S. ABBAS HUSSAIN Versus Hafiz MUHAMMAD IBRAHIM
1. The appellant is owner of 8 annas share in a joint holding in Survey y No.127/3‑28 situated in Taluka Digri, District Mirpurkhas. He had agreed to sell 1/2 of his share in the above survey number to the respondent by a sale agreement dated 27‑8‑1960. This 1/2 share of the appellants, would come to 1/4 of the whole survey number, In the said agreement there was a penal clause for that if the appellant failed to get the land converted into Sikni, then his entire 8 annas share in the said survey number shall stand transferred to the respondent. The appellant made an application to the Revenue Authorities for converting the land into Sikni, but did not pursue the same. The respondent waited in vain for about 5 years to enable the appellant to perform the above; condition of the sale agreement. Ultimately on 15‑9‑1965 the respondent riled suit for specific performance of the sale agreement. The suit was decreed and in pursuance of the decree a sale‑deed in respect of 8 annas share of the appellant in survey number in question was registered.
2. After registration of the sale‑deed the respondent applied to the concerned Revenue Authority for converting the land into Sikni and he succeeded in his effort thereafter the present appellant filed Suit No.6 of 1969 praying that hiss 4 annas share should now be reconveyed to him by the respondent because the condition of the sale agreement had been fulfilled. The suit was dismissed by Civil Judge First Class Mirpurkhas by his judgment dated 23‑12‑1969. 1t was held by the learned Civil Judge that the appellant had failed to perform his part of the contract regarding conversion of the disputed land into Sikni within a reasonable time and as such the respondent was entitled to enforce the penal clause.
3. The appellant challenged the decision of the Senior Civil Judge in appeal before the District Judge, Tharparkar at Mirpurkhas being Civil Appeal No.33 of 1970. The learned District Judge agreed with the finding of the trial Court that the appellant had failed to perform his part of the contract in respect of the conversion of the disputed land into Sikni for a considerable time and therefore, the respondent was rightly held entitled to enforce the penal clause. On this view of the matter the learned District Judge dismissed the appeal by his judgment-dated 27‑7‑1971. Aggrieved by the, judgment of the District Judge the appellant has riled this second appeal. The main point urged by Mr. Faizanul Haq, learned counsel for the appellant is that since the land had been converted into Sikni as per agreement of 1960, the respondent was not entitled to enforce the penal clause and that he was liable to return four annas share of the appellant back to him.
4. It has been further argued that since time was not of the essence of the contract, hence the fulfilment of the condition quoted above even after decision of the respondent's suit, would absolve the appellant of the mischief of the clause penal.
5. The argument of the learned counsel for the appellant is misconceived. Although the agreement dated 27‑8‑1960 did not prescribe any time within which the disputed land was to be converted into Sikni, but in this event it shall be presumed that the appellant was supposed to fulfil this condition within a reasonable time. It appears that the appellant simply made an application to the concerned Revenue Authority for conversion of the land into Sikni immediately after the sale agreement dated 27‑8‑1960, but thereafter forgot all about it. For about 5 years he did not pursue the matter in spite of repeated demands of the respondent. Ultimately in 1965, that is after 5 years of sale agreement, the respondent filed the suit for specific performance of the sale agreement including the penal clause. The respondent had waited for more than reasonable time to enable appellant to perform his part of the contract. Hence in spite of absence of fixed period for performance of penal clause, it must be held that the appellant had failed to perform his part of the contract within the reasonable time. The learned first appellate Court was, therefore, justified in dismissing the appeal.
6. No other point was urged by the learned counsel for the appellant in support of the appeal. There is no substance in this appeal, which is dismissed with costs.
7. M.Y.H./2526/K Appeal dismissed.