MUHAMMAD IMRAN Versus ISHFAQ AHMED

SHAHID BILAL HASSAN, J.--- The present petitions arise out of three interconnected civil proceedings concerning the same immovable property and emanating from two competing agreements to sell executed at different points in time. Although the impugned judgments arise from separate suits and subsequent appellate proceedings, they stem from a common factual milieu, were consolidated and decided together by the courts below, and are being disposed of through this single judgment to avoid repetition and ensure consistency. For clarity, the relevant factual background for each petition is set out hereunder.

C.P.L.A. No. 3639 of 2025

2. The petitioner, Muhammad Imran, filed a suit for possession through specific performance of agreement to sell dated 16.04.2014 against respondents Nos. 1 and 2 (Ashfaq Ahmad and Muhammad Aslam), asserting that the total sale consideration was settled at Rs. 130,000,00/-, out of which he paid substantial amounts including Rs. 30,000,00/- as earnest money and further instalments, and that despite his readiness and willingness to pay the balance, the vendors failed to execute the sale deed.

3. The suit was dismissed by the learned trial court. The appeal preferred there against was also dismissed by the learned appellate court, and the Regular Second Appeal filed before the High Court met the same fate.

4. At the very outset, we observe that the petition is devoid of merit. The courts below have properly examined the controversy in light of the evidence on record and the governing principles of law, and have returned concurrent findings that call for no interference. The agreement sought to be specifically performed had already been cancelled by a court of competent jurisdiction on account of non-payment of the balance sale consideration within the stipulated time, in terms of the contractual conditions. That determination was not assailed further and has thus attained finality. In these circumstances, no decree for specific performance could legally be sustained. Consequently, this petition is dismissed and leave is refused.

C.P.L.As. Nos. 3649 and 3650 of 2025

5. Respondents Nos. 1 and 2 challenged a later agreement to sell dated 03.06.2016 in respect of the same property, allegedly executed in favour of respondents Nos. 3 and 4 (Muhammad Naeem and Muhammad Nadeem) by filing a suit for its cancellation, alleging that the vendees had failed to pay the balance sale consideration within the stipulated time and, consequently, the agreement stood rescinded in terms of its conditions.

6. In response, respondents Nos. 3 and 4 instituted a suit for specific performance on the basis of the said 2016 agreement.

7. All three suits were consolidated and decided through a common judgment dated 31.01.2022 whereby the learned trial court dismissed the petitioner s suit based on the 2014 agreement and decreed the suit of respondents Nos. 3 and 4 based on the 2016 agreement. The appeals filed by the petitioners and by respondents Nos. 1 and 2 were dismissed by the learned Additional District Judge on 26.09.2022.

Against the concurrent findings of the courts below, the petitioner filed a Regular Second Appeal before the High Court, while respondents Nos. 1 and 2 filed a connected Revision Petition. Both matters were dismissed by the High Court, maintaining the judgments and decrees passed by the courts below. The present Civil Petition for Leave to Appeal has been filed against the judgment of the High Court.

8. Learned counsel for the petitioners contended that the respondents (vendees) failed to plead and prove continuous readiness and willingness to perform their reciprocal obligation of paying the balance sale consideration within the stipulated period under the agreement dated 03.06.2016 (Exh-D1). It was argued that time was expressly made the essence of the contract and the balance amount of Rs.1,56,000,00/- was admittedly not tendered by the target date. No documentary proof of financial capacity, such as bank statements, pay order, or bank guarantee, was produced; nor was the balance amount deposited in Court or near to the time of institution of the suit. The subsequent deposit made after court direction, long after expiry of the contractual period, could not cure the initial default. It was also submitted that readiness and willingness are a condition precedent and absence thereof disentitle a party from equitable relief of specific performance. It was further submitted that the concurrent findings suffer from misreading and non-reading of evidence and are therefore liable to be set aside.

9. Conversely, learned counsel for the respondents supported the concurrent findings of the courts below and submitted that the agreement (Exh-D1) was duly proved and substantial earnest money had already been paid, demonstrating bona fides. It was argued that readiness and willingness do not necessarily require prior deposit of sale consideration unless so directed by the Court, and that subsequent deposit pursuant to court order sufficiently established financial capacity and intention to perform. Learned counsel maintained that the respondents had issued legal notices prior to institution of the suit and had approached the Court within reasonable time, thereby manifesting their commitment to complete the transaction. It was contended that specific performance being a discretionary and equitable relief, the courts below exercised such discretion judiciously on appreciation of evidence, and no jurisdictional defect or perversity has been shown to justify interference in concurrent findings.

10. We have heard learned counsel for the parties and have examined the record with their able assistance.

11. The primary question requiring determination is whether the plaintiff-vendees (respondents Nos. 1 and 2) had pleaded and proved continuous readiness and willingness to perform their part of the contract, particularly the obligation to pay the balance sale consideration within the stipulated time particularly when time was of the essence as stipulated in the contract itself. In order to properly address this question, it is necessary to examine, in some detail, the essential ingredients governing the grant of specific performance and the settled principles regulating the exercise of such equitable jurisdiction.

12. The relief of specific performance, though statutorily recognized, is not granted as a matter of right. It is rooted in equity and regulated by settled judicial principles. The discretion conferred upon the Court is not unstructured, it is judicial discretion, to be exercised on sound legal standards. In Messrs DW Pakistan (Private) Limited, Lahore v. Begum Anisa Fazl-I-Mahmood and others (2023 SCMR 555) this Court reiterated that such discretion must advance fairness and equity and cannot be exercised whimsically as under:

6. It is a well-settled exposition of law that the relief of specific performance of a contract is discretionary, however the said discretion cannot be exercised arbitrarily or unreasonably but can be invoked to promote fairness and equity. The person seeking specific performance has to put on show that he is geared up and fervent to perform his part of the contract, but the other side is circumventing or evading the execution of his obligations arising out of the contract. While deciding the suit for specific performance of a contract, the Court has to consider and come to a decision regarding whether the plaintiff is ready and willing to perform his part of the contract, which is in fact substantiated by dint of the conduct or demeanor of the plaintiff before and after instituting the lawsuit. The equitable remedy rests on the discretion which is obviously exercised according to the well-established standards and philosophy of law and not whimsically or capriciously. The fundamental insightfulness of the Courts in directing the plaintiff in a suit for specific performance to deposit the sale consideration in Court in fact articulates that the vendee has the capacity to pay the sale consideration or balance sale consideration and is ready and willing to perform his obligations arising from the contract. An incessant readiness and willingness is a condition precedent for claiming relief of specific performance, which in unison also conveys the state of mind of the vendee, his capability to pay, keenness and commitment.

Similarly, in Ijaz Ul Haq v. Mrs. Maroof Begum Ahmed and others (PLD 2023 Supreme Court 653) , this Court explained that readiness and willingness operate as a calculus for ascertaining the bona fide of the parties as under:

6. Determination of the readiness and willingness to perform the obligations emanating from the contract is a calculus for ascertaining the bona fide of the parties. As the initial burden is always on the plaintiff, he must first state in his plaint the facts demonstrating his readiness and willingness to perform his part of the contract and then prove it by producing convincing and reliable evidence

13. From the Court s perspective, readiness and willingness is foundational because it reflects the equitable balance inherent in specific performance. The Court is asked to compel performance of reciprocal obligations; it cannot do so unless satisfied that the party invoking its jurisdiction has himself adhered to the discipline of the contract. Equity does not intervene merely because an agreement exists, it intervenes where the claimant has demonstrated faithfulness to his own undertakings. Continuous readiness and willingness thus serve as the lens through which the Court evaluates entitlement to this discretionary relief and this burden begins at the threshold: the plaintiff must first articulate, in clear terms, the facts demonstrating his preparedness to perform the contract as agreed, and must then substantiate those assertions through reliable evidence. The inquiry, therefore, is both procedural and evidentiary, first in pleadings, then in proof.

14. In continuance of the above, the requirement of pleading readiness and willingness is not an empty technicality; it is a statutory discipline embedded in procedural law. In Messrs DW Pakistan (Private) Limited, Lahore (supra), this Court drew attention to Form-47 of Appendix A to the First Schedule of the Code of Civil Procedure, 1908, which expressly mandates incorporation in the plaint of the assertion that the plaintiff has been and still is ready and willing specifically to perform the agreement on his part in the following words:

7. Appendix A of the First Schedule of the C.P.C. highlights the specimen and modules of pleadings in which Form-47 relates to the Suit for Specific Performance wherein there is a specific condition jotted down in paragraph (3) that is to be incorporated in the plaint that The plaintiff has been and still is ready and willing specifically to perform the agreement on his part of which the defendant has had notice . It is unequivocally clear that the plaint instituted for specific performance of a contract should confirm the requirements prescribed in Form 47 of the C.P.C

Likewise, in Ijaz Ul Haq (supra), this court observed:

7. Thus, in his suit for specific performance, the plaintiff ought to have pleaded and proved his readiness and willingness to perform his obligations under the contract

The principle has also been authoritatively articulated by a five- Member Bench of this Court in Muhammad Yaqub v. Muhammad Nasrullah Khan and others (PLD 1986 Supreme Court 497) , wherein this Court, relying upon Narinjan v. Muhammad Yunus (AIR 1932 Lah. 265) , emphasized that the plaintiff must allege and prove readiness and willingness from the date of the contract to the date of the suit, as the contract really was in the following words:

8. From the above the only conclusion that can be arrived at is that the appellant has not only failed to prove that he was prepared to perform his part of the contract but in fact did not perform his part of the contract at all and is, therefore, not entitled to any relief. Reliance in this respect is placed on Narinjan and others v. Muhammad Yunus (AIR 1932 Lah 265) wherein it has been held:

In order to obtain a relief by way of specific performance of contract the plaintiff has first to allege and prove that he was ever ready and willing to perform his part of the contract from the date of the contract to the date of the suit, as the contract really was and not in the way he thought the contract to be.

15. These authorities collectively establish three propositions. First, readiness and willingness must be pleaded in clear and specific terms, conforming to the statutory form. Second, such readiness must relate to the contract as executed, including its timelines and conditions. Third, it must be continuous, from inception of the obligation until institution of the suit. The Court, therefore, does not merely search for a formal sentence in the plaint; it examines whether the pleadings, read as a whole, assert performance in accordance with the agreed stipulations, and whether the evidence sustains that assertion without interruption. Where either element is deficient, the foundation for equitable relief becomes unsustainable.

16. The obligation to pay the balance sale consideration constitutes the core reciprocal promise resting upon the vendee in a contract for sale of immovable property. The concept of readiness and willingness, therefore, must necessarily be examined in the context whether the purchaser secured, tendered, or palpably arranged the consideration in terms of the agreement. The jurisprudence of this Court has consistently treated this obligation as central while assessing entitlement to specific performance. 1 In Nazar Hussain and another v. Syed Iqbal Ahmad Qadri (2022 SCMR 1216) this Court held:

5. A buyer's primary obligation in a contract of sale is to make payment of the balance sale consideration as stipulated in the contract. If the seller refuses to receive payment the buyer must establish that he had the required money which was kept aside for the seller, for instance, by making a pay order or cashier cheque in his name. This would show that the buyer no longer had access to the sale consideration. Alternatively, the buyer could have deposited it in court. The petitioners did neither. If a buyer does not fulfill his primary obligation to secure/tender the sale consideration and files suit, and does so without depositing the sale consideration in court, the buyer is placed in an advantageous position.

Similarly, in Inayatullah Khan and others v. Shabir Ahmad Khan (2021 SCMR 686) it was held:

15. A person seeking the specific performance of a contract must first show that he is ready, able and willing to perform his obligations under the contract, but this the respondent had failed to do. The law does not require that the balance sale consideration must be tendered or deposited in court, but such tender/deposit helps establish that the buyer was not at fault

Further, in Muhammad Yousaf v. Allah Ditta and others (2021 SCMR 1241) this Court observed:

6. The only obligation on the plaintiff (respondent No. 1) was to tender money to the seller and in case of the seller's refusal to receive it then to deposit the same in the Court or otherwise demonstrate his ability and readiness to make payment, which elements are entirely missing in the instant case

Likewise, In Mst. Noor Jehan and another v. Saleem Shahadat (2022 SCMR 918) , it was reiterated:

It is now well settled that where the vendor refuses to accept the sale consideration amount, the vendee seeking specific performance of the agreement to sell is essentially required to deposit the amount in the Court. The vendee has to demonstrate that he is and has at all relevant times been ready and willing to pay the amount, and to show the availability of the amount with him

17. These authorities collectively emphasize that while deposit is not an inflexible statutory precondition, failure to tender or demonstrate availability of funds materially impacts the plaintiff s claim of readiness and willingness. From the Court s perspective, the obligation to pay the balance consideration is not ancillary but central to the contract of sale. Readiness and willingness cannot be established in abstraction; they must be reflected through objective acts which demonstrate financial capacity and preparedness to perform. The preparation of a pay order, segregation of funds, or prompt deposit in Court are not ceremonial acts but evidentiary indicators that the vendee has placed himself beyond mere assertion and into demonstrable compliance.

18. The jurisprudence also clarifies that the law does not mandate automatic dismissal merely because the amount was not deposited at the time of filing the suit. However, where no credible material is produced to show that the buyer had secured or tendered the consideration in terms of the agreement, the Court is justified in drawing an adverse inference regarding bona fides. The equitable jurisdiction to decree specific performance is engaged only when the plaintiff s conduct exhibits consistency, financial capability, and adherence to contractual timelines. In absence of such material, the foundational requirement of continuous readiness and willingness remains unfulfilled. 2

19. Proceeding further, it is observed that in a contract for sale of immovable property, the obligations of the vendor and vendee are ordinarily reciprocal and interdependent. The duty of the vendor to execute and register the sale deed is conditioned upon the purchaser s performance of his corresponding obligation to pay the balance sale consideration in terms of the agreement. The Court, while exercising jurisdiction in a suit for specific performance, must therefore examine the mutuality of obligations and determine whether the party seeking enforcement has first satisfied the pre-requisite of demonstrating his own readiness to perform. In Mst. Samina Riffat and others v. Rohail Asghar and others (2021 SCMR 7) this Court held:

In terms of section 51 of the Contract Act (IX of 1872); where a contract is dependent on discharge or performance of reciprocal promise or obligations to be performed or discharged. The Promisor need not perform his part of promise or obligation, unless the promisee, (here in this case the vendee) is ready and willing to perform his reciprocal promise. In cases arising out of sale of immovable property, a vendee seeking specific performance has to demonstrate his readiness and willingness to perform his part of reciprocal obligation as to payment of balance sale consideration.

Thus, the vendor cannot be compelled to specifically perform his obligation unless the vendee establishes, through pleadings and proof, that he was ready and willing to discharge his corresponding contractual duty.

20. Now we advert to the basic question involved in this case that whether time is of the essence of the contract because it assumes considerable significance in suits for specific performance. Although, as a general proposition, time is not ordinarily regarded as the essence in transactions relating to immovable property, the parties are competent to expressly stipulate otherwise. Where the agreement itself prescribes a definite time for payment and provides consequences for default, the Court must give due effect to the contractual terms as settled between the parties. The equitable jurisdiction of the Court does not extend to rewriting the bargain or diluting express stipulations relating to timelines and forfeiture. In Fazal Ur Rehman v. Ahmed Saeed Mughal and others (2004 SCMR 436) , this Court held:

It was also settled in the agreement itself by both the parties that time was intended to be the essence of the contract and in case of default in the payment of any of the instalment, earnest money already paid would stand forfeited. In view of these express terms neither it could be argued on behalf of the appellant nor contended that the time was not intended to be the essence of the contract

Moreover, in Muhammad Jamil v. Muhammad Arif (2021 SCMR 1108) , this Court observed:

26. Specific plea was raised in the written statement that for failure to make the payment of the balance sale consideration within the period stipulated in the agreement the agreement stood rescinded and earnest amount forfeited. Such plea in the written statement was sufficient notice to ring the bell of recession, to put the Plaintiff on guard to promptly offer to deposit the balance consideration in the court to show his bona fides, readiness and willingness to perform his part of the reciprocal obligation.

21. In the present case, the agreement sought to be specifically performed unequivocally stipulated that the balance sale consideration was to be paid on or before the specified target date i.e. 15.01.2017. The obligation was neither contingent nor deferred, it was a clear contractual undertaking forming the core reciprocal promise of the vendees. In examining whether the respondents discharged the burden cast upon them in a suit for specific performance, the record must be scrutinized in light of the contractual timeline and the settled jurisprudence governing readiness and willingness.

22. The material available on record reflects that no tender of the balance consideration was made within the stipulated period. There is no evidence of any contemporaneous attempt to secure the amount by way of pay order, bank guarantee, or any other demonstrable segregation of funds in favour of the vendors. No banking document, statement of account, or financial instrument was produced to show that the respondents had arranged and set apart the requisite sum in terms of the agreement. The evidentiary record is equally silent as to any immediate deposit of the balance consideration in Court upon institution of the suit. The amount was deposited only after direction by the Court, and that too substantially beyond the contractual deadline. Such a deposit, though relevant, cannot retrospectively substitute for the absence of readiness and willingness at the material time when performance fell due.

23. Equally significant is the aspect of pleadings. The plaint does not contain a categorical and specific averment in the tenor mandated by Form-47 of Appendix-A to the Code of Civil Procedure, 1908, affirming that the plaintiffs have been and still are ready and willing specifically to perform the agreement in accordance with its true construction. The absence of a clear and continuous assertion of readiness and willingness in the plaint weakens the foundation of the claim, particularly when the relief sought is discretionary and equitable. Even, it is an admitted fact on record that it was the petitioner who knocked the door of the Court to get the agreement to sell in question cancelled pursuant to failure of the respondents Nos. 1 and 2 to pay the balance amount on the target date and the respondents Nos. 1 and 2 instituted the suit subsequently.

24. The cumulative effect of these deficiencies must be assessed against the authoritative pronouncements of this Court (supra), the consistent thread running through these decisions is that continuous readiness and willingness must exist from the date performance becomes due and must be reflected through conduct, pleadings, and proof. The equitable jurisdiction of the Court cannot be invoked in the absence of such foundational compliance.

25. The courts below, however, appear to have treated the subsequent deposit of the balance consideration, made pursuant to court direction and long after expiry of the stipulated period, as sufficient to cure the earlier default. In doing so, they did not undertake the necessary inquiry as to whether readiness and willingness existed on the due date fixed by the contract and continued thereafter without interruption. The jurisprudence of this Court does not equate belated compliance with continuous readiness; rather, it requires the Court to assess whether the plaintiff had, at the material time, secured or tendered the consideration in accordance with the agreed terms. Failure to conduct this examination amounts to overlooking a material legal requirement governing the grant of specific performance.

26. Viewed in totality, the record does not satisfactorily establish that the respondents fulfilled the essential precondition of continuous readiness and willingness in terms of the contract. The approach adopted by the courts below, in treating a delayed deposit as dispositive of the issue, does not align with the settled principles consistently affirmed by this Court.

27. It is by now well settled that although concurrent findings are not ordinarily disturbed, interference is warranted where the findings are the result of misreading or non-reading of material evidence or are contrary to settled principles governing equitable relief. 3

28. For the foregoing reasons, the petitions for leave to appeal are converted into an appeal and the same are allowed. The impugned judgments of the courts below are set aside. Consequently, the suit for specific performance (filed by respondents Nos. 3 and 4) is dismissed and the suit for cancellation of the agreement filed by the petitioners (in C.Ps. Nos. 3649 and 3650 of 2025)/respondents (in C.P. No. 3639 of 2025) stands decreed. Similarly, suit instituted by Muhammad Imran, petitioner (in C.P. No. 3639 of 2025) for specific performance is dismissed.

29. The earnest money paid under the agreements dated 16.04.2014 and 03.06.2016 shall be returned by the respective recipients to the concerned payers forthwith. The refund shall be affected within thirty (30) days from the date of this judgment.

MH/M-20/SC Order accordingly.

1 Inayatullah Khan v. Shabir Ahmad Khan (2021 SCMR 686), Muhammad Shafiq Ullah v. Allah Bakhsh (2021 SCMR 763), Mst. Samina Riffat v. Rohail Asghar (2021 SCMR 7), Hamood Mehmood v. Mst. Shabana Ishaque (2017 SCMR 2022) and Kuwait National Real Estate Company (Pvt.) Ltd. v. Messrs Educational Excellence Ltd. (2020 SCMR 171).

2 Muhammad Jamil and others v. Muhammad Arif (2021 SCMR 1108), Muhammad Yousaf v. Allah Ditto (2021 SCMR 1241), Muhammad Yaqub v. Muhammad Nasrullah Khan and others (PLD 1986 SC 497), Hamood Mehmood v. Mst. Shabana lshaque and others (2017 SCMR 2022), Inayatullah Khan and others v. Shabir Ahmad Khan (2021 SCMR 686), Messrs Kuwait National Real Estate Company (Pvt.) Ltd. and others v. Messrs Educational Excellence Ltd., and another (2020 SCMR 171) and Muhammad Shafiq Ullah and others v. Allah Bakhsh (decd.) through LRs and others (2021 SCMR 763).

3 Habib Ur Rehman and others v. Abdul Karim (deceased) through L.Rs. and others (2025 SCMR 1262), United Bank Limited (UBL) through its President and others v. Jamil Ahmed and others (2024 SCMR 164)/2024 PLC 50- Supreme Court, Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others (2014 SCMR 914), Abdul Hameed and others v. Khalid and others (2007 SCMR 938), Mst. Saadat Sultan and others v. Muhammad Zahur Khan and others (2006 SCMR 193), Muhammad Aslam v. Mst. Ferozi and others (PLD 2001 Supreme Court 213) and Muhammad Akhtar v. Mst. Manna and 3 others (2001 SCMR 1700).