MAULVI ANWARUL HAQ, On 14.11.1989 the petitioner filed a suit against respondents Nos. 1 and 2. It was stated in the plaint that respondents Nos. 1 and 2 agreed to sell the suit land to the petitioner vide agreement to sell dated 10.6.1989 for a consideration of Rs.6400/- and that out of this amount a sum of Rs. 2500/- was paid by way of earnest money and promised' to execute the sale-deed and get it registered within two months. Respondents Nos. 1 and 2 in their written statement dated 22.2.1990 admitted the execution of the agreement and receipt of earnest money but took the plea that the time was of the essence of the contract and since the petitioner had failed to pay the amount within the stipulated time they had sold the land to respondents Nos. 3 and 4 who were impleaded as defendants in the suit and an amended plaint was filed. The said respondents filed a written statement stating that they have purchased the land from respondents Nos. 1 and 2. Some preliminary objections were also taken. Following issues were framed by the learned Trial Court:-
(1) Whether the defendants Nos. 1 and 2 have agreed to sell the suit land to the plaintiff for Rs.
6400/-vide agreement dated 10.6.1989?
(2) Whether the defendants Nos. 1 and 2 have received Rs.2500/- from the plaintiff in pursuance of the impugned agreement of sale? OPP
(3) Whether the plaintiff has always been willing and prepared to perform his part of the contract?
OPP
(4) Whether the subsequent sale of the suit land made by defendants Nos. 1 and 2 in favour of defendants Nos. 3 and 4 vide mutations of oral sale Nos. 128 and 129 is illegal, void and inoperative against the rights of the plaintiff? OPP
(5) Whether the plaintiff is entitled to a decree for specific performance of the impugned agreement of sale dated 10.6.1989, if so on what terms? OPP
(6) .Whether the suit is not maintainable in its present form? OPD
(7) Whether the suit is bad for non-joinder of necessary parties, if so to what effect? OPD 1 and 2
(8) Whether the plaintiff is estopped by his words and conduct from filing this suit? OPD.
(9) Whether the defendant No. 4 is bona fide purchaser for value without notice, if so to what effect? OPD 4.
(10) Whether the defendants are entitled to special costs under Section 35-A, CPC? OPD.
(11) Relief.
Evidence of the parties was recorded. The learned Trial Court dismissed the suit vide judgment and decree dated 30.4.1992 while the first appeal was dismissed by a learned Additional District Judge, Narowal on 31.5.1993.
2. Learned counsel for the petitioner contends that there is no evidence on record to show that time was of the essence of the contract and as such both the learned Courts below have acted with material irregularity in the exercise of their respective jurisdiction, while passing the impugned judgments and ing the suit of the petitioner. Also questions the findings of the Courts below on the said issue No. 9. Learned counsel for the respondents, on the other hand, argues that since it was stipulated in the agreement itself that the contract was to be performed within two months and penal consequences were provided, it shall be deemed that time was of the essence of the contract.
3. I have gone through the copies of the records, appended with this Civil Revision, with the assistance of the learned counsel for the parties. As stated by me above the execution of the agreement and receipt of earnest money thereunder was admitted by respondents Nos. 1 and 2.
Copy of the agreement is available on record as Ex.P.1. It does state that within two months of the date of execution respondents Nos. 1 and 2 shall get a sale-deed registered in favour of the petitioner on payment of balance price and in case of petitioner's failure to get the sale registered in the said terms the earnest money will be forfeited. However, by now it is well-settled that what is to be determined in such like cases is not the form of the document but the intention of the parties i.e. That time should be of the essence of the contract. There is also no dearth of authorities that in contracts relating to immovable properties time is not of the essence of the contract. Reference may be made to the case of Seth Essabhoy v. Saboor Ahmad (PLD 1973 S.C. 39).
4. The said contract Ex.P.1 also provides that in case respondents. Nos. 1 and 2 refused to get the sale-deed registered the petitioner can get the contract completed through the Court. To my mind this contention which relates to a period after the expiry of the said time of two months derogates from the said condition fixing the time for performance.
5. Now the intention of the parties is question of fact and both the Courts below have found that it was the intention of the parties that time was to be the essence of the contract. Before I proceed to examine the evidence I may note here that the intention is relevant to the time of making of the contract and not to what happened thereafter although under some circumstances the parties may agree to make the time essence of the contract at a later stage.
6. Now Muhammad Sardar, respondent No. 1 has entered the witness-box as D.W.
1. After admitting the execution of the agreement and receipt of earnest money of Rs.2500/- out of the agreed price of Rs. 6400!-, he states that after the expiry of two months he went to the shop of the petitioner twice or thrice because he was in need of the money, and he repeatedly demanded that the petitioner should pay the balance. Now he, states that the response of the petitioner was that he had already purchased some other land and if respondents Nos. 1 and 2 are in that much of a hurry he may sell the land wherever he liked. Consequently, after waiting for three months he sold the land. Both the learned Courts below have believed this statement and have treated it to be evidence of the fact that the intention of the parties was that time stipulated in the agreement was to be of the essence of the contract. I am constrained to state that instead of proving that the time was of the essence of the contract the said statement of D.W.1 proves the contrary to be true. It is his own case that for the first time he demanded the balance amount after the expiry of two months. Thus it stands proved :hat it was never the intention of the parties that the agreement had to be performed within the said two months. Had it been so respondents Nos. 1 and 2 must have approached the petitioner at a point of time earlier than the expiry of the said two months to put him on notice that the agreement has to be performed within the said stipulated time. Further the statement does not ring true for the reason that the petitioner could not have told respondents Nos. 1 and 2 to sell away the land without claiming back Rs.2500/- which constitutes almost half the sale price already paid by him to respondents Nos. 1 and 2. In cross-examination D.W.1 has admitted that no one else was present when the said conversation took place. He has stated that for the first time he approached the petitioner when two months had already passed.
On the other hand, Lal Din, PW.3 has stated that he had asked respondents Nos. 1 and 2 to transfer the land to him within stipulated time but they avoided performance. It will also be noted that the suit was filed on 14.11.1989. In the said state of evidence on record and the circumstances reflected therefrom it cannot be said at all that time was of the essence of the contract or that the parties to the contract ever intended it to be so.
7. So far as the willingness of the petitioner to perform the contract is concerned which was the burden of issue No. 3, I find that he had already partly performed the contract by paying Rs.2500/- to respondents Nos. 1 and 2. It will be pertinent to note here that the yarn woven by D.W.1 in the course of his examination-in-chief was not at all put to this witness. I, therefore, do find that he was ready and wiling to perform his part of the contract.
8. So far as issue No. 9 is concerned, Nazir Ahmad, respondent No. 4 (defendant No. 4 in the suit) has purchased
9. Kanals, 16 marlas of land comprising Khasras Nos. 226 and 228 vide mutation No. 129 (Ex.D.1). The total land agreed to be sold by respondents Nos. 1 and 2 to the petitioner is 27 kanals and 12 marlas. Now he has appeared as D.W. 2 and has stated that he was not aware of the said agreement and no one has told him about the said agreement. The petitioner, on the other hand, while appearing as DW.3 has not controverted the said statement of D.W.
4. In fact he has not stated at all that the said respondent No. 4 was aware of the agreement between him and respondents Nos. 1 and 2. The burden on a person claiming to be a bona fide purchaser within the meaning of Section 27(b) of the Specific Relief Act, 1877 is much lighter than the burden of a person claiming benefit of Section 41 of the Transfer of Property Act, 1882. A denial in the witness-box normally shifts the onus as held in the case of Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25). In the present case there is no positive assertion on behalf of the petitioner that respondent No. 4 had the knowledge of the said agreement. I, therefore, do find that respondent No. 4 has discharged the onus of issue No. 9 but for reasons stated herein.
9. As a result of the above discussion this Civil Revision is partly allowed. The judgments and decrees passed by both the learned Courts below are set aside and instead a decree is passed in favour of the petitioner and respondents Nos. 1 to 3 (defendants Nos. I to 3 in the suit) for specific performance of the agreement to sell dated 10.6.1989 (Ex.P.1) and they are directed to execute a sale-deed in favour of the petitioner transferring the suit land measuring 17 kanals, 11 marlas comprising Khasra No. 163 (9 kanals, 17 marlas), 17.1 (min-West)
(1 kanal, 9 marlas), 173 (4 kanals, 17 marlas) and 1227 (1 kanal, 8 marlas) situated in village Sukh Chak, Tehsil Shakargarh, District Narowal (as per entries in the Register Haqdaran Zaman for the year 1983-84). This will be subject to payment of Rs.1607/- being the proportionate balance price of the land as agreed to be paid by the petitioner. In case despite the said deposit, the said respondents failed to execute the sale-deed, the learned Trial Court/executing Court shall depute an official of the Court to do the needful. Possession of land sold shall also be delivered. The suit as against defendant No. 4 is dismissed in respect of the land sold to him by respondents Nos. 1 and 2.
No orders as to costs.