1. MUHAMMAD AFZAL ZULLAH, J.-- This appeal through leave of the Court is directed against judgment, dated 6-11-1983 of the Lahore High Court; whereby civil revision filed by the respondent/ defendant-side against a decree for specific performance of two agreements of sale passed in favour of the appellant, was set aside and the appellant's suit was dismissed.
2. Two agreements of sale were executed by the defendants/ vendors in favour of the appellant on 1- 1-1964 for the sale of the suit-land. The consideration amount in one was over Rs.17,000 and in the other was over Rs.11,000. An amount of over Rs.500 was received by the vendors regarding each sale agreement as advance. One sale was to be completed by 15-1-1964 while the other was to be completed by 5-2-1964 after payment of the remaining consideration and doing other needful acts. According to the appellant, he was ready to complete the sale but the respondent-side had delayed the matter, therefore, he sent two separate notices for completion of the sale to them: One, on 14-1-1964; and the other, on 3-2-1964. Receipt of notice, dated 14-1-1964 is admitted from the respondent-side who in their reply, dated 27-1-1964 took the position that they had already vide communication, dated 15-1-1964 repudiated the contract. Therefore, as asserted by them, the receipt of notice, dated 14-1-1964 by them on 25-1-1964 would not make any difference. The appellant had also produced evidence at the trial that he had made deposits of substantial amounts to meet the requirements for completing the two sales: One, on 16-1-1964; and the other, on 6-2-1964, which would show that he had these amounts ready with him on 15-1-1964 and 5-2- 1964 respectively, if the vendors had been willing to receive the amounts and get the sale completed. It is also not denied that the appellant had paid over Rs.500 on 11-1-1964 for purchase of the stamp papers for purpose of completion of the sale.
3. As according to the case of the appellant, the vendors/ respondents had failed to perform their part of the contract, although he' was ready and willing to do so, therefore, he was compelled to file the suit for specific performance against them which was decreed by the trial Court on 4-3-1981.
4. This suit was filed on 2-4-1964, within about two months of the dates when the sale was to be completed.
5. The vendors'/respondents' first appeal before the District Court, was dismissed. They then filed a revision petition before the High Court which was allowed, decree in favour of the appellant was set aside and his suit was dismissed. The main consideration which weighed with the High Court was that the time being the essence of the contract between the parties, therefore, the appellant was not entitled to specific performance of the contract; as he had in fact not paid the balance of the consideration amount on the stipulated dates.
6. Leave to appeal was granted to consider the question whether the High Court could set aside concurrent findings of fact by the two Courts below regarding there being no fault of the appellant in the completion of the sale and that the failure on the part of the vendors/ respondents to get it completed was illegal and unjustified; and also to examine whether without the relevant plea having been raised from the vendor side and the same being not in issue could the High Court in its revisional jurisdiction for the first time, non-suit the appellant on the ground that the time was the essence of the contract.
7. It is not denied that the evidence, including oral and documentary, to show that the appellant was not at all at fault in getting the sale completed at the relevant time. Was accepted by both F the Courts below, as reliable. And without there being any material irregularity or illegality affecting the decision of the Courts below, in this behalf, the High Court could not have interfered with the findings of fact vis-a-vis the conduct of the appellant and the credibility of his witnesses.
8. Learned counsel for the respondents, however, contended that similar evidence having been led from their side to show that they were not at fault, it was not noticed by the learned two Courts below, therefore, this could be treated as material irregularity and the finding of fact could be reversed by the Hiah Court in its revisional jurisdiction.
9. We do not agree with him. The trial Court judgment shows that the entire evidence was not only read but also a part of the statement made by one of the vendors was reproduced in it. And it is clear from the judgment of the First Appellate Court that it after noticing the evidence led from the respondent-side, had held that "the evidence led by the defendants on the point does not find support from the statement of independent and material witnesses". Again after some discussion regarding weakness of the defence the statement made by Murad respondent P.W.5 was noticed and discussed. The mere fact that there is not enough discussion of the respondents' evidence which would satisfy their learned counsel, in the circumstances of this case, when there was overwhelming documentary evidence also in favour of the appellant in addition to reliable witnesses, did not amount to a material irregularity justifying interference by the High Court on a finding of fact.
10. On the other question, namely, whether the time was the essence of the contract, the controversy, again is one of fact.
11. Learned counsel for the respondents frankly admitted that this plea was not raised in their written statement nor they had pleaded it before the trial Court in any other form. He also admitted that no better statement was recorded of any party showing the emergence of this plea in such a statement. Nor, he further admitted, there was a specific issue involving this controversy. But he contended that Issue No.5 could be treated as one involving indirectly the controversy whether time was the essence of the contract. This issue reads as follows: "Whether the plaintiff has performed his part of the contract and is also willing to perform other terms and conditions of the impugned agreement as agreed upon by the parties."
12. We do not agree with him regarding the scope of the above-reproduced Issue. It was rightly understood by the learned trial Court and the appellate Court as also the parties and their representatives that this Issue related to the conduct of the appellant in so far as the performance of his part of the contract is concerned. That is why there is no discussion of the controversy relating to the time being the essence of contract in the two judgments impugned before the High Court, in revisional jurisdiction.
13. After hearing the learned counsel for both the sides we are satisfied that the High Court judgment, in the circumstances of this case, cannot be upheld. The same is set aside. The appeal accordingly is allowed with costs throughout. The decree passed by the trial Court is restored. The appellant will make an application before the trial Court to obtain directions for deposit of the remaining sale price and other formalities for the completion of the sale.