Both these appeals i.e. R.S.A. No. 878 of 1968 and R.S.A. No.82 of 1969 are being disposed of together, as these are between the same parties having almost common facts.
2. Briefly stated the facts of the instant appeal (R.S.A. No.878 of 1968), are that the appellant through an agreement dated 5-10-1966 (Exh.P.1) agreed to sell the suit land, measuring 812 Kanals, 16 Marlas, situated in Khata No.5, at Majuki Mallian, Tehsil Ferozwala, to respondent No.1, for a consideration of Rs.22,500 and received an amount of Rs.2,000, as earnest money; and it was agreed between the parties that the balance amount shall be paid by the respondent to the appellant by the end of February, 1967 and on the payment of the same, the appellant shall execute the sale-deed in favour of the respondent.
3. In R.S.A. No.82 of 1969, same are the facts about the execution of the agreement to sell, but the land involved is 508 Kanals, 12 Marlas situated in Khata No.6 of the same Mouza.
4. Plaintiff/respondent No.1, on 29-3-1967, brought two sits, for specific performance, claiming that the respondent No.1 had agreed to sell the land to him, through agreements mentioned above; he paid the earnest monies, the balance amounts were payable by the end of February, 1967; he was ready and willing to perform his part of the agreements, but the appellant has failed to perform his contractual obligations in executing and finalizing the deed in favour of respondent/plaintiff. Suits were contested by the appellants the agreements to sell were not denied, receipt of the earnest monies was also not disputed. However, it was pleaded in defence by the appellant that the respondent/ plaintiff had failed to perform his part of the agreements as he has not paid the balance consideration amount by the end of February, 1967; he remained at Tehsil Ferozewala on 28-2-1967, when the respondent did not turn up and consequently, the plaintiff is not entitled to seek the specific performance of the agreements, being not ready and willing to discharge his contractual obligation. He also set out the defence that the time was the essence of the contract and thus after lapse of target date, no decree for specific performance should be passed in favour of said respondent. Out of the pleadings of the parties, the following issues were framed:-- (1)Whether the suit cannot proceed in view of the fact that the suit of the plaintiff for possession by pre-emption was dismissed by the Court?
(2)Whether the plaintiff was ready and willing to perform his part of the contract?
(3)Whether the defendant was also ready and willing to perform his part of the contract?
(4)Whether the time was the essence of the contract?
(5)Relief.
6. Issue No.1 was not pressed, but while deciding Issues Nos. 2 to 4, in favour of the respondent, the learned Civil Judge allowed the suit vide judgment and decree dated 29-3-1967. On appeal filed by the appellants, the learned Appellate Court though has reversed the finding on Issues Nos.2 end 3, but by maintaining the finding of the learned trial Court on Issue No.4 has dismissed the appeal vide judgment and decree dated 9-10-1968.
7. Learned counsel for the appellant, contends that when the Court of appeal, had come to the conclusion that the respondent was not ready and willing to perform his part of the agreement, then irrespective whether the time was the essence of the contract, or not, the plaintiff/respondent was not entitled to a decree. It is also contended that the parties had agreed that the transaction shall be finalized by the end of the February, 1967 and thus 28th February, 1967, was the last date.
On which, the respondent was obliged to make the payment of the balance consideration and seek execution and registration of the sale-deed, but before the target date, the said respondent never approached the plaintiff for the purpose of purchase of the stamp paper, for which the amount was payable by the respondent for the drafting of the sale-deed, and the following requisites for completion of the transaction. This inaction on part of the respondent itself was sufficient to prove that he was not ready and willing to perform his part of the agreement and the learned Appellate Court was justified in reversing the finding of the trial Court on Issues Nos.2 and 3.
8. I have heard learned counsel for the parties. As mentioned earlier, the learned trial Court, had given the finding on Issue No.4, in favour of respondent and by analyzing the evidence on the record, it was found that the respondent had the requisite amount; he was present before the Sub- Registrar, Sheikhupura for the purpose of seeking execution and registration of the sale-deed on 28-2-1967, however, while dealing with the Issues Nos.2 and 3, learned Appellate Court, has found that the respondent had made no attempt to purchase the stamp papers for the purpose of execution of sale-deed, which he had to purchase in accordance with the provisions of section 29 of the Stamp Act, thus having failed in this behalf, an inference has been drawn that he was not ready and willing.
9. When confronted with the above, learned counsel for the respondent, states that such finding is not in accordance with the evidence on the record; though the respondent has not filed any cross- appeal or cross-- objection, against the finding of Appellate Court on Issues Nos.2 and 3, yet by relying upon PLD 1973 SC 295, it is submitted that the respondent can always support the decree even on the point decided against him, but cannot attack a decree and ask for its variation without filing cross-objection, etc. In the instant case, it is argued that the respondent is not seeking the variation in the decree, resultantly, can show to this Court that the findings of Appellate Court are not well founded and are based upon misreading and non-reading of the record. The submission of learned counsel for the respondent is well founded and is in consonance with the law laid down in the aforesaid judgment of the Honourable Supreme Court, therefore, I have undertaken the task to myself examine the evidence on Issue No.4, to find, if the respondent was not ready and willing to perform his part of the agreement.
10. According to section 24 of the Specific Relief Act, 1877 the specific performance of the contract cannot be enforced in favour of a person, who was incapable of performing or violates any essential terms of the contract which he was obliged to perform. In order to prove his ability and readiness, the respondent has examined P.W.1, who has stated that he had the requisite amount of money; he further had placed on record the affidavit that he was present before the Sub-Registrar, Sheikhupura on 28-2-1967 and it is the appellant, who did not turn up for the purpose of seeking the execution and registration of the sale-deed. In order to rebut this evidence, the appellant has not led any evidence. Even in the statement of the appellant, it is not deposed that the respondent had no money and had avoided the finalization of the transaction. It is also not controverted that on the given date, the respondent was not present in the office of the Sub-Registrar, Sheikhupura. It is only proved on behalf of the appellant that he had gone to the office of Sub-Registrar, Ferozewala at about 2'O Clock and remained there till the closing office hours but the respondent did not turn up. Thus on account of the above, the appellant want the Court to draw an inference that the respondent was not ready and willing. To .My mind both the parties were under misconception about the venue of the registration of the document, respondent visited the District Headquarter of the Registrar at Sheikhupura whereas the appellant went to the Tehsil Office, Ferozewala, resultantly, this act of the respondent, does not constitute a violation of the essential terms of the contract; when according to the evidence on the record, he had the requisite money and it does not seem probable that a person having money would try to avoid the transaction.
Even otherwise, respondent, while appearing as witness has stated that he was ready and willing to perform his part of the contract, this statement of the respondent has not been cross-examined.
Likewise, the appellant has not brought on record any evidence to show and establish any overt- act on the part of the respondent that he was not prepared to pay the balance amount of consideration and seek the execution of the sale-deed in his favour.
11. As far as the non-purchase of the stamp paper, it has even been held by the learned Court of appeal that it is not clear from the agreement to sell as to who was to expenses for the purchase of the stamp papers, but by relying upon section 29 of the Stamp Act, the view taken is that it was the duty of the respondent. Obviously, there can be no cavil with the above legal position but if the vendee of an agreement has not purchased the stamp paper, it cannot be said that he was incapable of performing his part of the agreement and had violated the terms and conditions of the contract, within the purview of section 24-B of the Specific Relief Act, 1877. Therefore, the inference of the learned Appellate Court, on the basis of solely above reason, without looking into other evidence on the record, cannot be sustained, particularly, for the reason that while giving finding on Issue No.6, it has been held as below:-- "I find that the time was not essence of the contract in this case. Abdul Rauf vendee respondent made a bona fide mistake in this case in not turning up at Ferozewala which was the proper venue for completing the sale-deed. His honesty of purpose is provided by the factum of his appearance before the Joint Registrar at Sheikhupura. It is also in evidence that he had carried with him a cheque of Rs.41,000 which was sufficient to cover the balance in this case as well in the connected case. Thus equity, justice and good conscience also demand that time should not be treated as essence of contract in this case. "
This finding of the learned Appellate Court, is in direct conflict with its finding on Issues Nos.2 and 3.
From the totality of the evidence, on the record, it seems a clear case, where both the parties were under misconception about the venue of the registration. Admittedly, agreements to sell in the cases, were drafted and executed at Sheikhupura therefore, the respondent under a bona fide impression that sale-deed would also be effected at the same venue went to Sheikhupura.
12. When confronted, learned counsel for the appellant has conceded that the sale-- deed could have been got executed and registered at District Sheikhupura being the Headquarter, but he argued that as the property was within the limit of Tehsil Ferozewala, therefore, the parties were under obligation to have come to the office of the Sub-Registrar Tehsil Ferozewala. I do not find this to be sufficiently convincing argument to non-suit a person, on the basis of being not ready and willing when other ingredients showing that he was capable of performing his part of the contract, having requisite money, and had visited the office of the Sub-Registrar Sheikhupura for that purpose. There is another important factor that the respondent had promptly filed the suit which proves that he was ready and willing to perform his part of the agreement and seek the finalization of the transaction. It is not the case of the appellant that in between this period, the value of the property had enhanced or that he had entered into any agreement with some third party for utilizing the amount which was likely to be received from the respondent and had suffered any loss on that account. Resultantly, the findings of the Court of appeal on these issues cannot be sustained, which are hereby set aside and the findings of the learned trial Court are upheld.
13. As far as Issue No.4, is concerned, there is concurrent finding of fact recorded by the two Courts below that the time was not the essence, of the contract; this is also not spelt out from the agreement or from the conduct of the parties, the appellant as mentioned above, has led no evidence to Drove that time was the essence of the contract, whereas according to law, cited in the judgment of the Appellate Court PLD 1965 SC 690, time ordinarily is not the essence of the contract in the sale of the immovable property. No defect in the concurrent finding of fact on Issue No.4 has been shown In the light of above, by reversing the findings of Court of appeal, on Issues Nos.2 and 3, and while upholding the findings of both the Courts below on Issue No.4, these appeals are dismissed.
Before parting with the judgment, it is held that if the respondent, has not paid or deposited with the Court any balance consideration of the agreements, that should be so deposited with the trial Court within a period of two months from today, failing which, the suit of the respondent shall be deemed to have been dismissed.