SYED DEEDAR HUSSAIN SHAH, J. - Respondents/plaintiffs filed suit for specific performance of the contract against appellants/defendants bearing suit,No. 149/1998. The case of the respondents in brief is that the appellants/defendants are sisters inter se and are co-owners of property plot of land bearing survey No. 1, Sheet No. K.G.8 situated at Ghulam Hussain Qasim Quarters, Kharadar, Karachi measuring 4546 sq. Yards with building and structures thereon. Respondents had entered into agreement for purchase of the said land with the appellants vide sale agreement dated 13.2.1980 at the rate of Rs.800/- per square yard for a total consideration of Rs.36,36,800/-. The appellants received amount of Rs.3,75,000/- towards part payment of the said consideration. The suit property was in occupation of M/s. Bengal Oil Mills Ltd. As tenant. The appellants simultaneously with signing of the agreement also executed a power-of attorney in favour of the respondent of Mr. Fazal-ur-Rehman, the predecessor-in-interest in order to enable him to obtain possession from the above tenant directly. Under the agreement the appellants were required to obtain Capital Gain Tax Clearance Certificate from Excise and Taxation Department in order to execute the sale-deed in favour of the plaintiffs/respondents. The time for completing for sale was fixed in agreement as four months which could be extended by another two months by mutual agreement. The balance of the, sale price was to be paid to the appellants at the time of registration of sale-deed before the sub-Registrar. The appellants had applied for the grant of requisite Capital Gain Tax Clearance Certificate and the Excise and Taxation Department assessing the value of the property at the rate of Rs.1800/- per square yard as against the agreed valuation of Rs.800/- per month demanded from the appellants Capital Gain Tax in the sum of Rs.22,00,000/-, against which demand the appellants had filed an appeal before the competent Authority. However, the appellants did not get the required Capital Gain Tax Clearance Certificate, till 30.6.1986 after which date the Government of Sindh through Sindh Finance Act, 1986 abolished, the Capital Gain Tax and as such requirement of production of said certificate was done away with; but while abolishing the Capital Gain Tax the Government had enhanced the stamp duty for registration of sale-deed from 6% to 8%. There was lot of exchange of correspondence between the parties. Appellants in first phase of correspondence demanded the remaining balance of sale price whereas respondents insisted that they should first obtain Capital Gain Tax Clearance Certificate so that sale-deed can be executed. After abolition of the Capital Gain Tax another issue arose between the parties as the respondents demanded that due to the delay in obtaining Capital Gain Tax Clearance Certificate the respondents have been put to loss due to increase in stamp duty. Respondents also demanded that appellants should share additional burden on account of increase in Stamp Duty. Inspite of lot of correspondence between the parties this issue could not be resolved. The appellants vide letter dated 23.9.1986 which is Ex.8/20 called upon the respondents to complete the sale on or before 21st October, 1986. The respondent claimed that he had not received the said letter and there was further correspondence between the parties. Vide letter dated 21.12.1987 Ex.8/40 the appellants informed the respondents that agreement of sale stood cancelled, revoked and terminated. The respondents thereafter filed present suit on 25.2.1988 through his duly constituted attorney Basir Hassan in whose favour he executed irrevocable power-of-attorney. During the pendency of the suit plaintiff died and there after his legal heirs were joined as plaintiffs in the suit as such amended plaint was filed for the following reliefs:-
(a) A judgment and decree against the defendants jointly and/or severally for the; specific performance of the agreement dated 13.2.1980 and registration of the sale-deed in favour. Of the plaintiff or his nominee or nominees before the Registrar or Sub-Registrar transferring and conveying the said property viz plot of land being survey No. 1, Sheet No. GK-8 and measuring 4546 sq. Yards situated at Ghulam Hussain Kassam Quarters Kharadhar, Karachi with the buildings and structures raised thereon free from all dues and encumbrances and on their failure direct the Nazir of this Hon'ble Court to execute and Register the sale-deed in favour of the plaintiff or his nominee or nominees in accordance with law.
(b) A decree against the defendants and in favour of the plaintiff directing the defendants to pay to the plaintiff jointly and/or severally a sum of Rs.72,736.00 being the amount of stamp duty calculated at 2% on the total sold consideration, of Rs.36,36,800.00 which stood increased by enhancement of stamp duty. Under the Sindh Finance Act, 1986 or to allow the plaintiff to adjust the same against the balance sale consideration;
(c) A decree against the defendants and in favour of the plaintiff directing the defendants to pay to the plaintiff jointly and/or severally a sum of Rs.3,63,680.00 being the amount of stamp duty calculated at 8% on Rs.45,46,000.00 being the amount of difference between the agreed price and the value fixed under the law in valuation Table or to allow the plaintiff to adjust the same against the balance sale consideration;
(d) A decree against the defendants and in favour of the plaintiff directing the defendants to pay to the plaintiff jointly and/or severally a sum of Rs.45,460.00 being the amount of registration charges calculated at 1% on Rs.45,46,000.00 being amount of difference between the agreed price and the value fixed under the law in valuation table or to allow the plaintiff to adjust the same against the balance sale consideration;
(e) Award cost of the suit.
Legal heirs of the deceased respondent also executed power-of-attorney in favour of said Baseer Hassan son of Saghir Hassan.
2. After service appellants submitted their written statement in .Which they admitted the execution of sale agreement, receipt of part payment of sale price and execution of power-of-attorney in favour of respondents to get the possession of the suit property.
They however stated in their written statement that obtaining of Capital Gain Tax Clearance Certificate was not requirement of law at the time of the signing of the contract. It was further stated that respondents adopted delaying tactics and did not perform his part of contract within the stipulated period and they further stated. In their written statement that suit is time-barred and that respondents have abandoned their claim as they have no money to pay the sale price and they have surrendered their claim in favour of attorney Baseer Hassan.
On 2.11.1988 by consent the Court settled the following issues:-
(1) Whether the defendants executed agreement for sale dated 13.2.1988 in respect of the suit property in favour of the plaintiff and the same is still valid and subsisting?
(2) What are the terms on which the sale was to be effected by the defendants in favour of the plaintiff particularly relating to payment of balance sale consideration, obtaining of capital gain tax, vacant possession, marketable title and the period for completion of sale transaction?
(3) Whether the time was the essence of contract and whether the defendants failed/were unable to execute the sale-deed of the property in suit in .Terms of the contract and if so, what is the effect?
(4) Whether the defendants committed -breach/avoided to perform their part of the contract and failed to obtain capital gain tax clearance certificate from the Excise and Taxation Authority and if so, what is the effect?
(5) Whether the defendants were required to obtain capital gain tax clearance certificate before execution of a sale-deed in favour of the plaintiff?
(6) Whether on abolition of the capital gain tax under Sindh Finance Act, 1986, the rate of the stamp duty and registration charges stood increased by 2% and 1% respectively, if so, its effect?
(7) Whether on abolition of capital gain tax under the Sindh Finances Act, 1986 the Government fixed the value of the properties of different areas on different rates for the purposes of charging the stamp duty, if so, its effect?
(8) Whether the plaintiff is entitled to specific performance of the contract of sale of property in suit and also to the payments of Rs.72,736.00, 3,63,680.00 and 45,460.00 or any other amount as compensation and/or damages on account of enhancement of stamp duty, and registration charges due to delay in the performance of the contract by the defendants?
(9) Whether the plaintiff, in the alternative or otherwise, is entitled to the payment of Rs.62,71,000/- by way' of compensation and refund of the earnest money with interest thereon?
(10) To what relief, if any, the plaintiff is entitled?
(11) What should be decree be?
(12) Whether the plaintiff was ready/willing to complete sale or used defendant's difficulties with Excise Department simply to delay sale and if so its effect?
(13) Whether the suit is time-barred?
(14) Whether the plaintiff has assigned/transferred his right to the attorney, if so, its effect?
After settlement of issues, the evidence was led through affidavit in evidence and witnesses were cross-examined before the Commissioner Mr. Justice (Retd.) Muftakhiruddin.
3. During trial respondents examined their attorney Baseer Hassan who produced Ex.5/1 to Ex.5/40 which documents have been discussed by the learned Single Judge in his judgment. Respondents also examined Ghulam Dastagir, Sub-Registrar who also produced documents which are mentioned as Ex.6/1 to Ex.6/7. Another witness namely Shabbir Hussain, Assistant Inspector Taxation was examined who produced Ex.7/1 and 7/2.
4. On behalf of appellants Ebrahim Lakda son of Ghulam Hussain Lakdawala Was examined as Ex.8 who produced documents as Ex.8/1 to Ex.8/45.
5. After hearing the parties, learned Single Judge was pleased to decree the suit of the respondents for specific performance with costs vide judgment dated 28.5.195 and decree dated 28.5.1995.
6. Being aggrieved and dis-satisfied with the judgment and decree the appellants have preferred this appeal.
7. Mr. Kazim Hassan, learned counsel for the appellants contended from the original agreement dated 13.2.1980 and this amounts to a novation of a contract which is not admissible/available under the law and further that respondent's reliefs claimed in paras (a), (b), (c), (d) and (e) in any case are not available as delay in execution of the agreement was caused by the respondent himself. That learned Single Judge has not properly appreciated the evidence and the case law.
The learned counsel for the appellants referred to the following authorities.
(1) Darakshan Afridi and 2 others Vs. Additional Director (Com), Karachi Development Authority and another (1991 CLC 1844).
(2) Ardeshir H. Mama Vs. Flora Sassoun (AIR 1928 P.C. 208).
(3) Narinjan and others Vs. Muhammad Yunus (AIR 1932 Lahore 265).
(4) Sm. Parul Bala Ghosh Vs. Saroji Kumar Goswami and others (AIR (35) 1948 Calcutta 147).
(5) Rustomali and others Vs. Sheikh Hailer Rahman (45 CWN 837).
(6) Muhammad Yaqub Vs. Muhammad Nasrullah Khan and others (PLD 1986 S.C. 497).
(7) Asad Zaheeruddin and 3 others Vs. The Sub-Registrar 7' Division-1 and others (1987 CLC 786).
8. Mr. Shaiq Usmani, learned counsel for the respondents contended that specific performance of contract is within the discretion of the Court and the learned Single Judge has exercised his discretion very equitably, justly and fairly. According to the agreement of sale capital gain tax clearance certificate was to he obtained by the appellants which they did not get and unnecessarily prolonged the matter with the result that subsequently Government increased the stamp duty and registration fee according to the category of the properties notified by the Government for the Karachi Division,. That respondent was always willing and ready to complete the sale for which he paid Rs.3,75,000/- as an advanice. The sale agreement dated 13.2.1980 executed and signed by the appellants is an admitted fact. The evidence so adduced on behalf of the .Parties and the documents which were produced and exhibited during the trial were minutely considered and examined by the learned Single Judge and learned Single Judge has properly appreciated the evidence. That in any case there is no averment on behalf of the appellants of misreading or non-reading of the evidence by the learned Single Judge. Mr. Shaiq Usmani cited the following authorities:-
(1) Razia Sultana Bano, etc. Vs. Muhammad Sharif, etc. -(NLR 1994 Civil 273).
(2) Zaheer Ahmad and another Vs. Abdul Aziz and others (1983 SCM R 559).
9. It would be entirely in the interest of justice to refer to the evidence adduced by the parties and documents produced and exhibited by them during the trial. The letter dated 19th October, 1986, written by Fazalur Rahman of the respondents to Messrs Ghulam A.I Ebrahim & Company, Solicitor & Advocates. In this letter the respondent has very categorical stated that:- "However, I am willing to finalize the bargain within reasonable time."
Likewise in Ex.5/27, respondents have stated as follows:- "'In view of above facts and attending circumstances, your clients are not legally justified to cancel the agreement of sale unilaterally or to forfeit the part payment of consideration or to revoke the power-of-attorney which is coupled with the interest of the purchaser. I wish to assert again that I am willing and ready to obtain conveyance deed on payment of balance amount."
Ex.5131, a letter written by Mr. Fasihuddin, Advocate on behalf of respondents, the relevant portion of the same reads as follows: "That your client or the sellers should understand clearly and unambiguously that in the event and failure of your client to complete the sale, my client shall enforce the agreement of sale dated 13th February, 1980, in Court of law and the sellers will be saddled with costs of the proceedings."
Ex.5132 a public notice published in Daily Dawn and in Daily Jang which reads as follows:- "PUBLIC NOTICE"
Plot No. 1GK/8 Ghulam Hussain, Hassam Road, Karachi, has been agreed to be sold to me by the owners, Mst. Batool Bai and others. The said agreement of sale is still subsisting, valid and binding.
Public is warned to desist from entering into any deal with respect to the said plot with the sellers, and if any one, inspite of this notice, does so, he will do it at his own risk.
Haji Fazalur Rahman, H-1, Al-Fazal, Block 'B' North Nazimabad, Karachi (Phone: 624860)."
Ex.5134 is a letter of respondent the relevant portion of which reads as follows:- "That the sale agreement executed by your clients with me is still subsisting, binding and enforcible."
The relevant portion of Ex.5/36 reads as under:- "In furtherance of letter dated 7th June, 1987, addressed to you by my Advocate Mr. Fasihuddin regarding the above plot. I have to state that I have been and still am absolutely ready and willing to finalize the transaction as per agreement provided your clients give me sufficient time for the publication of public notice and inspection of documents preparatory to the execution of Conveyance Deed."
Relevant portion of Ex.5/38 reads as under:- Para 9: That my client as such approached your representative to resolve the complications caused due to the increase in stamp duty and fixation of the value of the property and my client was given to understand that the problem will be solved amicably in a short time. My client was, however, surprised to receive letter dated 30.9.1986 from your advocate whereby a copy of the letter dated 23.9.1986 was sent wherefrom it transpired that you had fixed the date for completion of sale to be 15th October, 1986 and that time was made an essence of the contract. My client sent his reply dated 19.10.1986 and also approached your representative Mr. Ebrahim Lakdawala in person and explained that he was ready to complete the sale provided:-
(a) you pay him in cash for the burden which stood increased by enhancement of stamp duty and registration charges amounting to Rs.72,736.00 or to adjust the same against the balance sale consideration; and
(b) you pay the stamp duty and registration charges payable on the difference between the agreed price and the valued fixed by the law under the Valuation Table amounting to Rs.3,63,680.00 and 45,460.00 respectively or to adjust the same against balance sale consideration.
Para 11: That the agreement dated 13.2.1980 and the power-of attorney was executed by you for consideration and my client acting upon the power-of-attorney has invested considerable amount on account of litigations against the tenant and my client is entitled to have a conveyance of the said property from you. In view of the events which have taken place you are liable to execute the required conveyance in favour of my client or his nominees and to adjust/pay him the amount which stood increased due to enhancement of the stamp duty and fixation of the value by the law.
(d) execute a proper conveyance deed of the said property in favour of my client or his nominee forthwith.
It would also be pertinent to refer the written statement filed by the appellants especially paras 19 and 30.
"The para 19 is admitted but it is denied that stamp duty at 8% is to be paid on the value fixed by the Government, irrespective of the agreed price. It is submitted that these can be challenged. That paras 20 and 21 are denied. It is denied that the plaintiff ever approached the defendants, or any of their representatives. In fact, after the abolishment of Capital Gains Tax, it was the defendants, through their attorney, who approached the plaintiff to see if he was still interested to purchase simply with a view to give him another chance to do so."
That with regard to the prayer-clause, it is submitted that the suit be dismissed. Without prejudice to all other defences, it is submitted that Reliefs B, C and D are any way not available as the delay was caused by the plaintiff himself and any way this would amount to a novation of contract, not permissible under law."
Ex.5/1, relevant para 5 provides as under:- "The vendors shall obtain Capital Gains Tax Clearance Certificate from Excise and Taxation Authority Division required for registration of the sale-deed of the said property in favour of the purchaser."
Ex.5/17, letter dated 6.2.1982 written by Ghulam A.I Ebrahim & Co. Advocates and Solicitors to respondent reads as follows:- "...We are enclosing herewith fair draft of the sale-deed, which has been re-cast by us."
Exh.5/1 which is sale-deed and its relevant para is as under:- "AND WHEREAS the vendors have obtained Capital Gains Tax Clearance Certificate required for registration of these presents ."
Attorney of the appellant Ibrahim was examined as Ex.8 and in his cross-examination he has stated as under:- "It is correct that the defendants had undertaken to obtain Capital Tax Clearance Certificate from the Excise Department before the registration of the sale-deed. It is correct that the Excise Department had assessed the Capital 'Gains Tax at Rs.22,00,000/- (Rupees twenty two lacs) which was not acceptable to the defendants and it is also correct that' the defendants had filed a revision before the Director General, Excise, against the Order of assessment of Gains Tax by the Excise Officer. I see Ex.8/45 and say that the contents thereof are correct and true ."................. Not..
It is correct that Mr. Fazal-ur-Rehman never refused to execute the sale-deed................................. It is correct to suggest that Mr. Fazal-ur-Rehman approached us for the execution of the sale-deed except that he did reply the letters stating that he was ready."
10. It would be advantageous to refer to the provisions of Sections 14, 22 and 24 of the Specific Relief Act which provide as under:- "S. 14: Specific performance of part of contract where part ' unperformed is small. - Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value, and admits of compensation in money, the Court may, at the suit of either party, direct the specific performance of so much of the contract as can he performed. And award compensation in money for the deficiency.
S. 22: Discretion as to decreeing specific performance. - The jurisdiction to decree specific performance is discretionary, and the Court is not hound to grant such relief merely because it is lawful to do so; but the discretion of the Court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a Court of appeal.
S. 24: Personal bars to the relief. - Specific performance of a contract cannot be enforced in favour of a person-
(a) who could not recover compensation for its breach;
(b) who has become incapable of performing, or violates, any essential term of the contract that on his part remains to be performed;
(c) who has already chosen his remedy and obtained satisfaction for the alleged breach of contract; or
(d) who, previously to the contract, had notice that a settlement of the subject-matter thereof, (though no founded on any valuable consideration) had been made and was then in force."
Section 55 of the Contract Act, 1872 pro' ides as follows:- "If in case of contract voidable on account of promises failure to perform his promisee acts upon performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed unless at the time of acceptance he gives notice to the promisor of his intention to do so."
11. In view of the provisions of the specific Relief Act, and the Contract Act, the evidence adduced and documents exhibited by the parties referred to and reproduced hereinabove we would like to discuss the case-law referred to by Mr. Kazim Hassan, learned counsel for the appellant. (1) Darakshan Afridi and 2 others Vs. Additional Director (Com), Karachi Development Authority and another (1991 CLC 1844). The case of the petitioner in this Constitutional Petition was that commercial plot No. Commercial 4, Block 2, Clifton, Karachi measuring 2,133.33 sq.Yds was allotted by the K.D.A. To one Aziz Patel. The K.D.A. Thereafter handed over possession of the plot to him. The occupancy value was determined at Rs.200/- per sq. Yd and a sum of Rs.4,26,666/- was paid by him as full and complete occupancy value. On 29.5.1978 Aziz Patel transferred the said plot to petitioner No. 1 by an agreement of sale. K.D.A. Respondent approved the pre-lease transfer and mutated the plot in the name of petitioner No. 1 on 10.7.1978.
K.D.A. Then executed registered lease deed of the plot in favour of petitioner No. I on 25.3.1979. On 10.11.1983, petitioner No. 1 entered into an agreement of sale of the aforesaid plot with petitioner No. 2 Kamran A.I Pardhan. Since there were no dues whatsoever. Petitioner No. 1 applied for Clearance Certificate, but to his utter surprise the respondents came out with an additional demand of Rs.4,27,375/- on the pretext that the K.D.A. Had enhanced the price from Rs.200/- to Rs.400/- per sq.
Yd. The petitioners claimed that the K.D.A. Having once finally fixed and settled the occupancy value, having received the same without any reservation and having transferred the plot finally and that the allotment was made, possession was delivered and registered sublease was executed. In this background of the matter petitioner approached this Court through the Constitutional Petition. During proceedings of the petition, petitioner's attorney through his counter affidavit reproduced the extract of legal advice of Mr. Sabir Hussain Qazilbash the Advocate and law officer of respondent on enhancement of occupancy value which reads as follows:- "We stand committed at the rates on which the allotments were issued and the rates offered would constitute to be a contract and the terms of the contract shall equally be binding upon the parties to the contract agreement."
Learned D.B. Further observed as follows:- "We have heard Mr. Muhammad Naseem, Advocate for the petitioners and Mr. Sabir Hussain Qazilbash, Advocate for respondent No. 1. It is an admitted position that the plot in question was allotted by the then Chief Minister to Aziz Patel in relaxation of the rules @ Rs.200/- per sq. Yrd on 19.3.1977. Such allotment order is filed as Annexure 'A' and is not disputed. It is also admitted that possession of the plot was delivered to Aziz Patel on 27.6.1978, as is evident from Annexure 'B'. The agreement of sale by Aziz Patel in favour of petitioner No. 1 coupled with the mutation of the plot by the K.D.A. Is also admitted and borne out from Annexures 'D' and 'E'. Similarly Registered Lease Deed was admittedly executed in favour of petitioner No. 1 by the K.D.A. On 18.6.1979 and the rate of occupancy value throughout was shown at Rs.200/- per sq. Yd. After having executed Registered Lease Deed, the interest in the land was transferred in favour of petitioner No. 1. The respondent/K.D.A. Had no power thereafter to enhance as it had already allotted the plot to the petitioner @ Rs.200/- per sq. Yd. And received the occupancy value thereof. There can be under the law no cavil to the proposition that the Chief Minister, who enjoys the powers under Section 11 of the Ordinance to relax the provisions could allot the said commercial plot instead of auctioning it reduce its price. At any rate after the Registration of Lease Deed all the interests in the land and the title passed on the petitioner No. 1 and under the law transferor was left with no option to enhance the price."
The learned D.B. In view of the above facts and circumstances held that it is an elementary principle of law of contracts that once a contract was concluded and its terms cannot unilaterally be changed by any one of the parties to such contract.
(2) Ardeshir H. Mama Vs. Flora Sassoon (AIR 1928 P.C. 208). In this matter it has been held that plaintiff must show readiness to do his part of the contract up to decree.
(3) Sm. Parul Bala Ghosh Vs. Saroj Kumar Goswami and others (AIR (35) 1948 Calcutta 147). In this case it was observed that plaintiff in order to succeed in the suit, must allege and if the fact is traversed, is required to prove a continuous readiness and willingness, from the date of -the contract to the time of the hearing, to perform the contract on his part.
(4) Rustomali and others Vs. Sheikh Ahider Rahaman (45 C.W. No. 837). The dictum in this authority laid down is that in a suit for specific performance it is incumbent upon the plaintiff to prove that he was ready and willing to perform the contract as it actually was and not as it is alleged to be by him.
(5) Dau Alakhram Vs. Mst. Kulwantin Bai and another (AIR (37) 1950 Nagpur 238). The observations of their Lordships in this case were that even if time be not the essence of contract, under S. 46, Contract Act, it has to be performed within a reasonable time. So if there is unnecessary delay on the part of the plaintiff it would be open to the other party to put an end to the contract by giving a notice before its termination, at all, would not be entitled to any relief.
(6) Asad Zaheeruddin ,and 3 others Vs. The Sub-Registrar 'T" Division-I (1987 CLC 786). The brief facts of this matter are that petitioners contracted to purchase a property located in Frere Town Quarters, Karachi, from its owners, on 25.9.1982, for a total sale consideration of Rs.42,86,250/-. Out of the total consideration, an amount of Rs.12,81,532.50 was paid prior to the execution of the conveyance deed and the balance amount of Rs.30,04,718 was paid through pay orders at the time of the execution of the conveyance deed. According to the agreement between the petitioners and the sellers conveyance deed was drawn up, stamped and presented to Sub-Registrar 'T` Division-1 Karachi on 5.9.1983 for registration under Section 17 of the Registration Act, 1908. The sellers executed the conveyance deed before the Sub-Registrar and received the balance sale consideration of Rs.30,04,718/-. The Sub-Registrar, however, adjourned the registration directing the sellers to produce a no objection certificate from the Excise and Taxation Officer, 1' Division, Karachi the assessing authority in respect of capital gains tax payable on sale of the property under Section 16 of the West Pakistan Finance Act, 1963. In this background of the matter petitioner approached to this Court and the learned D.B. Held that registering authority could not refuse registration of conveyance deed on ground of non-production of clearance or no objection certificate regarding payment of capital gains tax and petition was accepted.
12. The case-law referred by Mr. Shaiq Usmani, learned counsel for the respondent.
(1) Razia Sultana Bano, etc. Vs. Muhammad. Sharif etc. (NLR 1994 Civil 273). In this case their Lordships of the Supreme Court have observed as follows:- "The grant of specific performance in within the discretion of the Court and the Court is not bound to grant such relief merely because it is lawful to do so. The discretion, however, has -to be exercised judiciously equitably and on well-recognised judicial principles. It should not be exercised arbitrarily, whimsically or unreasonably. This is what Section22 of the Specific Relief Act, 1877 provides. The grant of relief of specific performance lies within the discretion of the Court and therefore it has to examine all the surrounding circumstances and facts of the case which may assist in forming a reasonable and judicious judgment for exercising the discretion."
(2) Zaheer Ahmad and another Vs. Abdul Aziz and others (1983 SCM R 559). Their Lordships of the Supreme Court have observed that point neither specifically pleaded before Courts below nor evidence adduced cannot be allowed to be raised before Supreme Court.
13. With due respect to the authorities cited by Mr. Kazim Hassan, learned counsel for the appellants we are clear in our mind that the same are quote different and distinguishable from the facts of the present appeal and under any circumstances are not applicable to the facts of the present appeal.
14. We have gone through the material placed with the case especially the original agreement dated 13.2.1980 and the correspondence exchanged by the parties themselves. According to the agreement the appellants were required to get the capital gain tax clearance certificate from the concerned authorities which tax was legally due and payable by the ,parties under the provisions of the Sindh Finance Act for which the appellants admittedly filed the required application but they could not get the same in time. Essential element for the fulfilment of the specific performance of the contract is that party seeking implementation should show his capability, willingness/desire to complete the agreement. The exhibits which have been referred to and reproduced hereinabove clearly show that respondents all along have been willing and ready to perform their part of contract in lieu of which respondents paid Rs.3,75,000/- to the appellants. The receipt of the amount of Rs.3,75,000/- is admitted, signing of the agreement is also not disputed. The draft sale conveyance deed was also prepared which has been produced and exhibited during the evidence recorded by the learned Commissioner. For issuance of Capital Gain Tax Clearance Certificate authorities had demanded payment of such tax in the sum of Rs.22,00,000/-, in July, 1986 the Capital Gain Tax was abolished by Government of Sindh; but enhanced stamp duty for registration of sale-deed from 6% to 8%. In this background of the matter the correspondence between the parties took place which has been referred to herein the earlier part of this judgment. The willingness of the respondents to purchase the property has also been admitted by the attorney of the appellants namely Ebrahim Lakdawala son of Ghulam Hussain in his cross-examination referred to and reproduced hereinabove. The learned Single Judge has considered the entire evidence including the documents/produced/exhibited in evidence by the parties. The learned Single Judge has discussed each issue involved in the matter and with very elaborate and sound reasons has concluded the judgment. It would be advantageous to refer to order of the Court dated 24.10.1988 while hearing CMA No. 1183/88 which reads as "24.10.1988: Mr. Ismail Kasim Khatri, Advocate for the plaintiff.
Mr. Andalib Alvi, Advocate for defendant.
With the consent of both the learned counsels and without prejudice to the respective contentions of the parties, it is ordered that the plaintiff shall deposit the balance of sale consideration amounting to Rs.32,61,800/- within four weeks from today with the Nazir of this Court. On the deposit being so Made the injunction granted on 28.2.1988 shall stand confirmed. The amount deposited with the Nazir shall be invested in Khas deposit account. The accumulated amount shall be paid to the party found entitled to the money. The suit shall be fixed for early hearing within a period of six months from the date of the such deposit for evidence."
After this order the respondent complied with the order and deposited Rs.32,61,800/- with the Nazir of the Court which was subsequently invested in the Khas Deposit Certificates. The learned Judge in the impugned judgment and decree has held that the profit earned on the deposit/Khas Deposit Certificates for the first two years be paid to the appellants while profit for rest of the period be paid to the 'respondents. This observation of the learned Single Judge, in all fairness is based on equity, fair play and justice.
15. Mr. Kazim Hassan, learned counsel for the appellant was not able to point out any non-reading or mis-reading of the evidence, done by the learned Single Judge in his judgment. The delay in the completion of the contract and for registration of the sale-deed has rightly been held by the learned Single Judge to be on the part of the appellants for which they have no plausible/reasonable explanation whatsoever. The contention of Kazim Hassan that by serving notices the respondents attempted to innovate the contract from its original agreement which amounted to a novation of contract and that respondents are not entitled to any relief claimed by them in paragraph No. 25 and sub-paras (a), (b),. (c), (d) and (3).
However, Mr. Kazim Hassan, learned counsel for the appellant was not able to say anything so far prayer clause (a) of the suit which has been reproduced hereinabove and is the hack bone of the sui filed by the respondents.
'6. The authorities referred to by Mr. Shaiq Usman in our humble opinion are relevant and helpful to the case of the respondents which we respectfully follow.
17. For the foregoing facts, circumstances and reasons we find no merits/substance in this appeal which accordingly is hereby dismissed with no orders as to costs.
On 27.3.1998, after hearing the learned counsel for the parties the appeal was dismissed by short order and above are the reasons for the same.