GHULAM MUHAMMAD Versus QUTAB ALI RAZA KHAN

MUHAMMAD ASADULLAH, J.‑‑ The appellants and respondents Nos.2 to 6 filed a suit for specific performance of agreement dated 31‑5‑1980. The appellants and their co‑plaintiffs alleged that respondent No.1 agreed to sell the land in dispute, situated in Mauza Jarola, Tehsil Shahpur, District Sargodha for a sum of Rs.3,57,291.66 and received a sum of Rs.64,581.28 as earnest money and thereafter received another advance amounting to Rs.64,000 on 1‑6‑1980 through a receipt executed by him. They alleged that the sale was to be completed and the sale‑deed was to be executed and got registered up to 30‑8‑1980 but respondent No.1 failed to perform his part of contract which necessitated the filing of the present suit. It may be pointed out that the suit itself was filed on 21‑9‑1980. Respondent No.1 resisted the suit on the ground that time was essence of the contract and sale had to be completed and the sale‑deed had to be got registered by 30‑6‑1980 and not by 30‑8‑1980, as alleged by the appellants, and that the appellants and respondents Nos.2 to 6 having failed to perform their part of contract he was not bound by law to make the sole in their favour after 30‑6‑1980. Respondent No.1 admitted the execution of the agreement except for the changing of the date and also admitted the receipt of Rs.1,28,581.28. After framing the issues and going through all the stages the learned Civil Judge, Ist Class, Shahpur dismissed the suit so far as it related to specific performance of the agreement while made an order against respondent No.1 for recovery of Rs.1,28,581.28. Out of the plaintiffs only Ghulam Muhammad and legal representatives of Allah Dita have filed this appeal to challenge the said judgment and decree. It may be pointed out that after the decision of the suit and before this appeal was filed the land was sold by respondent No.1 in favour of respondents Nos.7 and 8 and they have as such been arrayed as respondents in this appeal. We have perused the record and have heard the arguments.

2. As, pointed out above the execution of agreement dated 31‑5‑1980 EA.P.l is admitted by respondent No.l. Similarly, the receipt of earnest money amounting to Rs.64,581.28 through receipt Ext.P.2 is also admitted and same is the case with receipt of Rs.64,000 through receipt dated 1‑6‑1980 Ext.P.4. Therefore, the dispute between the parties is just on a small law point, as to whether specific performance of the said agreement should, in the circumstances of the case, be allowed or not. For that purpose examination of agreement Ext.P.l is necessary. A mere look on the same shows that the original date for performance of the contract was scribed as 30‑6‑1980 as alleged by respondent No.l. However, afterwards the digit‑6 was changed to 8 through overwriting. Overwriting is not denied by the appellants. They, however, alleged that this overwriting was not made afterwards but was made at the time of execution of the agreement. To prove this assertion they produced Abdul Ghafoor petition writer as PW.1. He obviously stated that the overwriting was made in Ext.P.l at the time of its execution. However, he is a licenced and a regular petition writer and admits that he knows that when any such interpolation is made a note of the same has to be given at some place in the body of the document and apart from that such an overwriting has to be initialled. No such note exists in the agreement Ext.P.l and the said overwriting does not bear any signature or initial either of the scribe or of any of the parties to the agreement. This is sufficient to prove that this overwriting was made somewhere afterwards. The relief of specific performance is a discretionary relief and can be allowed to a person who comes to the Court with clean hands. As the appellants and their co‑plaintiffs made a mischief and in fact committed the crime of changing the date in the agreement Ext.P.1 they did not come to the Court with clean hands. For this reason alone the relief of specific performance could not be allowed to them. As stated earlier the suit was filed on 21‑9‑1980 i.e., within about 4 months of the making of the agreement Ext.P.1 and within about 3 months from the date by which the agreement had to be performed. Therefore, in ordinary circumstances the relief of . specific performance would have been allowed to the appellants and respondents Nos.2 to 6. But for their mala fide interpolation of the said document they are not entitled to the said relief. The interpolation has another effect.

Ordinarily it is difficult to gather intention of the parties from an agreement as to whether the time was essence of the contract or not. This is one of the few cases where we can determine whether the time was essence of the contract or not. If the time were not the essence of the contract the appellants and respondents Nos.2 to 6 had no necessity of changing the date by overwriting in agreement Ext.P.1. The change by them, in connivance with the petition writer, Abdul Ghafoor, clearly proves that the said change was made only because the time was essence of the contract. The appellants and their co‑plaintiffs did not perform their part of the contract within the time prescribed for the same in Ext.P.1. For that reason too they are not entitled to specific performance of the same.

3. Before passing the final order it may be pointed out that the learned trial Court in his judgment and decree has ordered respondent No.1 to deposit the advance of Rs.1,28,581.28. In fact as a formality a decree for the said amount should have been and need be passed against the respondent.

4. Accordingly the appeal is dismissed. A decree for recovery of aR,s.1,28,581.28 is passed in favour of the appellants and respondents Nos.2 to 6 and against respondent No.1, The decree stands modified to this extent. The costs of this Court shall be borne by the appellants.

S.Q./G‑137/L Appeal dismissed.