1. ' By this Judgment both the Suits will be disposed of. Suit No,667/83 has been filed by Abdullah hereinafter referred as the plaintiff, for specific performance of agreement dated 30-11-1980 by which Muhammad Siddique and another hereinafter referred as the defendants agreed to sell a flat on the first floor of building bearing NoJR-7/JM-848/8 at Jamshed Road, Jamshed Quarters, Karachi. The sale consideration was fixed at Rs,1,00,000 out of which Rs,35,000 was paid and the balance amount was to be paid at the time of registration of the sale-deed. The plaintiff had agreed that he will have no objection to the defendants' constructing further two storeys on the said building. The defendants were to obtain Capital Gain Tax Certificate within 30 days from the date of execution of the agreement and the sale was to be completed within the same period.
2. According to the plaintiff, the defendants agreed that they would lay glazed tiles in the bath and W.C. Carry out plastic emulsion paint, construct overheard tank, plaster the room to prevent the leakage, provide hot and cold water lines in the bath-room and kitchen, the existing unauthorised room would be removed, sui gas will be provided and electric meter will be installed, and thereafter, the defendants will execute the sale-deed. According to the plaintiff, the defendants did not perform their part of the agreement, and therefore, he filed the suit. The defendants filed written statement and denied that there was any understanding between the parties to carry out the additional work mentioned in the plaint. It was pleaded that the plaintiff had committed breach of the agreement as he has not cooperated to execute the sale-deed within 30 days. It was further pleaded that the plaintiff raised objection to the construction of the second floor, made complaint to KDA due to which their plan was cancelled and they had to institute legal proceedings against KDA for obtaining the remedies. After succeeding in the petition, again on the complaint and instigation of the plaintiff KDA interfered with the construction work and the defendants had to file civil suit in which the plaintiff sought to be joined as a party but he failed. The defendants further pleaded that due to the unauthorised and illegal acts of the plaintiff, the construction work was stopped, they had to sell the construction material at lower price due to which they have suffered losses and also spent huge amount on litigation. The total loss has been assessed at Rs,100,000.
3. The defendants also filed suit No,79/84 alleging all these facts which have been pleaded in the written statement claiming the aforestated damages, declaration that the agreement dated 30-11- 1980 is null and void and inoperative, and for recovery of possession, and mesne profit @ Rs,4dper day. In the written statement filed by the plaintiff the same facts were mentioned which have been pleaded in Suit No,667/83. The claim for damages, possession and mesne profit was denied. On the basis of the pleadings in both the suits the following consolidated issues were framed.
4. "(1) Whether Agreement to Sell dated 30th November 1980 enterer' between the parties is still valid and subsisting?
(2) Whether the possession of the Suit premises delivered to Abdullah Abdul Rehman by Muhammad Siddiq and others has become illegal and unauthorised?
5. (3)Whether Muhammad Siddiq and others are entitled to cancel the Agreement to Sell dated 30th November, 1980?
(4) Whether Abdullah Abdul Rehman is entitled to enforce the Agreement by way of specific performance?
(5) Whether Muhammad Siddiq and another are entitled to recover the possession of the suit premises?
(6) Whether Muhammad Siddiq and others are entitled to damages?
(7) Whether Abdullah has violated clause 6 of the agreement.
(8) What should the Decree be ?
6. ' Both the parties have led consolidated evidence in both the suits, and the evidence recorded in Suit No,667/83 has been treated as evidence in Suit No,79/84.
7. ISSUE NO.1: ' The argument of the learned counsel for the defendants is that time was the essence of the contract and as the plaintiff failed to perform his part of agreement before that date, it has become void, unenforceable and therefore the suit is not maintainable. Under clause 6 of the agreement, the defendants were to obtain Capital Gains Tax Certificate within 30 days of the execution of the agreement, and the plaintiff was to make payment and complete registration within the same period. This certificate was obtained on 27-1-1981 i,e. About two months from the date of the execution of the agreement. It seems clear that the defendants themselves had not maintained the time schedule mentioned in the agreement. It is well-settled that mere insertion of a term in the agreement that a certain act will have to be performed upto a fixed time does not automatically make time essence of the Contract. The intention of the parties that time is the essence of the Contract can be gathered not only from the terms of Contract but also from the surrounding circumstances, the nature of property and transaction involved in the matter. This is a suit involving transaction relating to immovable property in which the defendants have failed to comply with condition regarding completion of sale. They therefore cannot insist on performance within the time fixed by the agreement. My finding is in the affirmative.
8. ISSUE NO.2.: ' It is an admitted position that in part performance of the agreement the plaintiff was put in possession of the premises in dispute. Mr. Rana the learned counsel for the defendants has contended that as the agreement has become invalid possession is also invalid. In view of finding on issue No,1 the finding on this issue is in the negative. ISSUES NOS.3, 4 & 5.
9. ' The plaintiff had agreed to purchase the first floor flat under agreement Exh.5/1. The defendants were to obtain Capital Gains Tax Certificate within 30 days, but as discussed above, it was not obtained within the specified time. It was obtained on 27-1-1981, although payment had been made on 10-1-1981. The plaintiff by his notice dated 11-1-1981 required the defendants to send photo copies of 12 documents specified therein; and also to give inspection of the original documents. It was also stated that the defendant had not provided Sui-gas and electricity connection, nor overhead tank was constructed. It was further stated that certain structural works were required to be carried, but they did not seem to have been specified. Plaintiff had demanded that the defendant should expedite the completion of these works and get the Conveyance-deed completed as in the condition in which the possession has been given, the plaintiff was unable to properly enjoy the property. This letter though served on the defendants was not replied. Instead, the defendants produced a letter dated 10-1-1981 addressed to the plaintiff stating that the agreement was to be completed within 30 days which the plaintiff has failed to do. It was further alleged that photo copy of sub-lease, registered. Sale-deed, KDA approved plan with approval letter, construction permission of CDC, NOC from the Society, Capital Gains Tax Certificate, challan photostat copies were delivered to his Advocate, but so far no step has been taken. This letter is Exh.7/5 dated 10-1-1981 which was sent by registered post A/D, to the plaintiff through his Advocate.
10. The Advocate for the plaintiff returned these documents to the defendants stating that they should be sent directly to the plaintiff and on his instruction he will communicate in the matter. There is nothing on record to show that thereafter these documents were forwarded to the plaintiff directly.
11. From the evidence of the parties, it seems that the defendants wanted to raise construction on the second floor but KDA objected to it and cancelled the plan. There was protracted litigatioi+ between KDA and the defendants. It is alleged that the plaintiff had made complaint to KDA against the defendants objecting to the raising of construction on the second floor and it was at the behest of the plaintiff that such action was taken. The plaintiff has denied that he has made any such complaint against the defendants but he was surely interested in the safety of his property and title. The plaintiff wanted to ensure that if any action is taken against the defendants it does not affect the plaintiffs interest in the property. The defendants filed Constitution Petition against KDA and the notice issued by them for cancellation of the plan was quashed. But when they again started construction, it seems that KDA took action and stopped it. Lie then filed a suit in the Court of Civil Judge where the plaintiff also made an application to be joined as a party which was rejected, and revision application against that order was also dismissed. All along the plaintiff has stated that he had taken actions in order to safeguard his property and title to it. The defendants have referred to the judgment passed by the learned Civil Judge in which reference seems to have been made to a statement of KDA that the plaintiff had raised objection to the construction of the second floor. In the agreement the plaintiff had agreed that he will not raise objection on the construction of second floor and third floor by the defendants. No document has been produced to show what was the nature of objection raised by the plaintiff, whether it was in the nature of such an objection as to completely stop construction on the second and third floor or that it was legitimately intended to protect his interest in the first floor property and to see that the construction on the second and third floor is properly, validly, and legally made so that his property and title is not adversely affected. In these circumstances it is difficult in the array of evidence produced by the parties to establish that the plaintiff had objected to the construction of second and third floor with a view to cause loss and damage to the defendants. The defendants have cancelled the agreement mainly on the ground of lack of bona fides and bad faith shown by the plaintiff and that the agreement was not performed within the specified time. It seems that after the agreement the plaintiff had demanded that the defendants were to complete the works Mitch wercpromised by them. In 1983 he further stated that the defendants have not laid glazed tiles in the bath room and W.C., failed to carry out the plastic emulsion paint, did not construct overhead tank and have not plastered the roof, failed to lay hot and cold water lines in bath and kitchen and one unauthorised room construction has not been removed. It was stated in the notice that after all these works were completed and Sui-gas and electricity connections were installed, the sale- deed will be executed. This was not accepted by the defendants on the ground that all such conditions were not mentioned in the agreement as it is. It is clear from the record that in the agreement the ,defendants were not required to carry out any works stated by the plaintiff. The plaintiff has produced witnesses to show that the defendants had agreed to carry out the aforestated works, but, in view of a written agreement without mentioning any such condition, the same cannot be accepted. The plaintiff, has, however, agreed that he is prepared to accept the property in the condition in which he had occupied it. From these facts it is clear that the plaintiff was insisting to carry out certain work before the sale-deed is executed. There seems to be a genuine dispute between the parties as admittedly electricity connection and gas connections were not installed in the house.
12. ' Although the plaintiff had raised objection and filed a suit for specific performance of the agreement as well as the alleged understanding, he is prepared to accept the flat in the condition in which it existed and in the manner in which he had taken possession. Except the aforestated facts the defendants have not shown how the plaintiff is not entitled to specifically enforce the agreement. The defendants have complained of the delay, but after the letter of 10-1-1981 which was received by the Advocate on 21-1-1981 and returned to the defendants there is nothing on record to show that the defendants had provided the original documents for inspection as required by the plaintiff. The defendants seem to be more interested in the construction of the second and third floor and for that purpose as objection was raised by KDA they entered into litigation but when the plaintiff filed a suit for specific performance, they also filed another Suit No,79/84 for declaration, possession, mesne profit and damages. My findings on these issues are as follows:- ISSUE NO.3. In the negative. ISSUE NO.4. In the affirmative. ISSUE NO.5. In the negative. ISSUE NO.6.
13. ' The defendants in Suit No,79/84 have claimed damages in the sum of Rs,100,000 and decree for mesne profit. The main ground for claiming damages is that in breach of the agreement, the plaintiff raised objection to the construction of second and third floor and made false complaints to KDA which resulted in the cancellation of the plan and stoppage of the construction work. This was also followed by litigation for quite some time between the defendants and the K.D.A. The defendants have alleged that they started construction after depositing Rs,3,000 and had paid Rs,25,000 to the contractor who had brought labourers and shutterings and other construction material was also purchased. In view of the stoppage of the work, the defendants had to sell steel bars and cement at a lower rate. The cement and Bajri were damaged and rendered useless and further Rs,25,000 paid to the contractor were not returned by him. The defendants have not produced any document to show that these amounts were paid and the goods were purchased and resold at a lower price. In the absence of any authentic oral or documentary evidence mere statement of the defendant No,1 is not sufficient to establish the amount of damage allegedly suffered by them. The defendants have therefore, failed to prove damages suffered by them. They are not entitled to any damages. My finding is in the negative.
14. ISSUE NO.7.
15. In view of the finding given in the aforestated issues my finding is in the negative. Time was not essence of the contract, therefore, no breach has been committed by the plaintiff.
16. ISSUE NO.8.
17. ' Suit No,667/83 is decreed and the plaintiff is entitled to specific performance of the agreement dated 30-11-1980 on the condition that he deposits Rs,65,000 with interest @ 10% per annum from the date of agreement till the date of judgment within a period of two weeks. After the deposit has been made if the defendants do not execute the sale-deed in plaintiffs favour within a period of one month thereafter the Nazir shall execute the same on their behalf. Suit No,79/84 is dismissed.
18. The parties to bear their own costs.