ISSO Versus MUHAMMAD ISMAIL

1. This Civil Revision Petition is directed against the judgment, dated 8 th May, 1982 passed by IInd Additional District Judge, Nawabshah whereby, allowing appeal and reversing judgment, dated 28‑11‑1977 and decree dated 5‑12‑1977 of Civil Judge, Naushehro Feroze.

2. The facts leading to the filing of the above revision petition are that the first respondent had filed suit for specific performance of the contract for sale of agricultural land. The case set up by the first respondent in his plaint is that the second respondent had executed an agreement of sale in his favour on 8‑9‑1969 in respect of Survey No.819 measuring 2‑26 acres and Survey No.436 measuring 1‑26 acres in Deh Abji, taluka Naushehro Feroze, for a total sale consideration of Rs.12,000. Out of this total sale consideration he had paid her an amount of Rs.5,00() as earnest money and the second respondent had delivered the possession of suit land to him which continued to be in his possession. The first respondent asserted in his plaint that the second respondent had promised that till the end of November 1969 she would get the Revenue Record mutated in her favour, obtain Fardi Intikhab and after receiving the remaining balance of amount, would execute the registered sale deed in favour of the first respondent. According to the first respondent, he had gone to the second respondent at Karachi and had asked her to receive the remaining money and to execute the conveyance deed in his favour to which the second respondent is alleged to have expressed that she would go to Naushehro Feroze in the last week of November and after receiving the balance amount, would execute the conveyance deed but the second respondent did not go to Naushehro Feroze for the said purpose as a result of which the first respondent on 29‑11‑1969 sent a telegram to the second respondent for doing the needful, which was not replied by the first respondent. However, on 14‑12‑1969, the second respondent refused to sell the suit land to the first respondent. Subsequently, however, the first respondent came to know that the third respondent had obtained general power of attorney from the second respondent and was about to sell the suit land to the predecessor‑in‑interest of the first petitioners 1‑A to 1‑F namely Isso and the second petitioner though they knew that the first respondent was in possession of the suit land and had prior agreement of sale in respect of the suit land in his favour from the second respondent. In these circumstances, the first respondent had filed suit for specific performance of the contract.

3. The second and third respondents filed joint written statement while late Isso and second petitioner filed their joint written statement. According to them, the agreement of sale, if any, in favour of the first respondent in respect of Survey No.438 was not legal as it was a surrendered land and was obtained by the second respondent on the basis of instalments. They asserted that the agreement in favour of the first respondent was cancelled on account of his failure to abide by the terms and conditions of the agreement. They also denied that She possession of the suit land is with the first respondent. According to them, the second respondent had sent a message to the first respondent for purchasing the suit land but he refused to do so and hence he had no right to sue for specific performance of the contract.

4. On the pleadings of the parties, the trial Court framed the following issues:‑

5. "(1) Whether the defendants are agriculturists?

(2) Whether plaintiff had breached the conditions of contract and thereafter the agreement was cancelled?

(3) Whether the possession of suit land was delivered to the plaintiff at the time of aforesaid agreement? If so, what is its effect?

(4) Whether the subsequent sale of the suit land is not binding on the plaintiff?

(5) Whether the agreement regarding Survey No.436 is ineffective being a surrendered land?

(6) Relief?"

6. The parties led evidence in support of their respective contentions. Issue No.l was not pressed before the Courts below. The learned Civil Judge on assessment of the evidence on record, came to the conclusion that the first respondent committed breach of the conditions of the contract. In that view of the matter, issue No.2 was decided against the first respondent. He found that the possession of the suit land was delivered to the first respondent. in that view of the matter, issue No.3 was decided in favour of the first respondent. He found that prior sale in favour of the first respondent has been cancelled due to his breach of contract; as such the subsequent sale was binding on the first respondent. On issue No.5, he held that agreement regarding Survey No.436 was effective and was not illegal. In that view of the matter, issue No.5 was decided in the negative. As a result of finding on issue No.2, he held that the suit was liable to be dismissed. He accordingly dismissed the suit with costs.

7. Aggrieved by the judgment and decree of the trial Court, the plaintiff/first respondent filed appeal and, as already stated above, the learned Additional District Judge allowed the appeal, set aside the decree and decreed the suit for specific performance. The learned Additional District Judge held that the plaintiff/first respondent had averred and proved that he was always ready and willing to perform his part of the contract. He came to the conclusion that Survey No.436 was a surrendered land and was obtained by the first defendant/second respondent to repurchase on the basis of instrument. According to him, that instalment of Rs.667 or Rs.668 was paid after the cancellation of, the agreement in favour of the plaintiff/first respondent, defendant No.1 second respondent had .not become full owner of the land bearing Survey No.436 and so it was not transferable. In such circumstances, the second respondent could not have validly transferred the title to this land in favour of the plaintiff/first respondent after receiving the balance of consideration which was her obligation. He held that the agreement of sale in favour of the plaintiff/first respondent was in existence and the second respondent could neither cancel it nor it had been legally cancelled so far. The subsequent sale in favour of the petitioner cannot become valid and could not be binding on the first respondent. In this view of the matter, the learned Additional District Judge allowed the appeal and decreed the suit.

8. Dissatisfied with the judgment of the learned Additional District Judge, the defendants Nos.3 and 4 have filed this revision.

9. Mr. Allah Bakhsh Panhwar learned counsel for the petitioners contended that the learned Additional District Judge has not correctly construed the judgment Ext.

113. He further contended that the first respondent had not proved that he was ready to perform his part of the contract. He also contended that the agreement was rightly cancelled. Mr. S.A. Sarwana supported the contentions of Mr. Panhwar. On the other hand, Mr. Abdul Hafeez Lakho, learned counsel for the first respondent has supported the finding of the learned Additional District Judge.

10. I think it proper to first deal with the question whether the plaintiff succeeded in proving that he was ready and willing to perform the essential terms of the contract which he was required to perform. I have to see whether the plaintiff has complied with the essential terms of the contract. In para. 8 of the plaint, it has been alleged that "the plaintiff has at all times been ready to fulfil the conditions of the agreement and had tried to get sale‑deed registered and has been so requesting the defendant No.1 but the defendant No.1 with ulterior motives has been avoiding and did not get the record cleared and kept the plaintiff on false hopes".

11. The defendant, while referring to para. 8, pleaded as under:‑

12. "8. The contents of para. No.8 of the plaint are denied. The plaintiff has spoken a lie and has failed to comply with the conditions of the agreement and has stated the false facts, and as such no right as claimed by him, is entertainable. Now the plaintiff has instituted this false suit, by misrepresenting the false facts in his plaint."

13. It may be noticed that the defendant has not denied specifically the various allegations made by the plaintiff in para. 8 of the plaint. On the other hand, a general denial has been made. P.W.1 plaintiff Muhammad Ismail stated that he. paid Rs.5,000 at the time of execution of the said agreement Ext.

113. He further stated that "I went in November 1969 for regular sale‑deed to her at Karachi but she kept me on the hope that she would come to the village and would execute the regular sale‑deed. She did not come as per the promise". On 29‑11‑1969 he sent a telegram Ext. 114 that she should come and execute regular sale‑deed. Even after this telegram, no regular sale‑deed was executed by her. Again he stated "I have been offering the remaining consideration to her, she did not reply my telegram. 1 also went in the month of November 1969. Even then she told me that she will come and execute the regular sale‑deed. Then in the month of December, 1969 she sold the suit land to the defendants Nos.3 and 4 through her attorney defendant No.2". In the course of cross‑examination, he stated as follows:‑

14. "I went to her at Karachi on 2/24‑11‑69. I had lived at Bungalow of Ghulam Mujtaba Khan Jatoi. There were many persons at the Bungalow, alongwith the servants of the Bungalow. I met her at her residence on 24‑11‑1269 at about 12 noon. At that time Kouro Mashori was not present but Mahmood was present at that time with her. It was orally agreed that she will come to Naushehro Feroze, obtain Fardi Intikhab and will execute the regular sale‑deed at Naushero Feroze. I had to pay the remaining amount of consideration of sale of the suit land in the month of November, 1969. I have not paid the remaining consideration upto December 1969. I have also not tendered it by M.O. and by draft because she had told me that she will come at Naushehro Feroze hence the balance at the time of registration. It was all oral. I have not written any letter or sent any telegram after 29‑11‑1969 in respect of this transaction. Kouro had not come to me in the month of November and told me that I should pay the remaining balance of the‑ consideration to her. Kouro did not come in December, 1969 also for reminding me on behalf of the defendant No.1 to pay the money and finalize the transaction. It is not a fact that I allegedly refused to Kouro who was alleged to have come to me."

15. In order to find out whether the plaintiff/first respondent was ready and willing to perform the essential terms of the contract which he was required to perform, I have to take into consideration entirely the circumstances, conduct of the parties and the essential terms of the contract.

16. Now, in the first place, the balance of sale consideration amounting to Rs.7,000 was to be paid in the last week of November 1969. "In case party No.2 (plaintiff) fails to make the payment by the end of November 1969, the party No.2 (first respondent), the agreement will be treated as cancelled and the earnest money will be forfeited and no claim for this amount can be made by the purchaser." The plaintiff lost no time in bringing the suit when he found that the defendant/second respondent was not willing to execute the sale‑deed in his favour. He instituted the suit on 2‑1‑1970. Then again the defendant/second respondent has not said a word that the plaintiff/first respondent was not ready and willing to perform his part of the contract. On the other hand, the plaintiff has averred as well as stated in no uncertain terms that he has at all times been ready to fulfil the conditions of the agreement and had tried to get sale‑deed registered and has been so requesting the defendant No.1/second respondent but the second respondent with ulterior motives has been avoiding and did not get the record cleared and kept him on false hopes. The defendant No.1/second respondent had not appeared in the witness‑box and had not denied these allegations. D.W. 1 Haji Ghulam Muhammad stated that in December 1969 he was appointed as attorney. He could not say as to whether plaintff/first respondent was ready and willing to perform his part of the contract. It is not the defendant No.1/second respondent's case nor there is any suggestion that the plaintiff had no funds available with him or was not in a position to arrange for the sale price. In fact, no circumstances have been brought on the record nor any has been pointed out to me as to why the plaintiff would back out and would not be willing to perform his part of the contract. Rather it seems to me that Survey No.436 is a surrendered land which was taken on instalments. It has come on record that the last instalment of Rs.667 or Rs.668 was paid in the month of December 1969. This was done after the cancellation of agreement Ext.

113. This shows that the second respondent had not become full owner of the land bearing Survey No.436. 1t has also come on record that the second respondent had not been able to get the record of mutation in her favour and obtain Fardi lntikhab. Thus, so far as the conduct of the parties is concerned, I am inclined to think that the second respondent is in the wrong box.

17. This brings me to the other point which has been a subject of debate before me viz. the question whether the time mentioned in an agreement is or is not of the essence of the contract.

18. The finding of the trial Court is that the time is made essence of the contract and as regards the surrounding circumstances and the conduct of the parties, the same have also proved as that the parties had an intention to make the time as essence of the contract in their mind at the time of agreement Ext.

113. Whereas the finding of the lower appellate Court is that the contract would not have been materialized one‑sided by merely making payment to the second respondent as the latter was also under obligation to perform her part of the contract. Ordinarily, non‑payment of the full purchase money is not a ground for denying the plaintiffs claim for. specific performance of a contract of sale.

19. In Jamshed Rhodaram Irani v. Burjorji Dhunjibhai (AIR 1915 PC 83 = 43 IA 26), Lord Viscount Haldane observed at page 85 = 33 as under:‑

20. "Prima facie, equity treats the importance of such time limits as being subordinate to the main purpose of the parties, and it will enjoin specific performance notwithstanding that from the point of view of a Court of Law the contract has not been literally performed by the plaintiff as regards the time limit specified."

21. The above observations were approved by the Honourable Supreme Court in the case of Abdul Hamid v. Abbas Phai Abdul Hussain (PLD 1962 SC 1).

22. To the same effect are the observations of Lord Cairns in Tilley v. Thomas ((1867) 3 Ch. 61 = W.R. 66 = 17 L.T. 422) which read as under:‑

23. "The construction is, and must be, in equity the same as in a Court of law. A Court of equity will indeed relieve against, and enforce, specific performance, notwithstanding a failure to keep the dates assigned by the contract, either for completion, or for the steps towards completion, if it can do justice between the parties, and if (as Lord Justice Turner said in Roberts v. Berry ((1853) 3 De G.M. & G. 284 = 22 L.J. Ch. 398 =.98 R.R. 139 = 20 L.T. (O.S.) 215) there is nothing in the `express stipulations between the parties, the nature of the property, or the surrounding circumstances, which would make it inequitable to interfere with and modify the legal right. This is what is meant, and all that is meant, when it is said that in equity time is not of the essence of the contract. Of the three grounds mentioned by Lord Justice Turner, `express stipulations' requires no comment. The nature of the property' is illustrated by the case of reversions, mines, or trades. The `surrounding circumstances' must depend on the facts of each particular case:'

24. In Eskandar Ali v. Alhamra Begum (PLD 1969 Dacca 214) a Division Bench of High Court of East Pakistan observed/held at page 231 as under:‑

25. "The question whether the time mentioned in an agreement is or is not of the essence of the contract depends upon the intention of the parties to the agreement which is to be gathered from the facts and circumstances of the case. The mere fact that certain time is mentioned in the agreement for the performance of an act would not necessarily lead to the conclusion that the time specified was of the essence of the contract. The real intention of the parties to the agreement is the determining factor, and it is to be deduced from all the surrounding circumstances of the case. The intention of the parties can be best ascertained from the agreements itself."

26. Applying the above principles to the agreement as found by the lower appellate Court, it must be held that time was not of the essence of the contract. The lower appellate Court gave cogent reasons in support of the above finding. This is in accord with the evidence on the record. 11 do not find any force in the contention of Mr. Panhwar.

27. In view of the evidence discussed above and circumstances surrounding the cancellation of agreement has not been proved. Agreeing with the learned Additional District Judge, I am of the view that the predecessor‑in -interest of first petitioner and second petitioner had knowledge of the first respondent's contract of sale prior to the purchase of the suit land. The finding of the lower appellate Court on issue No.4 is affirmed.

28. All the conditions failed. In the result, the Revision Petition No.191/82 of the defendants Nos.3 and 4 is dismissed. In the circumstances of the case, the parties are directed to bear their own costs.

29. A.A./I-92/K Revision dismissed.