' MIAN SAQIB NISAR, J.--- Suit for specific performance filed by the respondents side was decreed by the learned trial Court vide impugned judgment and decree, dated 1-11-1995, hence this appeal.
2. Briefly stated the facts of the case are, that the appellants vide agreement, dated 24-9-1989, agreed to sell the disputed house/premises to the respondents predecessor-in-interest namely Muhammad Nazar Qureshi for, total consideration of Rs,4,70,000, out of which, a sum of Rs,1,00,000 was paid at the time of execution of the agreement, whereas the balance amount was to be paid by the purchaser by or before 25-1-1990, on which date, the appellants were obliged to effect the sale in favour of the purchaser. It is the case of the plaintiff/purchaser that he went to the office of the Sub-Registrar on 25-1-1990, when the appellant did not turn up and accordingly, he was marked presence by the Sub-Registrar, Thereafter, he served upon the appellants/defendants with a telegram and also sent legal notice seeking specific performance, but without any success.
Besides, the plaintiffs/respondents on different occasions, visited the appellants and asked for the completion of the sale, but on each occasion, they have been delaying the matter and finally refused, when the present suit was filed on 8-2-1992.
3. The appellants/defendants filed their written statement. Though they admitted the execution of the agreement to 'sell and also receipt of the part consideration amounting to Rs,1,00,000, but took up the defence that the plaintiff did not pay the balance amount of Rs,3,70,000 by the target date.
The appellants/defendants served upon the plaintiff/ respondent with the notice, dated 23-1-1990, requiring him to finalize the deal by or before 25-1-1990 by making the payment of balance consideration amount. This was not done. Thereafter, legal notice was issued to the plaintiff/respondent on 7-3-1990 and he was required to make the balance payment by 17-3-1990.
As the plaintiff did not make the payment, therefore, in terms of the agreement, said agreement of sale, has been rescinded and thus, there is no valid agreement for enforcement. In the light of pleadings of the parties, the learned Civil Judge was pleased to frame the following issues:--
(1) Whether the suit is not maintainable? OPD
(2) Whether the plaintiff is estopped by his act and conduct to file the suit? OPD
(3) Whether the plaintiff has no cause of action? OPD
(4) Whether the plaintiff is entitled to decree for specific performance of contract, if so on what terms? OPD
(5) Whether the defendants are entitled to special costs under section 35-A, C.P.C.? OPD
(6) Relief.
4. The plaintiff/respondent in order to prove his case, examined P. W.1, who stated that he alongwith the plaintiff/respondent had been visiting the appellants/defendants on different occasions, but they delayed the matter on one pretext or the other. P.W.2 has also made the statement to the same effect. P.W.3 is the plaintiff himself, who has deposed in line the contents of his plaint. Exh.P.1 is the agreement to sell.. Exh.P.2 is the receipt envisaging the payment of Rs,1,00,000. Exh.P.3 is the receipt of some telegram, dated 25-11-(without year), which is alleged to have been given by the respondent to the appellants. Exh.P.4 is the envelope bearing an endorsement of the postal department dated, 7-2-1990, whereby the respondent claims that a notice was served by the appellants. Exh.P.5 is the postal receipt, as per whereof, some letter/notice was served to the appellants and their counsel by the respondent and his counsel. Exh.P.6 is the Jamabandi for the year 1988-89. Exh.P.7 is the application, dated 25-1-1990, which according to the respondent/plaintiff was submitted to the Sub-Registrar, who made an endorsement on the application, marking the presence of the respondent and the same was returned to him. The appellants also examined three witnesses to prove that the respondent/plaintiff was in fact responsible for not getting the sale finalized, as he was not possessed with the requisite funds.
Moreover, Exh.D.1 is the notice, dated 23-1-1990 issued by Ch. Nawazish Ali, Advocate to the respondent requiring him to finalize the transaction by making the payment by 25-1-1990. Exh.D.2 is a notice dated, 7-3-1990 through which, same Advocate asked the respondent to be present at the office of the Sub-Registrar on 17-3-1990, so that the sale can be concluded. Exh.D.3, Exh.D.4 and Exh.D.5, are the receipts of postal service.
5. The learned Civil Judge by giving findings on Issue No,5, came to the conclusion that the respondent/plaintiff was ready and willing to perform his part of the agreement. He was present in the office of the Sub-Registrar' on 25- 1-1990 for making the payment of balance consideration and seek the execution and finalization of the sale-deed, but the appellants did not turn up and, therefore, it was held, that because the agreement to sell, and the payment of consideration amount of Rs,1,00,000.Has been admitted by the appellants/defendants thus, the respondent is entitled to the decree.
6. Learned counsel for the appellants has contended that the certified copy of the telegram alleged to have been sent by the respondent has not been produced on the record; likewise, no notice was tendered in evidence to prove that the respondent ever required the appellants to finalize the transaction as alleged in the plaint; the learned Civil Judge has mainly relied upon Exh.P.7 the application of the respondent, submitted to the Sub-Registrar, who appeared as P.W.4 and deposed that this application was moved before him and was returned, but the application is not a certified copy of the official record and once this application was returned to the respondent, it cannot prove through the statement of the said witness. It is also submitted that under the law, there was no requirement for the respondent to have moved any application to the Sub-Registrar thus, no reliance can be placed upon Exh.P.7 to hold that the respondent was ready and willing to perform his part of the agreement. Contrarily, the appellants have placed on record the documentary evidence such as Exh.D.1 the notice, dated 23-1-1990 issued by the counsel for the appellants requiring the respondent to finalize the transaction by making the payment of balance consideration amount. Exh.D.2 is the notice, dated 7-3-1990 by same counsel, when the appellants again asked the respondent to pay the balance consideration amount by 17-3-1990, otherwise, agreement shall stand cancelled, still the respondent did not make the payment and consequently, because of his unwillingness and being not ready to finalize the transaction, he was disentitled to any discretionary relief.
7. We have heard the learned counsel for the parties. In the plaint itself, the respondent/plaintiff has admitted the notice, dated 23-1-1990 Exh.D.1, notice, dated 7-3-1990 Exh.D.2 issued by the appellants. Both these notices clearly envisage that the appellants had been asking the respondent/plaintiff to pay the balance amount of consideration and to get the sale-deed executed, but these notices were never responded by the respondent. The respondent has failed to show if, he ever issued any notice to the appellants for the purpose of getting the sale-deed effected in his favour. The telegram or the notice allegedly issued by the respondent has not been proved on the record. Even if considering that such original documents were in possession of the appellants, the respondent did not serve upon the appellants with any notice for the production of these documents nor ever sought the permission of the Court to lead secondary evidence. The learned trial Court has mainly relied upon Exh.P.7 i,e, the application allegedly submitted by the respondent/ plaintiff to the Sub-Registrar for making his presence and the endorsement made by the Sub-Registrar thereupon. Suffice it to say that this application was not received by the Sub- Registrar and it was not made part of the official record. The same was returned to the respondent and it is not clear from such application as to point of time, when this application was submitted and returned to the respondent. Even otherwise, under the law, there was no requirement for the respondent to move such application to the Sub-Registrar and the Sub-Registrar could entertain the same. As per law, the Sub-Registrar could only register the instrument of sale if, it was duly presented before him by the executor, therefore, the basis of the respondent's case that he applied to the Sub-Registrar and the application was returned to him, does not in any way, prove his case of ready and willingness to perform his part of the agreement, particularly, when the respondent has not responded to the appellants qua the notices issued to him by their counsel nor the respondent has been able to establish that he ever through writing, had asked the appellants to perform their part of the agreement by executing the sale-deed. The notice/telegram allegedly issued by the respondent, are conspicuously missing from the record. The envelope, which according to the respondent contained a notice, but was returned by the postal department because the appellants' address could not be ascertained, though has been produced in original, but the notice contained in this envelope is again missing; as mentioned above, even, secondary evidence has not been led by the respondent. Above all, admittedly, the agreement to sell stipulated 25-1-1990 as date for the finalization of the transaction, but the present suit was filed on 8-2-1992. There is no significant documentary material available on the record that during this period, the respondent ever asked the appellants to effect the sale. The oral evidence led by the respondent such statement of P.W.1 and P.W.2 clearly shows that these witnesses are either friend or closely known to the respondent/plaintiff and their deposition cannot be safely relied upon in the presence of the documentary evidence produced by the appellants to establish that that the respondent was not ready rather unwilling in making the payment of balance consideration amount. It may be pertinent to state here that, if the parties genuinely intended to further enlarge the period of agreement, they could easily and safely had made an endorsement on the agreement of the extension of time, but there is no extension of time in writing ever agreed upon between the parties. Moreover, the learned trial Court has not bothered to refer the documentary evidence of the appellants such as Exh.D.1, Exh.D.2. Thus, the trial Court had fallen in sheer error of non-reading of evidence on the record.
' In the light of above, we find that in fact, it is the respondent, who has failed to perform his part of the agreement by not making the payment of balance consideration amount to the appellants as stipulated and the present suit was filed after delay of about two years, for which, there is no valid explanation given or proved by the respondent. The oral evidence adduced by the respondent is cogently displaced and belied by the notices of the appellants, which as stated above, were never responded by the respondent, and thus in order to make up the deficiency, the oral testimonies were fabricated. Therefore, we are constrained to hold that as the respondent by his own act and conduct, was not ready and willing to perform his part of the agreement, therefore, discretionary relief for enforcement of the agreement, was not , available to him. Consequently, by allowing this appeal, the impugned judgment and decree of the trial Court is set aside with the result that the suit of the respondent is dismissed.