MUHAMMAD YAQOOB and others vs HAKIM ALI and others

' MUNIR A. SHEIKH, J.-Respondents filed a suit for specific performance of agreement of sale dated 5-10-1972 executed by the petitioners in their favour regarding lands in dispute. In the agreement it was covenanted by the petitioners that they would execute sale-deed up to 5-1-1973 and in case they failed to do so, they would be liable to pay compensation etc. On 31-1-1973 the respondents filed a suit for specific performance of the above sale-agreement in which it was specifically alleged that they had time and again been asking the petitioners to abide by the agreement and execute sale-deed in their favour for they were ready and willing to perform their part of the agreement which they declined. In par.4 of the plaint it was specifically pleaded that failure to execute the sale-deed was on account of the act of the present petitioners of non-payment of Government dues about the land in dispute on the payment of which their ownership rights were to be perfected as it was a mortgagee unit, against which the land was allotted to the petitioners. The petitioners outrightly denied the very execution of the agreement.

2. The trial Court after considering evidence produced by the parties came to the conclusion that execution of sale-agreement by the petitioners in favour of the respondents had been proved. It was however held that time was the essence of the contract and since the petitioners were unable to execute the sale-deed before the fixed dated i.e, 5-1-1973 on account of the fact that they had not cleared Government dues and perfected their title, as such, the same could not be performed and instead an amount of Rs,12,000 was granted to the respondents/plaintiffs in lieu of specific performance as compensation through judgment dated21-6-1987 by which the suit as regards prayer for specific performance was dismissed.

3. The appeal filed by the respondents was dismissed by the First Appellate Court on similar ground. The petitioners also filed appeal to question the legality of grant of compensation of Rs,12000 in which they also raised the ground that they did not execute the agreement to sell the land in question but the same was also dismissed.

4. The petitioners admittedly did not challenge the said judgment dismissing their appeal any further whereas the respondents filed second appeal which has been accepted through the impugned judgment dated 15-11-2001 holding that it was inability of the petitioners that sale-deed as provided in the agreement to sell could not be executed before the date fixed, therefore, the respondents were entitled to get the same performed in the present suit. The petitioners made an application seeking review of the said judgment which has been dismissed through order dated 15-1 1-200 1 after hearing the learned counsel for the petitioners afresh.

5. It was argued by learned counsel for the petitioners that agreement itself had at more than three places emphasized that sale-deed was to be executed on or before 5-1-1973 and since it could not be executed on account of the petitioners having not been able to get proprietary and ownership rights by depositing Government dues, therefore, the subsequent clause providing compensation in the form of money had become operative, therefore, the suit for specific performance was not maintainable as time was the essence of the contract.

6. The argument in our considered view is devoid of any force. Firstly, it may be stated that according to settled law regarding agreement to sell immovable property it has never been held that the time would be deemed to be the essence of contract merely because a date was fixed in it for performance thereof as this aspect of the matter should be considered and decided keeping in view the attending circumstances to ascertain the real intention. The mere fact that the petitioners at the time of execution of agreement of sale were not vested with full ownership rights and they had to perfect their title by depositing Government dues which was within the knowledge of the parties, therefore, it can safely be construed that the time fixed in the agreement was not intended to be the essences but a date was fixed tentatively with the intention that needful may possibly be done before the said date.

7. The suit was filed promptly on 27-1-1973, therefore, findings of trial and First Appellate Courts that time was the essence of the contractin these circumstances were not sustainable, therefore, High Court was legally justified to order performance of the same.

8. Learned counsel for the petitioners has not been able to persuade us that the findings recorded by the Courts below about execution of agreement of sale and application of law made by the learned Judge in Chamber of the High Court in this case suffer from any legal infirmity calling for interference by this Court.

' For the foregoing reasons, this petition is accordingly dismissed and .