' The judgment and decree, dated 2-10-1995 have been assailed in this revision petition which arises out of the following circumstances.
2. Pallu, initially respondent No,4, transposed as petitioner No,2, vide order, dated 2-10-1995 of this Court, owned agricultural land measuring 9 Kanals, 2 Marlas. On 7-1-1986 he agreed to sell the said land in favour of respondents 1 to 3 for a consideration of Rs,35,000 (Exh.P.1), received an amount of Rs,12,000 as earnest money and executed receipt (Exh.P.2). The balance sale consideration was to be paid till 2-5-1986. The suit was filed by the respondents on 6-5-1986. Their case was that they were ready and willing to perform their part of the contract, even attended Tehsil premises on 3-5- 1986 (2nd May was Friday, a weekly holiday) on which date petitioner No,2 was also present in the Tehsil premises but at the time of purchase of the stamp paper, petitioner No,2 disappeared and on establishing contact with him he declined to execute the sale-deed. On 16-7-1987, during the pendency of the suit, petitioner No,2 sold the aforesaid land in favour of Ibrahim, petitioner No,1, a close relative of Pallu, through registered sale-deed fora consideration of Rs,50,000 (Exh.P.3).
3. The suit was contested by both the petitioners by filing separate written statements. Petitioner No,1 claimed to be a bona fide purchaser for value while petitioner. No,2, admitted execution of the agreement to sell but claimed that the plaintiffs-respondents 1 to 3 were in default to perform their part of the contract. Accordingly, the agreement stood rescinded and the amount of earnest money forfeited.
4. Necessary issues were framed and the suit was tried. The learned trial Court found that the agreement stood cancelled as respondents Nos.1 to 3 were in default. The issue whether the petitioner No,1 was a bona fide purchaser for value was answered in the negative with the observation that the registered sale-deed did not, in any manner, affect the agreement to sell in favour of respondents 1 to 3. The learned trial Court was impressed by the fact that petitioner No,2 was present in the office of the Sub-Registrar on 3-5-1986 and since the plaintiffs did not have money they were in breach of the terms of the agreement. Accordingly, the suit filed by the respondents was dismissed vide judgment and decree, dated 6-1-1991.
5. Feeling aggrieved, respondents 1 to 3 filed an appeal before the learned District Court which was allowed vide judgment and decree, dated 2-10-1995 and the suit of the respondents was decreed for the balance sale consideration of Rs,23,000. The learned First Appellate Court observed that the finding of the learned trial Court that the plaintiffs-respondents were not willing to perform their part of contract was presumptive, notional based on conjectures and speculations and, therefore, was not sustainable. This judgment and decree have been assailed in this revision petition.
6. It may be noted that the case was partly heard on 22-9-2003, when Rai Haider Ali Khan Kharal, Advocate, appeared for petitioner No,2. On the said date learned counsel for petitioner No,1 partly made his submissions and the case was relisted for 23-9-2003. However, on 23-9-2003, petitioner No,2 also appeared in person alongwith his counsel and requested for adjournment of the case to engage another counsel and specifically stated that he will not like the learned counsel engaged by him, to argue the case. Since it was an old case and had partly been heard I declined his request.
7. The learned counsel for petitioner No,1 submits that he was bona fide purchaser for value and the agreement dated 7-1-1986 was not in his knowledge. He also relied on the reasoning of the learned trial Court that the plaintiffs-respondents were in default to perform their part of the contract.
Statements of D.W.1 to D.W.3 were referred to contend that on 3-5-1986, the date fixed for execution of registered sale-deed, petitioner No,2 mils present in the office of Sub-Registrar but the plaintiffs/respondents did not have the money and instead promised to pay it in the village at their residence.
8. On the other hand, the learned counsel for the respondents Nos.1 to 3 submits that it was petitioner No,2, who backed out on which the suit was filed on 6-5-1986. He further maintains that simultaneously with the execution of the agreement possession of the disputed land was transferred to respondents Nos.1 to 3. The finding of the learned trial Court that the agreement stood cancelled, in fact amounts to holding that time was of the essence of the contract, which in fact was not. Reliance was placed on Zarina Chughtai v. Mst. Shahnaz Akhtar and 9 others 2003 M LD 640 and Haji Rehmat Ali v. Akbar Ali Hashmi and others PLJ 2000 Lah.
1408.
9. I have considered the submissions made by the learned counsel for the parties and have carefully perused the evidence produced by the parties. Since it was a judgment of variance I examined the entire evidence. While the witnesses of the plaintiffs claimed that petitioner Nos.2 was in default, the witnesses produced by the petitioners claimed that the respondents-vendees were in default. P. W.1, the scribe testified to. Exh.P.1, the sale agreement, and Exh.P.2, receipt for payment of Rs,12,000 to petitioner No,2, Muhammad Hayat, respondent No,1 appeared as his own witnesses as P.W.2. According to him, on the date fixed for the execution of the sale-deed, petitioner No,2 declined to execute sale-deed on the ground that there was a dispute. He denied that he had asked for extension of time. Ahmad Ali was examined as P.W.3. He stated that it was petitioner No,2, who had declined to execute registered sale-deed. D. W.1 stated that the respondents had paid a sum of Rs,8,000 against Rs,12,000 recorded in the agreement. He stated that the respondents had asked petitioner No,2 to execute the registered document and the sale consideration will be paid in the village. Thereafter, petitioner No,2 sold the land. According to him, the plaintiffs did not get the sale-deed executed because they did not have any money. Muhammad Aslam, D.W.2 stated that he attended the Tehsil Office on 3-5-1986, petitioner No,2 waited till the evening and got himself marked present before the Tehsildar, Pallu, petitioner No,2 appeared as D.W.3. According to him, the bargain was struck with Muhammad Hayat, respondent No,1 for a consideration of Rs,50,000 and he was paid a sum of Rs,8,000 but earnest money was recorded as Rs,12,000. On 3-5-1986 respondents stated that they will pay the sale consideration at their house because they did not have money and asked for extension of two months. He further stated that he was a T.B. Patient and was selling the property for his treatment, therefore, he did not agree to extension of time.
Muhammad Ibrahim, petitioner No,1, appeared as D.W.4. A niece of Pallu is his daughter-in-law. He claimed that he had purchased the disputed property for Rs,50,000 and he did not know the pendency of the suit at the time of purchase of land. He admitted that possession was not delivered to him and that he did not know in what capacity the respondents were in possession.
According to P.W.2, (Muhammad Hayat, respondent No,1) petitioner No,2 declined execution of the sale-deed and had raised a dispute. Petitioner No,2, who appeared as D.W.3 stated that on the date the parties were present in the office of the Sub-Registrar, he demanded Rs,36,000 while the respondents-vendees asked for an extension of two months. Thus, existence of a dispute on 3-5- 1986 between the parties becomes an admitted fact. The basis for the demand of Rs,36,000 by petitioner No,2 was his assertion in cross-examination that the bargain was struck for Rs,50,000, while in agreement Exh.P.1, the sale consideration mentioned was Rs,35,000. Perusal of the written statement filed by petitioner No,2 shows that no such plea was raised in the written statement.
Instead, it was averred that against an earnest money of Rs,8,000 the amount mentioned was Rs,12,000. This clearly establishes that at the time of execution of the registered sale-deed, petitioner No,2 insisted on the payment of an amount i.e, Rs,36,000 (against the balance amount of Rs,23,000), which was never agreed to between the parties. His assertion that against Rs,8,000 actually received by him as earnest money the amount of Rs,12,000 was wrongly shown as Rs,12,000 is also not acceptable because he not only admitted execution of agreement Exh.P.1 (which shows total sale consideration of Rs,35,000 and receipt of earnest money of Rs,12,000), but also the scribe of these documents was examined as P.W.1, who stated that Exhs.P.1 and P.2 were, written by him and the parties had affixed their thumb-impression and signatures in his presence.
He was not even cross-examined.
10. The respondents-vendees had filed the suit on 6-5-1986. As noted by the learned First Appellate Court, the counsel for the petitioners had put in appearance in the suit on 14-5-1986, just after 7 days of the issuance of the notices/summons to the defendants, and to test the short fall of the plaintiffs to have no money, he could make a statement in Court that he was willing to get plaintiffs' suit decreed in case the remaining amount was to be paid without fail to him". In the case of Haji Rehmat Ali, (supra), suit for specific performance was filed after four days of the date contemplated for completion of the transaction. In the said case the issue involved was whether time was of the essence of the contract. The suit which was dismissed by the learned trial Court was decreed with the following observation:-- ' "Moreover, the appellant, had promptly filed the suit on 3-11-1988, this by itself shows, that the appellant, was ready was willing to perform his part of the agreement."
' It was further observed that respondents/defendants could easily on the date of hearing give statement that the suit should be decreed on the payment of the consideration amount.
11. As far as petitioner No,1 is concerned, his claim to be a bona fide purchaser for value has rightly been turned down. He was a close relative of petitioner No,2 and the sale was made in his favour during pendency of the suit. D.W.4, admitted possession of the respondents/ vendees. Therefore, a cursory inquiry from petitioner. No,2 or the respondents/vendees, who are in possession of the suit- land, could have revealed the true state of affairs to petitioner No, 1.
12. The learned First Appellate Court, after reappraising the evidence came to the conclusion that petitioner No,2 was in default and this finding is adequately supported by the evidence on record.
The question which, however, in the circumstances, attracted my attention was as to the consideration for which the suit of the respondents/ vendees should be decreed.Undisputedly the agreement was executed on 7-1-1986, more than 17 years back and was decreed in appeal by the learned Additional District Judge, Faisalabad on 2-10-1995. This revision petition remained pending before this Court for little less than 8 years. The land in dispute was alienated by petitioner No,2 in favour of petitioner No,1 on 16-7-1987 for a consideration of Rs,50,000, which petitioner No,2 is bound to restore to petitioner No,
1. Although, petitioner No,2 was partly responsible for the delay, yet I am of the view that he is entitled to some compensation.
13. Therefore, this revision is partly allowed, the impugned judgment and decree of the First Appellate Court is modified and instead of balance sale consideration of Rs,23,000 the suit 'of the respondents/vendees is decreed for the balance sale consideration of Rs,50,000. The respondents are directed to deposit an additional amount of Rs,27,000 with the trial Court within 30 days failing which their suit shall be liable to be dismissed. Petitioner No,2 admittedly received Rs,50,000 from petitioner No,1 which he is bound to restore to petitioner No,1. Therefore, to save the parties from further litigation, it is directed that after the respondents/vendees have deposited the additional amount of Rs,27,000 with the learned trial Court as being directed herein, petitioner No, l' shall be entitled to draw the amount of Rs,50,000.
14. No order as to costs.