' ABA1D ULLAH KHAN, J.----The facts and circumstances culminating in the present appeal against the judgment and decree of the learned Civil Judge, Lahore, dated the 4th March, 1978, decreeing respondent l's suit for possession through specific performance of contract of sale of plot of land bearing No, 22, New Muslim Town, Lahore, measuring 2 kanals 105 square feet, against the appellant and respondent 2, may be shortly described as follows. Muhammad Ayub Khan, appellant, purchased the plot in dispute at open auction from Lahore Improvement Trust, predecessor of the Lahore Development Authority, respondent 2, for a sum of Rs, 35,408.33 and deed of agreement of sale in respect thereof, copy Exh. D. 1, was executed on the 25th October, 1969, and registered on the 4th November, 1969. On the 2nd October, 1973, he agreed to sell it to Muhammad Aslam, respondent 1, for a sum of Rs, 68,000 vide the deed of agreement, Exh. P. 1, which he and respondent 1 executed. He received Rs, 6,000 as earnest money from respondent 1, who undertook to pay the balance of the sale price at the time of the registration of the sale-deed which was to take place within a month. The appellant undertook to secure clearance certificate, etc., before registration of the sale-deed. It was to be the responsibility of respondent 1 to bear expenses relating to stamp paper for sale deed, registration fee. Corporation fee, etc. In case the appellant did not get the sale-deed registered within a month respondent 1 was given the right to get the sale-deed compulsorily registered. If respondent I were not to pay the balance of the purchase money to the appellant for execution of the contract of sale the earnest money paid by him was to be confiscated and the contract was to be considered to have been revoked and become void.
2. According to respondent 1 the appellant had requested him to treat the consideration of Rs, 68,000 to the extent of Rs, 50,000 only for the purpose of registration of sale-deed and pay him the balance of Rs, 18,000 out of the office of the Sub Registrar, Lahore, and that in consequence thereof he had purchased on the 17th October, 1973, in the name of the appellant stamp paper worth Rs, 2,490, Exh. P. 3, covering consideration of Rs, 50,000 and had the contents of the sale deed scribed thereon. Respondent 1 blamed the appellant for failing to procure the clearance certificates from the concerned departments and deliberately and wilfully allowing the period of one month pass away with bad motive to confiscate the sum of Rs, 6,000 received by him as earnest money.
3. Respondent 1, through his counsel, served notice, dated the 14th November, 1973, Exh. D. 4, upon the appellant calling him to make it convenient to appear before the Sub-Registrar, Lahore, for getting the sale-deed registered within fifteen days of the receipt of the notice otherwise he would be constrained to seek legal redress. The notice mentioned the fact that the appellant had agreed to sell the plot to respondent 1 for Rs, 50,000 in advance and that respondent I was prepared to pay the balance of Rs, 44,000 at the time of the registration of the sale-deed.
4. The appellant sent through his counsel reply, dated the 19th November, 1973, Exh. D. 5, to the notice, Exh. D. 4, pointing out that he had entered into agreement for sale of the plot for Rs, 68,000 and not Rs, 50,000. He threw the blame upon respondent 1 for not complying with the conditions of the contract and maintained that as respondent 1 had failed to pay the balance of Rs, 62,000 on one pretext or the other and had shirked the completion of sale deed within the stipulated period of a month the earnest money had to lapse and the bargain stood null and void.
5. Respondent 1 alleges to have sent to the appellant another notice, dated the 14th December, 1973, Exh. P. 5, which the latter was said to have refused to accept and which was received back by the former, offering to pay the balance of Rs, 62,000 and asking him to get the sale-deed registered. Respondent 1 therein admitted as correct the appellant's assertion that total consideration agreed upon was Rs, 61,000 with the qualification that it was on the appellants request that it was to be treated upto the extent of Rs, 50,000 for the obvious reason of saving income-tax and gains tax which the appellant was supposed to pay. The appellant's assertion that respondent 1 had failed to perform his part of the agreement was refuted and the appellant's failure to get hold of the no objection and clearance certificates from the departments of Excise and Taxation and Income-tax, etc. Was pointed out.
6. On the 17th April, 1974, respondent 1 instituted suit to enforce specific performance of the contract of sale of payment of Rs, 62,000 as balance of the price. He averred that though the appellant had been ready and willing to perform his part of the contract yet the appellant had failed to honour his commitment in that behalf.
7. The appellant contested the suit. He maintained that the time of one month fixed for the execution of the sale-deed was the essence of the contract and as respondent 1, who had never been ready and willing to perform his part of the agreement from the date of its inception to that of the filing of the suit, had been guilty of the violation of the essential terms of the agreement which had become voidable and had been duly revoked. He referred to the attempted novation of the agreement by respondent 1 which he said had put to an end to the original agreement. He accused respondent 1 of being guilty of part delicto and thus not entitled to any relief. According to him with the change in the circumstances the price of the plot in dispute settled in the agreement had become grossly inadequate and not commensurate with the existing market value of the land rendering the contract to be unconscionable and as such unenforceable. He asserted that if at all the contract was found to be enforceable he was entitled to receive Rs, 1,20,000 as prevailing price of the property. Again he contended that both the parties to the agreement had been labouring under a mistake of law as well as of fact inasmuch as he had no alienable rights as owner in the land in dispute which both the parties believed to be existing at the time of entering into the agreement and, therefore, the agreement was void. According to him his status was that of an intended vendee of the land which vested in the Lahore Improvement Trust and now in the Lahore Development Authority which, as he put it, could not be directed to complete the sale in favour of respondent I.
8. The appellant stated that the procurement of clearance certificate was dependent upon and hinged on the supply of draft of sale-deed by respondent 1 containing the consideration of Rs, 68,000 as the draft deed had to be shown to the concerned authorities which were to issue the certificate but as respondent 1 had unilaterally brought down the consideration to Rs, 50,000 and he had been called upon to receive the balance of sale price of Rs, 44,000 instead of Rs, 62,000, he could not be expected to pocket the depressed amount. He gave a lie to respondent l's allegation that it was on his instructions that the reduced price had been indicated in the sale-deed or that stamp paper of lesser value had been purchased at his instance.
9. The Lahore Development Authority, respondent 2, denied for want of knowledge respondent l's averments touching the agreement of sale that he had entered into with the appellant and the developments pertaining thereto.
10. The learned trial Civil Judge settled the following issues for determination :-
(1) Whether the time factor was the essence of the contract ?
(2) Which of the parties failed to carry out the contract ?
(3) Whether the said agreement stands revoked and if so, what is its effect ?
(3-A) Whether the suit is not maintainable in its present form ?
(3-B) Whether the agreement in question cannot be specifically enforced and if so what is its effect ?
(4) Whether the plaintiff remained ready and willing to perform his part of the contract from the date of the agreement till the date of the institution of the suit ?
(5) Whether the plaintiff has wrongfully withheld the money belonging to the defendant and if so, what is its effect ?
(6) Relief.
11. The learned Civil Judge held that the time was not the essence of the contract, that the appellant had consented to the insertion of Rs, 50,000 instead of Rs, 68,000 as sale price of the land in question in the sale-deed, that respondent 1 had been willing and ready to perform his part of the contract and that the default in that behalf lay with the appellant who in his desire to have more money had tried to avoid the contract: He found that there was no legal bar in the way of the appellant to transfer the plot in dispute to respondent 1. He was of the view that the appellant could not reap any benefit if the price of the land had gone up after the passage of time. Accordingly he decreed the suit leaving the parties to bear their own costs. Feeling aggrieved the appellant has approached this Court in appeal.
12. The learned counsel for the appellant contended that there was no evidence on the record to prove the oral agreement that lesser amount of Rs, 50,000 was to be paid as sale consideration or that the same was to be entered as sale price in the sale-deed which was to be registered. He maintained that even if there were to be an agreement it was unlawful and as such could not be enforced. He submitted that the bare statements of Muhammad Sharif, P. W. I, an attesting witness of the deed of agreement of sale, Exh. P. I, and Anwar Ali, P. W. 2, the property dealer who was instrumental in bringing about the bargain of sale between the contesting that in reality the purchase money was Rs, 68,000 and the same was entered in the deed of agreement of sale but in order to save tax it was settled that Rs, 50,000 would be described as sale price in the registered sale-deed, were not sufficient to establish respondent l's assertion in this behalf. However, respondent l's act of purchasing stamp paper worth Rs, 2,490 on the 17th October, 1973, and getting prepared the draft sale-deed mentioning the sale consideration of Rs, 50,000 therein, Exh. P. 3, on the 23rd October, 1973, by the scribe, Muhammad Ali, P. W. 3, seen in conjunction with the appellant's insertion of the sale consideration of Rs, 50,000 in the application, Exh. P. 2, that he made on the 22nd October, 1973, for obtaining no objection certificate from the Income-tax Department, which was to be appended to the draft sale-deed Exh. P. 3, go along way to indicate that the parties agreed to set out the price of Rs, 50,000 in the sale-deed which was to be got registered. The appellant could not get away by saying that though he had filled in the rest of the columns of the application, Exh. P. 2, yet he had left blank the column (No, 10) for entering the consideration for which the plot in dispute was to be sold. To all intents and purposes this was the most important column and the appellant, who had served as Budget Officer in the Finance Department of the Government of the Punjab for a fairly long time, was not expected to omit to insert the amount of consideration therein. Actually the handwriting expert, Mr. M. A. Naumani, D. W.
4, after comparison of the handwriting of the appellant, gave the opinion that the amount of consideration of Rs, 50,000 written in column No, 10 of the application Exh. P. 2, was in the hand of the appellant. In these circumstances we cannot but concur in the finding of the learned trial Court that the parties had agreed to state in the sale-deed the amount Rs, 50,000 in place of Rs, 68,000 as the price of the plot in question.
13. It is not in evidence of any of the parties that a new contract to sell the plot had been substituted for the first contract. Making of application for obtaining clearance certificate, Exh. P. 2, by the appellant on the 22nd October, 1983, purchase of stamp paper on the 17th October, 1973, and the preparation of the draft sale-deed on the 23rd October, 1973, by respondent 1, all within twenty days of the execution of the agreement of sale, Exh. P. 1, that is to say within the period stipulated by the agreement to get the sale-deed registered, would show that the parties were acting under the original agreement and not under any new agreement. The appellant's averment touching novation of agreement does not hold water.
14. Pointing out that the object of the agreement to mention deflated price of Rs, 50,000 being to defraud the Government by saving payment of stamp duty, registration fee, income-tax, gain tax, etc., was clearly unlawful the learned counsel convassed for holding the entire agreement' of sale to be void. In this connection he cited the decision of this Court reported as Muhammad Ahmad Beg v. Amjad Beg (1). In the precedent case the grantee of State land, who had only tenancy rights therein, sold all his rights, subsisting as well as those to be conferred by the Government in future, for a lump sum of Rs, 2,000 without the consent in writing of the Commissioner as required by section 19 of the Colonization of Government Lands (Punjab) Act, 1912. The contents of the deed reciting transfer of the existing rights and agreement to transfer the proprietary rights when acquired were so worded that the agreement to transfer the proprietary rights in future could not be interpreted to constitute an independent covenant. The main and basic contract relating to the transfer of the existing (tenancy) rights being in violation of the provisions of section 19 of the Act, void and not recognizable by the Colony authorities, the entire contract was declared to be void. In the instant case the portion of the agreement relating to mentioning the lesser amount of consideration in the sale-deed can be severed from the main agreement to carry out the sale for Rs, 68,000 which being quite lawful can very well be enforced. The application of the maxim in pair delicto portieres condition possidentis for non-suiting respondent 1, canvassed by the learned counsel, is inapt because respondent 1 does not necessarily rely upon the illegal transaction to establish his case.
15. It is difficult to appreciate the argument of the learned counsel for the appellant that the time of one month fixed in the agreement of sale-for payment of the balance of the sale price and registration of the sale- deed was the essence of the contract. No purpose of the deal or any need for sale has been given in the deed of agreement. As is well-settled by a long string of authorities of the highest Courts of the realm, including Jamshed Khodaram Irani v. Burjoriji Dhunjibhai (2) and Seth Essabhoy v. Saboor Ahmad (3) in a contract of sale of land though period is fixed for completion of the sale mere mention of the period does not make time essence of the contract.
The presumption in such a case is that the parties intended that the agreement should be performed within a reasonable time and time is not to be considered as essence of the contract.
The appellant, therefore, could not in the circumstances of, the case unilaterally revoke the agreement simply because he had not received payment of the balance of consideration within a month especially when he was more to be blamed for the non-fulfilment of the contract.
16. The learned counsel for the Lahore Development Authority, respondent 2, stated that the Authority did not stand in the way of the person who had purchased plot at auction, as had been done by the appellant, if he transferred the same by sale to another person and that the Authority would accept such a transfer. Therefore, there is no impediment in the enforcement of the contract of the sale in hand.
17. From what has been stated above it is obvious that respondent 1 was ready and willing to execute the agreement of sale of the plot as he purchased the stamp paper and got prepared the draft sale-deed thereon with sufficient degree of promptitude and also he called upon respondent 1 through notices Exhs. P. 2 and P. 5, to expedite the registration of the sale-
(1) PLD 1978 Lah. 421 (2) AIR 1915 P C 83
(3) PLD 1973 SC 39 ' deed. It is not the appellant's case that he had no funds to pay the price. In these circumstances his suit was rightly decreed and there is no room for interference with the judgment of the learned Court below. The appeal is dismissed leaving the parties to bear their own costs.