' This judgment shall also decide Civil Revision No,480-D of 1984 as a common question of law and fact is involved in both the cases.
2. The facts are that Mian Muhammad Aslam respondent is the owner of land measuring 112 Kanals, 7 Marlas described in detail in the suit for specific performance and agreement to sell, dated 8-3- 1967 was executed by the said respondent in favour of Malik Khuda Bux the predecessor-in-interest of the petitioners on 8-3-1967 for a total sale consideration of Rs,14,000. Out of this a sum of Rs,3,500 was paid as earnest money while Khuda Bux undertook to pay the remaining balance amount in the shape of instalments of Rs,5,500 on 15-1-1968 and Rs,5,000 on 15-1-1969.
3. Claiming that he was ready and willing to perform his part of the contract the predecessor-in- interest of the petitioners namely Khuda Bux brought a suit for specific performance on 9-5-1977 after more than 10 years of the agreement to sell as contended in the plaint. It was also alleged that the plaintiff was put in possession of the property in question in part performance of the agreement to sell and that his possession was protected under section 54-A of the Transfer of Property Act, 1882. During this time Muhammad Aslam defendant had purchased a mare from plaintiff which was worth Rs,7,000 and that this amount was to be adjusted against the balance sale consideration of property in question.
4. The suit was contested by the respondent. The execution of agreement to sell dated 8-3-1967 was not denied. However, it was contended that as the plaintiff did not fulfil his part of the contract and failed to pay the balance sale consideration, the plaintiff was not entitled to specific performance of agreement to sell. The allegation in the plaint that a mare was purchased from Khuda Bux was also denied. The respondent on the other hand, brought a suit for possession of the land in question, wherein it was claimed that upon the failure of Khuda Bux to abide by the sale agreement, his possession had become unlawful which was liable to be restored to the respondent. Both the suits were consolidated and the following issues were framed:-- Issues
(1) Whether the time fixed in the agreement for sale, dated 8-3-1967 for the performance of contract was essence of the contract and as the plaintiff had not paid the sale price within a stipulated period, therefore, the said agreement for sale has come to an end? OPP
(2) If Issue No,1 is not proved as such the plaintiff is not entitled for the specific performance of the contract, dated 8-3-1967. OPD
(3) Whether remainder sale price of the land in dispute was mutually agreed to be paid by the plaintiff in instalments and as such a mare was also given by the plaintiff to the defendant? OPP
(4) Whether the value of the mare as referred to in plaint in paragraph No,3 was fixed as Rs,3,000?
OPP.
(5) Whether a sum of Rs,7,500 was the remainder sale price which was to be paid by the plaintiff to the defendant and that the defendant had refused to receive the same if so to what effect? OPP
(6) Whether the plaintiff is entitled to seek the directions provided by section 53-A of the Transfer of Property Act? OPP
(7) Whether the plaintiff is entitled to get special costs under section 35-A, C.P.C.? OPD
(8) If Issue No,6 is decided in favour of Malik Muhammad Aslam and as such he is entitle to the decree for possession on the basis of title in respect of suit land in Civil Suit No,21 of 1978 titled Muhammad Aslam v. Khuda Bux? OPD
(9) Relief.
5. After recording evidence brought before it by the parties, the learned trial Court found that time was not of the essence of the content; that the allegation of purchase of a mare by the respondent was not proved; that agreement to sell still subsisted as no notice of its revocation was issued by the respondent and that as the plaintiff was still ready and willing to perform his part of contract he was entitled to a decree for specific performance. Consequently, vide judgment and decree, dated 14-12-1980, the learned trial Court decreed the suit for specific performance and correspondingly dismissed the suit for possession filed by the respondent.
6. Two separate appeals were preferred by Mian M. Aslam. Both the appeals were accepted vide judgment, dated 8-10-1984 passed by Additional District Judge, Rahimyar Khan. As a result the suit for specific performance was dismissed while the suit for possession was decreed. The learned Appellate Court found that as per the agreement to sell specific time was fixed for the payment of two instalments of Rs,5,500 and Rs,5,000 respectively. It was also found that between 15-1-1969 and the date of institution of the suit for specific performance i,e, 9-5-1977 the predecessor-in-interest of the petitioners made no effort to fulfil his part of the contract. The learned First Appellate Court concurred with the learned trial Court regarding the issue of purchase of mare and held that this was a concocted story. It was held that as the agreement to sell had become unenforceable no benefit under section 53-A of the Transfer of Property Act can be extended to the predecessor-in- interest of the petitioners.
7. Malik Abdul Ghafoor, Advocate appearing in support of this civil revision has contended that the agreement to sell as well as the receipt of payment of Rs,3,500 was admitted by the respondent.
According to him in spite of the time schedule given in the agreement to sell for the payment of the remaining instalments time was not the essence of the contract. According to him the petitioners and their predecessor-in-interest were always ready and willing to perform their part of the contract. In this context he referred to the statement of Khuda Bux to urge that he was ready and willing to perform his part of contract. To support his contention, he has relied upon Zaheer Ahmad and another v. Abdul Aziz and another 1983 SCMR 559, Dr. Aftab A. Khan v. Muhammad Iqbal and 2 others 1984 CLC 3158 and Isso and another v. Muhammad Ismail and 2 others 1992 MLD 1787.
8. On the other hand, Mr. M.M. Bhatti, Advocate the learned counsel for the respondent submitted that after the execution of the agreement to sell, dated 8-3-1967, the predecessor-in-interest of the petitioners completely failed in making the payment of the balance sale consideration within the time which was stipulated in the agreement itself. He further contended that the justification which was put forward by the petitioners for not making payment was the alleged purchase of a mare by the respondent from the predecessor-in-interest of the petitioners and the alleged adjustment of Rs,7,000 on that account. This allegation has been rejected by both the learned lower Courts. The petitioners and their predecessor-in-interest enjoyed the possession of the land in question after paying a nominal consideration as earnest money. The nonpayment of the balance sale consideration was deliberate.
9. The learned counsel for the respondent further argued that it is the intention of the parties as spelt out from the agreement to sell and/or attending circumstances which is to determine whether or not time was of the essence of the contract. He relied upon the cases of Muhammad Sharif v. Mst. Fajji 1998 SCMR 2485, Messrs Pioneer Housing Society (Pvt.) Limited v. Messrs Babar & Co. PLD 1999 Lah. 193 in support of his contention. The learned counsel for the respondent further relied upon Haji Abdul Rehman v. Niaz Ali 2000 CLC 184 to contend that when it is proved that time was of the essence of the contract, breach of such condition would automatically result in recision of the contract.
10. The learned counsel for the respondent next contended that the suit for specific performance filed on 9-5-1977 to specifically enforce the agreement to sell, dated 8-3-1967 was barred by time as under Article 113 of the Limitation Act only a period of three years is provided for such a suit. He lastly urged that as the agreement to sell was rescinded on account of the default of the petitioners, they were liable to restore possession of the land in question to the respondent and that the decree for possession passed by the Appellate Court was unexceptionable.
11. Arguments heard. Record perused.
12. It is an admitted position that the agreement to sell., dated 8-3-1967 was executed between the parties. According to the said agreement to sell a total consideration of Rs,14,000 was fixed out of which a sum of Rs,3,500 was paid as earnest money while the remaining amount was to be paid by the predecessor-in-interest of the petitioners to the respondents in the shape of a instalment of Rs,5,500 on 15-1-1968 and another sum of Rs,5,000 on 15-1-1969. This specific stipulation, in the absence of any other material on the record would show that the A intention of the parties was to treat time as the essence of the contract. According to the rule laid down in case of Muhammad Sharif v. Mst. F'ajji (supra) the true intent of the parties whether time was essence of the agreement is to be gathered from the terms of the agreement to sell. Applying the test laid down above to the present case, it is found that the time was of the essence of the contract as specific amount in instalments had to be paid on specific dates and it was even undertaken by the respondent that if the proposed vendee fulfilled the said conditions, he shall be entitled to get the sale-deed registered or mutation attested even in his (vendor's) absence. The next contention of the petitioner that their possession shall be protected under section 53,A of the Transfer of Property Act, 1882 is devoid of force. In order to seek protection or benefit under the said provision of law, the petitioners must show that the possession was in pursuance of an agreement to sell which still subsists It is indeed idle to urge that despite having committed default in performing his part of the contract a vendee can continue to remain in possession in the garb of protection of an agreement to sell. In the present case it has been found that the petitioners and their predecessor-in-interest had failed to abide by the terms of the contract which was executed by them of their own free volition. Specific time frame for payment was fixed in the said agreement. The ground on which the non- C payment of balance price was sought to be justified (purchase of a mare by the respondent) has been found against the petitioners by both lower Courts. Thus, by their own conduct, the petitioners were responsible for recision of the sale agreement. Their possession, thereafter, became unauthorized and unlawful. No benefit of section 53-A of the Transfer of Property Act extended to the petitioners.
13. The upshot of the above discussion is that the discretion exercised by the learned Appellate Court was unexceptionable and there is nothing on the record to pursuade this Court to form a different view. As a result there is no force in these civil revisions which are hereby dismissed leaving the parties to bear their own costs.