' MALIK MUHAMMAD QAYYUM, J.---This regular first appeal arises out of a suit for specific performance of an agreement for sale instituted by Abdul Momin and 8 others, respondents/plaintiffs against the appellants which was decreed by the trial Court on 17-1-1987.
2. On 10-6-1980, Begum Qamar Isfahani, respondent No,4 herein, agreed to sell to the appellants her land measuring 400 Kanals and received a sum of Rs,50,000 as earnest money. It was agreed between the parties that the balance amount would be paid at the time of registration of sale- deed in the first week of August, 1980. Subsequently, three other payments of Rs,11,000, Rs,9,000 and Rs,10,000 out of sale price were made by the plaintiffs/respondents Nos.1 to 3 to respondent No,4 against receipts executed by her. In the suit for specific performance of the agreement for sale which was filed on 24-4-1982, it was alleged that respondent No,4 has failed to perform her part of the contract.
3. During the pendency of the suit, the land in dispute was sold by respondent No,4 through her attorney, Faqir Muhammad to appellants vide decree of the Civil Court dated 27-64982, who were impleaded as defendants Nos.2 to 9.
4. The suit was resisted by respondent No,4 as also by the appellants by filing separate written statements. Respondent No,4 admitted having agreed to sell the land to respondents Nos.1 to 3 and received part of the consideration. It was pleaded that as time was essence of the contract the plaintiffs/respondents Nos.1 to 3 despite expiry of the period fixed for the purpose of agreement had failed to perform their part of contract and they were consequently not entitled to the relief for specific performance. It was also averred that she agreed to sell the land to the appellants. The appellants also took up the position that they were bona fide purchasers for value without any notice of the agreement between respondents Nos.1 to 3 and respondent No,4 and cannot be deprived of the land.
5. On the pleadings of the parties following issues were framed:-
(1) Whether the plaintiffs have no cause of action to file this suit? OPD
(2) Whether defendants failed to fulfil the terms of the contract? If so, with what effect? OPD
(3) Whether the plaintiffs are entitled to specific performance of the contract dated 10-6-1980? If so, on what terms and conditions? OPP.
(4) Relief.
6. In support of their case, plaintiffs/respondents Nos.1 to 3 examined P.W.1, Abdul Ghaffar Assistant, Muslim Commercial Bank Ltd and produced Exh.P-1 to Exh.P-10. In rebuttal, no evidence was led by respondent No,4 while appellants examined Faqir Muhammad, appellant No,1 as D.W. Mehar Muhammad Ranjh, D.W.2, Chiragh Din, D.W.3, All Muhammad D.W.4, Hidayat Ullah, D.W.5, Jalal Din, D.W.6 and Muhammad Rafiq, another defendant as D.W.7. Documents Exhs.D-1 to 15 were also tendered in evidence.
7. As already noted, the suit was decreed by the trial Court on 17-1-1987. Under issue Not relating to the question as to whether or not the plaintiffs had any cause of action, the trial Court examined the contentions raised before it by appellants/defendants Nos.3 to 9, they were bona fide purchasers for value without notice of the agreement for sale in favour of respondents Nos.1 to 3.
This plea was repelled on the ground that sale in favour of the appellants had taken place through a decree of the Civil Court on 30-6-1982 when the suit for specific performance was pending.
Issues Nos.2 and 3 were also found against the appellants.
8. In support of the appeal Mr. M. Khalid Alvi, learned counsel for the appellants has vehemently argued that the time fixed for completion of the sale was of essence of contract and as such on account of the failure of the respondents Nos.1 to 3 to pay the balance amount of consideration within the stipulated period, the agreement stood cancelled and could not be specifically enforced.
In the same context, it was also urged that as the respondents Nos.1 to 3 plaintiffs had failed to perform their part of contract, their suit could not be decreed. The other contention raised by the learned counsel for the appellants was that in the circumstances of the case and keeping in view the conduct of respondents Nos.1 to 3, the discretion vesting in the Court under section 22 of the Specific Relief Act, 1877 should not have been exercised in favour of the plaintiffs/respondents. In the last, it was argued that appellants are bona fide purchasers for value without notice of the agreement.
9. None of the contentions raised by the learned counsel for the appellants has any force. It is since long well-settled that in contracts relating to sale of immovable property, generally the time fixed for completion of the agreement is not of its essence and failure to adhere to it does not render the contract unenforceable. The presumption, however, is rebuttable and in a given case it can be shown that the parties had intended the time to be of essence and as such on failure of a party to perform its part of contract within the stipulated period, the contract becomes voidable at option of the other party. Although in the present case, in the written statement, Mst. Qamar Isfahani, respondent No,4 had raised a plea and had explained that she was in dire need of money on account of illness of her husband and the loss suffered by her due to separation of East Pakistan, she was constrained to enter into an agreement for sale and in view of the urgency of the need, the time was of essence of the contract, but unfortunately, no evidence whatsoever, in support of this plea was led either by respondent No,4 or the appellants. Consequently, there is nothing on the record on the basis of which it could be held that the presumption about the time being not of essence in contract relating to sale of immovable property stands rebutted.
10. Be that as it may, even from the conduct of the parties, it is clear that the time was never treated to them of much importance. According to the case of respondent No,4 herself, originally the agreement was to be completed by August, 1981 but that period was extended by mutual consent from time to time. Learned counsel for the appellants was unable to point out anything in the record to show that on the expiry of extended period, any notice was served upon the plaintiffs/respondents Nos.1 to 3 by respondent No,4 seeking to avoid the contract on the ground of delay in performance of their obligation.
11. On the other hand, it stands established on the record that respondent No,4 was in no position to complete the agreement for sale by executing the sale-deed and within the time fixed for performance as she was not recorded as owner in the Revenue Record. This fact is borne out by Exh.P-6, which is a copy of the plaint of a suit filed by respondent No,4 on 5-6-1981 against her husband Mirza Aboal Hassan Isfahani, stating that though vide registered deed dated 5-11-1958 she had become owner of the land comprising in Chak No,332/T.DA., but the Revenue Authorities were not sanctioning mutation in her favour. That suit was decreed only on 17-7-1983 whereafter necessary mutation was effected in the name of Mst. Qamar Isfahani, respondent No,4. It is, therefore, clear that prior to 17-7-1983 when the suit was decreed, respondent No,4 was not in a position to transfer the land to respondents Nos.1 to 3.
12. The claim of the appellants that they were bona fide purchasers for value is wholly unfounded.
Admittedly, the sale in favour of the appellants had taken place during the pendency of the suit for specific performance and was as such hit by doctrine of lis pendens. The learned counsel for the appellants, however, attempted to argue that as power of attorney was executed by respondent No,4 in favour of Muhammad Zamin on 16-11-1981, the sale in favour of the appellants made by Faqir Muhammad should be presumed to have taken place on that date.
13. There is no warrant for such an assumption. Execution of a power of attorney does not transfer any title nor can the subsequently made by the attorney be held to have taken place on the date when power of attorney was executed. As the sale had admittedly taken place during the pendency of the suit filed by respondents Nos.1 to 3 the appellants cannot claim any benefit under that sale which is ineffective against the rights of respondents Nos.1 to 3 plaintiffs.
' In view of what has been stated above, the appeal is dismissed with no order as to costs.