' The admitted facts of the case are that the respondents are owners of the suit land and they agreed to sell the same to the appellant for a consideration of Rs,40,000. Out of this amount, a sum of Rs,10,000 was received as an earnest money and an agreement was executed on 24-5-1979. It was agreed that the agreement shall be completed by 31-12-1979 when the appellant will pay the balance amount of Rs,30,000 to the respondents and they shall execute a sale-deed in his favour and to get the same registered.
2. On 10-1-1980, the appellant filed suit for specific performance of the said agreement. According to the plaint, the appellant was ready and willing to perform his part of contract and had called upon the respondents to perform their part but on their refusal he was constrained to file the suit.
The respondents filed written statement. They stated that the appellant has violated the terms of the contract as a result whereof they have suffered damages.
3. Prior to the filing of the said suit, a suit had already been filed by the respondents on 6-1-1980 against the appellant for recovery of damages on account of breach of contract. Both the suits were consolidated on 18-10-1982 and issues were framed. The evidence of the parties was recorded. The learned trial Court vide a judgment and decree, dated 11-4-1984 decreed the suit of the appellant and dismissed the suit of the respondents. Feeling aggrieved of the said judgment and the decrees in two suits, appeals were filed by the respondents which were heard by learned Additional District Judge, Sahiwal who proceeded to allow the appeal in the case of specific performance and as a result of that the suit for specific performance was decreed while appeal in suit for recovery of damages was dismissed. The respondents have not questioned the decree dismissing their suit. However, the appellant has come in this R.S.A. Challenging the dismissal of his suit by the learned First Appellate Court.
4. Learned counsel for the appellant argues that the impugned judgment of the learned Additional District Judge proceeds in contravention of the legal position that time is not of the essence of a contract to transfer immovable property. Mr. Intizar Ahmad Khan, Advocate for the respondents on the other hand states that under the facts and circumstances of the present case, the learned Additional District Judge has correctly observed that time was of the essence and as such the appellant was guilty of breach of contract. He also refers to some verses from "Sura Bani Israel" from the Holy Qur'an which insist upon the faithful to fulfil their promise.
5. I have gone through the trial Court's record. The agreement between the parties is on record as Exh.P.1. It recites the promise made by the respondents to transfer the suit land to the appellant for a consideration of Rs,40,000, the acknowledgement on behalf of respondents of the receipt of a sum of Rs,10,000 by way of earnest money; a promise by respondents that by 31-12-1979 a sale- deed will be got registered and that in case they fail to get the sale-deed registered or "wilfully avoided to do so" they shall pay a sum of Rs,5,000 as penalty; a promise by the appellant that in case he fails to get the sale-deed registered by the said date or "evades to do so" then the amount of earnest money shall stand forfeited in favour of the respondents.
6. I have reproduced the salient terms and conditions of the agreement in order to determine as to whether in the light of pleadings, evidence on record and most important the terms of the agreement itself, it can be said that it was the intention of the parties at the time of making the contract that time would be of essence of the contract. I must state in the very beginning that the agreement as it is, is not different from any other agreement for transfer of immovable A property, no special conditions are there. It is a promise to sell the land and a promise by the appellant to pay for the same. The verses quoted by the learned counsel for the respondents also ordain the faithful to fulfil their promises but the promises are to be fulfilled by both the parties to the contract.
This in fact, is the essence of the suit for specific performance which is filed to force with the aid of a legal decree both the parties to perform their respective promises. It is rather amazing that the major aspect of the case which has weighed with the learned Additional District Judge is the fact that the respondents approached the Court with their suit for damages earlier in time than the appellant could have approached the Court with his suit for specific performance.
' I am afraid, nothing turns on the said fact. I also asked the learned counsel for the respondents, is it his case that had the appellant had out run them in the race and approached the Court earlier in time then time would not have been essence of the contract. The answer of learned counsel obviously is no. For the reason that it is not what the parties do after entering into contract which is relevant but what is to be determined is the intention of the parties at the time they are entering into he contract and I have already reproduced all the relevant terms of the contract and the mere fact that the date is fixed and some penalty is proposed would not make the time, essence of the contract. I draw support for this view of mine from judgment of Supreme Court in the case of "Seth Essabhoy v. Saboor Ahmad" (PLD 1973 SC 39). In the said case, a date was fixed in the agreement between the parties for the performance of the contract. The contract was not performed and the promisor issued a notice in writing to the other party that the contract be completed within 3 days.
The argument raised on the basis of said circumstance that the parties intended and knew that the time was essence of the contract was repelled with the following observation:--- "But even if such a letter was sent, it does not advance the appellant's case. It is a well-settled principle of law that in contracts relating to immovable property, time is not of the essence of the contract, and the claim of the appellant, even if it were accepted that he had given three days' notice to the respondent for completion of the contract, failing which it would come to an end, cannot at all be considered to be reasonable time."
' The afore-referred view has been consistently followed by the Supreme Court as well as this Court.
The said proposition, however, is not to be stretched so as to prolong the completion period ad infinitum the rule be performed within a reasonable time. In the present case the appellant approached the Court within 10 days of the date stipulated in the contract and I am not in any manner applicable would be rule of reason i,e,, in case the contract is not performed within the time stipulated in the contract then it should inclined to agree with learned Additional District Judge that this was not a reasonable time within which the contract could be performed. Rest of the time has been taken up in the Court proceedings and none of the parties is to be blamed for the same.
8. For the reasons stated above, this R.S.A. Is allowed. The judgment and decree, dated 27-10-1986 of the learned Additional District Judge is set aside and that, dated 1-4-1984 of the learned trial Court is restored. No order as to costs.