RAJA FAYYAZ AHMED, J.--- This appeal under section 96, C.P.C. Has been directed against judgment and decree, dated 19-1-1998, passed by Senior Civil Judge, Quetta in Civil Suit No.35 of 1997, whereby the learned trial Court has decreed the respondent's suit for declaration, specific performance of agreement and injunction, against, the appellant; with the prayer to set aside the impugned judgment and decree, and to dismiss the respondent's suit with costs throughout.
2. The precise facts of the case relevant for the disposal of the instant appeal are that on 3-4-1997, the respondent instituted civil suit for declaration, specific performance of agreement and injunction, against the appellant wherein the following reliefs have been sought for:-- "(i)It may be declared that the defendant is bound by the terms and conditions of the agreement, dated 16-9-1996 arrived at between the plaintiff and defendant.
(ii)That the defendant be directed to specifically perform the agreement, dated 16-9-1996 and transfer the property in question in the name of plaintiff after receiving the balance amount.
(i.e)The plaintiff is entitled to the transfer of the property in question in his favour and the defendant is under obligation to do so: (iv)That the defendant be restrained in any way transferring or alienating the property in question in favour of any person whomsoever during the pendency of the suit.
(v)It may be declared that the defendant being owner of the property in question has executed the agreement, dated 16-9-1996 which subsists, valid and binding upon him.
(vi)Any other relief which this Honourable Court may deem fit and proper in the circumstances of the case be awarded.
(vii) Costs of the suit may also be awarded. "
It has been averred in the plaint that the respondent is in possession of a house bearing N0.41I/A- 4/3, Block 3, Satellite Town, Quetta which is a double--storey building and was initially obtained on rent from the appellant against the monthly rentals Rs.3,000 and a sum of Rs.17,000 was deposited by the respondent with the appellant by way of security towards rent. According to the respondent/plaintiff sometime in the month of September, .1996, the appellant acquired absolute title of the suit property i.e. House No.411/A-4/3, Satellite Town, Quetta vide transfer deed duly registered with the Sub-Registrar, Quetta Town at Serial No.392 of Bahi No.1, Volume No.28 page 28- 293, dated 9-6-1982, who offered to sell the abovementioned house to the respondent and after negotiations between the parties sale agreement was executed on 16-9-1996, whereby the appellant agreed to sell the house to the respondent against the sale consideration amount of Rs.8,00,000 (Rs. Eight lacs) out of which an earnest amount of Rs.4,50,000 was received by the appellant against the sale consideration amount. Towards the earnest amount RS.4,00,000 was deposited in the bank account of the appellant, whereas, Rs.33,000 was paid in cash and the security amount of Rs.17,000 already lying with the appellant was adjusted towards the earnest amount and thus, the earnest amount of Rs.4,00,000 stood paid to the appellant. As per sale agreement, dated 16-9-1996 the respondent was liable to pay the balance consideration amount of Rs.3,50,000 to the appellant on or before 16-3-1997. It has been alleged in the plaint that since the execution of sale agreement the possession of the suit property remains with the respondent in his capacity as owner thereof, who as such has been exercising proprietary rights in respect thereof and as such the respondent has spent a huge amount on the repairs and renovation of the suit property.
3. It is the case of the respondent, as set up in the plaint that he throughout remained ready and willing to perform his part of the obligation arising out of the sale agreement pursuant to which a week prior to 16-3-1997, he alongwith the witnesses approached to the appellant and asked him to receive the balance amount of the sale transaction in terms of the agreement by tendering the balance amount of Rs.3,50,000 but he avoided to receive the same on the ground that as the agreement already stands executed, therefore, the respondent should not be in hurry and that he (the appellant) will himself contact to the respondent for the purpose, so as the title of the suit property be also conveyed simultaneously in favour of the respondent. It has been alleged that thereafter the respondent contacted and requested to the appellant to receive the balance amount of sale transaction in cash from him but he did not agree and thus, being constrained in the circumstances, balance amount was remitted through money orders to the appellant which could not be delivered to him because of the appellant's premises found to be locked. It has further been alleged in the plaint that in terms of the agreement respondent/plaintiff duly acted and performed his part of the obligation but the appellant successfully avoided to receive the balance amount of the sale transaction and thus, did not discharge the contractual liability on his part arising out of the contract, despite of the fact that the respondent on his part duly performed his obligation and is still ready to pay the balance amount to the appellant but the appellant postponed the matter on one or the other pretext. It has further been contended that major part of the obligation arising out of the contract already stands discharged by the respondent and in view of the aforementioned facts the respondent as liable to specifically perform the agreement in its entirety for which purpose the respondent approached and requested the appellant to transfer the title of the property in his favour by receiving the balance amount but he avoided to receive the balance amount and to transfer the title of the property in his favour, as such; the suit was instituted against the appellant.
4. The appellant by means of his written statement dated 10-5-1997 repudiated the claim of the respondent on various factual and legal grounds mentioned therein. The appellant/defendant admitted in his written statement that sale agreement dated 16-9-1996 has been executed between the parties pursuant to which an earnest amount of Rs.4,50,000 was also received by him and according to the case of the appellant, balance amount of the sale transaction i.e. Rs.3,50,000 was liable to be paid within a period of six months by the respondent to the appellant from the date of execution of the agreement i.e. Before 16th of March, 1997 but despite repeated demands and several visits within the period of six months from the date of execution of the agreement, the respondent failed to pay the balance amount to the appellant and thus, failed to perform the contractual obligation of his part till the crucial date because the time period specified in the agreement for payment of the balance amount of the sale transaction is the essence of the contract and the earnest amount of Rs.4,50,000 paid to the appellant stood forfeited in terms of the agreement about which the respondent was informed accordingly, who was further called upon to hand over the vacant possession of the house in question to the appellant. It has been denied that the appellant ever failed to perform the contractual obligation on his part but to the contrary, the respondent failed to abide by the terms of the contract and the relief being discretionary in nature, the respondent is not entitled for the specific performance of the agreement in view of the abovementioned facts and circumstances of the case. The appellant in his written statement also denied that the respondent is in possession of the suit property as owner or that he spent a huge amount on alleged repairs and renovation of the house in question. The appellant denied that the balance amount was remitted to him through money orders. In Para. No.4 of the written statement it has been categorically averred that the respondent obtained possession of the suit property after payment of the earnest amount to the appellant and thereafter avoided to make the payment of the balance amount within the stipulated period despite repeated demands and several visits made by the appellant for the purpose and because the time specified in the agreement was the essence of the contract, during which period the respondent failed to discharge his contractual obligation, therefore, he is not entitled for the discretionary relief prayed for. .
5. The learned trial Court (Senior Civil Judge, Quetta) out of pleadings of the parties framed the following issues on 16-5-1997:-- "(1) Whether the suit is not competent under the preliminary objections 'B' and ' C' raised in written statement?
(2)Whether the time was the essence of contract i.e. The plaintiff was bound to pay the remaining balance amount of Rs.3,50,000 on or before 16-3-1997 under the clause (3) of agreement, dated 16- 9-1996?
(3)Whether the plaintiff has been failed to perform his part?
(4)Whether the plaintiff contacted the defendant and asked him to receive the balance amount of the sale transaction but the defendant avoided to receive that?
(5)Whether the plaintiff is entitled for discretionary relief of specified performance?
(6)Relief."
The respondent/plaintiff examined two witnesses in support of his case namely Haji Noor Gul as P.W.1 and Muhammad Hanif as P.W.2 and thereafter the respondent appeared as his own witness.
Whereas; the appellant/defendant produced three witnesses namely Sohail Ahmed as P. W .1, Rafique Mughal as P.W.2 and Mehmoodul Hassan Durrani as P.W.3. The appellant's son namely Muhammad Ayub appeared in the witness-box as his attorney. After close of the parties' case, the learned trial Court after hearing them vide impugned judgment and decree, dated 19-1-1998 decreed the suit in favour of the respondent/plaintiff directing the appellant to perform the agreement dated 16-9-1996 and to transfer the suit property in favour, of the respondent after receiving the balance amount within one month from the date of the decree, impugned in the instant appeal.
6. The learned counsel for the parties were heard on 27-5-1998. Mr. W.N. Kohli the learned counsel for the appellant seriously contended that the postal money order remittance receipts Exh.P.1. To Exh.P.35 are totally deficient to establish the fact that the balance amount of the sale transaction was remitted to the appellant by the respondent and was returned as undelivered in absence of money order forms therefore, in such view of the matter both the learned counsel for the parties agreed that the money order forms pertaining to the abovementioned receipts be directed to be produced by the concerned official of G.P.O., Quetta, accordingly Senior Post Master, G.P.O. Was directed to produce the following documents through duly authorised representative:-- (i)Counterfoils of receipts Nos.09684 to 09718, dated 14-3-1997 in the sum of Rs.10,000 each in favour of Abdul Habib Durrani.
(ii)Money order forms pertaining to money order receipts numbers mentioned above, separately alongwith endorsement of postman deputed to deliver the amount to Abdul Wahab Durrani.
(i.e)Register containing entry to the effect that if the amount was not delivered then to whom it was refunded.
(iv)Any other relevant document to prove the authenticity or otherwise of the abovementioned documents.
Accordingly the matter was fixed as part heard on 1-6-1998 but want of time, the official in attendance was not examined and Mr. Muhammad Hanif, Town Inspector, G.P.O. Was directed to appear on 2-6-1998 but on such date as well, his statement could not be recorded as it was not possible to complete the proceedings within left over time, thus the matter was fixed for 3-6-1998 on which date statement of official Muhammad Hanif Raza, Town Inspector, G.P.O., Quetta was recorded on oath as C.W.1, who produced photostat copies of counterfoils of money order remittance receipts Nos.09684 to 09718 dated 14-3-1997 as C.W.1/A to C.W.1/35 and deposed that the money order forms in respect of the abovementioned receipts have been returned to the remitter, whereas; vouchers thereto have been sent to the Audit Section at Lahore. The witness produced the extract of the postman segister in respect of the abovementioned receipts as C.W.36.
He also produced the extracts of money order paid Register as Exh.C.W.37. And Exh.C.W.38 in respect of the abovesaid receipts. The counterfoils and the postman Register and the money order paid Register after examination returned to the official.
It may be noted that during cross-examination the witness wanted to produce photostat copies of the money order coupons but he was not allowed to do so, as he was directed to confine himself to the record brought by him, however; on the request of Mr. W.N. Kohli permission was accorded to bring on record the coupons.
The witness on cross-examination by the appellant's learned counsel produced such coupons, as Exh.A./1 to Exh.A./35 (pertaining to the abovementioned money order receipts C.W.1/A to C.W.1/A- 35) which according to the witness were given to him by the respondent (Torriali) and the witness identified the respondent by pointing out towards him to be the person who has handed over to him these documents. He further stated that these documents were given to him yesterday i.e. 2- 6-1998 and according to the witness, the name of the sender as her money order coupons produced by him, as Haji Dad Karim who remitted these money orders to Abdul Habib Durrani son of Abdul Aziz Durrani, House No.4-35/37 in front of Azad Qureshi House, New Arif Road, Quetta.
Responding to the cross-questions put by Mr. W.N. Kohli, the witness stated that Raza Muhammad, Postman was deputed to deliver these money orders who also was the postman of the area and that if the house of addressee is found to be locked, the postman at best will make further efforts on the following dates to locate the person, to whom the money order is to be delivered and in the instant case, such exercise was done by the postman thrice but the house of Abdul Habib Durrani was found locked, therefore, he brought back the amount of money order.
The witness on cross-examination by Mr. M. Hashim Kakar, the learned counsel for the respondent/plaintiff stated that on the reverse of Exh.A./1 to Exh.A./35 signature of respondent Toriali, are available; which indicate that respondent had received the amount of undelivered money orders.
As according to C.W:l Muhammad Hanif Raza, signatures of respondent Toriali are available on the reverse of Exh.A./1 to Exh.A./35, therefore, on the request of respondent's counsel he was allowed to examine the respondent (Toriali) but Mr. W.N. Kohli objected to the request so made.
Respondent Toriali in his statement recorded on oath deposed that Haji Dad Karim is his business partner but he does not know the father's name of Haji Dad Karim. According to the respondent they have partnership business in Abdullah Market Chauhar Mal Road, Quetta and he had given the address of appellant Abdul Habib Durrani to Haji Dad Karim to remit thirty-five money orders worth Rs.3,50,000 on his behalf to the appellant which were returned as undelivered, therefore, he received back the amount of remittances by putting his signature on the reverse of Exh.C.W.-A to C.
W.1/A-35 which he identified on these documents. The respondent further deposed that before remitting money orders he enquired about the address of the appellant and came to know that he was residing on New Arif Road, so he sent the money orders on such address and added that he had also accompanied the concerned postman. He further stated that even now he is ready to pay the balance amount of Rs.3,50,000 to the appellant plus an amount of Rs.50,000 by way of compensation.
Opportunity of cross-examination was afforded to the appellant's counsel, which he availed.
The respondent in the cross-examination part of his statement deposed he has no written partnership document with Haji Dad Karim and does know the name of the market in which such business was being run, however; it was in the name of Haji Dad Karim, with whom he has the partnership business for the last two years, and again stated that his brother Haji Abdul Hadi has the partnership business with Haji Dad Karim. He further disclosed that in the month of March, 1997 he was working in Japan Cloth Market, Pashtoonabad, Quetta. Responding to the cross-questions of the appellant's counsel stated that he does not remember the names of the persons from whom he enquired about the address of the appellant and denied that he did not remit the balance amount of Rs.3,50,000 to Abdul Habib Durrani by money orders and also denied that he did not send the money order on his address mentioned in the agreement.
7. Consequent upon the statements of C.W.1 and the respondent having been recorded, the learned counsel for the parties have been heard at length. Mr. W.N. Kohli contended that time was the essence of the contract executed between the parties but the respondent failed to discharge his part of the obligation in terms of the agreement within the specified period, as such, the agreement stood recinded between the parties and the earnest amount as per clause No.5 of the agreement forfeited. The learned counsel made reference to the provisions of sections 11 and 37 of Contract Act and placed reliance on section 55 of the Act. Touching to the merits of the case, the learned counsel submitted that money orders in question were not remitted by the respondent which purports to have been sent by one Haji Dad Karim, not a party to the agreement therefore, such remittances cannot equated to the discharge of contractual obligation on the part of the respondent, which even if presumed, to have been sent on the correct address remain inconsequential, thus, it cannot be treated as valid tender nor the appellant was bound to receive such remittance, moreover; without prejudice to the above pleas, the same were not sent on the address given in the agreement. According to the learned counsel such facts were withheld by the respondent which came to light during the statement of C.W.1 recorded by this Court and the statement of respondent recorded at appellate stage will not improve the case of the respondent.
The learned counsel further argued that the money order coupons produced by CW.1 do not reveal that the amount was sent on behalf of the respondent and there is no evidence except the afterthought statement of respondent that the appellant had shifted from the address given in the agreement or was not available on such address, inasmuch as; Dad Karim was not examined to substantiate the plea that money orders were sent by him on behalf of the respondent. The learned counsel strenuously argued that in the given facts and circumstances of the case the respondent was not entitled to the discretionary relief, as such; the impugned decree is not sustainable and the suit is liable to dismissal. He placed reliance on 1920 Indian Cases (I.C.) Vol. 57 Mad. 458.
8. Mr. Muhammad Hashim Kakar, the learned counsel for the respondent submitted that time was not the essence of the contract because the specification of the time period for payment of the balance amount of sale transaction and clause No.5 of the agreement was meant together the intention of the parties about the agreement to be specifically performed. He further submitted that substantial part of the agreement was performed by the respondent and pursuant to the agreement the possession of the house in question too was regularized in favour of the respondent, and; that in cases of immovable properties, where a substantial performance of the agreement has been made, the time specified for the performance of the remainder part of liability would not generally be treated, as essence of the contract; rather the intention of the parties is to be looked into while construing such document and in such-like cases where the discretion has been exercised by the Court, may not be ordinarily interfered with. He placed reliance on the reported judgments i.e. 1988 CLC 1546, 1984 CLC (Kar.) 3462, 1982 CLC 81 and 1995 SCMR 1431. The learned counsel further contended that the respondent did not commit breach of contract who repeatedly approached to the appellant for the purpose and finally remitted the balance amount to the appellant vide money orders, which fact is indicative of the intention of the respondent that he wanted to discharge his contractual obligation even within the stipulated period. According to the learned counsel no one except the respondent would have remitted the amount of Rs.3,50,000 to the appellant who received back the amount, due to non-delivery of the money orders; he contended that the learned trial Court in view of the available evidence on record appropriately and in accordance with law exercised the discretion in favour of the respondent, which; in the circumstances of the case is not open to any interference.
9. We have considered the respective contentions put forth on behalf of the parties in the light of the record of the case and the law, besides the impugned judgment which has been gone through.
It is the case of the respondent that he is in possession of the house in question which was initially obtained by him on rent and an amount of Rs.17,000 was deposited with the appellant by way of security deposit towards rent and on 16-9-1996 a sale agreement in respect of the abovementioned house was executed between the parties whereby the appellant agreed to sell the same to the respondent against consideration amount of Rs.8,00,000 (Rs. Eight lacs) out of which an earnest amount of Rs.4,50,000 (Rs. Four lacs fifty thousand) was paid to the appellant and this earnest amount was paid in the manner that an amount of Rs. Four lacs was deposited in the bank account of appellant, Rs.33,000 was paid in cash, whereas; the security deposit of Rs.17,000 adjusted towards the earnest amount of the transaction. As per sale agreement the balance amount of Rs.3,50,000 was to be paid within six months of the date of execution of the agreement i.e. By or before 16-3-1997, and; that the respondent throughout remained ready and willing to discharge his part of the contractual obligation, who a week prior to 16-3-1997 accompanied by witnesses approached to the appellant and tendered to him the balance amount of the sale transaction, which was not received by the appellant on the pretext that the agreement already stands executed, so the respondent was not to be in hurry and that the appellant would himself contact him, so that the title of suit property be also at the same time transferred in favour of the vendee. Thereafter, according to the respondents' case he again approached to the appellant and offered him to receive the balance amount in cash, to which he did not agree and thus, being constrained he remitted the balance amount to the appellant through money orders which were returned as undelivered. As such it has been contended in the plaint that the respondent on his part tried to discharge the contractual obligation and still he is ready to pay the balance amount of the transaction to the appellant but he postponed the matter on one or the other pretext and therefore, the appellant is liable to specifically perform his part of the obligation by receiving the balance amount of the sale transaction and to convey the title of the property in his favour.
The claim as lodged in the suit has been repudiated by the appellant in his written statement on the ground that the respondent failed to discharge his part of the contractual obligation within the period of six months and on his failure to pay the balance amount to the appellant, the contract stood recinded because the time specified in the agreement was the essence of the contract and therefore, as per clause No. 5 of the agreement the earnest amount stood forfeited in favour of the appellant, which fact was also communicated to the respondent. In para. No.4 of the written statement specifically, it has been averred that possession of the suit property was obtained by,the respondent on payment of the earnest amount of the sale transaction, who thereafter avoided to pay the balance amount, despite repeated demands and several visits made by the appellant for the purpose. According it has been averred that the relief being discretionary in nature, the respondent is not entitled to seek specific performance of agreement in the abovementioned facts and circumstances of the case. It has been denied that the respondent incurred any amount on the repairs/renovation of the house or that the balance amount was remitted to him through money orders.
10. According to Haji Noor Gal (P.W.1) he was told about the sale transaction by the respondent after three months of the said transaction, who further informed him that the appellant is not receiving the balance amount from him and on 11-3-1997 the witness alongwith the respondent, his brother i.e. Haji Abdul Hadi and Abdul Rehman's at 8 p.m. Went to the house of the appellant situate at Arif Road to pay to him Rs. Three lacs fifty thousand which they had taken along but according to the witness, the amount was not received by the appellant. He further deposed that on 12-3-1997 and 13-3-1997 the appellant accompanied by Nematullah had visited their shop and demanded more money, whereafter; on 13th of the month, money order was remitted to the appellant. The witness on cross-examination, stated that he has no knowledge if the appellant is incapacitated to move about and is, thus, confined to his house, nor has any knowledge whether the appellant repeatedly sent his sons to the respondent for taking money. He denied that on 12th and 13th of March, the appellant had visited the respondent for the amount but he refused to pay the same.
The remaining part of the cross-examination is not relevant.
Muhammad Raza (P.W.2) produced copies of the money order remittance receipts as Exh.P.1 to Exh.P.35 bearing Nos.09684 to 09718 indicating that remittance of Rs.10,000 against each of the receipt was made in the name of appellant (Abdul Habib Durrani) and on cross-examination the witness stated that all these money orders receipts indicate that these were sent through G.P.O., Quetta and the receipts do not bear the name of the remitter and further explained that the address of the payee appears in money order form. The witness admitted that in case of non- delivery of money order, the money order form is received back in the post office and in case of the delivery of money order to the addressee, half of the money order form is received back in Post Office and the same is sent to the remitter. The witness further stated that the receipts produced by him reveal that the amount mentioned therein was sent on 14-3-1997 and explained that from the postman book and the money order register it can be ascertained if money order has been delivered.
Note.--- The witness had produced original record of receipts Exh.P.1 to Exh.P.35, who admitted that he has not brought the relevant record about the delivery or otherwise of the money orders and it appears from the record that such documents were not required to be produced through this witness.
The respondent/plaintiff namely Toryalay deposed in his statement that he had obtained the house in question on rent from the appellant and an amount of Rs.17,000 was deposited by way of security with the appellant and stated that in the month of September, 1996 vide agreement produced by him as Exh.P.36, the said house was agreed to be sold to him by the appellant against the sale consideration of Rs.8,00,000. He further stated that he pail a cash amount of Rs.4,50,000 to the appellant pursuant to the transaction and out of such amount Rs.4,00,000 was deposited in the bank account of the appellant and as per agreement the balance amount was to be paid by him within six months. According to the respondent on 11-3-1997 he accompanied by Haji Abdul Hadi, Haji Abdul Rehman's and Haji Noor Gal visited the appellant to pay the amount but refused to receive the same, and; on 12th March, 1997 the appellant alongwith Nehmatullah, Advocate came to the shop of Messrs Haji Abdul Rehman's, Noor Gul, who demanded more amount and on the next following day, according to the respondent, he remitted Rs.3,50,000 through money orders to the appellant. He prayed that the title of the house be transferred in his favour and the appellant directed to receive the balance amount of Rs.3,50,000. The respondent in the cross-examination part of his statement deposed that they had gone to the house of the appellant situate at New Arif Road, Municipal number whereof he cannot state. He admitted that prior to 16-2-1997 Rs.3,50,000 was not deposited in the office of Sub-Registrar or in the Court. He denied that prior to 16-3-1997 Rs.3,50,000 was not tendered to the appellant in terms of the agreement, therefore, the amount of Rs.4,50,000 was forfeited by the appellant who communicated such fact to the respondent through witnesses. The respondent denied that he committed breach of contract.
10. Sohail Ahmed (D.W.1) deposed that he was told by the appellant i.e. His aunt's husband that he has struck bargain for the sale of the disputed house to the respondent against the sale consideration of Rs.8,00,000 and that an amount of Rs.4,50,000 has been paid to him, whereas; the balance amount is payable within six months. The evidence of this witness is inconsequential because the transaction in question and the execution of the agreement between the parties is admitted by the appellant and secondly for the reason that his evidence is hearsay.
Rafique Mughal (D.W.2) deposed that the house in question was agreed to be sold to the respondent in the month of September, 1996 against the sale consideration amount of Rs.8,00,000 and the respondent had paid an amount of Rs.4,00,000 to the appellant, whereas; the balance amount was to be pain within six months. According to the witness, they had visited to respondent in order to receive the balance amount of transaction but the respondent always avoided, he stated that Akram, Sohail, Ayub and Sultan were also accompanying him when he had visited to the respondent. The witness stated that lastly in March, 1997 they had gone to the respondent and Ayub had demanded the amount but the respondent did not pay the amount and he on the same day came to know that it was the last date for the payment of the amount. The witness responding to the question put to him by the appellants, counsel stated that Muhammad Ayub is the son of the appellant who is his business partner and stated that many a times they had gone to the respondent and lastly on 15th or 16th of March, 1997 they had gone to the respondent. He further stated that after every fortnight in the month of February and March, 1997, they had contacted the respondent. The witness denied that the respondent had paid Rs.4,50,000 to the appellant.
Mehmoodul Hassan (D.W.3) who is son of the appellant deposed that the disputed house was sold to the respondent against the sale consideration of Rs.8,00,000 and the respondent had paid an amount of Rs.4,50,000 to the appellant and the balance amount of Rs.3,50,000 was to be paid within six months. According to the witness he alongwith his brother had visited the shop of the respondent for balance amount but the respondent refused to pay the same and lastly on 16-3- 1997 they had gone to the respondent accompanied by Abdul Wadood and Ayub but the respondent refused to pay the same. The witness in the cross-examination part of his statement admitted that Sohail (D.W.1) is his cousin brother and stated that twice or thrice he had gone to the shop of the respondent but such dates are not remembered by him. He denied that the respondent, Haji Abdul Hadi and Noor Gul had visited their house for the purpose of payment of amount to his father and further the witness denied that his father and Nehmatullah had visited the shop of Haji Noor Gul and demanded excessive amount. The .Witness admitted that the respondent is still ready to make payment of Rs.3,50,000 but stated that since the amount was not paid within the specified time, therefore, now such amount is not required to be paid.
Son of the appellant namely Muhammad Ayub appeared in the witness---box as attorney for the appellant/defendant, who deposed that the respondent was a tenant in the disputed house which was agreed to be sold to him on 16-9-1996 and according to him till date the balance amount of sale transaction has not been paid and according to him lastly on 16-3-1997 he alongwith his friends had visited the house of the respondent and again said that he had gone alongwith his brothers at the shop of the respondent. The attorney for the appellant in the cross-examination part of his statement denied the suggestion put to him that the respondent, Abdul Hadi and Haji Noor Gul and others had come to his father in order to make payment of the amount for three times and his father refused to receive the amount. He also denied that for such purpose the respondent had visited to his father on 11-3-1997. He admitted that till date the respondent is ready to make payment of the amount and added that the same was not paid within the specified time, therefore, they are not willing to receive the same.
Issue No.1 relates to the preliminary Objections ' B' and ' C' raised in the written statement. For convenience objection ' B' is reproduced below:-- "The cause of action has not been properly described. The cause of action is throughout vague and fails to give the proper particulars and details constituting the cause of action, thus, the same is liable to be dismissed. "
Objection ' B' noted above has been resolved in negative and such findings have not been questioned during the course of arguments by the appellant's counsel and most probably for the reason that the objection was not pressed before the trial Court as well.
Objection 'C' (2nd part of Issue No. l) pertains to the effect that time specified in the agreement was the essence of the contract and the plaintiff failed to discharge his part of the contractual obligation within the stipulated period as per clause No.3 therefore, the earnest amount was forfeited within the knowledge of the plaintiff in terms of clause 5 of the agreement, as such; the suit is incompetent and no discretionary relief by way of specific performance can be granted. As this part of the issue was related directly to issue No.2 struck on merits therefore, the trial Court has decided the same conjointly. The Issues Nos.2 and 3 have been decided by the trial Court in negative, whereas; Issue No.4 resolved in affirmative and resultantly Issue No.5 decided in affirmative and the suit accordingly has been decreed in favour of the plaintiff/respondent.
12. The main contest between the parties relates to the question as to whether the time specified in the agreement is the essence of the contract or otherwise. The learned counsel for the appellant emphatically contended that time specified in the agreement is the essence of the contract and the respondent failed to discharge his contractual obligation within the period of six months from the date of execution of agreement. At the cost of repetition, it may be noted that sale agreement was executed between the parties on 19-9-1996 whereby the appellant agreed to sell the house in question to the respondent against the sale consideration amount of Rs. Eight lacs, out of which an earnest amount of Rs. Four lacs fifty thousand was paid to the appellant at the time of execution of agreement and the balance amount was to be paid by the respondent within a period of six months to the appellant i.e. By or before 16-3-1997 and on receipt of the balance amount of the transaction, the promisee/appellant had to transfer the title of the suit property in favour of the respondent, clause No.5 of the agreement provides that in case; the 1st party (appellant) resiles or rescinds the contract, he shall be liable to return the received amount (earnest money) in addition to the penalty equal to the earnest money to the 2nd party (respondent) and; in case, the respondent resiled from the agreement, the earnest amount paid by him shall be liable to forfeiture. In view of clause No.3 of the agreement the learned counsel for the appellant contended that six months' time period is the essence of the contract, within which span the respondent had to make payment of the balance amount of the sale transaction to the appellant, but he failed to discharge the liability, as such; within the meaning of clause No.5 of the agreement, the earnest amount was forfeited and the contract therefore, stood rescinded. The learned counsel in support of his plea about the time being the essence of the contract placed reliance on 1920 Indian Cases Vol.57 Mad. 485. On the other hand the learned counsel Mr. M. Hashim Kakar, argued that time is not the essence of the contract and has been rightly held so by the trial Court. He further contended that clauses Nos.3 and 5 of the agreement spells out such intention of the parties, coupled with the conduct of the respondent that he throughout remained willing and ready to discharge his part of the contractual obligations and promptly placed the cause before the Court, because the promisee avoided to receive the balance amount of the transaction.
The precise facts of the cited case-law i.e. 1920 Indian Cases Vol.57 Mad. 485 are that the plaintiff agreed to purchase certain land before the end of April, 1914. After several extensions of time granted to the plaintiff by the vendor for payment of the price, the latter sent a pre-emptory notice to the plaintiff requiring him to complete the purchase within a week. Default having been made at the end of the week, the vendor cancelled the contract and appropriated the earnest money, which had been paid to him towards the purchase. In a suit for specific performance: "Held, (1) that as time had been made of the essence of the contract, plaintiff's non-compliance with the vendor's final notice amounted to repudiation of contract and that, therefore, the plaintiff was not entitled to specific performance; (2)that the vendor was entitled to retain the earnest money in the shape of reasonable damages for the vendee's breach of contract."
The facts of the instant case are quite distinguishable to the one contained in the above-referred case-law, wherein several extensions of time was allowed to the premises (vendee) to complete the sale and finally the promisee (vendee) sent a peremptory notice to the plaintiff to complete the sale and default committed by him on the last day of permissible time to complete the purchase, and secondly in view of the given facts and circumstances of the case it has been held in the above-quoted case-law that time was the essence of the contract, and; thirdly in view of the extension of time for the performance of the contractual obligation; different view has been taken in the reported judgments i.e. PLD reported in 1995 Lah. 405, 1995 SCMR 1431 and 1994 SCMR 2189.
13. Honourable Supreme Court of Pakistan seized of a like matter while examining as to whether time is the essence of contract (commercial) interpreted and dilated upon the provisions of sections 55, 73 and 74 of the Contract Act, 1872 in the case of Sandoz Ltd. And another v. Federation of Pakistan and others reported in 1995 SCMR 1431, held that unless the contract itself expressly provides that the time of the performance of the contract is of the essence, it would not be so. The factors relevant for determination, as to whether time is the essence of contract within the purview of section 55 of the Contract Act, 1872, has been referred to in the abovementioned judgment, besides the legal incidents of breach of contract, repudiation of contract has also been dealt with.
It would be appropriate to reproduce hereinbelow the relevant parts of the judgment of the Honourable Supreme Court:-- "17. The Courts inter alia in the sub-continent while dealing with the contracts involving sale of immovable property have consistently held that unless the contract itself expressly provides that the time of the performance of the contract is the essence, it would not be so. Suffice it to refer to some judgments of this Court on the above legal proposition, namely, to the case of Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala (PLD 1962 SC 1) and to the case of Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344).
20From the above-quoted passages from the above well-known treatises, it is evident: (i)The parties to a contract may make time for the performance of their contract as the essence by expressly providing that 'time is of the essence' or by using any other words which may manifest that the intention of the parties is that the time shall be of essence of the contract.
(ii)That the intention of the parties as to the factum, whether the time for the performance of the contract is of the essence or not may be ascertained by the nature of the contract or the circumstances of the case. If the nature of the contract is such that non-performance of the same within the stipulated period rendered the contract for the promisee useless or of no benefit, the time for the performance shall be construed as of the essence.
(i.e)That if non-performance of the contract within the stipulated period does not cause any loss or injury to the promisee, time is not regarded as of the essence of the contract even when a date for completion of the contract is specified.
(iv)The rule of the common law was that time for performance of a contract was always considered as the essence and non-performance of the same within the agreed time used to render a promisor to be sued inter alia for damages, but with the passage of time, the above rule stands modified/negated inter alia by statutory provisions, like section 10(2) of the English Sale of Goods Act, 1893, which provides that stipulations as to the time of payment are not deemed to be the essence of the contract of sale, subject to a contrary express agreement.
(v)When under the terms of the contract both the parties have undertaken to do certain acts, in other words, they have made reciprocal promises, the party who brings an action against the other party will have to prove that he had performed his part under the contract or that he had done everything that was in his power to do before he could bring such an action.
26 In our view, the mere fact that with the date of completion the word positive' has been used or that the Federation provided in the contract for importing technical material by air instead of by sea, are not themselves sufficient to hold that the time was the essence of the contract. The above factums are to be viewed with the terms of the contract as a whole and the facts of the present case. It is the case of A.M.C. That on account of the change in the specifications of the packing material, which matter remained under discussion for nearly 32 days and because of imposition of the curfew in Karachi and Lahore etc. The above formulation work could not have been completed by 30-6-1977. It may be stated that clause 24 of the tender documents provided events, which were to constitute Force Majeure. If the change of specification of the packing material had resulted in some delay not necessarily of 32 days, and if the imposition of the curfew had caused any delay, the original date of completion was no longer enforceable. In this regard reference may be made to an order of this Court in the case of Zaheer Ahmad and another v. Abdul Aziz and others (1983 SCMR 559), in which this Court, while declining leave to appeal against the judgment of the Lahore High Court in a matter involving sale of a house, has observed that a party guilty of preventing completion of a contract within time cannot plead that the time was the essence of the contract. In the present case, in our view, it was the duty of A.M.C. To have made a formal application for the extension of time specifying the exact period for extension on the ground which they could sustain legally, which they failed to do so. There is no doubt that the performance of A.M.C. Was not commendable. Within the contract period, it was able to complete the formulation work to the extent of 206 metric tons against the total of the contracted quantity of 3,000 metric tons, which comes to about 6 or 7 per cent. The heavy burden was on them to justify the delay of each day. We are not impressed by the argument of Mr. Fakhruddin G. Ebrahim that it was for the Federation to have refixed a reasonable date of completion. It is for a contractor to apply for the extension of 'the period and it is not for an employer to extend voluntarily the period. However, his above argument has relevance to the question, whether the Federation through its letter dated 22- 6-1977 (Exh.P.75) could refuse to take delivery of the formulated material after the expiry of the above contract date i.e. 30-6-1977. As we have held that the time was not the essence of the contract, the Federation could not have repudiated the contract but could have claimed damages for the breach of the contract in terms thereof in consonance with law. The Federation could also make time as the essence of the contract by serving a notice providing therein a reasonable period for completion. The Federation's notice of 8 days contained in above Exh.P.75 cannot be treated as a valid notice for making the time as the essence of the contract. We have already referred to hereinabove that the question of changing the specifications of packing was first raised in Exh.P.61 by the Deputy Secretary in his letter dated 30-4-1977. The above question was finally resolved on 30-5-1977 as is evident from Exh.P.67, which is A.M.C.'s letter dated 30-5-1977 with reference to their meeting with the Federal Secretary concerned about the change of specification.
There is lapse of about 30 days between the above two documents. However, A.M.C. Has failed to bring on record reliable material to indicate that on account of the above change in the specification and the delay in taking the decision of the above change, how much quantity of technical material they could not convert into formulated material. The burden was on them. This question has also been dealt with by the High Court very exhaustively.
7.However, this does not affect the conclusion which we intend to take in the above appeals. Even if we were to hold that time was the essence of the contract or that there was breach of contract on the part of Sandoz, the High Court could not have decreed the above two items in favour of the Federation unless the same could have been brought within the purview of sections 73 and 74 of the Act. It may be pertinent to reproduce the above sections, which read as follows:--
73. When a contract has been broken, the party who suffers by such breach is entitled to receive, from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it.
Such compensation is not to be given for any remote and indirect loss or damage sustained by reason bf the breach.
When an obligation resembling those created by contract has been incurred and has not been discharged, any person injured by the failure to discharge it is entitled to receive the same compensation from the party in default, as if such person had contracted to discharge it and had broken his contract.
Explanation.--In estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance of the contract must be taken into account.'
74 When a contract has been broken, if a sum is named in the contract as the amount to be paid in case of such breach, or if the contract contains any other stipulation by way of penalty, the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby, to receive from the party who has broken the contract reasonable compensation not exceeding the amount so named or, as the case may be, the penalty stipulated for.
Explanation.--A stipulation for increased interest from the date of default may be a stipulation by way of penalty.
Exception.--When any person enters into any bail-bond, re-cognizance or other instrument of the same nature, or, under the provisions of any law, or under the orders of the Federal Government or of any Provincial. Government, gives any bond for the performance of any public duty or act in which the public are interested, he shall be liable, upon breach of the condition of any such instrument, to pay the whole sum mentioned therein.
Explanation.--A person who enters into a contract with Government does not necessarily thereby undertake any public duty,-or promise to do an act in which the public are interested. "
A perusal of the above-quoted section 73 shows that it deals with the consequences of breach of a contract and the basis on which compensation for any loss or damage is to be assessed by providing that when a contract has been broken, the party who suffers by such breach is entitled to receive from the party who has broken the contract, compensation for any loss or damage caused to him thereby, which naturally arose in the usual course of things from such breach, or which the parties knew, when they made the contract, to be likely to result from the breach of it. It further provides that such compensation was not to be given for any remote and indirect loss or damage sustained by reason of such breach.
It may also be noticed that second part of the above section deals with a case when an obligation resembling those created by contract has been incurred and has not been discharged. In such a case the compensation is to be assessed on the same basis if there was a breach of contract.
It may further be pointed out that explanation to above section 73 provides guideline to the Court by laying down that in estimating the loss or damage arising from a breach of contract, the means which existed of remedying the inconvenience caused by the non-performance f the contract must be taken into account.
It may be pointed out that section 74 deals with a contract which provides the amount of compensation in the form of penalty or liquidated damages in case of breach. It provides that in such cases the party complaining of the breach is entitled, whether or not actual damage or loss is proved to have been caused thereby to receive from the party who has broken the contract, reasonable compensation not ex9eeding the amount so named or as the case may be the penalty stipulated for.
Explanation 1 lays down that a stipulation for increased interest from the date of default may be a stipulation by way of penalty but to this exception is provided in case of bail-bond or other instrument of same nature furnished under the law or the orders referred to in the above exception.
In such a case, in the event of breach of the condition the whole amount becomes payable.
Whereas explanation 2 to section 74 clarifies that a person who enters into a contract with Government does not necessarily thereby undertake any public duty, or compromise to do an act in which the public are interested."
14. In the case of Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon, etc. Reported in 1994 SCMR 2189 it has been held by the Honourable Supreme Court that delay simpliciter in respect of specific performance of agreement to sell immovable property, short of period of limitation prescribed by Article 113 of Limitation Act, 1908, would not be enough to disentitle a plaintiff to relief of specific performance, and; if delay gives rise to inferences of abandonment or waiver of contract on part of plaintiff (vendee) or vendor on account of delay changes his position in which vendee acquiesed, specific performance may be declined on equitable considerations.
It has further been held in the abovenoted case-law that specific performance can be granted even after expiry of period fixed in agreement of sale of immovable property is not treated as essence of contract; such relief being an equitable relief can be refused only if equities in case are against plaintiff, and; Court while refusing specific performance must find something in conduct of plaintiff which disentitles him to grant of equitable relief of specific performance or Court reaches conclusion that on account of delay in seeking relief, circumstances have so materially changed that it would be unjust to enforce agreement specifically and specific performance cannot however, be refused merely because it is lawful for Court to refuse it.
The relevant part of the judgment is reproduced below for convenience:-- "Section 22 of the Specific Relief Act, though not exhaustive, provides some instances in which the specific relief on a contract may be refused by the Court in its discretion. The learned counsel for the respondents have opposed the grant of specific relief mainly on the ground of delay, abandonment of the relief of specific performance by appellant, and novation of the original contract which the appellant failed to prove. We have already dealt with at length the arguments relating to abandonment of the relief of specific performance by the appellant and effect of novation pleaded by the appellant and these need not be repeated here again. We would therefore, consider here whether the appellant lost her right to enforce the specific performance of the agreement of sale on account of delay on her part.
It is open to the parties while entering in the agreement of sale in respect of an immovable property to provide that the time for performance of the agreement will be treated as essence of the contract. In such cases, if the party seeking enforcement of the contract is shown to be in breach of the contract, the Court may in appropriate cases refuse to enforce the contract. It is, however, well-settled law that in the absence of a provision in the agreement to sell an immovable property that the time fixed for performance of the contract is to be treated as the essence of the contract, the time fixed for performance of the contract is not treated as the essence of the contract. Therefore, specific performance of an agreement of sale relating to immovable property can be granted by Courts even after expiry of the period fixed in the contract. (See Seth Essabhoy v.
Saboor Ahmad, PLD 1973 SC 39). It may also be mentioned here that where the parties have not treated the date fixed for performance of the contract relating to immovable property as the essence of the contract at the time of entering into the agreement subsequently, one of the parties to the contract cannot uniliterally make the time as the essence of the contract (see Abdul Hamid v. Abbas Bhai PLD 1962 SC 1)."
15 Adverting to the question as to whether the time specified in the agreement is the essence of the contract, keeping in view the principles laid down by the Honourable Supreme Court in the abovenoted authorities; it may be noted that clause No.5 of the agreement provides that in case the second party (plaintiff) resiles from the promise, the earnest amount paid by him shall stand forfeited. Except this clause there is no other covenant contained in the agreement pursuant to which the intention of the parties could be gathered and clause No.3 of the agreement simpliciter provides that the balance amount of the sale transaction shall be paid within six months of the execution of the agreement. According to the learned counsel for the appellant the time specified in clause No.3 of the agreement is the essence of contract because in view of clause No.5 of the agreement, on account of failure on the part of the plaintiff to discharge his contractual liability within the specified period, the contract stood rescinded and the earnest amount forfeited.
Bare perusal of clause No.5 of the agreement reveals that it provided penalty against either of the party which resiled from the promise i.e. Completion of sale of immovable property. Such clause of the agreement suggests in positive terms that both the parties were to remain under contractual obligation to complete the sale, having no option to step back and the party who opted to avoid the contract has to undergo the specified penalty, and; therefore, such condition of the agreement exposes the intention of the parties that they intended to go ahead and to complete the sale. The penalty clause contained in the agreement, to us; appears to be a sanction for the enforcement of agreement, so that none of the parties to easily wriggle out of the contract or to avoid his liability.
Had the parties intended to treat the time specified in the agreement be essence of the contract, it would have been provided that time specified in the agreement for discharge of liability on the part of the promisee (respondent) will be the essence of contract or that if the respondent did not complete the sale within the specified period, the contract shall stand revoked etc. But for want of any such express provision in the agreement it is hardly possible to treat the time specified in the agreement, of essence of the contract.
It may be noted that in the penalty clause of the agreement, it has been provided that if the first party (defendant-vendor) resiled or cancelled the bargain, he would be liable to return the received amount (earnest money) to the second party (plaintiff-vendee) plus the equal amount by way of penalty and; if, the second party resiled from the promise the earnest money paid by him would stand forfeited who accordingly shall be liable to hand over vacant possession of the house in question to the first party. This clause of the agreement further lays basis to gather the intendment of the parties that both of them have been bound down to complete the transaction, else the party responsible as abovenoted shall be liable for the specified penalty; having no nexus with the time mentioned in clause No.3 of the agreement for discharge the liability on the part of the vendee.
Merely an express provision in the agreement specifying certain time limit for the performance of contractual undertaking on the part of the promisee in case of sale of immovable property would not make the specified time, as essence of the contract in absence of any such specified intendment or to be evident from the construction of document; which is lacking in the instant case. Thus, we are of the considered view that time specified in the agreement is not the essence of the contract, and rightly concluded so, by the trial Court.'
17. Now it is to be seen as to whether the respondent-vendee wanted to complete the sale or avoided to discharge his liability to complete the sale transaction and slept over his claimed right and appropriately the appellant invoked the exercise of right within the purview of clause No.5 of the agreement. Before dilating upon such question determined hereinafter; it may be noted that in the plaint it has been averred that the plaintiff was in occupation of the suit property as tenant of the appellant against the monthly rentals of Rs.3,000 and an amount of Rs.17,000 was kept by way of security with the vendor/defendant, which amount pursuant to the sale transaction adjusted towards the earnest amount of the transaction and possession of the house regularized in his favour as owner. In the written statement it has not been disputed that the amount of security was adjusted towards the earnest money but denied that the vendee enjoyed the status as owner of suit property, however; in para. No.4 of the written statement it has been mentioned that the possession of suit property was obtained by the vendee on payment of the advance sum, and; in such view of the matter it can safely be said that possession of the suit property was regularized in favour of the vendee pursuant to sale agreement, and; his status as that of tenant stood extinct, on account of the sale transaction.
18. It has been seriously contested before us by the appellant's counsel that the learned trial Court erred on facts by holding that the balance amount of the transaction was remitted to the vendor through money orders because the money order remittance receipts are deficient to establish that the same were sent by the vendee, and; such contention prima facie appeared to be sound therefore, in order to come to a just conclusion, the learned counsel for the parties agreed that the relevant record pertaining to the money order remittance receipts and the money order forms relating thereto, directed to be produced by the concerned official of G.P.O. And accordingly order was passed; pursuant to which Muhammad Hanif Raza, Town Inspector, G.P.O. Examined as C.W.1, who was cross-examined by the parties' counsel. This witness produced counterfoils of money order remittance receipts Nos.09684 to 09718, dated 14-3-1997 as C.W.1/A to C.W.1/35. He also produced the extract of postman register in respect of the abovementioned receipts as C.W.36 and extracts of money order register as C.W.37 and C.W.38 pertaining to the abovenoted money orders.
The witness explained that money order forms were returned to the remitter for want of delivery of the money orders to the addressee and the vouchers thereto have been sent to the Audit Section at Lahore. Exh.P.1 to Exh.P.35 are the postal money order receipts indicating each money order valuing Rs.10,000 sent to the addressee i.e. Abdul Habib Durrani and C.W.1/A to C.W.1/35 are the counter--foils of such receipts -issued from G.P.O., Quetta. Exh.C.W.36 (extract of postman) register contains endorsement of the concerned postman to the effect that the addressee has not been traced and the house was found locked. Address of the appellant in Exh.C.W.36 has been mentioned as Abdul Habib Durrani son of Abdul Aziz Durrani, House No.4/35-36, New Arif Road.
Exh.C.W.37 and Exh.C.W.38 is the extract of money order register comprising of two pages which simply shows that thirty-five money orders each valuing Rs.10,000 were remitted on 14-3-1997 through G.P.O., Quetta. The witness was allowed to produce the photostat copies of money order coupons/forms (which according to the witness, were given to him by the respondent) on the request of the appellant's counsel made during cross-examination, accordingly, , such documents were exhibited as Exh.A./1 to Exh.A./35. The witness in the cross---examination deposed that these documents were given to him by the respondent present in Court on 2-6-1998, and as per Exh.A./1 to Exh.A./35 these money orders were remitted by one Haji Dad Karim to Abdul Habib Durrani, further the witness on cross-examination by the respondents' counsel deposed that Exh.A./1 to Exh.A./35 on overleaf contains the signature of respondent Toriali. The learned counsel for the appellant in view of abovementioned documents emphatically contended that the money orders as per Exh.A./1 to Exh.A./35 were not sent by the respondent rather purports to have been remitted by one Haji Dad Karim, as such; the same cannot be treated as valid tender by the party to the contract, moreover; the same were not remitted on the address mentioned in the agreement and; such material facts were withheld by the respondent during trial purposely. It is pertinent to note that as C.W.1 deposed that Exh.A./1 to Exh.A/35 on its reverse bear the signature of the respondent/vendee therefore, on the request of Mr. M. Hashim Kakar, respondent,was allowed to be examined by him before this Court, in order to come to just conclusion in respect of the controversy resting with the parties; accordingly the respondent was examined on the same date subsequent to the statement of C.W.1, who was also cross-examined by the appellant's counsel. According to respondent (statement recorded by this Court) he has partnership business with Haji Dad Karim, to whom he had given the address of the appellant to remit thirty-five money orders worth Rs.3,50,000 on his behalf, which were returned to him as undelivered under his signatures identified by him on Exhs.C.W.A/1 to C.W.A/35, who further deposed that before remitting money orders he enquired about the address of the appellant and came to know that he was residing at New Arif Road; so on such address money orders were sent, who further offered that besides the balance amount of the transaction he is ready to pay an additional amount of Rs.50,000 to the appellant by way of compensation. It may be noted that the respondent in his statement during trial of case simply stated that he remitted the money order for the balance amount, and; the money order remittance receipts Exh.P.1 to Exh.P.35 reveal that an amount of Rs.3,50,0--0 was sent to the appellant vide these receipts whereas; Exh.A/1 to Exh.A/35 (money orders coupons) indicate that such amount was remitted to the appellant by one Haji Dad Karim and the responder t in his statement before this Court explained that on his behalf these remittances were made by Haji Dad Karim which were returned as undelivered and he received back the remitted amount under his signatures appearing on Exh.A/1 to Exh.A/35. As the additional evidence received by this Court forms part of evidence therefore, the question as to whether the money orders for the balance amount of the transaction was remitted by the respondent, has to be determined on the basis of entire evidence on such point available on record. The appellant denied that any money order was sent to him by the respondent whereas; the respondent stated that the balance amount of the transaction was sent to the appellant and in his statement before this Court explained that money orders were remitted on his behalf under his instructions by Haji Dad Karim who is his business partner and again said that his brother has such partnership with Haji Dad Karim. The learned counsel for the appellant did not make any request to examine, the appellant Abdul Habib in rebuttal therefore, it can be safely inferred from the deposition of the respondent that Haji Dad Karim had remitted an amount of Rs.3,50,000 to the appellant on behalf of the respondent, which amount he received back under his signatures because M.Os. Were returned as undelivered.
Exh.C.W.36 reveals that these money orders were not delivered to the addressee because the house was found locked. Exh.A/1 to Exh.A/35 (money order coupons) as were brought on record during cross-examination by the appellant's counsel conducted on C.W.1, therefore, to us, justifiably on request by Mr. M. Hashim Kakar, he was allowed to examine the respondent to explain his position respecting the money orders, amount whereof was received by him on return of money orders as undelivered. In absence of any other evidence produced in rebuttal, it cannot be assumed in view of the abovementioned facts that Haji Dad Karim independently on account of some other deal had sent the amount of Rs.3,50,000 to the appellant and moreover; receiving back the amount by the respondents on return of money orders supports to the explanation offered by respondent in his statement before this Court, that he was the actual remitter of the money orders, on whose behalf the same were sent to the appellant.
It has been argued by the appellant's learned counsel that without prejudice to his contentions, the money orders as per Exh.C.W.36 and Exh.A/l to Exh.A/35 were not sent on the address of the appellant mentioned in the agreement, rather on incorrect address these were remitted. It may be noted that the money orders were sent on the address given in the title of the suit, on which given address notice of the institution of the suit was served upon the appellant. The respondent in his statement recorded by this Court stated that on inquiry he came to know that the appellant is residing at New Arif Road, and such claim was not challenged in cross-examination by the appellant's counsel, moreover; the appellant's witnesses namely Rafique Moghul and Mehmood- ul-Hassan in the cross-examination part of their statement deposed that the appellant is residing at New Arif Road. Thus, it can be safely inferred that the appellant is resident of New Arif Road, on which address containing Municipal Number of the house, the money orders were remitted to the appellant even prior to the date specified in the agreement for the discharge of the liability on the part of the plaintiff-vendee.
19. From the deposition of plaintiff and his witness namely Haji Noor Gul it transpires that he tendered the balance amount of the sale transaction to the appellant-vendor prior to the date specified in the agreement but the same was not received by him and on 13-3-1997 such amount was remitted to the appellant vide money orders, whereas; the evidence of the defendant's witnesses namely Rafique Mughal (P.W.2), Mehmood-ul-Hassan P.W.3) and that of defendant's attorney is to the effect that prior to the last date specified in the agreement for payment of the balance amount of the sale transaction and even on such last date i.e. 16-3-1997 the vendor had approached to the vendee-respondent to receive the balance amount but the respondent declined to discharge his liability. Deposition of (D.W.1) Sohail Ahmed is only to the effect of sale transaction having taken place and his evidence is even hearsay. Attorney for the vendor namely Muhammad Ayub who happens to be the son of the vendor-defendant and P.W.3 Mehmood-ul- Hassan in cross-examination confirmed to the fact that the vendee still is ready to pay the balance amount but such amount was not paid within the specified time, scrutiny of the evidence reveals that both the parties intended to complete the transaction but each has blamed that the other was not ready to discharge the liability or to perform the required act. It is not disputed by the vendor in his evidence that the vendee still remains ready to make payment of the balance amount of the transaction but he declined to receive the same after due date because such amount was not paid within the specified period i.e. Up to 16-3-1997. As above held since the time specified in the 8 agreement for discharge of contractual liability on the part of the promise e-- vendee was not the essence of contract, therefore, delay simpliciter, if any, to perform the liability is not always fatal to seek specific performance of agreement. It would be worth while to note that by or before 16-3-1997 the balance amount of the sale transaction was to be paid by the vendee and on 3-4-1997 he instituted the instant suit which further indicates that even for seeking the relief, the plaintiff acted earnestly and promptly.
20. There is nothing on record to suggest that due to alleged failure on the part of the promisee to discharge the agreed liability within the specified time, the vendor was deprived of the whole or part of the benefit which he intended to obtain out of the contract. In view of the fact and circumstances of the case discussed above, there appears to be nothing adverse in the conduct of the plaintiff which disentitles him to the grant of equitable relief of specific performance nor it can be inferred from the evidence available on record that the plaintiff abandoned or waived his right for the completion of the sale. The contention of the appellant's counsel that the agreement has been rescinded by the vendor, forfeiting the earnest amount on account of breach of contract by the vendee, to us; in view of the above discussed facts and circumstances of the case is not permissible and without any substance. We are of the considered opinion that the learned trial Court rightly decreed the suit in favour of the respondent. The case-law i.e. PLD 1983 SC 344; 1984 CLC (Kar.) 3467; PLD 1995 Lah. 405 and 1982 CLC (Lah.) 81 cited by the respondent's counsel are substantially distinguishable to the facts of the instant case hence of no avail to the contentions of the learned counsel.
21. Respondent vendee in his statement before this Court offered to pay an amount of Rs.50,000 to the vendor, over and above the balance amount of the sale transaction i.e. 3,50,000 by way of compensation and the appellant refused to accept the offer. It appears that the vendee has offered to pay the additional amount most probably for the reason that since March, 1997 the appreciation in the value of suit property must have occurred although no evidence to that effect is available on record but as that some increase in the value of suit property during this span must have taken place, and such increase in the value of property in the given facts and circumstances of the case cannot be attributed to the vendee, as such; we feel that the appellant-vendor is entitled to the amount of compensation offered by the respondent, on equitable basis, 1994 SCMR 2189 ref.
22. Thus, for the foregoing reasons we find no merit in the appeal which accordingly, is dismissed, with no order as to costs. However, as above observed the respondent is liable to pay an amount of Rs.50,000 by way of compensation to the appellant within two weeks of this judgment in addition to the balance amount of the sale transaction; the decree of trial Court is modified to the above extent. Decree-sheet be drawn ;zcordingly.