MUNIRA. SHEIKH, J.---This is an appeal against the judgment dated 31-3-1997 of a Division Bench of the Lahore High Court whereby on acceptance of appeal against the judgment and decree dated 5-1-1989 of dismissal of suit by the learned Senior Civil Judge, Toba Tek Singh filed bythe respondents for specific performance of agreement of sale, the same has been decreed.
2. The facts giving rise to this appeal shortly stated are that land measuring 68 Kanals, 15 Marlas situated in Chak No,299, Tehsil Gojra, District Toba Tek Singh was agreed to be sold by the deceased appellant through agreement dated 31-1-1982 to the respondents fora consideration of an amount of Rs,3,26,000. At the time of execution of the said agreement, an amount of Rs,74,000 was paid as earnest money and it was stipulated that another amount of Rs,55,000 shall be paid on 28-2-1982 and the balance was to be paid on 13-1-1983 the date fixed for execution of formal sale-deed or attestation of mutation. There is no dispute that further amount of Rs,55,000 was paid on the stipulated date as such, an amount of Rs,1,29,000 was paid as earnest money. The respondents filed suit on 16-2-1985 for specific performance of the said agreement of sale. It was pleaded in the plaint that ten, days prior to the date fixed for attestation of mutation or execution of sale-deed i,e,, 13-1-1983, the deceased appellant/defendant came in the village where the plaintiffs were residing who was asked to execute the sale-deed on acceptance of the sale price but he on one pretext or the other avoided to do the same. It was also pleaded that on 12-1-1983, one day prior to the date fixed for execution of sale-deed, the deceased appellant also came in the village and was asked to execute the sale-deed on the next day but on the next day though the plaintiffs went in the premises of the Court and the deed writer but the deceased appellant did not come there as such it was pleaded that the plaintiffs had been ready and willing to perform their part of the agreement but it was due to the conduct of the deceased appellant that neither the sale-deed could be executed nor the mutation got attested.
3. The suit was contested by the appellant/defendant. The averments made in the plaint were denied. It was pleaded that it was the plaintiffs who failed to perform their part of the agreement, therefore, the suit was liable to be dismissed. It was pleaded specifically that on 13-1-1983, the appellant went to the premises of the District Courts and appeared before the Sub-Registrar with an application that he was present and ready and willing to get the sale-deed registered but none appeared on behalf of the plaintiffs. He also pleaded that he through a telegram intimated the plaintiffs that they had failed to perform their part of the agreement.
4. The controversies arising from the pleadings of the parties were reelected in the issues framed by the trial Court. The material issue being issue No,1 on the decision of which revolved the decision of the case on which arguments were also addressed by the parties before us, therefore, the same is reproduced below:- "1. Whether the plaintiffs were ready and willing to perform the agreement and did they commit no default in terms of agreement of sale?" OPP
5. The oral evidence practiced by the respondents-plaintiffs consisted of statement of Ghazi Muhammad Bashir, P.W.1, Muhammad Abdullah, P.W.2, Abdul Karim P.W.3, Mushtaq Ahmad P.W.4, Muhammad Siddique P.W.5, Muhammad Anwar son of Muhammad Tufail P.W.6 and Muhammad Anwar Khan son of Bakhshish Ali P.W.7. The oral evidence of the deceased appellant consisted of the statements of Meer Muhammad D.W.1, Ahmad Khan D.W.2, Waris Ali D.W.3, Himayat Khan D.W.4 and statement of the defendant himself as D.W.S. Apart from this oral evidence, documentary evidence was also produced by the defendant which consisted of copies of sale-deeds Exh.D.4 to Exh.D.6, copy of application made by him before the Sub-Registrar Exh.D.3, telegram Exh.D.2 and the receipt of the telegram Exh. D .1 .
6. Since for deciding Issue No,1 one way or the other, incidental questions as to whether the date fixed in the agreement for execution of sale-deed or attestation of mutation as 13-1-1983 was essence of the contract, the respondents-plaintiffs had sufficient money to pay the remaining sale price on the stipulated dates to determine whether they were ready and willing to perform their part of the agreement came up for decision before the trial Court.
7. The trial Court after considering the oral and documentary evidence produced by the parties came to the conclusion that the respondents-plaintiffs failed to discharge onus of issue No,1 that they were ready and willing to perform their part of the agreement i,e, were in possession of sufficient money to make payment of the remaining sale price on the stipulated date, therefore, their suit was dismissed through judgment dated 5-1-1989. The appeal filed by the respondents has been accepted through the impugned judgment dated 31-3-1997 by a Division Bench of the Lahore High Court. The findings recorded by the trial Court on Issue No,1 and also the findings that time was essence of the contract have been reversed and suit decreed which has been challenged in this direct appeal.
8. From the evidence led by the respondent and assertions made in the plaint if read together, the plaintiffs' case was that they had generated sufficient money for payment of the remaining sale price by sale of their other lands but in their affirmative evidence, they did not lead any evidence as to on which date the said lands were sold by them to establish that sale proceeds were available with them on 13-1-1983. It was the appellant who produced the sale-deeds executed by the respondents-plaintiffs alongwith their relatives who were co-sharers in the said land in evidence as Exh.D.4 to Exh.D.6. Exh.D.4 is the sale-deed dated 7-7-1985 through which the land was sold for an amount of Rs,5,00,000 in which it was stipulated that the entire amount of consideration had already been paid. Exh.D.5 is another sale-deed of the same date i,e, 7-7-1985 through which land was sold for an amount of Rs,5,00,000 in which also it was stipulated that the amount of consideration had already been paid whereas Exh.D.6 is a sale-deed dated 5-8-1984 through which land was sold for an amount of Rs,85,260 in which also it was recited that the sale price had already been paid. The suit was filed as noted above on 16-2-1985.
9. Faced with the situation, the plea raised in their oral evidence by the plaintiffs that they generated funds by the sale of their other lands had been effectively rebutted by production of sale-deeds themselves by the defendant. He in rebuttal examined Muhammad Siddique one of the plaintiffs.As D.W.5, Muhammad Anwar son of Muhammad Tufail as P.W.6, Muhammad Anwar Khan son of Bakhshish Ali as P.W.7. Through their evidence, he wanted to prove that the payments of the entire consideration amount of the said sales had already been made either in the year 1980 or 1981 when the agreement - of sale evidenced by the said sale-deeds was made. P.W.6 is the brother-in-law of the plaintiff Muhammad Siddique (Behnoi) whereas Muhammad Anwar son of Bakhshish Ali (P.W.7) as admitted by him was cousin (Mamunzad) Of the plaintiffs. It can safely be held that apart from being highly, interested persons being directly related to the plaintiffs, their evidence even otherwise if read does not inspire confidence. No document of agreement of sale was produced and it was not probable in any circumstances that after making payment of the entire huge amounts for the sale of lands as far back as 1981, a person of ordinary prudence, may be close relative, would keep quiet and postpone the registration of sale-deeds to 1985. One of the plaintiffs admitted in the cross-examination that the amount of one of the sale-deeds was paid on the day when the same was executed. Learned counsel for the respondents attempted to argue that it may be mere slip of tongue of the witness that he made such a statement in his cross- examination but his evidence if read as a whole makes it clear that the payments had already been made as-were recited in the sale-deeds themselves which has no substance.
10. It is evident from the plaint itself that the appellant was available in the village of the plaintiffs about twelve days before 13-1-1983 and was also available on 12-1-1983. It is not the case of the plaintiffs that he was called or brought by them in the said villte. It can, therefore, safely be-held that the defendant had gone to the said place in connection with performance of the agreement of sale by the plaintiffs. The appellant also proved his presence on 13-1-1983 in the Court premises before the Sub-Registrar which is manifest from application made by him before the Sub-Registrar Exh.D.3. He also issued a telegram the evidence of which has been furnished in the form of receipt and the copy of telegram itself that he was ready and willing to perform his part of the agreement but the plaintiffs had failed to do so.The evidence of the presence of the appellant before the Sub- Registrar through application (Exh.D.3) and the issuance of telegram has been discarded by the learned Judges of the High Court by holding that the said original application with the order of the Sub-Registrar should not have been in possession of the appellant and that delivery of telegram to the plaintiffs had not been proved. In our view, the said evidence of unimpeachable character has been excluded from consideration on grounds not permissible under the law, as such, it is .a case of non-consideration of material piece of evidence having material bearing upon the matter in controversy between the parties i,e,, the readiness and willingness of any of them to get the performance of the agreement of sale. Since there was no formal sale-deed prepared, therefore, the application made by the appellant before the Sub-Registrar was with a view to get his presence recorded. His presence on the said date before the Sub-Registrar is further proved by the plea raised by the plaintiffs themselves in the plaint that he had been coming to the village on the above mentioned dates. The question of delivery of telegram was not a material fact, for the appellant had proved despatch and issuance of the telegram and it was not the case of the plaintiffs that his address on the telegram had not been correctly given.
11. Learned counsel for the respondents when questioned as to how in the presence of the above mentioned evidence of the appellant of positive steps taken by him for performance of the agreement, the plaintiffs could urge that it was the defendant who was not willing and ready to get the performance of the agreement submitted that evidence of Lambardar (P.W.3) and other two witnesses being uninterested witnesses should have been believed, for they have no motive to depose falsely in the case. P.W.3 Lambardar admitted in his cross-examination that his Lambardari was Jaddi and his father was still alive, therefore, it was rightly held by the trial Court that he could not be the Lambardar during the lifetime of his father. The evidence produced by the plaintiffs on the point of readiness and willingness of the performance of the agreement of sale is oral whereas evidence of the appellant is supported by positive and substantial steps of sending a telegram and being present in the village of the respondents-plaintiffs and even on the date fixed for registration of sale-deed in the premises of the Court, therefore, the trial Court was legally justified to believe the evidence of the appellant against the said oral evidence of the respondents- plaintiffs. The findings recorded by the High Court are based on conjectures and surmises, for it has been held On the basis of mere recital in the sale-deeds Exh.D.4 to Exh.D.6 that sufficient amount was available with the plaintiffs on 13-1-1983 but the said evidence of the respondents led in rebuttal was not considered on merits which as observed above was an afterthought not worthy of credit.
12. As to the question whether in the facts and circumstances of this case, the time was essence of the contract, it may be observed that each case is to be decided on its own merits keeping in view the attending circumstances and the Court is required-in each case to explore and find out as to what was intended by the parties. Even if date fixed in the agreement in A such circumstances is held to be not the essence of the contract but it has consistently been held by the superior Courts that even the fixation of a date has got material bearing upon the question whether a party was ready and willing to perform its part of the contract. Reference may be made to the cases of Muhammad Sharif v. Mst. Fajji alias Phaji Begum through Legal Heirs and another (1998 SCM R 2485) and K.S. Vidyanadam and others v. Vairavan (AIR 1997 SC 1751).
13. The facts brought on the record in this case do lend support to the plea raised by the appellant that the date fixed in the agreement for completion of sale of payment of remaining sale price was the essence of the contract, for according to the evidence produced by the parties, it is established that the parties understood that it was intended to be so. It is the case of the respondents-plaintiffs that before 13-1-1983, they allegedly asked the appellant when he visited their village about twelve days before the said date to get the said sale-deed prepared and even went alongwith the witnesses to the Court premises and approached the appellants from which it is established that even the plaintiffs understood that time was the essence of the contract.
14. According to the agreement, expenses of the sale-deed or the mutation were to be borne by the plaintiffs but there is no evidence brought on the record that they had purchased stamp papers for preparation of sale deed or of deposit of any amount as mutation fee. Learned counsel for the respondents submitted that according to the agreement, sale could be finalized in the form of sale-deed or by getting the mutation attested, therefore, the question of purchase of the stamp papers was not necessary as such no inference against the respondents can be raised on that account. It is in the evidence of the plaintiffs themselves that they allegedly approached a petition writer, therefore, it is clear from their own conduct that it was intended by the parties that sale was to be made through registered sale-deed.
15. The trial Court on elaborate, careful and correct appraisal of evidence rightly came to the conclusion that it was the plaintiffs who failed to perform their part of the contract, for they did not have at the relevant time sufficient money to pay the remaining sale price, therefore, merely because a substantial around of the sale price had already been paid as earnest money was not sufficient ground to decree the suit of the plaintiffs.
16. The findings recorded by the High Court are based on mere surmises and the evidence on the record has either been ignored or misread in the sense that inferences were drawn which were not legally justified from the facts established.
17. Learned counsel for the respondents submitted that the appellant-defendant was not acting in bona fide manner, for his case was that on account of non-payment of the remaining sale price and performance of agreement by the respondents, he was entitled to confiscate the earnest money already received by him as is evident from the contents of the telegram itself.
18. It may be so but it did not absolve the respondents-plaintiffs from their legal obligation to prove that they were ready and willing to perform their part of the contract at relevant time. Their oral evidence was not coupled with any substantive steps to prove their intention to perform their part of the agreement coupled with the findings that they did not have sufficient money to pay the sale price. They did not lead any evidence as to why did they keep quiet for about five years for the suit was filed on 16-2-1985. The suit though was filed within period of limitation but inaction on the part of the plaintiffs for a period of about five years before filing of the suit furnishes strong evidence of their conduct that they were not ready and willing to perform their part of the agreement at the relevant time, therefore, were not entitled to any relief in exercise of discretion vested in the Court in the matter, for relief of specific performance of agreement is equitable and discretionary which had been rightly refused on the facts established on the record.
19. For the foregoing reasons, we accept this appeal, set aside judgment dated 31-3-1997 of the Lahore High Court and restore that of the trial Court dated 5-1-1989. It is, however, ordered that the appellant shall refund the amount of Rs,1,29,000 received by him as earnest money and deposit the same with the trial Court within one month from today failing which the same can be recovered in execution proceedings.
20. In the facts and circumstances of this case, we do not feel inclined in the interest of justice to proceed with Criminal Original 21 of 1998 which is hereby dismissed.
21. No order as to costs.