1. ' NAIMUDDIN, J.-The respondents/defendants by an agreement, dated 4-10-1971, contracted to sell to the appellants/plaintiffs 4 building sites bearing Survey Nos. 268/2, 268/3, 268/4 and 268/5 in all measuring 20,499 sq. Yards situated in Deh Thano, Tappa Malir, Taluka and District Karachi for a sum of Rs, 1,68,714.25 at the rate of Rs, 8.25 per square yard. The appellants/plaintiffs paid an amount of Rs, 1,00,000 as part payment of the sale consideration.
2. ' Since the respondents did not convey the property within stipulated time, the appellant brought a suit under Order XXXIV, C.P.C. Against them for a decree of Rs, 1,18,810 which was the amount of part payment and interest thereon. This suit was dismissed by the judgment, dated 18th September, 1974, by a learned Single Judge of this Court on the ground that respondents had not committed breach of the contract.
3. ' Aggrieved by the judgment the appellants have come up in this Intra Court Appeal.
4. ' They have also filed two applications, one under Order VI, rule 17 and section 151, and the other under section 148, C. P. C.
5. ' We propose to dispose of these two applications by the present order.
6. ' In the application under Order VI, rule 17 the appellants have prayed for amendment of the plaint by addition of the following alternate relief in the prayer clause : "Further in the alternative an Order the defendant No, 1 to specially perform the agreement to execute the sale deed on receipt from plaintiffs, the remaining purchase money amounting to Rs, 68,704.25 and to do all acts necessary to put the plaintiffs in full possession of building site land bearing Survey Nos. 268/2, 268/3 and 268/5, admeasuring 29,499 sq. Yds. Situated in Deh Thano, Taluka Malir, District Karachi and to pay costs of this suit."
7. ' The objection raised to this application by Mr. S. Nazir Haider, learned counsel for the respondent is that if this amendment is allowed, it would amount to allowing the appellant to approbate and reprobate at one and the same. In this regard the learned counsel has relied on the following statement made by one of the witnesses examined on behalf of the appellant before the learned Single Judge "The plaintiffs are not willing to take the conveyance of the suit property. It is correct that we no longer regard to accept conveyance as we no longer regard the transaction as a good bargain."
8. ' Mr. S. Nazir Haider further submitted that the appellants by the letter of their counsel, dated 5th August 19'12 (Exh. 5/16) had cancelled the agreement of sale. It is lastly submitted that the claim for possession has become time-barred .
9. ' In reply it is submitted by Mr. Mansoor Ahmad Khan, that firstly, the respondent No, 1 had not accepted the cancellation of the agreement and in the counter-affidavit filed by him to this application he himself has stated that the appellants unilaterally and wrongfully cancelled the agreement. Secondly, in paragraph 4 of the written statement the respondents have pleaded that respondent No, 1 was willing and ready to perform his part of the contract and the delay was caused due to the circumstances beyond control of respondent No, 1 and as such the time shall be deemed to have extended and that the appellants could not withheld their consent to the extension of time unreasonably. Mr. Mansoor Ahmed Khan also relied on the evidence of respondent No, 1 who in his examination-in-chief has stated as follows : "I never refused to convey the suit land to the plaintiff, and I am ready and willing to convey the same today."
10. ' It is further submitted by Mr. Mansoor Ahmed Khan that since the finding of the learned Single Judge is that there is no breach of the contract on the part of the respondents, therefore, the letter whereby the contract was cancelled, lost its efficacy.
11. ' We, are of the view that since it is found by the learned Single Judge that there was no breach of the contract, and since respondent No, 1 had shown his willingness to convey the contracted property unhasitatingly and continuously even at the stage of evidence, and respondent No: 1 has not yet cancelled the contract or refused to perform the same and the learned Single Judge has found that time was not the essence of the contract therefore, in these circumstances questions of approbation and reprobation and the relief for possession being barred by time does not arise.
12. Further, equity also imputes an intention to fulfil an obligation, it would, therefore, be in the interest of justice if the amendment prayed for is allowed.
13. ' It is not and cannot be disputed that the amendment could be allowed at any stage of the proceedings and the appeal is continuation of the proceedings. If any authority is needed reference may be had to Kerarnat Ali and another v. Muhammad Yunus Haji and others (1) wherein their Lordships of Supreme Court had allowed the amendment of the plaint by addition of prayer for possession at the stage of appeal in the Supreme Court in the circumstances of the case, even though the relief for possession which was sought by the amendment had become barred by time.
14. ' We, therefore, allow amendment application and further allow appellants two weeks time to file amended plaint and pay the necessary court-fee as the payment of additional court-fee has become necessary as a consequence of amendment allowed hereby by us.
15. ' After the amended plaint has been filed the appeal will be fixed for regular hearing in due course and it would not be treated as part-heard.
16. ' Both the applications stand disposed of.
(1) PLD 1963 S c 191