On 5-4-1977 the petitioner filed a suit against the respondent. In the plaint it was stated that vide an agreement dated 8-9-1974 executed by the respondent she promised to sell land measuring 1 kanal, 1 marla and 75 Sq.ft. bearing Khasra No,2225, Rajgarh, Lahore bearing Plots Nos,109 and 110 in Rajgarh Development Scheme in favour of the petitioner and one Lt. Col. Shamshad Hussain. The price was settled at the rate of Rs,2000 per marla; that the respondent did transfer 10 marla and 150 Sq.ft. of land bearing Plot No,110 to the said Lt. Col. Shamshed Hussain. According to the petitioner, this transaction was kept concealed; that the petitioner had approached the respondent a number of times to complete the agreement but without any avail. He accordingly sought a decree for specific performance of the said agreement. In her written statement the respondent admitted the execution of the agreement but she pleaded that the petitioner himself did not perform his part of the contract within the period stipulated and thereafter as well.
According to her the petitioner is guilty of breach and the agreement stands cancelled. Issues were framed. Evidence of the parties was recorded. The learned trial Court dismissed the suit vide judgment and decree dated 29-11-1992. A first appeal filed by the petitioner was dismissed by a learned Additional District Judge, Lahore on 8-5-1994.
2. Learned counsel for the petitioner contends that the time was not essence of the contract and as such specific performance could not have been refused on the ground that he had failed to perform the same within the time stipulated. Learned counsel for the respondent, on the other hand, contends that the petitioner was not ready and willing to perform his part of the contract, whereas the respondent was and as such by his conduct the petitioner was not entitled to the discretionary relief of the specific performance of the contract.
3. I have gone through the record of the case, appended with civil revision, with the assistance of the learned counsel for the parties. As stated by me above, there is no dispute that the agreement as pleaded in the plaint was executed by the respondent. The agreement is on record as Ex.D.2/Mark C. It is dated 8-9-1974. According to the terms the total price of the land agreed to be sold to both the vendees was Rs,42,666. There is also an acknowledgement of the receipt of Rs,4,000 as earnest money. The agreement further narrates that the sale-deed shall be registered within two months and the said period shall be counted from the date of agreement and in case the vendee failed to get the sale deed registered on payment of balce price the agreement shall stand canceled and earnest forfeited. Now it is a matter of record that Plot No,110 was transferred by the respondent lady to the co-vendee of the petitioner, namely, Lt. Col. Shamshad Hussain within the said stipulated period. On the other hand, the petitioner has tried to prove in the course of evidence that he had been going to the respondent and she had been avoiding performance on the pretext that she has yet to get the exemption from the L.D.A. According to the petitioner, while appearing as P.W.3, Muhammad Awais and Waheed accompanied him on the said occasions. So far as Muhammad Awais is concerned, he appeared .as, P.W.1 and admitted in the course of cross- examination that Murad Bibi is a Parda observing lady; that he does not know her and that he can only recognise her voice because Akbar petitioner had told him that it is the voice of Murad Bibi. So far as Abdul Waheed is concerned, he has started his statement with the assertion 'that he does not know the parties. He himself has purchased a plot from Murad Bibi and has admitted that Murad Bibi had executed the sale-deed within the time agreed with him.
4. It is an established fact on record that the agreement was in favour of two persons. It is petitioner's own case that he was to be transferred Plot No,109 while Plot No,110 to his co-vendee within the stipulated time. The petitioner has failed to prove that he had been ready and willing to perform his part of the contract at all times. On the other hand, the respondent's conduct evident in the statement of P.W.2 as also in the matter of transferring the other plot to the co-vendee within the stipulated time be speaks for the conduct that she had been ready and willing to perform her part of the contract in accordance with its terms. There is thus no explanation whatsoever as to why did not the petitioner make the balance payment within the time stipulated. It is also on record that in the said period of almost three years the price had gone up and it will certainly be causing wrongful loss to the respondent if she is made to perform the contract after the expiry of the period stipulated in the agreement when the petitioner had never been ready and willing to perform his part of the contract. Reference be made to the case of Muhammad Yaqoob v. Mst. Umda Begum (1998 M LD 608).
5. Needless to state that under the law (section 22 of Specific Relief Act, 12877) a Court is not bound to grant a decree for specific performance only because it is lawful to do so. The learned Courts below have acted within the limits of their respective jurisdiction while concluding that the petitioner is not entitled to the grant of specific performance for failure on his part to perform his obligation under the contract within the stipulated time or within a reasonable time.This civil revision accordingly is dismissed with costs.