AMATULLAH BEGUM Versus MUNAWAR AKHTAR

ABAID ULLAH KHAN, J.‑‑ This is defendants' appeal against the judgment and decree of the learned Civil Judge, Lahore, dated the 1st March, 1978, decreeing the respondent's suit for specific performance of contract of sale of front portion of the bungalow entered in Khasra No.2362, bearing survey No.S‑16‑R/45, commonly known as 45, Mozang Road, Lahore. last. Amatullah Begum, appellant 1, was transferred the entire Bungalow No.45, Mozang Road, Lahore, which once constituted evacuee property, by the Settlement Authorities. Pir Salah‑ud‑Din, appellant 2, is the husband and attorney of 'appellant 1. The appellants had long‑standing cordial family relations with Mr. Munawar Akhtar, respondent, a practising Advocate of Lahore. The parties belong to Ahmadia community (Qadiani group). In 1968, the respondent took on rent from appellant 1 the southern front of portion of the above‑mentioned bungalow. He has since then been in its continuous possession.

2. As alleged by the respondent, in December, 1972, learning that appellant 1 wanted to sell her bungalow, he, during initial negotiations with the appellants, expressed his desire to purchase only the portion in his possession in view of heavy investment he had made in effecting repairs and improvements and of the professional goodwill value it carried, by the appellants insisted that if he wanted to buy the portion in his possession he must buy the remaining portion as well and offered to sell the entire bungalow under a package deal at the rate of. Rs.3,000 per marla for the land and Rs.10 per square foot for the constructed area. According to the respondent the offer was open for one week subject to payment of Rs.10,000 as earnest money. He states that he accepted the offer verbally on the 6th January, 1973, at the appellants' residence at Islamabad when negotiations were finalized and acceptance was reaffirmed formally by him from Lahore on the 8th January, 1973, through a registered letter accompanied by a bank draft for Rs.10,000 as earnest money. The appellants are stated to have received the letter of acceptance and got the draft encashed. The respondent describes it as conclusion of binding agreement between the parties for the sale of the entire bungalow, 45, Mozang Road, Lahore.

3. The respondent avers that in March, 1973, the appellants required him to send some money towards the sale price and he sent them a sum of Rs.10, 000 per bank draft dated the 9th March, 1973, with a registered letter. He affirms that in response to further demand of the appellants he sent them another sum of Rs.15, 000 by bank draft on the 5th July, 1973.

4. The respondent refers to the measurements of the property in dispute having been made in June, 1973, and a plan got prepared by a professional Engineer (M. Sadiq, PW.1) in the presence of the parties, the land of the entire premises was found to measure 3 kanals 15 marlas 157 square feet while the constructed area was sp read over 6, 700 square feet. On the same occasion appellant 2, as alleged by the respondent, desired the latter to get executed a sale‑deed in respect of sale of seven marlas of land lying on the extreme northern tip of the property. According to the respondent a neighbour, to whose house the aforesaid seven marlas of haphazard and triangular piece of land was contiguous, expressed his keen desire to purchase it and as he himself had no keenness for the back portion he gave his consent to the neighbour's purchasing the land and thereafter the same was sold to him at the rate agreed to between the parties.

5. On the 24th December, 1973, in part performance of the agreement the respondent got executed sale‑deed. (copy Exh.P.30) touching the sale of about half of the bungalow (back portion) for a consideration of Rs.1,16,000, wherein a sum of Rs.5,000 out of the earnest money of Rs.10,000 sent or. the 8th January, 1973, was adjusted towards the part of the price of the back portion and the balance of Rs.5,000 was to be adjusted at the time of execution of sale‑deed of the remaining (front) portion of the property in July, 1974.

6. As contended by the respondent he had been asked by the appellants in March, 1974, to pay some more money towards the price of the remaining portion of the property whereupon he sent them Rs.10, 000 by bank draft alongwith a registered letter dated the 28th March, 1974. As pleaded by the respondent, appellant 2 telephoned him in June, 1974, explaining his and his wife's (appellant 1's) inability to execute the sale‑deed of the remaining portion of the property at Lahore due to violent anti‑Ahmadia agitation and considering the inability of the appellants to travel down to Lahore it was mutually agreed that the sale should be completed on normalization of conditions though appellant 2 added that the completion of sale should not be later than December, 1974.

7. The respondent sent a sum of Rs.40,000 by bank draft towards the price of the front portion of the bungalow alongwith his registered letter dated the 30th September, 1974, to the appellants, as he insists, on their asking. The bank draft was cashed.

8. On the 5th November, 1974, the respondent wrote a letter to the appellants requesting them to come down to Lahore in order to execute the sale‑deed. The letter received from them showed, as the respondent terms it, turning of the appellants to be dishonest and greedy. The appellants expressed their intention in the letters to appropriate the amount of Rs.40,000, as the respondent describes, on the pretext of imposing fine but they were willing to execute the sale‑deed provided he agreed to pay the additional amount of Rs.40, 000 to cover their loss. The respondent blames the appellants for inventing false plea of the rate of sale of property to be Rs.5,000 per marla for the land and Rs.15.00 per square foot for the built‑up area.

9. The respondent sent on the 28th December, 1974, telegraphic notice through his counsel to appellant 1 calling upon her to execute the sale‑deed at the rate of Rs.3,000 per marla for land and Rs.10 for constructed area by the 31st December, 1974, the agreed last date. Reply to the notice was viewed by the respondent as an attempt on the part of the appellants to put the matter off or, the pretext that execution of sale‑deed had to be preceded by the clearance of arrears of property taxes for which responsibility was placed on the respondent as well. The respondent sent letter through his counsel dated the 15th January, 1975, explaining that it had never been his responsibility to settle the property tax matters of appellant 1. He asked for the execution of the sale‑deed by the 21st January, 1975. On the 28th March, 1975, he instituted suit for specific performance of agreement of sale whose decision has given rise to this appeal.

10. The respondent pointed out that on the 21st January, 1975, the appellants had sent him a cheque of Rs.40,000 (out of total advance of Rs.55,000) manifesting their refusal to perform their part of the contract of sale. He stated that he had not accepted this payment nor cashed the cheque which he described to be otherwise invalid. He did not consider himself to be liable to pay the rent of the bungalow after the 31st December, 1974, and said that he had been paying rent due after the 31st December, 1974, under protest without prejudice and subject to adjustment.

11. The appellants have given a different version of the terms and conditions of the agreement particularly touching the rates at which the land and constructed area were to be conveyed. They maintain that it was agreed as a result of negotiations held in December, 1972, that the respondent could purchase the (back) portion subsequently sold to him vide the sale‑deed of the 24th December, 1973 (copy Exh.P.30), and the private passage at the rate of Rs.3,000 per marla for the land and Rs.10 per square foot for constructed area while the remaining (front) portion, including the portion in his occupation as tenant, could be purchased by him at the rate of Rs.5,000 per marla for land and Rs.15.00 per square foot for the built‑up area. They describe the respondent's story of the package deal for the purchase of the entire property at uniform rate to be false. They assert that the respondent was to fulfil his part of the agreement and pay the price calculated in accordance with the above rates by the, end of May, 1973, failing which the agreement was to expire and the money paid by him was to be forfeited. They aver that he could not pay the stipulated price by the specified date on account of financial difficulties as he had no necessary funds at his disposal to bring about completion of the sale‑deed and, therefore, appellant 1 sold a portion of the property (seven marlas) to a third party in June, 1973, without his intervention. They plead that at his request time for purchasing the rest of the property was extended to the end of December, 1973, and due to family relations existing between them the earnest money was not confiscated. As they say he had not even in December, 1973, adequate funds to buy the entire property and consequently he purchased only a portion of the bungalow on the 24th December, 1973, and he was given an additional lease of time and the final one to purchase it by the 4th July, 1974, and it was agreed that no further extension in time would be given. They add that he was to pay Rs.1,00,000 by the end of May, 1974, and if the sale was not completed by the 4th July, 1974, due to his fault the earnest money paid by him was to be forfeited. According to them as he failed to fulfil his obligations by the stipulated date he was disentitled to seek specific performance of the contract and that earnest money paid by him stood forfeited.

12. The appellants acknowledge that the respondent sent them a draft of Rs.10,000 in January, 1973, but deny that it was accompanied by any letter. They describe the ccpy of the letter dated the 8th January, 1973, placed on the record by the respondent to be a false document. They concede the receipt of ‑Rs.15,000 in July, 1973. They admit to have received the draft of Rs.10,000 in March, 1974, but state that it was not accompanied by any letter. They term the remittances as voluntary and not at their request.

13. They deny that any measurements were taken at the site in June, 1973, in their or their representative's presence. They take the area of the property given by the respondent in the plan as approximate and contend that precise area could be determined only by carrying out measurements at the spot by some commissioner appointed by the Court.

14. The appellants disown the alleged appellant 2's telephonic conversation with the respondent expressing appellants' inability to go to Lahore to execute the sale‑deed due to anti‑Ahmadia agitation or postponing the execution and registration of the sale‑deed till the end of December, 1974, by the latest. They explain that their son‑in‑law, Major Munir Ahmad, who had a general power‑of‑attorney from appellant 1, was posted at Lahore during the relevant period and if the respondent genuinely wished implementation of the agreement he could easily find the said Major Munir Ahmad and had the sale‑deed completed and also appellant 2 could go to Lahore as he had 'no apprehension from anyone.

15. The appellants state that the respondent had sent bank draft of Rs.40,000 of his own accord unaccompanied by any letter but on discovering that he was planning to grab the property against the terms of the agreement, the money was returned to him. They add that in reply to his letter of the 5th November, 1974, they pointed out to him that as he had failed to perform his part of the agreement before the stipulated date of the 4th July, 1974, they were within their rights to cancel the agreement and that they were willing to return Rs.40,000 if he so desired.

16. They assert that he had no right to withhold rent or to demand its adjustment towards the sale price as the agreement expired due to his own fault.

17. In replication the respondent gives a lie to the appellants' assertion touching computation of price of the bungalow on the basis of two different sets of rates of price. He reiterates that only one rate, namely, Rs.3,000 per marla for land and Rs.10 per square foot for built‑up area, was agreed upon. He maintains that he had adequate funds to complete the sale and that he never failed to perform his part of the contract. He contends that the appellants' version that the price had to be paid by the end of May, 1973, is devoid of truth and that there was no question of expiry of agreement in May, 1973, or of the forfeiture of money paid by him. He expresses ignorance of stationing of Major Munir Ahmed at Lahore during the time of anti‑Ahmadia agitation or of his being attorney of appellant 1 for executing the sale‑deed. He sticks to his statement that appellant 2 told him over the telephone of appellants' inability to execute the sale‑deed at Lahore due to violent of anti‑Ahmadia agitation and of postponement of the execution and registration of the sale‑deed.

18. The contentions of the parties gave rise to the following issues for determination:‑‑

(1) Whether the parties entered into an oral agreement or. 6‑1‑1973?

If so, at what rate the property in dispute was agreed to be sold to the plaintiff? OPP

(2) Was the time the essence of the contract? If so, which of the parties failed to perform his part of the contract? OPD

(3) What is the balance amount to which the defendant No.l is entitled? OFD

(4) Whether the plaintiff made any improvement of the property in question? If so, how much amount he spent and what is its effect? OPP

(5) Whether the plaintiff is entitled to the specific performance of the contract? OPP

(6) If issue No.5 is decided in the negative whether the plaintiff is entitled to any refund of money? If so, what is the amount to be refunded?' OPP

(7) Relief.

19. The learned trial Civil Judge formed the view that time was not of the essence of the contract. He accepted the respondent's version of the case that the entire property was agreed to be sold at the rate of Rs.3, 000 per marls for land and Rs.10 per square foot for constructed area. Considering appellant 1 to be responsible for breach of contract and finding no fault with the respondent he was held to be entitled to the specific enforcement of contract. The respondent accepted the measurements of the land and constructed area of the property in dispute as given by the appellants, the land measures 2 kanals 3 marlas 185 square feet and the constructed area stands on 4, 003 square feet. The price of the aforesaid land and the constructed area at the rate of Rs.3,000 per marla and Rs.10 per square foot comes to Rs.1,71,497.90. Rs.55,000 already paid by the respondent to the appellants were to be adjusted against the aforesaid price. The learned Civil Judge also allowed deduction ‑of Rs.28, 450, which amount represented rent of the property in dispute due from January, 1975, onwards paid by the respondent, describing it as compensation for breach of the contract measured in terms of mesne profits for the period of wilful default. Accordingly the suit was decreed subject to payment of Rs. 88, 047.90 by the respondent.

20. The respondent was not given anything for the improvements he alleged he had effected. Actually he did not specifically put forth any claim for compensation regarding improvements. Striking of issue re-improvements was not called for.

21. The learned counsel for the appellants did not throw a serious challenge to the finding of the learned trial Court that the time was not of the essence of the contract. Appellant 1, through her husband and attorney, appellant 2, received Rs.10,000 as earnest money in January, 1973, Rs.10,000 in March, 1973, Rs.15,000 in July, 1973, Rs.10,000 in March, 1974, and Rs.40,000 in October, 1974, towards payment of the price of the property. Appellant 2, in his letter of the 8th November, 1974, Exh.P.52, addressed to the respondent, intimated his willingness to come down to Lahore for registration of the sale‑deed if respondent was prepared to pay Rs.40,000 as penalty It follows that the parties, especially the appellants, did not intend time to be of the essence of the contract and were prepared for the registration of the sale‑deed irrespective of rigid time limit.

22. The real controversy relates to the rate at which price of the property was to be calculated. Choice has to be made between two sets of rates: the one alleged by the appellants and the other given by the respondent. The respondent brought on the record his letter (copy Exh.P.31) which he stated he had sent to appellant 2 on the 8th January, 1973, from Lahore communicating acceptance of the offer of sale of the bungalow at the rate of Rs.3,000 per marla of land and Rs.10 per square foot of constructed area. He also sent a draft of Rs.10,000 alongwith this letter. The appellants admitted that they got the draft but denied the receipt of the letter.

23. The respondent produced Dr. Muhammad Safdar PW.5, who was an attesting witness of the sale‑deed, Exh.P.30, whereby. the back portion of the bungalow had been sold by appellant 1 to the respondent and who held fairly high position in the Pakistan Council of Scientific and Industrial Research Laboratories, Lahore, as well as Mian Fazl‑i‑Mahmood, Advocate, PW.10, to bear out that according to the contract between the parties the property was to be sold at the rate of Rs.3,000 per marla of land and Rs.10 per square foot of constructed area. Dr. Muhammad Safdar stated that appellant 2 had told him that as the price had gone up he should ask the respondent to pay something over and above the settled price. According to Mian Fazl‑i‑Mahmood the parties had fallen out on the question of rate because appellant 2 demanded more and the respondent insisted upon paying according to the agreed rate. Appellant 2 denied ever having a talk on the subject with either Dr. Muhammad Safdar or Mian Fazl‑i‑Mahmood. He asserted that the agreed rate was of Rs.5,000 per marla of land and Rs.15 per square foot of constructed area. The learned trial Court has believed the testimony of Dr. Muhammad Safdar and Mian Fazl‑i‑Mahmood to be true and corroborated as it is by documentary evidence to be presently discussed. This Court find's no reason to take a different view.

24. Muhammad Saddiq, D.W.1, and Abdul Majid, D.W.2, produced by the appellants, are not witnesses of the conclusion of agreement between the parties. They do not testify to the rates which were agreed upon between the parties. Their oral evidence is not of much value.

25. The document, Exh.P.44, which purports to be memorandum of agreement of sale of the property between the parties is of some help to resolve the issue. It was typed by the respondent. Both appellant 2 and the respondent made corrections therein at no fewer than thirteen places with their hands in the presence of appellant 1 in June, 1973. Corrections Exhs. A‑1 to A‑7 are in the hand of the respondent and those Exhs. B‑1 to B‑6 are in the hand of appellant 2. The contents of the document after corrections so made read as follows, ‑

"THIS MEMO. OF AGREEMENT OF SALE made at Lahore this day of June, 1973 between Amatullah Begum (hereinafter called the vendor) which expression shall include her heirs, administrators, executors and assigns of the one part, and Mr. Munawar Akhtar, Advocate, resident of 45‑Mozang Road, Lahore, hereinafter called the vendee which term shall include his heirs, administrators, executors and assigns of the second part, in respect of sale of the entire property known as No.45‑Mozang Road, Lahore, part of which is presently in occupation of the vendee. WHEREAS the vendor is the absolute owner of premises known and numbered as 45‑Mozang Road, Lahore, more particularly described hereinafter and has agreed to sell the same alongwith all building, fixtures, fittings and appurtenances whatsoever. AND WHEREAS the vendee has agreed to purchase the said premises and has made an offer to the vendor who has accepted the same.

NOW THIS AGREEMENT WITNESSETH:‑

(1) That the land of the entire property mentioned above has been agreed to be sold at the rate of Rs.3, 000 per marla. Another Rs.10 per square foot has been agreed upon as price for the constructed area.

(2) That the vendee undertakes not to claim any expenditure he has incurred or may incur for adjustment against the agreed price.

(3) That the vendee will pay half the entire sale price in December, 1973, and the remaining half in July, 1974 and get the sale‑deed registered.

(4) That the vendee has paid to the vendor a sum of Rs as advance in the following manner:

Bank draft dated for a sum of Rs in favour of the vendor drawn on United Bank Ltd. Abpara Branch, Islamabad. Another Bank draft of Rs . dated drawn on .

(5) The vendor hereby acknowledges the receipt of the aforesaid amount of Rs ..........

(6) (Scored out.)

(7) That during the period the sale‑deed is not registered any additions/alterations/construction raised by the vendee will be at his own risk and cost and the vendor will not be responsible for reimbursing costs thereof."

Condition No.6, which was scored out by appellant 2 vide correction, Exh.B‑6, runs as follows,‑

"6. That on payment of Rs . . . . . . . the vendee will have the right to receive rents from all the tenants and stop payment of his own rent to the vendor."

It is significant to note that corrections in condition ‑No.l mentioning that the property had been agreed to be sold at the rate of Rs.3,000 per marla of land and Rs.10 per square foot of constructed area were made both by appellant 2 and the respondent but none of them touched the figures representing the rate which were kept intact. This was as a matter of fact the most important condition and if the rate agreed upon was to be different from the one set out therein appellant 2 would have certainly made necessary alteration and substituted the rate which according to him was the agreed one. Absence of any change made by appellant 2 in the rate is indicative of the fact that the agreed rate was Rs.3,000 per marla of land and Rs.10 per square foot of constructed area. The appellants' version of the rate is falsified by this document. The finding of the learned trial Court touching the rate cannot but be affirmed.

26. It is difficult to endorse the learned trial Court's awarding of amount of rent paid by the respondent as compensation to him. It was no part of the agreement that the respondent could stop paying rent before actual sale of the property. As a matter of fact he took on rent a portion of the property in dispute on the 10th February, 1974, from appellant 1 and on the 28th March, 1975, moved an application before the Rent Controller for fixation of fair rent of that portion. In that application he did not assert that he was in any way entitled to hold the property in dispute without payment of rent under the agreement of sale. He made no claim for compensation either in the suit brought by him. In the circumstances the amount of Rs.28,450 paid by him as rent could not be adjusted against the price payable by him. He could only claim adjustment of Rs.55,000 which had indisputably been paid to the appellants. He was liable to pay Rs.1,16,497.90.

27. The contention of the learned counsel for the appellants that the contract was not specifically enforceable under section 21(c) of the Specific Relief Act, 1877, which was not raised before the learned trial Court nor incorporated in the memorandum of appeal, is simply not maintainable because there is no difficulty in ascertaining the terms of the contract. His plea that the discretionary relief of enforcement of contract should not be granted to the respondent is equally without force. He had all along been ready and willing to perform his part of the contract, fault rather lay with the appellants who had unjustifiably been claiming enhanced price.

28. In view of what has been said above, the appeal is partially accepted and the decree of the learned trial Court is modified to the) extent that the respondent will pay Rs.1,16,497.90, instead of Rs.88,047.90, as balance of the sale price to appellant 1. The respondent is given six months' time to make the requisite payment. Any payment already made in obedience to the decree of the learned trial Court will be deemed to be part of Rs.1,16,497.90 and the respondent will make up the shortfall. The parties are left to bear their own costs.

A.A./A‑402/L Appeal partly accepted.