1. SAJJAD AHMAD, J.-This appeal, by special leave, arises out of the plaintiff respondents suit for specific performance of a contract, and, in the alternative, for damages for breach of the same, which was filed in the former High Court of West Pakistan (Karachi Bench), in its original juri3d?
2. Cdoa. The suit was dismissed by a learned Single Judge of that Court, but a decree for specific performance was awarded on appeal by a Letters Patent Bench of the same Court.
3. The relevant facts are as follows :- By an oral agreement, Seth Essabhoy, the appellant herein, agreed to sell, and the respondent, Saboor Ahmad, agreed to buy a plot of land bearing No. 90/3, Survey Sheet G. R. 2, measuring 5,034 square yards situated at Garden West, Karachi, at the price of Rs. 14 per square yard. In the wake of this agreement, the respondent paid a sum of Rs. 7,000 to the appellant as earnest money, which the appellant acknowledged. By executing a receipt (Exh. 7 on record) and which stated inter alia that the balance of the sale money shall be recovered within one month from the date of the receipt, viz., 9th of March 1954, when the sale deed will he duly registered, and vacant possession of the plot delivered. While mentioning the boundaries of the plot in the receipt, its description was given as Sakai, Le, residential. On the 26th of April 1954, the respondent got a Conveyance Deed (Exh. 6) duly drafted for registration purposes on a stamp paper of the value of Rs. 2,113. According to the plaintiff-respondent's case, the registration of the deed for which an appointment was made with the Registrar for the 5 of May 1954, had to be deferred as the appellant had failed to honour his commitment to get the necessary permission for the conversion of the plot into a Sakni plot.
4. However, instead of getting the permission for conversion, the appellant sent a letter to the respondent's Advocate on the 8th of June: 1954, alleging that earlier a letter had been sent on theth 12 of May 1954, asking the respondent to complete the contract within the time stipulated therein, but as the respondent had failed to perform his part of the agreement, the agreement stood terminated, entailing the forfeiture of the earnest money, of Rs. 7,000. The respondent, in reply, denied the receipt of the earlier letter, and alleged that the transaction could not be completed as the appellant had asked for time to get the land converted into Sakai as undertaken by him. Some further correspondence passed between the parties, and finally, the respondent called upon the appellant by his letter dated the 18 of October 1954, to get the land converted into Sakni land, and also to get the Conveyance Deed registered according to the terms of the agreement executed between the parties. The appellant replied by his letter dated the 22 of October 1954, (Exh. 16) that the contract having come to an end, the question of its performance did not arise. This led the respondent to file a criminal complaint against the appellant under section 417/420, P. P. C. On the allegation that the appellant had, cheated the respondent and obtained a sum of Rs. 7,00 from, him as earnest money by misrepresenting that the plot in question was a Sakni plot. This complaint was dismissed. The respondent then filed a civil suit already mentioned above.
5. The appellant resisted the suit by alleging that the plaintiff --respondent was in fact guilty of breach of contract, and that he (the appellant) had never agreed to get the land converted into a residential plot. He pleaded that the word 'Sakni' was used by the scribe in the receipt (Exh 7) while describing the boundaries of the plot without his knowledge. He further stated that he was always ready and willing to perform his part of the contract and that on the 27 of March 1954, by letter (Exh. 28) he had told the respondent that he had completed all the formalities, having obtained the certificate from the Custodian and Income-tax authorities, and had asked the res--pondent to get the sale deed prepared and registered at an early date. According to him, the responder had failed to turn up for the registration of the deed on the various dates that were obtained for this purpose.
6. Finally, on the 12 of May 1954, the appellant asked the respondent to complete the contract and take the conveyance of the property is question within three days, but as he failed to comply with this demand, the contract was terminated, and the earnest money was forfeited. It may stated here that the plot in question was in possession of one fir Muhammad, who was impleaded as a proforma defendant in the suit. The vacant possession of the land could not have been delivered without the eviction of Pir Muhammad, but the appellant alleged that he had made arrangements with Pir Muhammad to compensate him for vacating the land. However, it was brought out in evidence that the appellant had to file a civil suit against Pir Muhammad and obtained a compromise decree against him on the 18 of November 1957. The respon--dent, however, had not insisted on the delivery of vacant posses--sion but merely demanded the conversion of the land into a residential plot in terms of the agreement between the parties. He had unsuccessfully prosecuted him-for his misrepresentation in this behalf, but ultimately, notwithstanding the defaults and breaches committed by the appellant, the respondent demanded specific performance of the contract.
7. The real issue in the case was as to which party had committed the breach of the agreement. This revolved on the question whether the appellant had represented that the plot in question was a Sakni plot and had agreed to get it so converted or not. In support of their case, the parties adduced both oral and documentary evidence. The respondent examined himself as his own witness. The appellant, besides his own evidence, produced one of his employees, D. W. Sirajuddin, to support his case.
8. The learned Single Judge came to the conclusion that the appellant had not represented to the respondent that the land was Sakni, and that such a representation, in any case, could not have had any effect on the agreement or the suit, as the respondent bid not claimed any relief for the conversion of the land from agricultural to residential. He, therefore, held that the appellant had not committed any breach of the contract, and that on the contrary, the respondent was not readyth th nd th th th and willing to complete the contract as he failed to attend the Registrar's office for getting the sale deed registered. The Letters Patent Bench has reversed the judgment of the learned Single Judge after coming to the conclusion that the appellant had agreed to sell a Sakni plot to the respondent, and had further agreed to give vacant possession on completion of the sale to him. In support of their conclusion, the learned Judges took into account the receipt (Exh. 7) executed by the appellant on the 9th of March 1954, in which the land was described as Sakai. Another item of evidence on which they have found support for their conclusion is the draft of the sale deer/ (Exh.
9. 6), which had been duly approved by the appellant, as admitted by him, and which at two places described the land as Shikmi. The learned Single Judge in the High Court construed this word --- Shikmi--- in contrast to 'Sakni' in support of the appellant's case with the following observations:- "In the body of the document, it is described at two places as a 'Shikmi plot of land'. Mr. Jamil Alam is a senior Advocate of this Court and certainly knows the meaning of the word `Shikmi'. The root of this word is Shikm, which means " stomach'. The adjective 'Shikmi' is often used to convey the meaning that the object is not the main entity but subordinate to a main entity. A 'Shikmi Sharik' for instance means a 'Sub-partner'. It is impossible that Mr. Jamil Alam should have twice confused the word 'Sakni' with 'Shikmi'. The plaintiff did not examine Mr. Jamil Alam as a witness and, therefore, there is no convincing explanation on the record for the use of the word 'Shikmi' in Exh. 6."
10. In exercise of the powers under Order XLI, rule 27 of the Code of Civil Procedure, the learned Judges of the Letters Patent Bench examined Mr. Shah Jamil Alam to clarify this confusion created by the use of the word 'Shikmi' In Exh.
6. Mr. Jamil Alam stated that he had dictated to his Steno typist the word 'Sakni' but due to a typographical mistake. It was typed as 'Shikmi'. He deposed that the word 'Shikmi' really meant 'Sakni'. He definitely remembered that he had used the word 'Sakni' while dictating it to his Stenotypist, because the basis of the agreement between the parties was that the plot in dispute was non-Agricultural land which was to be converted into a residential plot. He further stated that in the former United Provinces, the term 'Shikmi plot' is used for those plots which are cultivated by the owners themselves, and because his Steno-- typist belonged to U. P., it was possible that the mistake was committed in the deed (Exh. 6) for that reason. The statement of Mr. Jamil Alam leaves no doubt that the plot la dispute, which was intended to be conveyed, was to be converted Into a 'Sakni' plot. It is also significant that the appellant in Exh. 6 had also undertaken to indemnify the respondent if the latter suffered any loss "owing to the said plot of land being treated as an agricultural land or being included in any scheme of Improvement Trust". In the aforesaid draft, it was further, stipulated as follows :- "That the said Vendor wilt at all times hereafter and from time to time wherever called upon by the Vendee or his successor do or cause or procure to be done all lawful, reason--able, necessary and/or expedient acts, deeds, matters and thins for better assuring and more perfectly assigning the said plot of land to the Vendee and to achieving the object for which this plot of land has been purchased by the Vendee, namely, for construction purpose."
11. 'These recitals in the deed itself, coupled with the evidence of Mr. Shah Jamil Alam, leave no doubt whatsoever that the appellant had sold the plot of land in dispute as 'Sakni' land, and had undertaken to get it converted for construction pur--poses by the respondent. We' are of the opinion that the use of the word 'Shikmi' was entirely out of context in the deed (Exh. 6), as there was no need to describe the land as 'Shikmi', and, as explained by Mr. Shah Jamil Alam, it was just a typographical mistake for the word 'Sakni'. In this view of the matter, the respondent was quite within his right to insist that the appellant should get the laid converted into a 'Sakni' plot for the finalisation of the sale. This was one of the terms of the draft sale deed to which the appellant had agreed. The appellant had admitted in his notice sent to the respondent dated the 12 of May 1954, (Exh. 11) that the respondent had accompanied him on the 8 of May 1954, to the office of the District Registrar, Karachi, and that the 11 of May 1954, was fixed for the registration of the saleth th th deed. No blame, therefore, can be put on the respondent for not getting the document registered, and the respondent's version that the appellant wanted time to get the land converted into 'Sakni' land, seems to be in accord with the circumstances and evidence produced in the case. Further, it seems that the appellant's allegation that he had sent a letter to the respondent on the 12 of May 1954, calling upon him to complete the contract within three days, does not carry conviction, as it is not supported by any evidence beyond the bare statement of the appellant himself that he had personally delivered the letter to the appellant. But even if such a letter was sent, it does not advance the appellant's case. It is a well, settled principle of law that in contracts relating to immovable property, time is not of the essence of the contract, and the claim of the appellant, even if it were accepted that he had given three days' notice to the respondent for completion of the contract, failing which it would come to an end, cannot at all be considered to be reasonable time. Since it was the appellant's obligation to get the plot converted into Sakni plot, he should have done that before calling upon the respondent to complete his part of the contract. This was a matter of simple procedure as the appellant bad only to make an application for that purpose. It is not understandable why did he fail to take the necessary steps for the conversion of the land into a 'Sakni' plot unless it was to avoid the bargain. Nonetheless, the conclusion is inescapable that it was because of the failure, of the appellant to honour his commitment that the contract could not be completed in spite of the respondent's persistent demands made in this behalf. The other argument of the learned counsel for the respondent is not without force that since the land was in possession of Pir Muhammad and the appellant was unable to hand over its vacant possession without evicting him, he was trying to create a situation to force the respondent to run away from the contract. We concur with the view of the learned Judges of the Letters Patent Bench that the circums--tances and the evidence clearly reveal that the contract could not be completed because of the default on the part of the appellant.
12. The learned counsel for the appellant contended that according to law, it was essential for the respondent to prove that he was ready and willing to perform his part of tie agree--ment at all stages up to the filing of the suit for specific performance. He argued that by filing his complain under section 417/420, P. P. C., already mentioned above, the res--pondent had clearly manifested his intention to repudiate the contract, and he was thus not willing to perform his part of the contract. There is no force in this contention. In fact, the complaint filed by the respondent shows that the respondent in the first instance tried to pin down the appellant by the coercive process of criminal action to fulfil his promise to get the land converted into a Sakni plot. May be, that it was an undesirable weapon which he had put into use, but the filing of the complaint does not indicate that the respondent had abandoned his claim for specific performance, anti that he way not ready and willing to perform his part of the contract. However, in case where the defendant himself has committed breach of the contract, it is not obligatory on the complainant in a suit for specific performance to prove his willingess to perform it up to the date of the filing of the suit in this connection, the observations of Lord Mansfield in Jones v. Barkley (1781) 2 Dougl. 684may be usefully cited:- "The party must show that he was ready, but, if the other stops him on the ground of an intention not to perform his part, it is not necessary for the first to go farther and do a nugatory act."
13. Where the defendant definitely repudiates the contract, or commits breach thereof, the plaintiff is absolved from showing that he was ready and willing to perform his part of the contract. Since the appellant had frustrated the contract by his evasiveness regarding the conversion of the plot it was not at all obligatory for the respondent to proceed with the registra--tion of the sale deed, accepting the bargain on the basis of the plot being agricultural. He was perfectly justified in law to insist on the compliance of all terms of the contract by the appellant, and if the appellant failed to fulfil any one of the them, he was responsible for its breach with all the ensuing consequences.th It was also argued by the learned counsel for the appellant that as the respondent had alleged fraud on the part of the appellant in his complaint filedunder the Penal Code, the contract stood vitiated and no question, therefore, arose of its specific performance. This contention is again without any substance. It is the party that commits fraud which is disentitled to claim any benefit arising out of that fraud, but, if, as in this cage, no fault can be attributed to the respondent, he can insist on the specific performance of the contract in spite of the fraud that he may have alleged against the appellant in relation to this contract. The contract would for all purposes remain alive for the, benefit of the respondent if he seeks to enforce it despite his allegation that in respect of the contract, he was a victim of a fraud committed by the appellant. The learned Judges of the High Court were, therefore, perfectly right in granting the respondent the relief for specific performance in the exercise of their discretionary powers for grant of such a relief under section 22 of the Specific Relief Act, as the respondent had all along acted within his rights by insisting on the fulfilment of the terms of the contract by the appellant. Since the respondent is keen to obtain the plot even without its conversion into a Sakni plot, his suit for specific per--formance had to be decreed without the need for any direction to the appellant for getting it converted into a Sakni plot.
14. In the result we hold that the plaintiff-respondent's suit for specific performance was rightly decreed by the Letters patent Bench, and we see no ground to interfere. This appeal is accordingly, dismissed, but there shall be no order as to costs.