' MALIK MUHAMMAD QAYYUM, J.--- This is a defendant's first appeal from the judgment and decree of the Civil Judge 1st Class, Lahore, dated 31-7-1993 passed in a suit for specific performance of agreement for sale instituted by the respondents against the appellant.
2. On 16-2-1991, Fazal Hussain, the appellant herein, agreed to sell to the respondents his property bearing Nos. 8-S-29-S-XI and 6-S-29-S-XI measuring about 12 Marlas, situate in Arya Nagar, Lahore for a consideration of Rs,8,00,000. Out of this amount, a sum of Rs,2,00,000 was received as earnest money at the time of execution of agreement to sell on 16-2-1991. It is a common ground between the parties that according to the agreement another sum of Rs,2,00,000 was to be paid on delivery of possession of half of the property within one month of the execution of the agreement while remaining amount of Rs,4,00,000 was payable at the time of registration of the sale-deed for which a period of four months was fixed.
3. On 31-7-1991, the respondents brought a suit for specific performance of the aforesaid agreement alleging that though they have all long been ready and willing to perform their part of the contract but the appellant has failed to do so inasmuch as despite having received another sum of Rs,50,000 he only delivered possession of part of the property and not its whole and had refused to execute the sale-deed. It was urged that as per terms of the agreement, the respondents were entitled to have the agreement specifically enforced in lieu of Rs,2,00,000 already paid as earnest money and the appellant was liable to refund Rs,50,000 received by him.
4. The suit was contested by the defendants by filing a written statement in which the execution of the agreement, receipt Of Rs,2,00,000 and the sum of Rs,50,000 was admitted. It was, however, asserted that the sale could not be completed as the respondents had failed to pay the balance amount of Rs,5,50,000 and they were not entitled to have the agreement specifically enforced.
5. The pleadings of the parties led to the framing of the following issues:--
(1) Whether the plaintiff is entitled to possession of the suit property through a specific performance of the agreement to sell dated 16-2-1991, if so, on what terms? O.P.P.
(1-A) Whether the plaintiff violated the terms and conditions of the agreement to sell, if so, its effect? O.P.D.
(1-B) What is the effect of the claim of Rs,50,000 on the possession of the disputed premises? O.P.D.
(1-C) Whether the defendant is bound to complete and execute the registered sale-deed of suit property in favour of the plaintiffs for the amount of Rs,2,00,000 only? O.P.P.
(1-D) Whether defendant is liable to return the earnest money or it stands forfeited in view of clause 6 of the agreement to sell? O.P.D.
6. On appraisal of evidence on the record, the learned trial Court vide its impugned judgment and decree, dated 31-7-1993 came to the conclusion that both the parties were not at fault and had been ready and willing to perform their part of the agreement. It, therefore, decreed the suit in favour of the respondents and directed the specific performance of the agreement on the payment of Rs,5,50,000. Hence this appeal.
7. The first contention Y aised by Mr. Ghulam Hassan Gulshan, learned counsel for the appellant was that as in the plaint the plaintiffs/respondents had prayed for a decree without any further payment and had asked foi refund of Rs,50,000 the suit could not have been decreed in favour of the respondents on different terms by the trial Court. According to the learned counsel, a relief not claimed in the plaint cannot be granted to a plaintiff. It was emphasised that if the Court comes to the conclusion that the plaintiff was not entitled to relief prayed for, the Court should dismiss the suit rather than grants a different relief.
8. This argument of the learned counsel is wholly misconceived and cannot be given any weight.
The suit was essentially for specific performance of agreement for sale which was the only relief prayed for and has been granted by the trial Court. Although, it is correct that the respondents had stated in the plaint that as the appellant had failed to perform his part of the contract, as per terms of the agreement, they were entitled to have the sale-deed executed in lieu of Rs,2,00,000 as earnest money and were not oblige to make any further payment but the question as to on what terms the specific performance was to be ordered was for the Court itself to decide. It is, therefore, ideal on the part of the appellant to contend that the relief not prayed for had been granted to the respondents.
9. Be that as it may, even on legal premises, this argument hardly stands to scrutiny. Under Order 7, Rule 7 of the C.P.C. It is open to the Court to mould the prayer made in the plaint and grant proper relief in the circumstances of a given case. It is since long well-settled that if the plaintiff has asked for a larger relief but the Court comes to the conclusion that he is entitled to a lesser relief, the suit cannot be dismissed but the relief to which the plaintiff is entitled must be granted. Reference in this connection may be made to Muhammad Ilyas Hussain v. Cantonment Board, Rawalpindi PLD.
1976 SC 785, Munshi Khan v. Subhan All and another PLD 1968 Kar. 844, The Chief Administrator of Auqaf, West Pakistan, Lahore v. Pir Rashid-ud-Daula and others PLD 1961 Lah.
993.
10. The learned counsel in support of his submissions noted above, had cited the case of Secretary to Government (West Pakistan) now N.-W.F.P. Department of Agriculture and Forests, Peshawar and others v. Kazi Abdul Latif PLD 1978 SC 242. We are unable to find anything in that judgment to support the contention raised by him. That case is even otherwise distinguishable and has no applicability here. In the present case it was observed by the Supreme Court that the plaintiff cannot be granted a relief larger than what,he has claimed in the suit. There cannot be any cavil with this principle but it hardly applies to the present case as the relief granted to the respondents remains to be that of specific performance of agreement and by directing that the respondents should pay a sum of Rs,5,50,000 to addition to the amount already paid, the relief granted to the respondents cannot be said to be greater than what they claimed. In fact the additional burden of Rs,5,50,000 has been imposed upon the plaintiffs/respondents to the benefit of the appellant. While on this subject, we may also with advantage reproduce the observations of the Supreme Court in Samar Gul v. Central Government and others PLD 1986 SC 35 which are instructive:-- ".... It is well-settled that a Court is empowered to grant such relief as the justice of the case may demand and for purposes of determining the relief asked for, the whole of the plaint must be looked into, so that the substance rather than the form should be examined. The argument advanced on behalf of the respondents is accordingly without substance that no prayer for redemption of the mortgage was made by the appellant in his suit. ... "
11. The only other point urged by the learned counsel for the appellant was that the respondents/plaintiffs had failed to perform their part of the agreement and were as such not entitled to have the same specifically enforced. It was explained that as per terms of the agreement the respondents were bound to pay a sum of Rs,2,00,000 within one month of the agreement which they failed to do and instead paid Rs,50,000 only and thus committed a breach of the contract and their suit could not have been decreed.
12. There is no merit in this contention of the learned counsel. On perusal of the evidence led by the parties with the assistance of the learned counsel, we find that default in performance of obligations under the agreement lay with the appellant and not the respondents.
13. As per terms of the agreement, a sum of Rs,2,00,000 was to be paid by the respondents to the appellant after the delivery of possession of half of the property to them. It is a common ground between the parties that the appellant failed to carry out this obligation but instead only handed over possession of a small portion that too on the receipt of a sum of Rs,50,000 from the respondents. This conclusion is supported by the letter (Exh. P.1) dated 9-4-1991 wherein the appellant had himself admitted that he had not been able to deliver possession of half of the property. In the said letter, it was requested that a sum of Rs,50,000 be paid to him and the possession will be delivered on 12-4-1991. From a perusal of the agreement. It is obvious that payment of Rs,2,00,000 was dependent upon the delivery of possession and as the appellant on his own showing failed to do so within the period of one month stipulated in the agreement, he was clearly not entitled to receive the balance amount. It is also to be noticed that the property was admittedly under mortgage and the appellant had undertaken to have the same redeemed.
According to his own admission, the property was redeemed on 20-7-1993 i,e, during the pendency of the suit for specific performance. In any event, in law stipulations about time for performance of different obligations under contract for sale of immovable property are not of its essence unless the parties had specifically or by necessary implication made the time fixed for performance essence of the contract. See Ghulam Nabi and others v. Seth Muhammad Yaqub PLD 1983 SC 344.
In the present case, there is nothing on the record to show that the time was treated by the parties to be of essence of the contract. Consequently, failure, if any, to pay the balance amount within time cannot result in refusal of relief for specific performance of the contract.
14. We may also notice that as according to the terms of the agreement the appellant had failed to deliver possession of half of the property, within one month of the agreement, the respondents were entitled to have the agreement specifically enforced in lieu of Rs,2,00,000 only already paid as earnest money and stood relieved of the obligation to pay any further amount but the trial Court decreed the suit for Rs,8,00,000 less the amounts already paid. The respondents have not challenged that part of the decree. On the other hand, the learned counsel for the respondents states that the respondents are willing to have the sale-deed executed on the payment of balance amount of Rs,5:50,000 as directed by the trial Court.
' For the foregoing reasons, this appeal fails and is dismissed leaving the parties to bear their own costs.