsibility to obtain the Income-tax Clearance certificate was that of the appellant. It has come in the evidence that he appellant did not obtain the Income-tax Clearance Certificate until 11th June, 1974 which was the last date for execution of sale deed y the appellant in favour of respondent. It is conceded by the earned counsel for the appellant that before 1st July, 1974 no sale need could be registered in favour of respondent without production of Income-tax Clearance Certificate by the appellant. It is also admitted position on record that the respondent served two notices, dated 7th day and 22nd May, 1974 on the appellant calling upon him to produce the Income-tax Clearance Certificate etc. To complete the sale before 11th June, 1974 which was the last date mentioned in the agreement or execution of sale deed. The appellant was also forwarded a copy of the draft sale deed for approval with the notice, dated 22nd May, 1974 and a public notice in anticipation of sale was caused to be pub-shed by the respondent in daily Jang, dated 25th April, 1974. The above evidence clearly shows that the respondent at all material time as willing to perform her part of the contract and took steps in that direction. The lower Court, therefore rightly held the appellant in reach of the agreement. The learned counsel for the appellant condos that the time mentioned in the agreement of sale dated 11th June, 973 for pet form acne was the essence of the contract. Firstly the rams of the agreement do not indicate that the parties intended to eat the time mentioned in the agreement as essence of the contract; secondly, it was the responsibility of the respondent under the agreement to obtain the Income-tax Clearance Certificate within time which he failed to obtain. It is not disputed that without the Income-x Clearance Certificate the sale in favour of respondent could not be nailed by the appellant. In these circumstances the appellant could of make a grievance of non- performance of the agreement of sale within time as he was himself responsible for its non- performance. He learned counsel for the appellant also contended that it is equitable now to enforce specifically the agreement of sale, dated 11th June, 1973. This contention of the learned counsel, too is without any merit. There was no delay on the part of respondent, in performing term part of the contract and the evidence on record shows that eversince in her part in that behalf. The delay, if any,, is attributable to the execution of agreement of sales she took all necessary steps required the appellant who failed to obtain the necessary Income-tax Clearance Certificate within time. Therefore in these circumstances if the price of the property has increased in the meantime, this fact alone was not sufficient to refuse specific performance of the contract for sale. No other point was raised. There is no merit in this appeal which is accordingly dismissed but there will be no order as to costs.