KANIZ FATIMA Versus Sh. MUHAMMAD SOHAIL

I intend to dispose of the instant R.S.A. No. 74 of 1999 as also Civil Revision No.987 of 1996 through this consolidated judgment as both impugn the judgment and decree dated 3-5-1999 passed by the learned District Judge, Sialkot, dismissing the appeal of the appellants. The parties are same and common questions of law and facts are also involved in both these matters.

2. The dispute relates to the House No.7/9 situated at Pindi Araiyan, Rangpura, Sialkot City. One Master Fazal Din was the owner of the above stated house. He died in the year 1942. After his death, his daughter Mst. Kaniz Fatima appellant No.1 and two sons namely Fazal Ahmad appellant No.2 and Nazir Ahmad, became the owners in possession to the extent of 115, 2/5 and 2/5 share in the said house. The house in dispute was purchased by Mst. Rashida Begum (now deceased and represented by respondents Nos.1 to 8) on the basis of agreement to sell dated 18-4-1975. The agreement was not enforced. therefore, Mst. Rashida Begum filed suit for specific performance of the contract against Mst. Kaniz Fatima and Fazal Ahmad. It was maintained that the respondents executed the sale agreement dated 18-4-1975 in consideration of Rs.53,000 in favour of plaintiff Mst. Rashida Begum Rs.30,000 was paid as earnest money and in part performance of the agreement, possession of one Baithak, one room and compound of the ground floor, one room in the second floor, was handed over to her. She mentioned the portion, which was handed over to her shown in red colour in the plaint. The registered sale-deed was to be executed within two months. The agreement was not performed in time, therefore, the time for completion of the same was extended. It was also the case of the respondent Mst. Rashida Begum that she has constructed two rooms from her own sources. Suit filed by the appellants/defendants for permanent injunction was dismissed as withdrawn on 11-3-1976. Since the defendants/appellants were failed to execute to sale-deed in favour of Mst. Rashida Begum within the stipulated time, therefore, she filed suit for specific performance of the contract in the Civil Court on 12-4-1976.

3. The appellants/defendants submitted their written statement. The allegations were controverted. However, the execution of the agreement of sale was admitted. The main reason for not completing the contract by the appellant was assigned as that time was the essence of the contract and since Mst. Rashida Begum respondent did not perform her part of the agreement in stipulated period, therefore, the agreement was rescinded and the earnest money of Mst. Rashida Begum paid to the appellants had been confiscated:

4. The controversial pleadings of the parties, resulted into framing the following issues by the learned trial Court:

Issues

(1) Whether the suit is premature? OPD

(2) Whether the suit is not maintainable in its present form? OPD

(3) Whether the time was the essence of the contract? If, so, what effect? OPD

(4) Whether the agreement is not specifically enforceable, if so, what effect? OPD

(5) Whether the plaintiff is entitled to specific performance, if so, on what terms and conditions'? OPP

(6) Relief.

5. Both the parties produced their evidence. Nazir Ahmad, Muhammad Shafi and Muhammad Anwar attorney of Mst. Rashida Begum appeared as P.W.1 to P.W.3. P.W.3 has also produced the document Exh.P.1 to Exh.P.5. The appellants produced Hafiz-ur Rehman, Muhammad Din as D.W.1 and D.W.2, whereas Mst. Kaniz Fatima herself appeared as D.W.3.

6. Another suit was tiled by Mst. Kaniz Fatima appellant against Mst. Rashida Begum for possession of the house in dispute. In the plaint, Mst. Kaniz Fatima alleged that she and her brother are the owners in possession of the house described in the plaint. The execution of the agreement to sell with Mst. Rashida Begum dated 18-4-1975 was admitted, but it has been stated that remaining consideration was not paid within the stipulated time, hence the earnest money paid by Mst. Rashida Begum has been confiscated and the agreement to sell has been rescinded. Mst. Kaniz Fatima asserted that at the time of execution of the sale agreement, defendant/respondent Mst. Rashida Begum was handed over the possession of portion of the house shown in red colour in attached plaint as part performance of the contract and she has constructed two rooms illegally without permission of the owner Mst. Kaniz Fatima etc., therefore, they prayed for the decree of possession of portion of the property against Mst. Rashida Begum.

7. In the suit Mst. Rashida Begum, who was the defendant, controverted the allegations made in the plaint by filing the written statement. It was asserted by her that she was ready to perform her part of the contract, but Mst. Kaniz Fatima herself was not ready to perform her part of the contract, hence the suit was not maintainable. It was further asserted that Mst. Kaniz Fatima is estopped by her words and conduct to file the suit. She also prayed for staying the suit tiled by Mst. Kaniz Fatima as suit for specific performance filed by her was already pending sub-judice in the Civil Court. In this suit also, the following issues were framed by the learned trial Court:--

(1) Whether the suit is barred under section 10, C.P.C.? OPD

(2) Whether the suit is barred under section 11, C.P.C.? OPD

(3) Whether the plaintiff is estopped by words and conduct to file the suit? OPD

(4) Whether the suit is not maintainable as it is? OPD

(5) Whether the suit is not correctly valued for a fee and jurisdiction, if so, what is the correct valuation? OPD

(6) Whether the plaintiff has got no locus standi to tile the suit? OPD

(7) Whether the parties have partly performed the alleged contract of sale, if so, what effect upon the present suit? OPD

(8) Whether the suit is frivolous, if so, is the defendants entitled to special costs, if so, to what extent? OPD

(9) Whether the time settled between the parties was the essence of the contract, if so, what effect upon this suit? OP Parties.

(10) Whether the parties have been ready and willing to perform their respective parts of the contract, if so, what effect? OPP

(11) If Issues Nos.9 and 10 are decided against the defendants, then whether the plaintiff is entitled to the possession of the suit property, if so, on what terms and conditions? OPP

(12) Relief.

8. Both the parties produced the evidence. Vide order dated 8-2-1987 of the High Court, both the suits were consolidated vide order dated 1-4-1987. It was directed that both the suits will be decides according to the evidence, which has already come on the record.

9. The learned Civil Judge decided Issues Nos.3, 4 and 5 of the suit for specific performance filed by Mst. Rashida Begum in her favour by observing that "there is no evidence on the record that the plaintiff and her daughter were involved in criminal case under section 302, P.P.C. In the absence of any such evidence, I am not ready to accept the version of the defendant and keeping in view the wording of extension dated 20-6-1975 and 3-8-1975, I am of the view that the plaintiffs have performed their part of the contract and the sale-deed has not been executed because of the defendant and she herself has not executed the sale-deed within the stipulated time as well as within the extended time. These extensions have been made due to busyness of the defendant herself and the plaintiff cannot be blamed for non-performance of the contract". It was further observed by the learned Civil Judge that; "the plaintiff was ready and willing to perform his part of contract within the stipulated time and within the extended time". Issues Nos. 1 and 2 in the suit for specific performance, were not pressed by the learned counsel for the defendant vide statement dated 29-10-1987. Issue No. 1 of the suit for possession tiled by Mst. Kaniz Fatima was become redundant. Issues Nos.7, 9 and 10 were decided in favour of Mst. Rashida Begum respondent/plaintiff and against the appellant Mst. Kaniz Fatima defendant. On the basis of findings on Issues Nos.3, 4 and 5, the learned Civil Judge proceeded to decree the suit for specific performance of the contract tiled by Mst. Rashida Begum. She was directed to deposit the remaining consideration of Rs.23,000 within one month failing which, her suit shall be deemed as stands dismissed. The defendants were directed to get the sale-deed executed in favour of the plaintiff within the allowed time. If the defendant fails to execute the sale-deed within the stipulated time, the plaintiff was declared entitled to get the sale-deed executed through Court. Suit for possession filed by Mst. Kaniz Fatima was dismissed vide consolidated judgment and decree dated 1-11-1987. Appeal No. 14 of 1999 was filed by Mst. Kaniz Fatima etc. against the above stated judgment and decree dated 1-11-1987 passed by the learned Civil Judge. The learned Additional District Judge was of the view that time was not the essence of the contract in this case, therefore, he dismissed the appeal of the appellants while maintaining the findings on all the issues in favour of the respondent/plaintiff and proceeded to dismiss the appeal vide judgment and decree dated 3-5-1999.

Civil Revision No.987 of 1996

10. Another Suit No.659 of 1987 was instituted by the brother of Mst. Kaniz Fatima appellant namely Nazir Ahmad against Mst. Rashida Begum etc. In the plaint, he stated that he is residing in Norway and on arrival at Pakistan three months ago, came to know that there is some agreement of sale between Mst. Rashida Begum and his brother and sister with regard to whole of the house and, therefore, he filed suit for declaration and permanent injunction claiming to be the owner of 2/3 share in the property and the agreement to sell dated 18-4-1975 is ineffective and inoperative upon his rights. He also sought directions to be issued to Mst. Rashida Begum to remove the alleged illegal constructions raised over his portion of house.

11. The suit was resisted by the appellant and Mst. Rashida Begum. It was contended that the private partition of the house in dispute has taken place between the co-sharers and the appellants have entered into an agreement to sell 3/5 share of house, which falls to their entitlement. Further it was stated that she raised constructions over the portion in her possession and that Nazir Ahmad filed suit for possession through partition, which was decided on 3-9-1964 and afterwards, on 4-10-1966, he had withdrawn the suit. Necessary issues were also framed by the trial Court in the suit of Nazir Ahmad. The learned Civil Judge dismissed the suit vide judgment and decree dated 31-1-1988 and the learned Judge observed that partition of the property between the co-sharers i.e. appellant and Nazir Ahmad has been taken place and plaintiff Nazir Ahmad was given 2/5 share from the property. Further it was observed that the suit for possession through specific performance of the contract tiled by Mst. Rashida Begum against the appellants (Civil Suit No.143 of 1986) has already been decided in favour of Rashida Begum vide Exh.D.1. Appeal tiled by the plaintiff was also dismissed.

12. Vide order dated 8-3-1999, the civil revision was directed to be decided alongwith appeal together id order to exclude the possibility of contradictory decision-

13. The agreement to sell dated 19-4-1975 executed by Mst. Kaniz Fatima and his brother in consideration of Rs.53,000 has been admitted. It has also been admitted that Rs.22,000 were paid by the respondent Mst. Rashida Begum as earnest money. The agreed period of two months was settled by the parties for the registration of the sale. With mutual consent of the parties, the time was extended for 1-1/2 months for the purposes of completion of the agreement. On the expiry of the initial extended period of 1-1/2 months, further time of three months was extended and thereafter, the appellants refused to complete the sale on the ground that the agreement between the parties has come to an end because the time was the essence of the contract and earnest money paid by Mst. Rashida Begum has been forfeited.

14. The crucial issue to be decided in this case is whether the time in this case was the essence of the contract or not. To understand the controversy, reading of section 55 of the Contract Act, is relevant, which reads as follows:--

"When a party to a contract promises to do certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract, or so much of it as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract.

If, it was not the intention of the parties that time should be of the essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promiser for any loss occasioned to him by such failure.

If, in case of a contract voidable on account of the promisor's' failure to perform his promise at the time agreed, the promisee accepts performance of such promise at any time other than that agreed, the promisee cannot claim compensation for any loss occasioned by the non-performance of the promise at the time agreed, unless, at the time of acceptance, he gives notice to the promisor of his intention to do so."

I have perused the admitted agreement between the parties Exh. P.L 1 dated 13-6-1975: No doubt, it was agreed that the remaining amount shall he paid within two months and the sale-deed shall be executed till that time, but the time was extended by Mst. Kaniz Fatima on 20-6-1975 for one month and 15 days till 3-8-1975. Therefore, the time was further extended up to 14-8-1975 for three months. The relevant statement made by Mst. Kaniz Fatima was as under:--

From the contents of the agreement coupled with the above statement incorporated in the agreement, there is no doubt in my mind that the time was not essence of the contract in this case. Even it is settled rule of law, that normally in the sale of an immovable property, time is not the essence of the contract. In case reported as Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 SC 344, the Honourable Supreme Court has ruled:--

Section 55. Contract for sale of immovable property .--- Time, in such transaction, not ordinarily considered as being essence of contract---Intention of parties, in such behalf, can be gathered from terms of contract and facts and circumstances of case. Mere mention of time in contract for its performance---Held, does not necessarily mean that time was of essence."

15. The appellant had not only extended the-time on the back of the agreement to sell on two occasions with her on writing, but also the intention of the parties makes it crystal clear that time was not the essence of the contract and, therefore, no illegality or irregularity has been committed by the two Courts below while decreeing the suit of the plaintiffs/respondents and dismissing the suit for possession tiled by the present appellants.

16. On the basis of evidence, the learned Civil Judge concluded that Mst. Kaniz Fatima and her two brothers namely Fazal Ahmad and Nazir Ahmad became owner in possession of the suit house after the death of their father Master Fazal Din. The house was partitioned according to the entitlement of the above stated owners. The partition took place and Nazir Ahmad was given separate possession of the house in dispute. Mst. Kaniz Fatima and her brother Fazal Ahmad entered into an agreement of sale of their share with Mst. Rashida Begum and on the basis of the agreement, suit for specific performance has been decreed in favour of the respondents. There is a concurrent finding of facts recorded by the Courts of competent jurisdiction against Nazir Ahmad, which cannot get interfered in the revisional jurisdiction of this Court.

17. In the light of above, this appeal fails and the same is dismissed. Parties to bear their own costs.

S.A.K./K-184/L Appeal dismissed.