1. This second appeal, which calls in question the decree of Addl. District Judge, Peshawar, dated 2- 12-66, arises in the following circumstances:- Mst. Chano Bibi, the appellant in this case, was transferred by Settlement Authorities agricultural land situated in Qasba Bagram, village Kotla Mohsm Khan. In order to sell this land she entered into sale agreement (Exh. P. W.--1/1) with the two respondents on 5-8-64; condition being that, within 20 days Mst. Chano Bibi would secure no demand certificate from Settlement Department and thereafter convey the land to respondents as soon as possible. The agreement shows that respondents paid Mst. Chano Bibi Rs. 500 as earnest money and they agreed to pay her the balance of Rs. 7,375 within 20 days after she was to execute before Registrar conveyance deed in their favour. The last relevant agreed condition in Exh. P. W.-1/1 is that if Mst. Chano Bibi would fail or respondents would decline to accept the conveyance of suit property, then the former would pay to the latter Rs. 500 by way of penalty and conversely, the latter would forfeit the earnest money of Rs. 500.
2. The judgment of the learned Addl. District Judge would show that Mst. Chano Bibi succeeded to obtain from Settlement Department no-demand certificate within the stipulated period of 20 days.
3. But even so, she was unable to convey to respondents the suit property; for when inquiries were made on her behalf from the office of Assistant Registrar, Peshawar she was told that the suit land was situated within the area of Kabul River Project which, without the prior sanction of Commissioner, Peshawar Division, could not be conveyed. It appears that when this requirement was brought to the notice of respondents, Mahmood Khan respondent appeared before Tehsildar, Peshawar on 8-9-64 and volunteered the statement (Exh. D. A.), in which he agreed that if Mst.
4. Chano Bibi would be able to secure the necessary permission from Commissioner, Peshawar Division, he would accept the conveyance of suit property. This permission was, according to the impugned judgment, granted to her on 29-12-64, but on the very date she received a notice (Exh. P.
5. W. 1/2) from respondents repudiating the sale agreement and demanding from her the refund of earnest money as well as Rs. 500 by way of penalty. Before this, however, the appellant had, through the common agent of parties, namely, Kala Khan, conveyed to respondents that she had secured the necessary permission from Commissioner, Peshawar Division, and was now able to convey the suit property to them. On 2-1-65, Mst. Chano Bibi again conveyed the same information to respondents through registered letter (see Exhs. D. F. And D. E.) But neither party acknowledged each other's notices; respondents having in fact rushed to Court and filed suit against Mst. Chano Bibi on 19-1-65 for the recovery of earnest money of Rs. 500 as well as Rs. 500 by way of penalty.
6. The suit was contested by Mst. Cbano Bibi on a number of grounds which gave rise to the framing of- following issues by the trial Court:--
(1) Have the plaintiffs cause of action to bring this suit?
(2) Are the plaintiffs estopped from instituting this suit?
(3) Whether the defendant has failed to execute the sale deed in accord--ance with the terms of the agreement-dated 5-8-64 in favour of the plaintiffs, if so, to what effect?
(4) Whether the failure of the defendant to get the said sale deed registered was due to the reasons beyond her control, if so, to what effect?
(5) Whether the plaintiffs are entitled to recover damages, if so, to what extent?
(6) Whether the plaintiffs refused to the specific performance of the agreement to sell and thus the defendant is not liable to return the earnest money to the plaintiffs and is also entitled to recover Rs. 500 as damages from them?
(7) Relief.
7. The trial Court at the conclusion of the trial awarded to respondents decree for Rs. 500 against Mst.
8. Chano Bibi and this decree was affirmed by the learned Addl District Judge on appeal filed by her vide his impugned judgment. The learned Addl District Judge has been of the view that since Mst.
9. Chano Bibi had failed to obtain within reasonable time the necessary permission, from Commissioner, Peshawar Division, and that too not until she was served with a notice by respondents on 29-12-64, she had obviously failed to perform her obligation under sale agreement (Exh. P. W. 1/1). He therefore reached the conclusion that she was bound to refund to respondents Rs. 500 paid to her by way of earnest money.
10. By going through the judgment of the learned Addl. District Judge, he appears to have been influenced by two considerations:
(1) That Mst. Chano Bibi had failed to obtain from Commissioner, Peshawar Division the necessary permission within reasonable time, and (2) that the statement of Mahmood Khan before Tehsildar, Peshawar (Exh. D. A.) would in no way be binding on respondent Mohd. Shafi and therefore, it cannot be said that they (respondents) had agreed to the extension of time to enable Mst. Chano Bibi to obtain the requisite permission from Commis--sioner, Peshawar Division. I am afraid this conclusion of the learned Judge proceeds is in disregard of the plaint and sale agreement (Exh. P.
11. W. 1/1). The sale agreement would show that respondents had agreed to purchase the suit property entirely jointly for which they agreed to pay Mst. Chano Bibi the consolidated sale consideration of Rs. 7,875. This is precisely the case set up by respondents in paragraph I of the plaint, and a glance at the evidence of respondent Mohd. Shafi would remove the matter from the realm of any doubt whatever. In the opening part of his cross-examination, he admitted that he and respondent Mahmood Khan were doing partnership business but they have now severed that relationship.
12. Now by taking all these facts into consideration, it would be clear that in regard to the sale transaction covered by Exh. P. W. 1/1 respondents were partners, or at least having a joint interest; therefore, the statement made by Mahmood Khan before Tehsildar, Peshawar (Exh. D. A.) would be binding on him as well as respondent Mohd. Shafi, moreso when in the said statement he had clearly undertaken that it would be so binding.
13. Time is not, according to the well-established legal position, ordinarily, an essence of contract in regard to immovable property: Haji Abdullah Khan and others v. Nisar Muhammad and others (PLD 1965 SC 690) and Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala (PLD 1962 SC 1). In other words, if it is claimed that time was the essence of contract it would be the burden of plaintiff to prove this by some evidence from record. The evidence brought on record in this case, however, is to the contrary, inasmuch as after the expiry of agreed period of 20 days (as mentioned in sale agreement Exh. P. W. 1/1) respondent Mahmood Khan appeared before Tehsildar, Peshawar, on 8- 9-64 and made a statement (Exh. D. A.) that in case Mst. Chano Bibi would be able to secure from Commissioner, Peshawar Division the necessary permission, he would still go ahead with the transaction. It is common ground between the parties that Mst. Chano Bibi had succeeded to obtain this permission on 29-12-64, and the question would be whether the period of about three months spent by her in that connection was unreasonable. In my view, the answer to this question would be in negative; for there is nothing on record to suggest that Mst. Chano Bibi had in any way suffered procrastination, or else avoided her obligations so as to frustrate the parties agreement. I am therefore of the view that since respondents had, by their own conduct, allowed Mst. Chano Bibi to secure from Commissioner, Peshawar Division the necessary permission, they cannot wriggle out of their obligations under sale agreement (Exh. P. W. 1/1), particularly when the permission obtained by her cannot be said to have caused any unreasonable delay to convey respondents the suit property. To prove my point I would refer to the following dictum from the judgment of Supreme Court of Pakistan in the case of Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala which would appear to be apposite:- "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.
14. The previous correspondence exchanged between the parties can be of no avail in this behalf."
15. It is clear to me that this aspect of the case did not occur to the learned Addl. District Judge and hence he allowed himself to misconstrue the legal position. Had he applied his mind to the contents of sale-agreement (Exh. P. W. 1/1) the allegations made in the plaint and the evidence of respondent Mohd. Shafi, he would have no difficulty in reaching the correct conclusion.
16. The not result of this discussion is that respondents' suit was misconceived; for it was they who were responsible for the breach of contract. This appeal is therefore allowed, the decree of the learned Addl. District Judge is set aside and the suit of respondents is dismissed. Under the circumstances, however, there would be no order as to costs.
17. S. A. H.