' MUHAMMAD BASHIR JEHANGIRI, J.---This appeal with the leave of the Court is directed against the judgment dated 13-11-1995 of the Lahore High Court, Multan Bench, whereby the appellant/plaintiffs Regular Second Appeal was dismissed by upholding the first appellate Court's judgment dated 13- 9-1987 whereby the defendants/respondents' appeal was accepted and the appellant had been non-suited. Leave granting order reads as follows:- "This was a suit for the specific performance of an agreement of sale dated 11-1-1982. The land agreed to be sold measured 47 Kanals; it included 12 Kanals 18 Marlas of land, of which the vendors Mst. Fajji alias Phaji Begum and Mst. Amna Begum were not recorded as owners in the records of right. The sale price was stated to be Rs,75,000; Rs,18,000 was paid as earnest money and the remaining sale price was to be paid upto 31-3-1982. The suit was instituted on 3-5-1982. The learned Civil Judge decreed the suit but on appeal a learned Additional District Judge dismissed the suit. The decree of the Additional District Judge was affirmed by the learned Judge in the High Court by this impugned judgment dated 1-11-1995. It was held that the time was of the essence of the contract.
' Learned counsel for the petitioner has referred us to the agreement to point out that the vendors had agreed that they would have the record to rights, concerning the 12 Kanals and 18 Marlas of land, corrected within six months. Otherwise too, so contended the petitioner's counsel, the agreement relates to immovable property and the presumption is that the time was not of the essence of the contract. Learned counsel for the petitioner has also called our attention to the agreement dated 11-1-1982 was reproduced in the High Court's judgment to show that the relevant portion containing the covenant that the vendors would have the record of right as regards the land measuring 12 Kanals 18 Marlas, corrected within six months was somehow omitted from the agreement reproduced in the High Court's judgment and this was, therefore, also a case of non- reading of a material part of the agreement.
' Leave to appeal is granted inter alia to consider whether the learned Judge in the High Court was right to taking the view that the time was the essence of the contract."
2. The two crucial issues before the learned trial Judge were--
(2) Whether the plaintiff is barred by his own conduct to file this suit? OPD.
(5) Whether the plaintiff has failed to fulfil his part of the contract? If so, with what effect? OPD.
3. The learned trial Judge took up these two issues together and found that the defendants/respondents placed reliance on their affidavit Exh.D-1 scribed by Allah Wasaya D.W.1 and testified to by Abdul Wahid D.W.2 and Mst. Phaji defendant No,1/D.W.3 in support of the fact that on 31-3-1982 the defendants remained "present in the Tehsil compound to get the sale-deed executed but the plaintiff/appellant had failed to arrange for the payment of balance of the sale price." The learned trial Judge disbelieved their testimony for the following reasons: "Neither the identifier Abdul Wahid D.W.2 nor the Oath Commissioner Syed Nazar Hussain Advocate to D.W.3 are sure about the time at which this affidavit was attested. They are also not sure as to whether this affidavit had been attested in Court compound or in the house of the Oath Commissioner. Anyhow, the defendant No,1 Mst. Faji has stated that they had gone to the house of the Oath Commissioner for getting the affidavit attested. She too has stated that they had remained present in the Tehsil compound on 31-3-1982 but the plaintiff had failed to arrange for the payment of the balance of the sale price and it was, therefore, that the sale-deed had not been executed and registered on that date."
4. On the contrary, he preferred to rely on the evidence adduced by the plaintiff/appellant to substantiate the plea that he had remained present in Tehsil premises with the balance of the sale on the specified date but defendants/respondents had not turned up. The learned trial Judge found evidence of Abdul Sattar P.W.3 to be worthy of credence but Abdul Wahid (D.W.3) had not been able to stand the test of cross-examination regarding terms and conditions of the sale agreement". Similarly testimony of Hidayat Ali P.W.2 was accorded credence because he was resident of Chak No,111 TDA where the land was situated and the defendants are also resident of the same Chak". Abdul Wahid D.W.2 was discredited because he was a resident of Layya City having also omitted to disclose his relationship with the defendants. At the end, it was concluded that "even otherwise time is not of essence of contract regarding sale of immovable property...".
5. Before the learned Additional District Judge who was seized of the first appeal filed by the defendants/respondents, the following two propositions were raised for determination:--
(1) Whether time fixed for performance of the agreement is an important factor to be kept in mind?
(2) Which of the parties failed to perform its part of the contract?
6. From the perusal of the sale agreement Exh.P-1 the learned First Appellate Court reached the conclusion that 31-3-1982 has been described as the target date by which the parties were required to have completed the sale transaction and, therefore, the contention raised on behalf of the plaintiff/appellant which had been accepted by the trial Court that the time was not of essence of the contract was fallacious.
7. On the second proposition, the learned first appellate Court found that it was the plaintiff/appellant who had not been able to establish his stance that he was present and ready on 31-3-1982 to perform his part of the sale agreement. In this respect the First Appellate Court observed as under:-- "The important evidence tendered by the appellants consists of their affidavit tendered as Exh.P-1. It is dated 31-3-1982 and says that appellants are present on the date fixed. It is the respondent who is not willing to purchase the land. This document is quite material. It has been duly attested by an advocate namely Syed Nazar Hussain Shah as an Oath Commissioner. Syed Nazar Hussain Shah has appeared in the Court as D.W.3. Moreover, Allah Wassaya petitions writer has also been examined as D.W.1. Both these witnesses supported the version of the appellants."
' In rebuttal the evidence consists of oral statements. As compared with Exh.D1 it is not inspiring. It rather divulges out certain weaknesses in itself. According to the respondent's statement as P.W.4 the respondent appeared before the Tehsildar on the date fixed. He presented an application to that effect before the Tehsildar. The Tehsildar marked his presence alongwith others. As is evident the application presented before Tehsildar and his action to record the presence of the respondent are a matter of record. It being best evidence should have been produced in the Court. The respondent failed to produce that hence he is to suffer."
8. While affirming the order of the Appellate Court, the learned Judge in Chambers of the High Court reasoned as under:
(i) According to appellant-plaintiff, the respondents-defendants did not turn up on the appointed day i.e, on 31-3-1982 and that he remained present before the Registrar and got himself marked present before him. But no evidence about his appearance before the Registrar has been produced;
(ii) Appellant-plaintiff stated that he visited the office of the Registrar on the date referred to above. According to Abdul Sattar (P.W.3) besides himself, Muhammad Yousaf member and Allah Yar also accompanied the appellant-plaintiff to the office of the Registrar but surprisingly neither Yousaf member nor Allah Yar Lumbardar appeared in Court in support of the plaintiff's case as they were the best witnesses holding position of status in society;
(iii) The appellant-plaintiff filed the present suit on 3-5-1982 after more than a month of the day when he allegedly visited office of the Registrar for the purpose in question. In between these days he neither gave any notice to the respondents-defendants nor has; he given any explanation for keeping quite for this long period.
9. Leave to appeal was granted, inter alia, to consider whether the learned Judge in the High Court was right in taking the view that time was of essence of the contract.
10. In support of this appeal, Ch. Muhammad Hasan, learned Advocate Supreme Court, contended that the findings of the learned Appellate Court and maintained by the learned High Court, that time was the essence of the agreement to sell Exh.P-1 as the sale-deed on payment of the balance of the sale consideration had to be executed and got registered by 31-3-1982, were not well- founded, as a bare reading of the agreement to sell Exh.P-1 as a whole did reveal the target date as aforenoted to be of essence of the agreement. In this context it was maintained that in the concluding paragraph of the agreement to sell it had been agreed that correction of entries in the record of rights would be undertaken within 6 months failing which the plaintiff/appellant would pay lease amount therefor to the vendors. Reliance was placed on Allah Din v. Habib (PLD 1982 SC 465) and Ali Muhammad v. Shah Muhammad and others (PLD 1987 Lahore 607). It was next contended that learned Appellate Court and the learned Judge in the High Court had erred to accord authenticity to the affidavit Exh.D-1 which was bed-rock of the respondents' claim but having not been entered in the register of the Oath Commissioner "it could be easily prepared on any date after 31-3-1982". It was lastly contended that if the respondents had actually gone to Tehsil Headquarters on the target date it did not sound reasonable as to why they had not got their presence attested from the Sub-Registrar.
11. Mr. Mahfoozul Haq, learned Advocate Supreme Court, representing the respondents, argued that it was established on the record that the respondents had gone to the Tehsil in Order to perform their part of the agreement Exh.P-1 while the appellant had left the premises saying that he would return after procuring the balance of the sale consideration and then failed to return to the Tehsil and, thus, failed to discharge his liability.
12 None of the two cases cited above advances the case of the appellant. The two points in issue involved in the present controversy are entirely different. These two points are: (1) Which of the parties was at fault in performing its part of the agreement to see Exh.P-1, (2) Whether in the circumstances of the case the time is of essence of the agreement aforesaid.
13. It is settled law that when an inference is to be drawn as to a question of fact, then whether the inference is drawn from oral evidence or from documents it is always a question of fact. The first question adumbrated above is, therefore, one of fact. See Malik Muhammad Hayat Khan v.
Subedar Yar Muhammad Khan (PLD 1966 SC 612). If it is so, and there is no doubt about it, then the question of fact adjudicated concurrently by the lower appellate Court and the High Court in R.S.A.
Cannot be legally interfered with by this Court. It can be interfered with only when decision is erroneous or based on no evidence at all or upon any manifest misreading of evidence or misconception of evidence not honestly arrived at which is not the case before us. On the contrary we find that appraisal of evidence undertaken by the First Appellate Court and then by the High Court in R.S.A. Does not suffer from any infirmity of the kind alluded to above.
14. Again in the case of Nafar Chandra Pal v. Shukur and others 45 I A 183/187 quoted in Muhammad Hayat Khan's case (supra), the following enunciation of law was approved:- "questions of law and of fact are sometimes difficult to disentangle. The proper legal effect of a proved fact is essentially a question of law, so also is the question of admissibility of evidence and the question whether any evidence has been offered on one side or the other, but the question whether the fact has been proved, when evidence for and against has been properly admitted, is necessarily a pure question of fact."
15. Applying the tests laid down above to the present case, we find that question that fell for consideration was as to what was the true intent of the parties to be gathered from the terms of the agreement to sell Exh.P-1, namely, whether the time was of essence of the agreement. A bare reading of the document Exh.P-1 particularly the date of 31-3-1982 agreed to be the target date for execution and registration of the sale-deed notwithstanding the stipulation that the dispute qua 12 Kanals and 11 Marlas out of the entire disputed land, had to be resolved by the respondents conclusively proved that the time was of essence of the agreement to sell. The findings of the learned First Appellate Court duly affirmed in R.S.A. By the High Court are not such as to warrant our interference in this appeal.
16. For these reasons we are of the considered view that this appeal must fail and dismiss it. But the parties are left to bear their own costs.
(Sd.)
Muhammad Bashir Jegangiri, J.
' WAJIHUDDIN AHMED. J:---I entirely agree. In order to determine whether, in relation to a particular contract, time is or is not of the essence, intention of the parties, in terms of section 55 of the Contract Act, is to be assessed. The general rule that time is to be presumed to be of essence in transactions of sale and purchase of goods and that it is usually not of essence in similar transactions touching immovable properties, as recognised by their Lordships in Abdullah Klian v.
Muhammad Khan, PLD 1965 SC 690, can appropriately give way to a contrary intendment in the contemplation of the parties to a contract. Such intention is to be gathered from the terms of the contract itself, as translated by the conduct of the parties and the attending circumstances. The terms themselves are to be construed with reference to the spirit and substance rather than the bare words or recitals in a deed. In the instant case, as observed by my Lord, both the parties stipulated a specific date for completion of the transaction, provided for the transaction to fall through unless completed within time and, above all, acting on the commitment, avowedly, ensured their presence at the time and place where the sale was to be completed, as visualised.
No manner of doubt, therefore, arose in coming to the conclusion that the time, as postulated, was of the essence. Accordingly, I have respectfully subscribed to the judgment proposed by my learned brother.