Munir A. Sheikh, J.--By this common judgment we propose to dispose of both the appeals involving common questions of law and facts.
2. These direct appeals have arisen from two suits filed by the appellant for specific performance of the agreement of sale, dated 9.12.1990 for land measuring 13 Kanals and 11 Marlas in Civil Appeal No, 6 of 1998 and 6 Kanal 13 Marlas in Civil Appeal No, 7 of 1998. According to stipulation in this agreement, an earnest money of Rs, 3 lacs in each case was paid to the respondents. It was agreed that the remaining total amount shall be paid on or before 9.6.1991. Apart from this, within the said limit of time for payment of entire sale consideration, it was also settled that in each month the appellant shall pay an amount of Rs, 2 lacs to the respondents and in case he would develop the plots and make sale of any of the plots, on sale documents the signatures of the respondents would be obtained after payment of the sale proceed of plots to him. It was also stated expressly in the agreement that time would be the essence of the contract. It was also stipulated that in case any of the parties would fail to perform his part of the agreement or commit default in the payment of any amount as settled, the amount of earnest money would stand forfeited.
3. Earlier two suits were filed by the appellant on 31.7.1991 for specific performance of said agreement, however, subsequently they were allowed to named the plaint and amended plaints were filed on 3.7.1993, in Paragraph No, 4 of which it was alleged that the possession of the land which had earlier been delivered to the appellant had been forcibly taken over by the respondents during the pendency of the suit, therefore, necessity arose to amend the plaint for making prayer for recovery of possession also in addition to specific performance of the agreement. These suits were contested by the respondents by alleging that the time was the essence of the contract and the appellant failed to perform his part of the agreement within the stipulated period, as such the same was not enforceable. The trial Court after considering the evidence produced by the parties in support of their respective pleas, came to the conclusion under Issue No, 5 that the time was the essence of the contract, the appellant failed to perform their part of the agreement by not making payment on the stipulated dates. Under Issue No, 7 it was held that the plaint under Order VII Rule 11 (a & d) of CPC was liable to the rejected. This was through judgment dated 11.3.1997, against which an appeal filed by the appellant, has been dismissed through the impugned judgment by the Division Bench of the Lahore High Court, Rawalpindi Bench, Rawalpindi, dated 20.10.1997, against which this appeal is directed.
4. Since the High Court on the concession made by the respondents modified the judgment/decree of the trial Court to the extent of payment of Rs, 3 lacs in each case to the appellant, which the respondents had already received as earnest money, therefore, these direct appeals have been filed.
5. Learned counsel for the appellant % chile arguing to establish that the time was not the essence of the contract relied upon reported judgments in which general principles have laid down that unless it was shown in each case that the time was intended to be the essence of the contract, normally time would not be considered as essence in respect of sale of immovable property, keeping in view the nature of the property and the time: There is no cavil with the correctness of this general proposition of law but we have already observed that it was provided expressly in the agreement in question that payment of the total amount of consideration would be made before 9.6.1991 and in each month an amount of Rs, 2 lacs had to be paid before 9.6.1991. It was also settled in the agreement itself by both the parties that time was intended to be the essence of the contract and it case of default in the payment of any of the installment, earnest money already paid would stand forfeited. In view of these express terms neither it could be argued on behalf of the appellant nor contended that the time was not intended to be the essence of the contract and Court should have decided the case on the general principle that in case of contract of sale of immovable property the time should not be assumed to be essence of the contract.
6. Learned counsel when confronted with this difficulty raised argument that before the agreement of sale was executed, process of acquisition of land had started. He referred to letter dated 13.8.1990 [marked `A' document on the file] according to which it was required that draft notification for acquisition of land should be prepared. A notification for acquisition of land was issued on 13.1.1991, which was produced in evidence as Exb. P-1. The first installment of Rs, 2 lacs became due on 9.1.1991. According to the plaint the said amount of first installment was offered to the respondents in February 1991, which according to appellant they declined to accept. The appellant defaulted in the payment of the first installment and if the respondents had declined even if it is assumed that it was offered to them in February 1991, they were justified in law to do so; considering the agreement as no longer bringing on him.
7. On the strength of rule laid in the case of Associated Hotels of India Ltd. etc. v. Jodha Mal Kothalia (PLD 1954 FC 35) an attempt was made by the learned counsel for appellant to argue that proceedings for acquisition of land had the effect of creating defect in the title of the vendor, therefore, vendee had option to rescind the contract. Learned counsel for the appellant when questioned whether the appellant had exercised the right of rescission of the agreement, the answer was in the negative. The appellant as per this judgment even if was vested with the right either to rescind or maintain the contract, he did not exercise the right of rescission thus he was bound to perform the agreement at due time.
8. Learned counsel for the appellant then argued that on 11.3.1997, when the case was fixed before the trial Court no time was given to the appellant to address arguments in the case, which was his right under Order XX Rule 1 CPC. We have examined the trial Court record and find that on the previous dates fixed in the suit, the case was fixed to address arguments, when the Court was informed that the appellant had made an application before the learned District Judge for transfer of the case, in which an order had been passed of restraining the trial Court from pronouncing the final judgment. The case was adjourned to the next date for hearing arguments in the case. On the next date fixed, learned counsel for the appellant was asked to argue the case but he declined/refused to do so as according to him the application seeking transfer of the case was still pending. The approach was against the order of the learned District Judge wherein the proceedings had not been stayed. On the date when the application for transfer of the case was dismissed by the learned District Judge, the respondents informed the Court that the same had been rejected and none appeared on behalf of appellant of address arguments, therefore, the Court proceeded to pronounce the final judgment. In our view, in these, circumstances, the appellant could not complain that he was not granted opportunity to address arguments.
9. It was argued by the learned counsel for respondents that according to principle laid down in the Joybed Agarwala v. Baitulmal Karkhana Ltd. (PLD 1965 SC 37), Hakeem Gul v. Madad Khan (1998 M LD 1260) and Amir Hassan v. Shamim Shah Nawaz (1984 CLC 3080) proceedings for acquisition of land were not a ground to maintain that agreement of sale would frustrate, for in such an event the purchaser would be substituted in place of the vendor for the purpose of receiving compensation if the land was acquired.
Findings of fact recorded by two Courts below that the time was the essence of the contract and appellant had failed to perform their part on due date and time, do not suffer from any illegality such as misreading or non-reading of the material available on record.
10.Learned counsel then argued that the appellant should have been granted more amount over and above the said amount of Rs, 3 lacs for retention of the same by the respondents for a long time. We are afraid this argument is not available to the learned counsel as no prayer even in the alternative was made either before the trial Court or in appeal before the High Court for the recovery of any amount in addition to the earnest money or before this Court in the memo of appeal, therefore, he is not entitled to claim as a matter of right enhancement of the amount. The respondents were very fair when they themselves offered before the High Court for refund of the Rs, 3 lacs in each case, which stands deposited in the High Court since 1997.
For the foregoing reasons, these appeals have no merit, which are accordingly dismissed. Parties are left to bear their own costs.