1. MUKHTAR AHMED JUNEJO, J.---Petitioner Agha Ghazanfar Ali has sought leave to appeal against a judgment dated 18-12-1995 delivered by the Lahore High Court, Rawalpindi Bench in R.F.A. No.327 of 1993.
2. Admittedly, the suit property viz. House No.8, F-8/4, Islamabad, was owned by petitioner Agha Ghazanfar Ali. There was an agreement between the petitioner and the respondent No.1 on 10-6- 1987, by Which the petitioner agreed to sell the suit property to the respondent No. l for an amount of Rs.30,00,000, out of which Rs.5,00,000 were paid through a Pay Order on 10-6-1987 as earnest money. The balance amount was payable by 31-8-1987 and by said date the agreement was to be specifically performed. It is also an admitted fact that besides payment of Rs.5,00,000 by the respondent No.1 to the petitioner on 10-6-1987, another amount of Rs.20,00,000 was paid on 16-7- 1987 and the balance of Rs.5,00,000 payable by 31-8-1987 at the the of receiving transfer of said house, could not be paid to the petitioner and the same was said to have been deposited in Court.
3. In the background of said facts, respondent No.1 Shaukat Ali filed Suit No.244/87 for specific performance of the sale agreement, alleging that the petitioner had been delaying sale of the house on one pretext or the other. The suit was contested by the petitioner, who in his written statement raised preliminary objections that the suit was not maintainable because the respondent No.1 was a property dealer and wanted the house in suit for sale. The petitioner admitted receipt of Rs.25,00,000 and accused the respondent No.1 about his failure to pay balance amount of Rs.5,00,000. It was averred that the agreement between the parties stood annulled and the amount paid to the petitioner stood confiscated. The petitioner denied if he was offered to be paid Rs.5,00,000 on 30-8-1987 or earlier respondent No.1 was accused for violation of the agreement. The petitioner claimed compensation to the extent of twice the price of the property in suit.
4. After framing issues and recording evidence, the trial Court under judgment dated 19-10-1993, decreed the suit and called upon the respondent No.1 to deposit by 11-I1-1993 Rs.5,00,000. The petitioner filed R.F.A. No.327/93 against the judgment and the decree delivered by the Trial Court on .19-10-1993, but the same was dismissed under the impugned judgment dated 18-12-1995. Hence this petition.
5. Raja Muhammad Bashir, learned counsel for the petitioner argued that it was mandatory as per the agreement dated 10-6-1987, that entire amount payable as consideration for the suit property, was cleared by 31-8-1987, but the respondent No. l had failed to do so. It was added that the respondent No.1 was issued a notice on 6-9-1987 by the petitioner to pay balance of the purchase priceand obtain transfer of the property, but the same was not replied. Learned counsel for the petitioner conceded that alongwith making of the last payment to the petitioner, the disputed property was to be transferred to the respondent No. 1. Learned counsel blamed the respondent No. l for violation of the sale agreement dated 10-6-1987 by his failure to pay by 31-8-1987 the balance amount of Rs.5,00,000, without which the property could not be transferred to him. It was emphatically argued that in the instant case the was the essence of the contract and due to non- performance of his part of the contract, by the respondent No. 1, the contract stood annulled. Lastly, it was contended that grant of relief of specific performance of a sale agreement was discretionary with the Courts, that the Courts were not bound to grant such relief in every case and, that the relief of specific performance of a sale agreement was equitable in nature.
6. Khawaja Muhammad Farooq, learned counsel for the respondent No.1 denied receipt of notice dated 6-9-1987 by the respondent No.1. He argued that the respondent No.1 was at no stage given notice, to appear at a particular place for receiving transfer of the disputed property and for making last payment of Rs.5,00,000.
7. Most of the facts of this case are admitted. It is to be appreciated that major portion of price of the house in question was paid during the months of June to August, 1987 viz. Ten years back. Since then the value of the money has been reduced manifold, while conversely the value of the immovable property has been increased manifold. One cannot agree with the learned counsel for the petitioner, that the was the essence of the contract in a case of this nature. This was a contract in respect of sale of immovable property and the same was specifically enforceable in view of section 12 of the Specific Relief Act. The explanation below section 12 of said Act shows that the Court shall presume that the breach of a contract to transfer immovable property, cannot be adequately relieved by compensation in money and that the breach of a contract to transfer movable property can be thus relieved. Even perusal of the sale agreement between the parties shows that the was not the essence of the contract.
8. There are concurrent findings by the Courts below in favour of the respondent No.1. Applying its mind to the facts of this case, the High Court had taken the view that in a contract of sale of immovable property, the is not ordinarily the essence of the contract and that the gap of 13 days between the date fixed for performance of the contract and the date of filing of the suit cannot, on the face of it, be presumed as an intentional one, with a view to take either undue benefit out of the delay or to cause any loss to the party affected thereby. Under the impugned judgment the High Court has taken the view, as follows: "Certainly, transfer of an immovable property under the contract has its own importance and value besides the pecuniary interest attached to it. When there is no hitch or other impediment in the way of transfer of immovable property in favour of a rightful purchaser under the contract then to deprive him of the property and to pay compensation in money cannot be considered as an adequate relief based on principles of equity."
9. It would be to much for the respondent No.1 to be deprived of the property, which was agreed to be sold to him ten years back and of which he paid 5/6 part of the price. It would be inequitable as well as immoral to deprive the respondent No.1 of the fruit of the sale agreement dated 10-6-1987.
10. Hence, leave to appeal is refused and this petition stands dismissed.