' MIAN SAQIB NISAR, J.--- Through the impugned judgments and decrees, dated 24-2-1998, suit for specific performance filed by the respondent against the appellant was allowed by the learned trial Court, whereas the suit for possession and mesne profit of the appellant was dismissed. Hence the present appeal as also R.F.A. No, 268 of 1999, are being disposed of together, through this single judgment.
2. Briefly stated the facts of the case are that on 22-4-1992, respondent brought a suit for specific performance. It is his case that vide agreement dated 4-4-1981, duly executed between the parties, the appellant contracted to sell to the respondent his residential house comprising the front portion of the Property No,S-XV-58-S-8 measuring 8 Marlas situated in Friends Colony at No,8-A (Opposite Bhalla House), Nawan Kot, Multan Road, Lahore, for a consideration of Rs,2,30,000.
Respondent paid an amount of Rs,1,15,000 to the defendant as earnest money, at the time of execution of the agreement to sell. As per stipulation of the agreement, the appellant was to execute the sale-deed in favour of the respondent by 12-10-1981, after fulfilling certain conditions, which are detailed in the agreement; the possession of the house was also delivered to the respondent in part performance of the agreement and the respondent continued to be in possession thereof, till the institution of the suit.
3. According to the plaint, after the execution of the agreement and receipt of the part consideration, the appellant with dishonesty and ulterior motives, intended to usurp the earnest money, and therefore, filed a suit for cancellation of the agreement, alleging the same to be fictitious and forged. But this suit was dismissed by the learned Civil Judge on 2-12-1981. It is also stated that in the month of September, 1981, while the respondent was abroad, the appellant along with others, attempted to take forcible possession of the suit property by criminally trespassing; the wife of the respondent was constrained to lodge an F.I.R. No,44 dated 29-9-1981, against the appellant. Besides, for the purpose of recovery of the articles, which the appellant had taken away in the course of attempt to forcibly occupy the disputed property, respondent also filed a suit for recovery of said articles or in the alternate cash compensation amounting to Rs,99,736. '
' In nutshell, it is the case of the respondent that he had been ready and willing to perform his part of the agreement, but the appellant failed to fulfil the condition, which he was obliged to fulfil in terms of the agreement to sell dated 4-4-1981. It is further stated that respondent was found guilty and sentenced by the trial Court in a criminal complaint filed by the respondent in connector with appellant's attempt to forcibly occupy the disputed property but in Criminal Appeal No,263 of 1987, filed by the appellant, in the. Lahore High Court, a compromise was affected between the parties on 23-4-1989. In pursuance of which, appellant agreed to execute the sale-deed in favour of the respondent till 28-4-1989. This agreement was placed on record of the High Court in the aforesaid appeal. The respondent was acquitted vide judgment of this Court dated 23-4-1989. After the aforesaid agreement/compromise, the respondent approached the appellant for the finalization of the transaction by the given date i,e, 28-4-1989, but the appellant delayed the matter till 27-4-1989, when he started performing "Ehtikaf" on 28-4-1989, thus in the above situation, sale-deed could not be executed till 28-4-1989; thereafter the 'appellant refused to do the needful, resultantly, the respondent was constrained to file a contempt petition before this Court bearing No,52 of 1989, which was contested by the appellant and it was dismissed on 10-7-1991, on the ground that as no undertaking was given by the appellant to this Court, therefore, contempt proceedings are not competent. After dismissal of the aforesaid petition, respondent tiled suit for specific performance.
4. Suit was contested by the appellant, who pleaded that the suit is barred by limitation. It is also his case that the respondent is guilty of non-performing of his part of the agreement; he was not ready and willing to pay the balance amount of Rs,1,15,000. By 28-4-1989; he never approached the appellant in this behalf and therefore, is not entitled to the grant of a decree.
5. On 31-1-1993, the appellant also brought a suit for possession and mesne profit against the respondent qua the suit property on, the ground that respondent has failed to perform his part of the agreement; thus as the agreement to sell has extinguished, therefore, the appellant is entitled to the possession of the property and also the compensation for the use and occupation by the respondent. Respondent contested the suit. Learned trial Court, consolidated both the suits and framed the following issues:--
(1) Whether the suit is barred by time? OPD
(2) Whether the plaintiff being guilty of concealment of material facts, making misstatements, fabricating forged documents and not approaching this Honourable Court, with clean hands, therefore, not entitled for any discretionary relief? OPD
(3) Whether the suit is not maintainable? OPD
(4) Whether the plaintiff is estopped by his conduct, if so, what is its effect? OPD
(5) Whether the suit is barred under Order 2, rule 2 of C.P.C.? OPD
(6) Whether the plaintiff is entitled for specific performance of contract dated 4-4-1981 and 234- 1989? OPP (6-A) Whether the suit of the defendant is barred under section 53-A of the Transfer of Property Act? OPP (6-B) Whether the suit of the defendant is based on mala fide and has been tiled as a counterblast to the suit of the defendant? OPP (6-C) Whether the defendant is estopped by his words and conduct from bringing this suit? OPP (6-D) What is the effect of pendency of the suit filed by the defendant regarding recovery of money pertaining to use and occupation of the disputed property? OPP (6-E) Whether the suit of the defendant is barred under Order 2, rule 2 of C.P.C.? OPP (6-F) Whether the suit of the defendant is false, frivolous and vexatious as such the plaintiff is entitled to recover special costs under section 35-A, C.P.C.? OPP (6-G) If Issue No,2 is proved inaftirmative as to whether the defendant is entitled to possession of the disputed property and compensation of the disputed property and compensation/mesne profit as claimed? OPD
(7) Relief.
6. The evidence was recorded in the suit for the specific performance. Respondent examined P.W.1 Shahid Jillani, who stated that he alongwith the respondent visited the appellant on 23-4-1989; appellant acknowledged the agreement/compromise between the parties and also handed over voucher to the respondent enabling him to purchase the stamp paper for the purpose of execution of the sale-deed. P.W.2 Dr. Zahid Ameer has also stated to the same effect. P.W.3 is Senior Clerk of Criminal Branch of High Court, Lahore who tendered in evidence the record of . Criminal Miscellaneous No,52 of 1989. Khalid Mumtaz (respondent) appeared as P.W.4. Besides the oral evidence, the respondent has also produced the documentary evidence i,e, agreement to sell dated 4-4-1981, produced as Exh.P.W.4/1 receipt of payment of Rs,1,15,000, Exh.P.W.4/2, suit for declaration earlier filed by the appellant seeking cancellation of agreement to sell Exh.P.1, as such Exh.P.W.4/3. The order of dismissal of the suit is Exh.P.W.4/4. F.I.R. In criminal case Exh.P.W.4/5; notice on behalf of the respondent for the performance of the agreement Exh.P.W.4/7; telegram Exh.P.W.4/8 on the same date. Exh.P.W.4/9 legal notice dated 7th March, 1982, sent by Mr. Bashir A.
Mujahid on behalf of the appellant. Exh.P.W.4/10 and Exh.P.W.4/11 postal receipts dated 7-3-1982.
Exh.P.W.4/12 and Exh.P.W.4/13, legal notices. Exh.P.W.4/14, legal notice issued on 26-4-1982 by Mr. Bashir A. Mujahid; postal receipt Exh.P.W.4/15 dated 10-5-1987. Exh.P.W.4/16 judgment of Mr. Justice Ijaz Nisar, dated 234-1989. A compromise between the parties Exh.P.W.4/17 dated 23-41989.
Exh.P.W.4/18 is a letter from the appellant to the respondent about his sitting in the "Ahtakaf"; Exh.P.W.4/i9 is copy of order dated 17th October, 1989 of the Court permitting the respondent to seek the refund of stamp paper valuing Rs,18,275 which he had purchased for the sale-deed.
7. Conversely, the appellant examined Mr. Bashir A. Mujahid (D.W.1) who proved that he had sent legal notices to the respondent dated 7-3-1982 Exh.P.W.4/10 and the notice Exh.P.W.4/,14. Akram Naveed, Senior Clerk of the Criminal Branch of High Court (D.W.2). Mansoor Ahmed (D.W.3) and Shahid Masih (D.W.4) are the residents of the same area, where the suit property is situated, and have proved the natural value. D.W.5 is the appellant himself.- Besides the above, appellant tendered in evidence the documents i,e, Exh.D-1 the legal notice sent by Mr. Bashir A. Mujahid, Exh.D.W./1 is the report of the Criminal Original No,52 of 1989; Exh.D.W.5/1 and. Exh.D.W.512 receipts of property tax; Exh.D.W.5/3 certified copy of the order of bail; Exh.D.W.5/4 is copy of complaint; Exh.D.W.5/5 certified copy of order of High Court; Exh.D.W.5/6 certified copy of statement C.W.2, Exh.D.W.5/7 statement of respondent and Exh.D.W.5/8 rent deed.
8. After conclusion of the trial, the learned Civil Judge, allowed the suit of the respondent for specific performance and dismissed that of the appellant for possession and mesne profit. Hence these two appeals.
9. Learned counsel for the appellant contends that according to the original agreement between the parties. Dated 4-4-1981, respondent was required to make the balance consideration of Rs,1,15,000 by or before 12-10-1981, but he failed and thereafter on account of legal notices, served by Mr. Bashir A. Mujahid to the respondent, agreement to sell was cancelled by the appellant, resultantly, suit brought in the year 1992, was hopelessly barred by time under Article 113 of the Limitation Act. It is also submitted that as the respondent failed to perform his part of the agreement by making the balance consideration, therefore. As he was not ready and willing, thus was not entitled to the grant of equitable relief. Learned counsel has further urged that the agreement dated 4-4-1981 had lapsed and its specific performance was also barred by time, consequently, through the second agreement dated 23-4-1989, earlier agreement could not be revived. In support of his contention, he has relied upon section 62 of the Contract Act and the judgments reported as PLD 1961 Kar. 599, PLD 1969 Jour. 17 and PLD 1974 Note 53 at p.92. It is also submitted that the appellant was in Jail on 23-4-1989 and therefore, any agreement executed by him on that date, was the result of coercion and undue influence, this being invalid was not enforceable. Learned counsel has also submitted that according to the agreement dated 23-4- 1989, respondent was required to make the balance consideration by 28-4-1989, but he failed to do the needful and thus is guilty of the breach of the agreement. It is lastly submitted that time was the essence of the contract of the second agreement, therefore, when the respondent failed to pay the balance consideration of Rs,1,15,000 to the appellant by or before 28-4-1989, he cannot seek the equitable relief.
10. We have heard learned counsel for the parties. As mentioned in the factual narration, the original agreement between the parties was executed on 4-4-1981; respondent had made a payment of Rs,1,15,000 to the appellant at the time of execution; balance consideration was payable till 12-10-1981 when the appellant was entitled to get the sale-deed executed in his favour, but before that, according to this agreement (Exh.P.1), appellant had also to perform certain obligations which are highlighted in the agreement. To our mind, as to who out of the parties, defaulted in performing his obligation under earlier agreement, is not very material issue in the present appeals, because admittedly in the criminal appeal mentioned above the parties arrived at a compromise on A 23-4-1989. This compromise was brought on the file of the criminal appeal and was duly signed not only by the parties but also their counsel. Appellants were represented by senior counsel Mr. Rafiq Ahmed Bajwa, whereas the respondent had engaged Mr. Riaz Ahmed Kiani.
While disposing of the criminal appeal, this Court in the judgment made reference to the compromise in the following terms:-- ' "It may not be out of place to mention that the parties have entered into a compromise whereby Hamid Ali Khan, appellant has undertaken to get the sale-deed of the house in dispute registered on 28-4-1989, in favour of Khalid Mumtaz on receiving the balance amount. The signed agreement incorporating the necessary details has been placed on record."
11. According to the salient terms of the agreement, respondent was obliged to make the payment of balance consideration of Rs,1,15,000 to B the appellant by 28-4-1989; parties were required to withdraw the respective case against each other and on the receipt of the amount, the appellant was duty bound to execute the sale of the suit property in favour of the respondent. The respondent for the purpose of seeking the execution of the sale-deed had purchased the stamp paper on 25-4-1989 and this fact is established from the order of this Court in Contempt Petition No,52 of 1989, when the Court on a miscellaneous application filed by respondent passed the order for the refund of stamp paper, for the reason that due to the lapse of time, validity of the stamp paper was going to expire; the appellant expressed no objection to the refund of this amount. This clearly proves that the respondent had purchased the stamp paper for the execution of the sale- deed before 28-4-1989. It is also B admitted on the record that on 28-4-1989, appellant had commenced performing his "Ehtikaf". The case of the appellant that respondent did not approach him from 23-4-1989, till the Maghrab of 28-4-1989, is not proved on the record as the appellant never asserted or established to have contacted the respondent in this behalf either personally, any other person, or through writing. Moreover, according to the terms of the admitted agreement/compromise, dated 23-4-1989. It cannot be construed that the time was the essence of the contract. This is not even the case of the appellant in defense. Further as per the settled law, the time in a contract for the sale of immovable property ordinarily is not the essence, therefore, when the appellant himself was in Ethical for about ten days, then there were Eid Holidays and promptly thereafter, the respondent filed Criminal Original No,52 9f 1989 against the appellant. In the above situation, coupled with the purchase .Of stamp paper by the respondent shows that he was ready and willing to perform his part of the contract.
' If the appellant had the intention to perform the agreement by receiving balance consideration, as nothing much had developed in between 28-4-1989 and the filing of the contempt proceedings, particularly when the time was not the essence of the contract, the appellant could have easily finalized the transaction by accepting the payment at the time of initiation of these proceedings.
But he contested the matter in contempt proceedings, and tried to wriggle out of the contract on baseless grounds.
12. The argument that as suit for specific performance mainly pertains to the original agreement dated 4-4-198,I, therefore, suit instituted in the year 1992, was barred by limitation, it may be held that in fact, the agreement dated 23-4-1989. Is a compromise between the parties through which they had mutually resolved their outstanding dispute. This is in the nature of a new independent contact between them, may be entered in the backdrop of the earlier agreement. It is this agreement for the enforcement of which the respondent had earlier attempted through the contempt proceedings and thereafter initiated the present suit. Thus applying Article 113 of the Limitation Act, the suit filed within three years, from 28-4-1989 was not beyond time.
13. On the above reasoning we are also not impressed by the argument of the learned counsel for the appellant, that the agreement dated 23-4-1989, was not the novation of the earlier agreement, in terms of section 62 of the Contract Act. As already held that the second agreement was based upon a compromise between the parties and is a total substitution of the previous agreement, with new terms and conditions and the parties were not obliged to perform the stipulations of the agreement dated 4-4-1981. Therefore, this constituted a valid novation and the appellant has failed to prove, if the respondent did not perform the second agreement in letter and spirit.
'In the light of above, we do not find that there is any legal or factual infirmity in the impugned judgment and decree of the Court below. Calling for interference in first appeal, resultantly, these appeals have no force and the same are hereby dismissed.