This second appeal filed by the defendant against the appellate decree dated 20-4-1965, arises out of a suit instituted on 4-9-1957 by the respondent Karam Din for specific performance of agreement to sell dated 20-3-1954 regarding House No. S-E-XI-V-63-S-14, Islampura Street, Dharampura, Lahore, which had been decreed by the trial Court on 9-5-1964 in favour of the plaintiff-respondent Karam Din by answering all the issues in his favour.
2. The suit is preceded by somewhat queer history of dealings between the parties. The house originally belonged to the plaintiff Karam Din who had mortgaged it on 6-10-1952 with possession in favour of the defendant Mehraj Din for a sum of Rs. 1,700 and had, then, on 20-3-1954 sold it to him by taking more money. On the same day (20-3-1954) Mehraj Din executed the agreement to sell the house to Karam Din for Rs. 3,600 and received Rs. 100 as advance, the balance of Rs. 3,500 being payable at the time of registration of the sale-deed which was promised to be made by 10- 9-1956. However, earlier thereto, on 27-2-1954 Karam Din had also executed a rent note in favour of Mehraj Din, undertaking to pay monthly rent of Rs. 22 and as no rent had been paid from 1-9-1955 to 30-4-1957, therefore, Mehraj Din filed a suit on 7-5-1957 for recovery of Rs. 440 as rent and a decree (Exh. D. 5) came to be passed on 1-7-1957 against Karam Din and his son Sardar Muhammad by repelling their stand that Mehraj Din was not entitled to the receipt of any rent as he had agreed to make the sale of the house to them and had not fulfilled his promise. Another suit relating to the rent for the period 1-5-1957 to 31-12-1958 was also similarly filed by Mehraj Din and decreed on 23-6-1959 (Exh. D. 2) despite its having been resisted similarly on the basis of agreement to sell. Then, on 26-6-1959 Karam Din and Sardar Muhammad filed a suit against Mehraj Din for the sale-deed dated 20-3-1954 and also the rent deed dated 27-2-1954 being cancelled which, however, was subsequently with--drawn on 8-11-1960, after the present suit for specific performance of agreement to sell had been instituted on 4-9-1957.
3. In the above background of the foregoing litigation, Mehraj Din contested the suit for specific performance by raising the pleas of limitation, estoppel and res judicata and with reference to the decrees for payment of rent secured by him, he also contended that the plaintiff had not been ready and willing before 10-9-1956 to have the sale-deed executed. The suit was consequently set down to be tried on the following issues :- "(1) Whether the plaintiff's suit is within time.
(2) Whether the plaintiff is estopped from filing the suit.
(3) Whether the matter in dispute is res judicata between the parties.
(4) Whether the plaintiff was ready and willing to have the sale-deed of the house executed before 10-9-1956.
(5) Whether the defendant obtained a decree for the payment of rent of the house in dispute against the plaintiff. If so, what is effect.
(6) Relief."
4. As mentioned above, trial Court decreed the suit on 9-5-1964 by 'answering all the issues in favour of the plaintiff and appeal of the defendant has also been dismissed by a learned Additional District Judge on 20-4-1965 by affirming the trial Court's findings on all the issues.
5. Learned counsel has argued that the plaintiff has not been ready and willing to perform his part of the contract and that the time deserved to be treated as of essence of the contract in this case.
There is no merit in either of these contentions. As regards the first contention, it relates to, a question of pure fact which has been decided against the defendant concurrently by both the Courts below upon the consideration of evidence led in the suit and there is no reason to differ from the well-reasoned conclusions recorded in the appeal below on the basis of the evidence on the record. As has been observed by the learned Additional District Judge, the defendant has himself prolonged the matter by seriously contending, though not rightly, that the plaintiff had not been ready and willing to perform his part of the contract and this battle has consumed 8 years for the suit to be decided despite the clear fact that there could not be anything more easy and sure for the defendant to have outright conceded the suit to establish his bona fides and put the plaintiff to the test of his financial stability which stands irrefutably established also by the fact that he has duly deposited the amount in accordance with the direction of the trial Court to also have the sale-deed made through the Court on 25-9-1964, as is noticed in the order dated 3-9-1969 passed on the appellants application for grant of interim relief. The time consumed as above on account of the defendant's contest in this litigation cannot be utilized by him to his own advantage to contend for being relieved of the obligation to sell because prices of immovable properties had in the meantime risen spiringly. In the agreement, defendant bad also undertaken to obtain clearance certificate from the Income-tax Department and the Property Tax Department before executing the sale-deed upto 10-9-1956. A similar case stands reported a Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala PLD 1962 SC 1wherein, while dealing with this particular aspect of the matter, their Lordships of the Supreme Court have laid down :- "Where the vendor must procure Income-tax clearance certificate and Custodian's certificate before a sale could be registered, the date when the vendee is informed by vendor that such certificates had been procured is the relevant date with reference to which the conduct of the parties has to be judged in respect of their willingness or otherwise of proceeding with the contract.
The previous corres--pondence exchanged between the parties can be of no avail in this behalf."
It is well-established that in contracts relating to transfer of immovable property time is not of essence of the contract and Haji Abdullah Khan and others v. Nisar Muhammad Khan and others
(l) is another authority on the point. A Division Bench of the Sind and Baluchistan High Court has held in Haji Bahawood Deen v. B. G. Desouza (2) as under :- "The presumption that time is not of the essence of the contract is much stronger and will be readily inferred by the Court in the case of sales or leases of lands or of residential premises simpliciter than in the case of transfer of commercial premises, as for example, of a shop with vacant possession."
In the above-cited case of Abdul Hamid, their Lordships of the Supreme Court have also held :- "Section 55 of the Contract Act, 1872, does not lay down any principle which differs from the law of England as to contracts for the sale of land. Specific performance of a contracts of that nature will be granted although there has been a failure to keep the dates assigned by it, if justice can be done between the parties and if nothing in, (a) the express stipulation of the parties, (b) the surrounding circumstances, make it inequitable to grant relief. An intention to make time of the essence of the contract must be expressed in unmistakable language it may be inferred from what passed between the parties before, but not after, the contract is made. Equity will not assist where there has been undue delay on the part of one party to the contract, and the other has given him reasonable notice that he must complete within a definite time."
In the -above view of the law, there is no need to deal with the argu--ments of the learned counsel for appellant regarding the notice (Exh. P. 2) and its purported refusal of acceptance as also about the effect thereof.
At any rate, there is not such an unreasonable delay involved in the suit having been instituted on 4-9-1957, as against the target date 10-9-1956 fixed in the agreement, that it may have led to the relief of specific performance being denied to the plaintiff on the mere ground of its being discretionary.
6. This appeal stands concluded by the concurrent findings of fact justified on the record and there is no ground made out for interference with the decree passed in favour of the respondent.
7. The appeal has no force and accordingly dismissed. Parties are, however, left to bear their own costs.
A. A./M-34/L Appeal dismissed.
(1) PLD 1965 SC 690(2) PLD 1974 Quetta 36