' FAZAL KARIM, J.--This Regular First Appeal by the plaintiffs, Mian Zafar Iqbal and his brothers, Mian Abdur Razzak, Mian Umar Farooq, Mian Muhammad Zakriya, Mian Khalid Pervaiz and Mian Abdul Ghaffar, is brought from a judgment and decree of the learned Civil Judge, Vehari, dated 13-2-1988, dismissing the plaintiffs' suit for the specific performance of an agreement of sale dated March 29, 1980.
2. The agreement is Exh. P.1. The parties to it were Bashir Ahmad Khan and his wife Mst. Sultan Jahan Begum, defendants, now respondents, of the first part and Mian Zafar Iqbal, plaintiff, now appellant, of the second part. The land agreed to be sold was situate in Mauza Karim Wah Tehsil and District Vehari; it comprised Khewat Nos. 88 and 89 according to the Jamabandi for the year 1977-78 (Exh.
P.3). It was also described by its square numbers and Khasra numbers; according to the agreement, the area of the land agreed to be sold was 800 Kanals 7 Marlas. While the land comprised in Khewat No, 88 belonged exclusively to Bashir Ahmad Khan, defendant, the land comprised in Khewat No, 89 was the exclusive ownership of Mst. Sultan Jahan Begum. Bashir Ahmad Khan, defendant, was the general attorney of his wife, Mst. Sultan Jahan Begum, and in the execution of the agreement of sale Exh. P.1, he acted on her behalf in that capacity.
2-A. The terms and conditions of the agreement Ex h. P.1 were as follows:--
(1) The area of the land agreed to be sold was more or less four squares and its agreed sale price was Rs,17,75,000.
(2) A sum of Rs,3,75,000, 2,95,000 in cash and Rs,80,000 by means of a bank draft, were to be paid by the vendee to the vendors in the presence of the attesting witnesses at the time of the agreement;
(3) Of the remaining sale price, Rs,1,00,000 was to be paid by the 2nd of July, 1980, and the remaining Rs,12,75,000 by the end of January, 1981, and the vendors had then to have a deed of sale registered in favour of the vendee;
(4) Registration expenses were to be borne by the vendee;
(5) The vendee might join with him at the time of the registration of the deed, other persons as vendees;
(6) The vendors were not liable for any infringement of the Martial Law Re gulations;
(7) The Revenue Officer or the Officer registering the document would be competent at the time of attesting the mutation or at the time of registering the document to correct the Khatta, Khatoni and Khasra numbers as also the area and shares. In short, the vendors were obliged to transfer approximately 800 Kanals 7 Marlas of land, that being their entire holding comprising Khata Nos. 88 and 89 situate in Mauza Karim Wah Tehsil and District Vehari;
(8) If the vendors resiled from the contract, the vendee would be within his right to have it specifically enforced and if the vendee resiled, the sum of Rs,3,75,000 was to stand forfeited in favour of the vendors; and
(9) The payment of the sale price might be made earlier if the houses etc. Were sold.
3. It appears that before the completion of the execution of the agreement Exh. P.1, the parties agreed that instead of Rs,1,00,000, the vendee would pay Rs, 2,00,000 on 2nd of July, 1980. No consequential amendment was, however, made, so far as it concerned the remaining sale price.
4. The plaintiffs instituted this suit on 4-9-1980, that is much before the last date, viz. The end of January, 1981, fixed in the agreement for the payment of the remaining sale price and the registration of the deed of sale.
5. It is convenient to mention here that the land mentioned in the plaint is, in some respects, which will be highlighted later, different from the land mentioned in the agreement of sale Exh.P.1. It suffices to say here that it was averred in the plaint that according to the Jamabandi, Bashir Ahmad Khan, defendant, was owner of Square No, 58, Khasra Nos. 1 to 25, but before the execution of the agreement of sale, he had, by way of exchange given effect to by Mutation No, 569 attested on 28-1-1979, obtained certain Khasra numbers of Square Nos. 35 and 36 mentioned in para 2 of the plaint in lieu of certain Khasra numbers of square No,
58. Later, the plaintiffs were allowed by an order of the learned trial Judge dated 17-4-1983 to further amend their plaint; that amendment also related to certain Khasra numbers.
6. The plaintiffs' case as laid in the plaint was that the defendants had received the sum of Rs,3,75,000 at the time of the execution of the agreement and had acknowledged its receipt. As regards the sum of Rs,2,00,000 which was to be paid before the 2nd July, 1980, they offered that sum to the defendants much before that date but they showed reluctance to accept it and finally refused to accept it on 10-7-1980. The plaintiffs approached the defendants through Punchayat and offered to pay that sum but they refused to accept the money, saying that the plaintiffs should receive back the sum of Rs,3,75,000 and treat the agreement as at an end. The plaintiffs refused to do so. It was said that the plaintiffs had also been placed in possession of the land in suit. The plaintiffs, therefbre, prayed for the specific performance of the agreement of sale dated 29-3-1980 on payment of Rs,14,00,000; in the alternative, if the land could not be sold to them, they asked for a decree for Rs,3,75,000 and damages for the breach of the agreement.
7. The defendants contested the suit by filing a joint written statement; the first written statement was dated 10-1-1982. As observed above, the plaintiffs had amended their plaint and the defendants filed two amended written statements; one dated 2-6-1983 and the second dated 4- 9-1984. They raised a number of preliminary objections; they were that Zafar lqbal, plaintiff, "has no cause of action as he had not performed his part of the contract. Moreover, the suit is premature as it was instituted on 4-9-1980, whereas the last date for completion of sale was 31-1-1981" that the suit was bad for misjoinder of parties, for there was no agreement of sale in favour of the plaintiffs other than Mian Zafar Iqbal; that "the agreement stands rescinded and came to an end on 2-7- 1980/31-1-1981 when plaintiff No, 1 failed to perform his own part of the contract"; that the agreement of sale "is violative of the provisions of Martial Law Regulation of 1972, therefore, it is not enforceable at law"; that "the suit is not maintainable in the present form as other land than the one mentioned in the agreement to sell has been made the subject-matter of the present suit"' and that the suit in its present form was not competent. On facts, it was said that the land comprised in Khasra Nos. 35/25/2, 36/4, 7, 8, 9/1, 12 to 14, 36/18 to 24 and 26 was never agreed to be sold. These khasra numbers were not the subject-matter of the agreement to sell. It was admitted that "the agreement dated 29-3-1980 was entered into between the answering defendants and plaintiff No, 1, only and not with plaintiffs 2 to 6". It was, however, averred that "the defendants received at the time of agreement Rs,1,00,000 only as earnest money and the balance amount was neither paid nor tendered within the stipulated period. It has not been paid even till today. Hence the agreement came to an end on 31-1-1981." It was added that "the agreed advance amount of Rs,2 lacs was neither paid nor tendered by the plaintiff No, 1 to the answering defendants on or before 2-7-1980, nor the balance amount was paid or tendered on or before 31-1-1981. Assuming for the sake of arguments (without conceding) that plaintiff No, 1 had tendered the alleged amount, then on the alleged refusal by the defendants, the same could have been deposited in Court." As to possession, the defendants denied that it had been delivered to the plaintiffs in pursuance of the agreement. It was said that "since before the execution of the said agreement, the plaintiffs 2, 4, 5 and one Muhammad Rafiq were already in possession of the suit land as lessees which expired on Rabi, 1983. They have also defaulted in the payment of lease money and now they are no more than trespassers". According to the defendants, the plaintiffs other than Mian Zafar Iqbal, had been joined in the suit "with a mala fide intention, just to retain illegal possession under the garb of status quo order".
8. On these pleadings, the following six issues were formulated:
(1) Whether the plaint does not disclose cause of action, and is liable to be rejected? O.P.D.
(2) Whether the suit is bad for misjoinder of parties? O.P. D.
(3) Whether the agreement to sell is violative to provisions of Martial Law Regulation 1972? O.P.D.
(4) Whether the suit is not maintainable in its present form? O.P. D.
(5) Whether the plaintiffs are entitled to decree for specific performance of contract as prayed for?
O.P.P.
(6) Relief.
9. The plaintiffs closed their affirmative evidence on 13-5-1982.
' After the close of the defendants' evidence, the plaintiffs were called upon to produce their rebuttal evidence and on 29-9-1984, they made an application for framing an additional issue to highlight the question whether a sum of Rs,2,00,000 required to be tendered by the plaintiffs to the defendants before 2-7-1980 was tendered and whether the defendants had refused to accept that amount. This application was accepted and on 13-10-1984, the following additional issue was framed: 4-A. Whether the plaintiffs have performed their part of contract by tendering a sum of Rs,2,00,000 to the defendants before 2-7-1980 which was, however, finally refused by the defendants and are ready to perform the other part of their contract?
10. The plaintiffs' evidence consisted of the testimony of Nasir Ahmad (P.W.1), Imtiaz Hassan (P.W.2), Muhammad Arif Bokhari, II Officer United Bank Limited (P.W.3), Naeemullah Khan (P. W.5) and Rafique Ahmad (P.W.6). Mian Zafar Iqbal, plaintiff, appeared into the witness-box twice, once as P.W.4 (that was before the framing of issue No, 4-A) and the second time as P.W.7 (that was after the framing of issue No, 4-A).
11. Nasir Ahmad and Imtiaz Hassan P.Ws. Were attesting witnesses to the agreement Exh. P.1. Nasir Ahmad stated that the defendants had agreed to sell approximately four squares of land fdr Rs,17,75, 000. He was present when the agreement Exh. P.1 was executed; at that time, Rs,2,95,000 was paid in cash and Rs,80,000 was paid by means of a bank draft to Bashir Ahmad Khan, defendant. He added that Rs,1,00,000 was agreed to be paid by 2nd of July, 1980, but on the insistence of Bashir Ahmad Khan, defendant, that sum was raised to Rs,2,00,000. The sale was to be completed by the end of January, 1981. According to him, the parties to the agreement had signed the agreement in his presence. To much the same effect was the testimony of Imtiaz Hassan. It was suggested to him that at the time of the agreement, only Rs,1,00,000 was paid, Rs,80,000 by bank draft and Rs,20,000 in cash. He denied the suggestion. Muhammad Arif Bokhari (P.W.3) deposed to the bank draft of Rs,80,000; according to him, on a written application of Bashir Ahmad Khan, defendant, dated 5-4-1980, the draft amount was deposited in his account and later, Bashir Ahmad Khan, defendant, had withdrawn that sum. Naeemullah Khan (P.W.5), a resident of Shamas Abad Colony, Multan, testified as follows. He had participated in the sale transaction. The sale consideration was agreed to be Rs,17,75,000 and a sum of Rs,3,75,000 was paid as earnest money.
The plaintiffs were to pay Rs,2,00,000 by 2-7-1980. In June, 1980, he happened to be in the house of the plaintiff, Mian Zafar Iqbal, and the latter in his presence rang up Munir Khan son of Bashir Ahmad Khan, defendant, and told him that the date 2-7-1980 was approaching and that he was ready with the money. Munir Khan told him that his mother was not agreeable to complete the transaction and that further talk on the subject should be had at Lahore with his father. Then there was a talk with Bashir Ahmad Khan, defendant; he too said that his wife was not inclined to sell the land and that the sale transaction should be treated as cancelled. The plaintiff told him also that he was ready with money and that he could pay it, if so advised, to his son at Multan. He further stated that Bashir Ahmad Khan, defendant, said that he would have further talk on the subject in Multan. All this telephonic talk, he added, was tape-recorded.
12. This part of Naeemullah Khan P.W's. Statement, it should be mentioned here, was recorded on 8- 1-1985, when for reasons, which will be presently stated, the recording of his statement was postponed to 31-1-1985.
13. On that date, he went on to say that he along with the plaintiffs, Ch. Rafique, Malik Mumtaz, Ch. Abdul Rahim and another had gone to the bungalow of the defendants in Multan in July, 1980. The plaintiff told the defendant, Bashir Ahmad Khan, that he had brought the sum of Rs,2,00,000 and that he should receive it. Bashir Ahmad Khan, defendant, said that he had already told them that his wife would not sell the land and that the transaction should be treated as at an end and they should receive back the earnest money. Rafique Ahmad P.W. Also testified that on being asked to do so, he had accompanied Mian Zafar lqbal, plaintiff, to the house of Bashir Ahmad Khan, defendant, in Multan Cana; there Bashir Ahmad Khan, defendant, had said that he could not complete the transaction and that when Mian Zafar Iqbal, plaintiff, told him that he had brought the sum of Rs,2,00,000 for payment and that he should accept it Bashir Ahmad Khan, defendant, had told him that on account of his wife's attitude, he could not do so.
14. The substance of the testimony of Mian Zafar Iqbal, plaintiff, was as follows. He and his co- plaintiffs, who were his real brothers, had jointly agreed to purchase the land, his brothers were not present at the time of the sale transaction and he had acted on their behalf and had agreed to purchase the land measuring 805 Kanals 7 Marlas for Rs,17,75,000. The land in suit was the defendants' entire holding in village Mauza Karim Wah; they did not own any other land there.
According to the copy of Jamabandi provided by Bashir Ahmad Khan, defendant, he was owner of Square No, 58, Khasra Nos. 1 to 25. However, he had given some Khasra numbers of Square No, 58 to his son Munir Ahmad in exchange and had obtained some land of Square Nos. 35 and 36 by means of Mutation No, 569 (Exh. P.4). He had paid Rs,2,95,000 in cash and 80,000 by bank draft to the defendant as earnest money; as regards the remaining sum, Rs,2,00,000 was to be paid by 2- 7-1980 and the rest by the end of January, 1981. He had had a telephonic talk with Munir Khan in the last week of June and the latter had told him that his mother was not agreeable to the sale. He again rang up and this time he arranged to tape-record the talk. Munir Khan told him that the transaction should be treated as at an end, for his mother was not agreeable. He then rang up Bashir Ahmad Khan, defendant, and told him that he was ready with Rs,2,00,000 and asked him if he should reach Lahore with the money or he would come to Multan. Bashir Ahmad Khan, defendant, also told him that he was unable to complete the transaction and that he should receive back the earnest money. He added that he would reach Multan on 15th July and would have a talk with him. According to Mian Zafar lqbal, plaintiff, he went to his house on 15th July and offered the money but he refused to accept it.
15. In cross-examination, he admitted that he had not been authorised by his co-plaintiffs to enter into the sale transaction on their behalf. He also admitted that the land in suit had been on lease with his brothers for the period from Kharif 1978 to Rabi 1983 and that a suit for ejectment was pending against his brothers. He denied the suggestion that the defendants were ready and willing to complete the sale transaction by 31-1-1981 but he was not ready to perform his part. Explaining why he brought the suit before 31-1-1981, he said that the defendants had already refused to accept Rs,2,00,000 and that they had tried to interfere with his possession and had tried to resell the land.
16. Before adverting to the evidence of the defendants, the reason why Naeemullah Khan PW's statement was partly recorded on 8-1-1985 and partly on 31-1-1985 may be stated here. It was that Mian Zafar Iqbal, plaintiff, had, when he was in the witness-box as PW4 on 20-1-1982, tried to introduce the audio-cassette of the telephonic talk between him and Munir Khan and Bashir Ahmad Khan, defendant, in evidence; this attempt failed for the learned Civil Judge declined to allow it to be produced on the ground that it had not been relied upon. The plaintiffs' revision petition against the learned Civil Judge's order dated 17-1-1985 was dismissed by this Court on 20- 6-1987 and their civil petition for special leave to appeal was dismissed by the Supreme Court's order dated 28-11-1987. The evidence of Naeemullah Khan and Rafique Ahmad PWs was recorded after the framing of issue No,4-A and when Naeemullah Khan was in the witness-box, an attempt to produce the audio-cassette again was made; the defendants again objected and as the plaintiff made an application for permission to produce the audio-cassette and it was necessary to decide that application before proceeding further with the statement of Naeemullah Khan PW, the learned Civil Judge adjourned the matter to 31-1-1985. In the meantime, on 17-1-1985, the plaintiffs' application for permission to produce the cassette (this was an application under Section 164 of the Qanun-e-Shahadat, 1984) was rejected. The order dated 17-1-1985 was challenged before this Court by means of a civil revision, which was dismissed on 20-6-1987. Against that order, the plaintiffs appealed to the Supreme Court and their appeal was dismissed on 28-11-1987 (See Zafar Iqbal v. Bashir Ahmad Khan PLD 1988 SC 109).
17. On the other hand, the defendant, Bashir Ahmad Khan, himself gave evidence and examined Altaf Hussain (D.W.1), Muhammad Akram (P.W.3) and his son Munir Ahmad (PW4). The statement of Bashir Ahmad Khan, defendant, it is noteworthy, was recorded first as D.W.2 and then as D.W.5.
18. Altaf Hussain (DWI) was a deed writer. He stated that he had his place of business in front of the Office of the Deputy Commissioner, Vehari. He had known Bashir Ahmad Khan, defendant, for 8/10 years and had been writing deeds for him. He had once come to him with Zafar Iqbal in January, 1981; he had then come on 31-1-1981 and told him that a deed was to be registered. He kept waiting for the vendee but he did not turn up. He then had an application written and presented it before the Sub-Registrar. He left at 3.00 P.M. Muhammad Akram (D.W.3) stated that he had dealings with Bashir Ahmad Khan, defendant. He had purchased a car from him in January, 1980 for Rs,90,000; he had paid Rs,20,000 and had promised to pay the remaining price later. On 2nd of July, 1980, he went to the house of Bashir Ahmad Khan, defendant, but Mian Zafar Iqbal, plaintiff, did not turn up.
They kept waiting till the evening. Later Mian Zafar lqbal, plaintiff, confirmed that he had to pay the money saying that he had been unable to arrange for it. He added that Bashir Ahmad Khan, defendant, had paid him the money a month later. Munir Ahmad (DW 4) said that his father, Bashir Ahmad Khan, had entered into the transaction with Mian Zafar Iqbal, plaintiff, and that at the time of the agreement, the plaintiff had paid Rs,20,000 in cash and Rs,80,000 by bank draft. He further stated that the remaining sum of Rs,2,00,000 was shown to have been paid to avoid preemption.
As regards the payment of Rs,2,00,000, he said that the plaintiff had not approached them at all for its payment; they had been waiting for him at their house on 2-7-1980. On 31-1-1981, they also went to Vehari and waited for the plaintiff till the evening; then they had an application scribed from Haji Altaf D.W. And had presented it before the Sub-Registrar. He added that he had no authority from his parents to deal with the property in dispute. He admitted having signed the agreement Exh.P1 as an attesting witness. He was literate and had read upto F.A.; he admitted that in the agreement Exh.
P1, a sum of Rs,3,75,000 was recorded as having been received by his father. His parents lived in Lahore and he lived in Multan and so did Mian Zafar Iqbal, plaintiff. He denied that he had had a talk on telephone with Zafar Iqbal, plaintiff, that the latter had told him that he was ready with Rs,2,00,000 and that he had replied that the agreement should be treated as cancelled because his mother was not ready to complete the transaction. He also denied that the plaintiff had come to their house in Multan for the payment of Rs,2,00,000. The substance of the testimony of Sardar Bashir Ahmad Khan, defendant, is as follows, The land in dispute was on lease with Khalid Pervaiz, Rafique and Zakaryya for the period from Kharif 1978 to Rabi 1983 the lease money being Rs,38,000 per year. They had paid the lease money for two years and as they had failed to pay thereafter, he had sued for their ejectment. He admitted the agreement Exh.P1. According to him, the sale consideration was agreed to be Rs,15,00,000 and he had received only Rs,1,00,000 at the time of agreement, Rs,80,000 by way of bank draft and Rs,20,000 in cash. No money was paid to him by Mian Zafar lqbal, plaintiff, on 2nd July, 1980, as he was bound by the agreement to pay. Then the plaintiffs did not do anything towards the completion of the sale by the 31st of January. He went to Vehari on 31st of January, 1981, and remained sitting with Haji Altaf DW. He waited till 4.00 P.M. But Mian Zafar lqbal did not turn up. He then made a written application to the Sub-Registrar.
According to him, the agreement had come to an end on 31st of January, 1981. The land in the agreement and the land in the plaint, he added, was the same; he then corrected himself saying that the khasra numbers were different but they were ready to perform their part of the agreement.
He admitted in cross-examination that he had entered into another agreement of sale with one Abdus Salam during the pendency of this suit, adding that as the agreement Exh.P1 had come to an end, he had entered into that agreement. He further stated that as he was bound by the terms of the agreement Exh.P1 to complete the sale by 31st of January, 1981, therefore, he had gone to the Sub-Registrar's office in spite of non-payment of Rs,2,00,000. He denied that Mian Zafar lqbal, plaintiff, had a telephonic talk with him and had offered to pay Rs,2,00,000 and he had refused to accept it. In answer to a question in his cross-examination on 29-9-1987, namely, if he had gone to Vehari on 31-1-1981 and had waited for Mian Zafar Iqbal till 4.00 P.M., his reply was that he had not gone to Vehari on that date. His attention was then called to his earlier statement dated 10-2-1983 where he had so stated. He said that he had forgotten what he had stated on that date, adding that whatever he had stated on that date (viz. 29-9-1987) should be treated as correct. He admitted that from the said Abdus Salam, he had received Rs,50,000 for the land in suit and that the latter had instituted a suit against him. That suit, he added, was pending.
19. The learned Civil Judge found issue No,2 against the plaintiffs. In so finding, he referred to clause 5 of the agreement Exh.P1 and observed that though that clause gave an option to Zafar Iqbal, plaintiff, to join with him other vendees, yet that option could be exercised "at the time of registration of sale-deed and not before". Further, the agreement was subject to the fulfilment of the terms and conditions and unless they were fulfilled, the plaintiffs had "no locus standi to assert their claim against the defendants". There was no inter se agreement between Zafar Iqbal and his co-plaintiffs nor did any contract exist between the plaintiffs other than Mian Zafar Iqbal and the defendants. As to issue No,3, the finding returned by the learned Civil Judge was that land comprising Square No,35, Khasra No,25/2 and Square No,36, Khasra Nos.4 and 9/1 was never agreed to be sold." These khasra numbers were not the subject-matter of the agreement to sell, whereas the plaintiffs have included the same in the plaint and are seeking claim against it also". In the view of the learned Civil Judge, "it becomes clear that all of the lands belonging to the defendants were not agreed to be transferred in favour of the plaintiff No,1. This fact is also supported by the perusal of clause 6 to the agreement Ex.P-1 which provides that the first party (defekants) was not responsible for the violation to the provisions of MLR 1972. Hence the issue is answered in the affirmative". The suit was, so held the learned Civil Judge under issue No,4, not maintainable because:
(1) "The description of suit land in the plaint does not tally with the description of land mentioned in the agreement to sell;"
(2) No concluded and finalized contract exists between the plaintiffs No,2 to 6 and the defendants; and
(3) The date fixed for the specific performance of the agreement in question, as provided in the agreement to sell Exh.P-1, stands as the last of January, 1981, whereas the suit in hand was filed on 4-9-1980 as such the same was pre-mature."
' Regarding issue No,4-A, the learned Civil Judge referred to the Supreme Court's judgment dated 28-11-1987 (PLD 1988 SC 109) and held the same "to be as unnecessary being covered under issue No,5 which is quite comprehensive as such the same, in view of my finding on issue No,5, is answered in the negative".
20. Dealing with issue No,5, the learned Civil Judge merely noted the names of the plaintiffs' witnesses and the defendants' witnesses, noticed that the plaintiffs had produced agreement to sell Exh.P1, copy of Jamabandi for the year 1977-78 P3 and copies of orders Exh.P4 and Exh.P5, observed that he had "given a considerate thought to the evidence produced by the either party"; and proceeded to hold that "in order to obtain a relief by way of specific performance of the contract, the plaintiffs have first to allege and prove that they were ever ready and willing to perform their part of the contract from the date of the contract to the date of the suit but the plaintiffs have failed to allege and prove the same "on the following grounds:
(1) Zafar Iqbal, plaintiff, had not alleged in the plaint "the factum of his willingness and readiness to perform his part of the contract. No particular column is available therein in this respect";
(2) Naseer Ahmad PW stated that a sum of Rs,2,95,000 was paid by the plaintiffs to Bashir Ahmad, defendant, but admitted that no receipt had been obtained. "The only entry in this respect is over Exh.P-1. The perusal of which negates the assertion of the plaintiff. It is provided therein that the said amount will be received by the first party i.e, the defendants, from the second party i.e, plaintiff No,1 in presence of the marginal witnesses in future";
(3) Mian Zafar lqbal, plaintiff had parted with a sum of Rs,80,000 through bank draft "and while departing with an amount of Rs,2,95,000 he is not obtaining the receipt thereof from the defendants. This act and conduct on the part of plaintiff No,1 does not inspire confidence in holding that the said amount stands paid to the defendants";
(4) Munir Khan PW was not a party to the agreement and his alleged telephonic talk with Zafar Iqbal, plaintiff, "does not bind the defendants";
(5) According to Zafar Iqbal, plaintiff, he had approached the defendants through a Punchayat for paying Rs,2,00,000 but Mst.Sultan Jahan Begum, defendant, had agreed to sell her property in favour of Abdus Salam Bari before July 2, 1980, which was reduced into writing on 2-10-1980, if that were so, then Zafar Iqbal "was under an obligation to protect his rights by sending a legal notice to the defendants. If the payment was refused, there was no bar for him to send the same through postal money order. But he has failed to do so. This act and conduct on the part of plaintiff No,1 disentitled him for the discretionary relief in the form of specific performance of the agreement";
(6) The evidence of Naeemullah and Rafique Ahmad PWs was "afterthought because Naeemullah PW-5, Rafiq Ahmad PW-6 were brought forward in the Court in the second round of litigation. If the position was "that as the plaintiffs had offered the sum of Rs,2,00,000 in the presence of these witnesses, then "there was no bar from him to bring forward them before 20-1-1982 when the plaintiff No,1 concluded his evidence". (If we understand the learned Civil Judge rightly, then what he meant by "the second round of litigation" was that that evidence was produced after issue No,4- A had been framed):
(7) Zafar lqbal, plaintiff, said that he had arranged the sum of Rs,2,00,000 after selling his ancestral property, "but no documentary evidence has since been brought forward by him to establish the availability of Rs,2,00,000 with him";
(8) The perusal of the agreement Exh.P1 showed that "the parties to the contract are not definite and certain";
(9) "Subject-matter of the agreement is also not definite and certain." In that behalf, the learned Civil Judge referred to clauses 1 and 7 of the agreement; and
(10) According to clause 10 of the agreement, "a receipt from the first party was to be obtained by the second party after making the payment of Rs,2,00,000 on July 2, 1980, but the second party, i.e, the plaintiff No,1, has failed to do so".
21. It is plain that in the view of the learned Civil Judge, the plaintiffs were in breach of the agreement and were, therefore, not entitled to the decree for specific performance. Yet somewhat inconsistently he proceeded to pass a decree "for the recovery of earnest money i.e, Rs,1,00,000, as admitted by the defendants in the written statement".
22. It was common ground between the parties that plaintiffs other than Mian Zafar Iqbal were not parties to the agreement; in other words, there was no contractual nexus between the said plaintiffs and the defendants. Zafar Iqbal, plaintiff, had no authority to enter into the agreement on behalf of his co-plaintiffs; in point of fact, he had not acted or purported to act on their behalf.
Learned counsel for the appellants referred to clause 5 of the agreement, which authorised Zafar Iqbal, plaintiff, to join with him other vendees at the time of the registration of the sale deed.
However, the question whether the plaintiffs other than Mian Zafar Iqbal can obtain the specific performance of the agreement P1 turns on Section 28 of the Specific Relief Act, 1877. By that section, the specific performance of a contract may be obtained by any party thereto or by the representative in interest or the principal of any party thereto and the other persons mentioned therein and the plaintiffs other than Zafar Iqbal, plaintiff, do not fall in any of the categories of persons mentioned in that section. It seems to us, therefore, that clause 5 of the agreement entitled neither Zafar Iqbal, plaintiff, to join his co-plaintiffs in the suit nor his co-plaintiffs to obtain the specific performance of the agreement.
23. Before proceeding further, it will be convenient to deal with the apparent discrepancy between the land as described in the agreement P1 and the land in suit and its effect upon the plaintiffs' right to have the agreement specifically enforced. According to the learned Civil Judge, the land comprising Square No,35, Khasra No,25/2 and Square No,36, Khasra Nos.4 and 9/2 did not find mentionin the agreement but was included in the plaint. The true position is as follows. Both according to the agreement Exh.P1 and the plaint, the land comprised in Khewat Nos.88 and 89 was agreed to be sold. As has been noticed above, Khewat No,88 belonged exclusively to Bashir Ahmad Khan, defendant, and Khewat No,89 belonged exclusively to his wife Mst. Sultan Jahan Begum. It is not disputed that in the agreement Exh.P1, the land agreed to be sold was described with reference to the entries of Jamabandi for the year 1977-78. It is also not disputed that before the agreement, a transaction of exchange had taken place between Bashir Ahmad Khan, defendant, and his sons and another, Munir Ahmad Khan etc. That exchange is evidenced by Mutation No,569 attested on 28-1-1979 (Exh.P4). By way of exchange, Bashir Ahmad, defendant, had given land comprising Square No,58, Khasra Nos.3 to 8, 13 to 25, 26/1 and 30/1 measuring 120 Kanals and in lieu thereof had obtained from Munir Ahmad etc., land measuring 119 Kanals 19 Marlas comprising Khasra Nos.25/2 and 28 of Square No, 35 and Khasra Nos.4, 7, 8, 9/1, 12 to 14, 18 to 22, 23, 24 and 26 of Square No,36.
Thus, Bashir Ahmad Khan, defendant, was not the owner of the above-mentioned Khasra numbers of Square No,58 at the date of the agreement Exh.P1. It is, in our view, in the light of this fact that we must approach the construction of the agreement Exh.P1 as a whole and clauses 6 and 7 thereof in particular, which provided that the defendants were not to be held liable for any contravention of MLR and that the Revenue Officer or the Officer registering the sale-deed would be within his right to correct the Khasra, Khatoni and Khata numbers, that the land agreed to be sold was approximately 800 Kanals 7 Marlas and that the same represented the entire holding comprising Khata Nos.88 and 89 of the defendants.
24. The position that emerges from a comparison of the land as described in the agreement and the land as described in the plaint is that Khasra numbers No,1, 2, 23, and 24 of Square No,58 did not find mention in the agreement but they found mention in the plaint; and that Khasra Nos.10 and 11 of Square No,58 found mention in the agreement but were not mentioned in the plaint. Khasra Nos.6 and 9 of Square No,36 were mentioned in the agreement. In the plaint, a part of Khasra No, 9, viz. 9/1 was mentioned and in place of Khasra No,6, Khasra No,4 was mentioned. Khasra Nos.18, 19, 20, 21, 22, 23, 24 and 36 of Square No,51 were not mentioned in the agreement but were included in the plaint. In the agreement, the whole of Khasra Nos. 17 and 24 of Square No,52 were included but in the plaint only a part of them, viz. Khasra Nos.17/1 and 24/2 were mentioned. Khasra No,4/2 of Square No,56 was not mentioned in the agreement but was mentioned in the plaint and Khasra Nos.18, 19, 20, 21, 22, 23 and 26 of Square No, 56 were mentioned in the agreement but not included in the plaint.
25. It is pertinent to note that the above-mentioned khasra numbers of Square Nos.36 and 58 were part of Khewat No,88, and the above mentioned khasra numbers of square Nos.51, 52 and 56 were part of Khewat No,89.
26. No only was it a case of misdescription of land, so far as khasra numbers were concerned, it was also a case of misdescription of the sale consideration. It has been noticed above that the sum of Rs,3,75,000 was to be paid at the time of the execution of the agreement, Rs,1,00,000 by the 2nd of July, 1980 and according to the agreement, Rs,12,75,000 at the time of the registration of the sale-deed. It appears that when the agreement Exh.P1 was being written, the parties changed their mind and agreed that instead of Rs,1,00,000 Rs,2,00,000 would be paid by the 2nd of July, 1980. An additional clause, namely, clause 10 was added in the agreement to give effect to this change of mind. But no corresponding correction was made in clause 3 of the agreement, which contained the covenant that the vendee would pay Rs,1,00,000 by the 2nd of July, 1980. Be that as it may, the total in either case did not come to Rs,17,75,000, which was the sale consideration. If Rs,1,00,000 were to be paid by the 2nd of July, 1980, then what remained to be paid at the registration of the deed was Rs,13,00,000 and not Rs,12,75,000 as stated in clause 3 of the agreement; and if Rs,2,00,000 were to be paid by the 2nd of July, 1980, then what remained to be paid at the registration of the deed was Rs,12,00,000. In either case, the figure Rs,12,75,000 in clause 3 of the agreement was incorrect. This highlights the fact that both in the description of the land and in the description of the sale price, necessary care was not taken.
27. However that may be, it appears plainly from a reading of the agreement as a whole that the parties were agreed that the land subject-matter of the agreement was the land comprising Khewat Nos.88 and 89, according to the current revenue record; that the parties were conscious of the provisions of MLR 115 of 1972 and that the land being sold represented the entire holding of the vendors comprising Khewat Nos. 88 and 89 situate in Mauza Karim Wah District Vehari. The provisions of the Martial Law Regulation, which the parties must have had in mind, were the provisions of paragraph 24, which forbade the alienation by sale, gift or otherwise of any portion of the holding of a person which might reduce the size of his holding to an area below the limit of an economic holding and also forbade a person owning an economic holding to alienate by sale, mortgage, gift or otherwise any part of his holding. It further provided that no person owning more than the area of a subsistence holding but less than an economic holding would alienate by sale, mortgage, gift or otherwise any portion of his holding which might reduce the size of his holding to an area less than the area of subsistence holding. Paragraph 24, it should be mentioned here, placed no restriction upon a person owning more than an economic holding to alienate his entire holding and a person owning more than a subsistence holding to alienate his entire holding. That the parties were conscious of the provisions of paragraph 24 of the Martial Law Regulation has this significance that each of the defendants was owner of an area equal to or more than the economic holding, viz. 400 kanals and if any part of his or her holding is left out, that would bring the ultimate sale within the mischief of that paragraph. Learned counsel for the defendants made pointed reference to clause 6 of the agreement, which reads: {{URDU TEXT}} ' The clause, it appears to us, is remarkable for its vagueness and it is difficult to make out what it means. We are, however, perfectly clear in our mind that by this clause, the parties did not contemplate a contravention of the Martial Law Regulation. Such a construction of clause 6 would amount to this that the vendors gave with one hand and took with another. The two rules of the most general application in construing a written instrument are - 1st that it shall, if possible, be so interpreted, ut res magis valeat quam pereat, and secondly, that such a meaning shall be given to it as may carry out and effectuate to the fullest extent the intention of the parties. (See Legal Maxims by Herbert Broom, Tenth Edition (1939) at 361. Then, "in construing a deed, every part of it must be made, if possible, to take effect, and every word must be made to operate in some shape or other. The construction, likewise, must be such as will preserve rather than destroy...." (See ibid at P.361) In any case, the very next clause viz. Clause 7 of the agreement, which declared that the vendors were selling their entire holding in Mauza Karim Wah strongly militates against that construction of clause 6, namely, that while the vendors agreed to sell their entire holding and the vendee agreed to purchase it for as much as Rs,17,75,000, yet the parties contemplated the contravention of the Martial Law Regulation.
27-A. As has been seen above, one of the grounds which had weighed with the learned Civil Judge in finding against the plaintiffs was that the subject-matter of the agreement was not definite and certain. Learned counsel for the respondents also prayed this ground into service and for that purpose called our attention to Section 29 of the Contract Act, 1872 and section 21, clause (c), of the Specific Relief Act, 1877. Section 29 of the Contract Act provides that agreements, D the meaning of which is not certain, or capable of being made certain, are void, and section 21 of the Specific Relief Act enumerates the categories of contracts which cannot be specifically enforced, the one E mentioned in clause (c) being a contract the terms of which the Court cannot find with reasonable certainty. In our view, this is not a case in which the meaning of the agreement P.1, as regards its subject-matter, is uncertain or is incapable of being made certain or the terms of which the Court cannot find with reasonable certainty. True that besides describing the land subject-matter of the sale by its Khewat numbers, it was also described with reference to its Khasra numbers but there appears no doubt as to the parties' intention that the vendors were selling their entire holding comprising Khewat Nos. 88 and 89 situate in Mauza Karim Wah. This intention was made further clear by clause 7, which authorised the Revenue Officer or the Registering Officer to correct the Khata, Khatoni and Khasra numbers as also the shares and expressly mentioned Khata No's. 88 and 89 with the significant addition that the land included in those Khatas was the entire holding of the vendors. It was not the case of the defendants that they owned land other than that comprised in Khewat Nos. 88 and 89 also. Clause 7, therefore, itself indicates that it was within the contemplation of the parties that some kind of misdescription might have crept in and that the parties did not regard this description, if any, of any significance. The maxims of law that apply to such cases are (i) Certum Est Quod Certum Reddi Potest (That is sufficiently certain which can be made certain), and (ii) Falsa Demonstratio Non Nocet (Mere false description does not vitiate, if there be sufficient certainty as to the object). The first maxim, which sets forth a rule of logic as well as of law, is peculiarly applicable in construing written instruments. In the second maxim, Falsa demonstratio means an erroneous description of a person or a thing in a written instrument; and the rule respecting it signifies that where the description is made up of more than one part, and G one part is true, but the other false, there, the part which is true describes the subject with sufficient legal certainty, the untrue part will be rejected and will not vitiate the devise. (See Legal Maxims by Herbert Broom, Tenth Edition (1939) at 422, 426 and 427). In our view, this was a mere case of false description, and the subject-matter of the sale agreement can be made certain because even if the khasra numbers had not been mentioned and all that had been said was that the vendors were selling their entire holding comprising Khata Nos. 88 and 89 situate in Mauza Karim Wah that would have been sufficient description of the land to establish the identity of the subject-matter of the agreement.
28. In this context, it will also be in place to refer to the testimony of Bashir Ahmad Khan, defendant; he was asked if the Khasra numbers in the plaint were different from the Khasra numbers in the agreement P.1; first he said that the land was the same but again said that the khasra numbers were different but still they were ready to perform their contract obligations.
29. The suit, as has been seen above, was instituted on 4-9-1980, that is, much before the date agreed upon between the parties as the date for the registration of the sale-deed viz. 31-1-1980. It was said that the suit was premature and this was one of the grounds on which the specific performance was refused. No case was cited at the Bar of this Court as to the effect of the alleged prematurity of the suit. In a Privy Council case from Kenya decided with reference to the provisions of the Indian Contract Act, as applicable there, namely, Khatijabai Jiwa Hasham v. Zenab 1960 A C 316, this question was debated and decided. The contract, signed on February 19, 1954, between the parties provided for payment of a deposit immediately and the balance of the purchase price on presentation of document of title to be executed by both parties within six months from the date of the contract. The defendant repudiated the contract within a few moments of signing it and the plaintiff brought the suit for specific performance on July 2, 1954, some weeks before the last date for completion, August 19. The defendant contended, inter alia, that the plaint was issued prematurely and that the plaintiff should have waited till there had been a failure to perform the contract within the period fixed thereby notwithstanding that she had previously intimated her refusal to do so. The plaintiff was held entitled to specific performance. Though the defendant's contention was not supported by any authority, there was no express decision in any English case to the contrary, but the view that the plaintiff was entitled to an order for specific performance accorded with the decisions in the Canadian cases of Roberto v. Bumb (1943) 2 D L R 613 etc. It was held that there was nothing in the Indian Contract Act to compel acceptance of the contrary view: "The fallacy of the defendant's contention consisted in equating the right to sue for specific performance with a cause of action at law. In equity all that was required was to show circumstances which would justify the intervention by a Court of equity. The order for specific performance often fell into two parts, the first being of a declaratory nature and the second containing consequential directions The Court would not, of course, compel a party to perform his contract before the contract date arrived, and would give relief from any order in the event of an intervening circumstance of frustrating the contract".
' We do not, therefore, think that merely because the suit was brought before the contract date it merited dismissal or that afforded a ground for refusing specific performance.
30. The suit, as stated above, was instituted on 4-9-1980. Simultaneously with its institution, the plaintiffs also applied for a temporary injunction order. The defendants did not file their written statement till as late as 10-1-1982, yet they had been served with notice of the temporary injunction application, so much so that on 21-1-1981, they made an application under Order XXXIX, Rule 4 read with section 151 of the C.P.C. Alleging that they were aggrieved of "and dissatisfied with the aforesaid order of temporary injunction dated 11-12-1980" and praying for its "discharge/variation/setting aside", among others, on the grounds that the plaintiffs had not fulfilled their part of the agreement, as they had failed to pay Rs,2,00,000 by the stipulated date, viz. 2-7-1980; that the suit was premature and that "the alleged earnest money stands forfeited in favour of the defendants and the agreement has ended as the plaintiffs have failed to perform their part of the agreement."
31. Agreement Exh. P.1 did not contemplate a separate receipt for Rs,3,75,000. Out of it, Rs,80,000 was paid by means of a bank draft, which, the evidence is, was received by the defendants and was later encashed by Bashir Ahmed Khan, defendant.. As to the remaining sum of Rs,2,95,000, the defendants' case, contrary to clause 2 of the agreement, was that only Rs,20,000 was paid. By clause 2 of the agreement, the parties covenanted that the entire amount of Rs,3,75,000 would be paid by Mian Zafar Iqbal, plaintiff, to the defendants at the time of the writing of the agreement Exh.
P.1. That the agreement was written and signed by Zafar Iqbal, plaintiff, and Bashir Ahmad Khan, defendant, as parties and by Munir Ahmad Khan, a son of Bashir Ahmad Khan, defendant, among others, as attesting witness, is admitted. It, therefore, necessarily follows that the execution of the agreement Exh. P.1 was followed by the payment of Rs,3,75,000 for that was what the parties had agreed to do by clause 2. Naseer Ahmad and Imtiaz Hassan P.Ws. Testified to the execution of the agreement as also to the payment of Rs,3,75,000. They appeared to be independent and disinterested witnesses. Naeemullah Khan and Rafique Ahmad P.Ws. Also testified to the payment of that sum at the time of the execution of the agreement Exh. P.1. They were called as witnesses after issue No, 4-A had been framed but that by itself, in our view, was no ground to reject their testimony on the point of payment of Rs,3,75,000, if otherwise there was nothing affecting the intrinsic value of the evidence. They too were not shown to have any reason to perjure themselves for the plaintiffs. As against that the defendants were content to examine Bashir Ahmad Khan, defendant, and his son Munir Ahmad on the point, though they could call some of the other attesting witnesses in support of their case that only Rs,1,00,000 was paid at the time of the execution of the agreement Exh.P.1. Besides Munir Ahmad, there were five attesting witnesses, namely, Naseer Ahmad, Naeemullah Khan, Tariq Naqvi, Ch. Abdul Raheem and Imtiaz Hassan. That the defendants did not call any of the remaining independent attesting witnesses, Tariq Naqvi and Ch. Abdul Raheem, as their witnesses, should give rise to an adverse inference against the truth of the defendants' case that only Rs,1,00,000 instead of Rs,3,75,000, was paid at the time of the agreement.
32. Naeemullah Khan and Rafique Ahmad gave evidence that in their presence, there was a telephonic talk between Zafar Iqbal, plaintiff, first with Munir Ahmad Khan, defendant's son, and then with Bashir Ahmad Khan, defendant, and that both had expressed their unwillingness to complete the transaction, for Mst. Sultan Jahan Begum would not agree to sell. They further stated that they had also accompanied Zafar Iqbal, plaintiff, to the house of the defendant, Bashir Ahmad Khan, in Multan, and that there Zafar lqbal had offered a sum of Rs,2,00,000 to Bashir Ahmad Khan but he had declined to accept it again on the same ground that his wife would not sell the land. Of them, Rafique Ahmad was a maternal-uncle of the plaintiffs but Naeemullah Khan appeared to be a disinterested person. He was, as noticed above, one of the attesting witnesses to the agreement Exh. P.1 and if the defendants had shown their unwillingness to complete the transaction, there was nothing unusual in his accompanying Zafar Iqbal to the house of Bashir Ahmad Khan for the purpose of offering the sum of Rs,2,00,000. Muhammad Akram D.W. Said that he had sold a car to Bashir Ahmad, defendant, and had to receive a part of the sale price, viz. 70,000 and he had, for that purpose, gone to the house of Bashir Ahmad Khan on 2nd July, 1980. He had kept waiting for the plaintiff, Zafar Iqbal, but he had not turned up. Munir. Ahmad D.W. Also made a similar statement. It has been noticed above that Bashir Ahmad lived in Lahore. Further no firm date had been fixed in the agreement P.1 for the payment of Rs,2,00,000; what was agreed upon was that that sum would be paid by the 2nd of July, 1980. There was no evidence that by mutual negotiations, it had been agreed that Mian Zafar Iqbal, plaintiff, would pay Rs,2,00,000 at the house of Bashir Ahmad Khan, defendant, on 2-7-1980. Then Muhammad Akram D.W. Was a businessman, yet he would have us believe that he had kept sitting in the house of Bashir Ahmad Khan for 4/5 hours waiting for Mian Zafar Iqbal, plaintiff. No writing evidencing the sale of a car was produced either. It is obvious that as the payment of Rs,2,00,000 was not accepted by Bashir Ahmad, defendant, no question of executing a receipt arose. Nor do we think that in the circumstances of the case, it was necessary for the plaintiff, Mian Zafar Iqbal, to show from what source he had arranged that money.
33. We are, therefore, of the view that the balance of evidence was in favour of the plaintiff, Zafar Iqbal, having offered the sum of Rs,2,00,000 to the defendant by the 2nd of July, 1980 and the latter having refused to accept it on the ground that Mst. Sultan Jahan Begum was not ready to be bound by the agreement.
34. We are, therefore, unable to agree with the learned trial Judge and are inclined to hold that the defendants had repudiated the contract, that is to say, they had evinced their intention not to fulfil their obligations under the contract and, therefore, Zafar Iqbal, plaintiff, was within his right to institute the suit for specific performance, even though the agreed date for completion of the transaction had not yet arrived.
35. But even if the evidence of Naeemullah Khan and Rafique Ahmad P. Ws. Was liable to be excluded from consideration or their credit-worthiness was open to doubt, the question is whether the payment of Rs,2,00,000 by the 2nd of July, 1980, was of the essence of the contract.
36. There is for the purposes of specific performance a distinction between a clause fixing a date for completion and a condition upon which the validity of the contract depends. As was said in (1929) 1 Ch.277, 283): "Courts of equity, in dealing with actions for specific performance relating to land, have been accustomed to give effect to the real intention rather than to the precise words fixing the date for completion. The effect is that a clause fixing the date for completion is equivalent to a clause stating that completion shall be on that date or within a reasonable time thereafter. But there is no ground for a similar construction in the case of condition upon which the validity of the contract as one of sale depends. The distinction is obvious. In the first case both parties are bound, and a moderate delay in completion is thought not to injure either. In the latter, the very existence of the mutual obligations is dependent on the performance of the condition. The purchasers do not know in the first instance if their purchase money will ever be required. In general and in the present case, there is no promise or undertaking by the vendor that the condition will be fulfilled. Equity has, I think, never applied its liberal views as to time to such a condition. If a date is mentioned, the condition must be exactly complied with. If a date is not mentioned, the condition must be fulfilled within a reasonable time; there is no difference between the view of law and equity in considering what is a reasonable time, and the uncertain position of the purchasers must be borne in mind."
' It is a well-settled principle of law, it was held in Seth Essabhoy v. Saboor Ahmad PLD 1973 SC 39, that in contracts relating to immovable property, time is not of the essence of the contract. It was held in Jamshed Khodaram Irani v. Burjoiji Dhunjibhai 43 26 that: "Section 55 of the Indian 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 contract 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."
' This view was adopted in Abdul Hameed v. Abbas Bhai Abdul Hussain Sodawaterwala PLD 1962 SC 1; it was added: "That if time is not originally made of the essence of a contract for sale of land, one of the parties is not entitled afterwards, by notice, to make it of the essence, unless there has been some default or unreasonable delay by the other party".
' For the defendants, reference was made to the word appearing in the evidence of Naseer Ahmad in the context that the sum of Rs,1,00,000 was, during the writing of Exh.P.1, raised to Rs,2,00,000 and it was argued that this shows that the time for the payment of that sum was intended to be of the essence of the contract. The emphasis, it seems to us, was upon the raising of the sum of Rs,2,00,000 and not upon its payment by the 2nd of July, 1980 being a vital term of the agreement.
Learned counsel for the defendants referred to Nalini Nath Mitra and another v. Bepin Behari Das and others 1956 Cal. 525 and Pujari Narasappa and another v . Shaik Hazrat and others AIR 1960 Mysore 59 to support the c ntention that time should be regarded as of the essence of the contract. In the first case, the agreement in question was a lease agreement; the salami money under the said agreement had to be paid within a year from the date of the agreement and that was not done. On the material produced by the plaintiff and in the light of a defendants' letter, it was found as a fact that "this payment of the salami money within one year was a vital term of the alleged agreement which was intended to be performed by the parties within the stipulated time of one year from the date of agreement". In the Mysore case, there was an agreement between defendant 1 and the plaintiff to sell land in favour of the plaintiff for Rs,8,000, but the defendant 1 wanted to sell the same to defendant 2 for Rs,12,000 and in the proceedings before the Revenue Courts to accord sanction under section 4 of the Hyderabad Prevention of Agricultural Land Alienation Act, to the alienation, the plaintiff offered Rs,12,000, which was accepted by defendant 1 but the plaintiff did not purchase the land even after opportunities and the sale in favour of defendant 2 was sanctioned. The plaintiff thereupon filed a civil suit for specific performance of the agreement. It was held that by offering to pay Rs,12,000 and its acceptance by defendant No, 1, there was a novation of the contract on the part of the plaintiff and the original contract did not subsist; and also that the plaintiff did not avail himself of repeated opportunities given to him to pay Rs,12,000. Both these cases were, therefore, authority for, and decided on, their own facts.
37. In any case, according to Bashir Ahmad Khan, defendant, despite the non-payment of Rs,2,00,000 by the stipulated date of 2nd of July, 1980, he had gone to the Courts on 31-1-1981 and waited for the plaintiff, Mian Zafar Iqbal, there, so that the transaction could be completed in terms of the agreement Exh.P.1. This, in itself, shows that the defendants themselves did not regard the payment of Rs,2,00,000 by the 2nd of July, 1980, as of the essence of the agreement.
38. That is, however, not to say that Bashir Ahmad Khan, defendant, had, in fact, gone to the Courts on 31-1-1981 and waited there for the arrival of Zafar Iqbal, plaintiff, for the completion of the transaction. As has been noticed above, in connection with the plaintiffs' application for temporary injunction, the defendants had been served and had, on 21-1-1981, made an application before the learned Civil Judge saying that on account of the plaintiffs' failure to pay the sum of Rs,2,00,000 by the 2nd of July, 1980, the agreement had come to an end. In view of the fact that the suit for specific performance had been instituted and the stand taken by the defendants in their application dated 21-1-1981, it was wholly unnecessary for the defendants to go to the office of the Sub-Registrar on 31-1-1981 and to wait for the plaintiff, Zafar Iqbal, there, particularly when there is no evidence to the effect that they had arranged to meet in the Courts on that day for that purpose. Bashir Ahmad Khan, defendant, said in one statement that he had gone to the Courts on 31-1-1981 but denied having done so in his second statement. For the same reason, the evidence of Altaf Hussain, deed-writer, also did not deserve any credence. The best evidence of Bashir Ahmad Khan, defendant, having appeared before the Sub-Registrar on that date was the application, which, according to Altaf Hussain D.W., he had written for Bashir Ahmad Khan, defendant, informing the Sub-Registrar of his presence in connection with the completion of the transaction but that was not produced.
39. The question next debated before us was whether the suit was liable to be dismissed on the short ground that the plaintiffs had not averred in the plaint that they were ready and willing to perform their part of the agreement. Learned counsel for the plaintiffs argued that such averment is not the requirement of law and in any case, as the defendants had repudiated the contract before the agreed date, January 31, 1981, it was not necessary for the plaintiffs to expressly aver in the plaint that they were ready and willing to perform their part of the agreement. For his contention, he referred to Maqsood Ali and others v. Eskandar Ali PLD 1964 Supreme Court 381 and for his second contention, he cited Seth Essabhoy v. Saboor Ahmad PLD 1973 SC 39. On the other hand, learned counsel for the defendants supported the view of the learned Civil Judge by citing Ardeshir H. Hama v. Flora Sassoon AIR 1928 Privy Council 208, Narinjan and others v. Muhammad Yunus AIR 1932 Lah. 265 and Muhammad Yaqoob v. Nasrullah Khan and others PLD 1986 SC 497.
40. The law enunciated in Maqsood Ali's case was that: "So far as the question of making any express averment in the pleading of such readiness and willingness is concerned, we are of the view that although there can be no doubt that this is the invariable practice of pleading, if we may say so, a desirable practice, designed to give a clear and express notice to the opponent of the case sought to be made out, it cannot be said that this is a rule of law which would render the structure of the suit itself defective or that without it a proper cause of action would not appear on the plaint. We are, therefore, unable to accept the contention of the learned counsel that the present suit was bound to fail in the absence of such an averment."
' In the Privy Council case, it was observed that "in a suit for specific performance on the other hand, he (plaintiff) treated and was required by the Court to treat the contract as still subsisting. He had in that suit to allege, and if the fact was traversed, he was required to prove, a continuous readiness and willingness, from the date of the contract to the time of the hearing, to perform the contract on his part. Failure to make good that averment brought with it the inevitable dismissal of his suit". It was added: "Although so far as the Act is concerned, there is no express statement that the averment of readiness and willingness is in an Indian suit for specific performance as necessary as it always was in England (S.24(b) is the earnest), it seems invariably to have been recognized, and, on principle their Lordships think rightly that the Indian and the English requirements in this matter are the same."
41. Thus, in the Privy Council case also, it was recognized that so far as the Specific Relief Act is concerned, it does not require that there should be an express averment of readiness and willingness in the plaint. Be that as it may, the law on the subject must be taken to be as laid down by the Supreme Court in Maqsood Ali's case and it must, therefore, be held that the suit is not liable to dismissal on the ground that the plaintiffs had not averred their readiness and willingness to perform their part of the agreement. As regards Muhammad Yaqoob's case, that was a case in which the plaintiff had not only failed to prove that he was prepared to perform his part of the contract but in fact did not perform his contract at all and was, therefore, not entitled to any relief.
It was in that connection that reference was made to Narinjan and others v. Muhammad Yunus (AIR 1932 Lah. 265).
42. Learned counsel for the defendants contended that in instituting the suit before the agreed date for the completion of the transaction, the plaintiffs were moved by ulterior motives; that they were not possessed of the necessary money and their real object was to retain possession of the land and to delay the payment of the money as long as possible. In this connection, he pointed out that the land was at the date of the agreement in possession of the plaintiffs, Mian Abdul Razzaq, Mian Muhammad Zakariya, Mian Khalid Pervaiz and one Muhammad Rafique, as lessees; that the period of lease was to expire in Rabi 1983; that there was no mention of delivery of possession in the agreement Exh.P.1. And yet the plaintiffs applied for a temporary injunction in regard to possession on 4-9-1980. It is argued that the main object of Zafar Iqbal in joining his brothers as plaintiffs with him, though they were not parties to the agreement Exh. P.1, was to retain possession beyond the period of lease. In our opinion, these contentions are not entitled to succeed. Zafar Iqbal, plaintiff, gave reasons which induced him to institute the suit before the agreed date for the completion of the transaction. As has been seen above, the defendants had been served in connection with the temporary injunction application and had, on 21-1-1981, applied under Order XXXIX, Rule 4 of the C.P.C. To have the Status Quo order vacated. That was before the agreed date viz. 31-1-1981 and if the defendants so wanted, they could test the plaintiffs' good faith by filing the written statement and praying that the plaintiffs should pay the money by the agreed date and have a sale-deed executed. Instead, what they said in the application dated 21-1-1981 was that the agreement had been put an end to. But then by leading evidence that Bashir Ahmad Khan, defendant, had been waiting for the plaintiff, Zafar Iqbal, in the Court premises on 31-1-1981, so that the sale-deed could be executed and registered, the defendants involved themselves in an inconsistency. As we hold that the payment of Rs,2,00,000 by the 2nd of July, 1980 was not of the essence of the contract, nothing, in our view, turns upon the failure of Zafar Iqbal, plaintiff, to give notice to the defendants to accept the payment or to send the money by money order. The lease in favour of the plaintiffs, Mien Abdul Razzaq, Mian Muhammad Zakariya, Mian Khalid Pervaiz and Muhammad Rafique was to expire in Rabi 1983 and if the suit was a device to retain possession, the device could be, as observed above, easily frustrated by the defendants by requiring the plaintiff, Zafar Iqbal, to pay the money and to have the deed of sale executed. We are, therefore, unable to agree that the joining of Mian Abdul Razzaq etc. As plaintiffs inevitably gave rise to the inference that the object was to perpetuate possession. Their association as plaintiffs could as well be under a bona fide belief that clause 5 of the agreement entitled Zafar Iqbal, plaintiff, to join his brothers with him as plaintiffs.
43. Learned counsel for the defendants also argued that as Zafar Iqbal, plaintiff, had not, in terms of the agreement, paid the sum of Rs,2,00,000 by the 2nd of July, 1980, he had, by his conduct, disentitled himself to the discretionary relief of specific performance. It was pointed out that Zafar lqbal, plaintiff, was a Law graduate and should have known that there were many ways of remitting money to the defendants. We have held above that the balance of evidence is in favour of Zafar Iqbal, plaintiff, having offered to pay the money and that in any case, the payment of Rs,2,00,000 by 2nd of July, 1980 was not of the essence of the contract. No question of denying the relief of specific performance to plaintiff, Zafar Iqbal, therefore, arises. In this connection also, learned counsel referred to Nalini Nath Mitre and another v. Bepin Behari Das and others 1956 Calcutta 525 and Pujari Narasappa and another v. Sheik Hazrat and others AIR 1960 Mys.
59. Those cases have already been considered; as has been observed above, they were authority for and decided on their particular facts.
44. It remains to consider whether the agreement, in any way, contravened the provisions of MLR 115 of 1972. It has been seen above that the defendants intended to and in fact did 'agree to transfer the whole of their holding comprising Khata Nos. 88 and 89 and it cannot be predicated that the transaction, in any way, sinned against the provisions of MLR 115 of 1972. Secondly, the deed Exh. P.1 was a mere agreement of sale and not a sale and, therefore, no question of the violation of MLR 115 arises.
44. In the result the appeal of Mian Abdur Razzaq, Mian Umar Farooq, Mian Muhammad Zakriya, Mian Khalid Pervez and Mian Abdul Ghaffar is dismissed. The appeal of Mian Zafar Iqbal appellant is accepted and he is granted a decree for the specific performance of the agreement of sale dated March 29, 1980, subject to his depositing another sum of Rs,14,00,000 (Fourteen lacs) in the trial Court for payment to the defendants within a period of two months of this judgment. If the said sum is deposited, the plaintiff Mian Zafar Iqbal will be entitled to have a deed of sale registered. In the peculiar circumstances of this case and in view of the fact that the value of the land in suit may have registered an increase, the parties are left to bear their own costs throughout.