MUHAMMAD YAQUB vs MUHAMMAD NASRULLAH KHAN AND OTHERS

' ALI HUSSAIN QAZILBASH, J.-This appeal, by leave of the Court, is directed against the judgment of a learned Single Judge of the Lahore High Court, dated 21-2-1983, whereby the judgments and decrees of the learned Senior Civil Judge and the Additional District Judge, Sahiwal, dated 11-5- 1966 and 8-12-1966, respectively were upheld.

2. The dispute relates to the sale of Shop No, B-I-2-R-62, situated in Okara City. It was an evacuee property and was in possession of Muhammad Yaqub plaintiff now appellant a non-claimant displaced person. On the commencement of the Settlement operations, it was transferred to him, therefore in order to pay the price of the shop. He entered into an association with Mst. Umda Begum, a claimant displaced person (defendant, now represented by the respondents). Mst. Umda Begum paid the full price of the shop through her compensation book and obtained P. T. D. In respect of the suit shop. The parties then on 13-5-1960 entered into an agreement (Exh. P. 2) whereby Mst. Umda Begum was to recovery the disputed shop to the appellant within a period of five years on the payment of the price she had paid to the Settlement Department. It was also stipulated in the said agreement that during this period the appellant would remain in occupation of the shop as a tenant under the respondent on payment of monthly rent of Rs,

25. It was further agreed upon that if the appellant did not purchase the shop within five yrari. He would forfeit his right of purchase of the said shop and in case the respondent refused to recovery the shop the appellant would have the right to enforce the contract by specific performance and in that event would also be entitled to receive from the respondent a sum of Rs, 50,000 by way of damages. It was on 2-3-1965, i,e,, two months prior to the completion of five years, that the appellant served a legal notice calling upon the respondent to comply with the document dated 13-5-1960, otherwise the same would be enforced through Court of law. Apparently receiving no reply, on 13-5-1965 the present suit for specific performance of contract was filed in the Court of the learned Senior Civil Judge, Sahiwal. In this suit the stand taken by the appellant was that according to an oral agreement between the parties, the price of the claim adjusted towards the price of the shop would be counted at eight Annas per rupee and that the appellant would pay the price of the shop at that rate and since the respondent had got adjusted Rs, 13,481 towards the price of the shop through her claim and paid Rs, 63 in cash, the appellant would purchase the shop at Rs, 6,803.28.

3. The suit was contested by the respondent. She not only refuted the stand taken by the appellant but also questioned the jurisdiction of the civil Court. As a result of the pleadings, seven issues were framed, of which issues 3 and 4 are relevant and are : "(3) Whether the defendant agreed to receive 50% in case of the claim utilized by the defendant in purchasing the disputed shop ?

(4) If not, what is the price payable by the plaintiff to the defendant ?

4. After recording the evidence led by the parties the learned trial Court decided both issues against the appellant and vide its judgment dated 11-5-1966 while dismissing the suit held that the appellant was liable to pay a sum of Rs, 13,481 to the respondent as per terms of the agreement dated 13-5-1960 and also that he bad to pay to the respondent rent of the shop at Rs, 25 per month which he had failed to pay. The appeal of the appellant before the learned Additional District Judge and his revision before the High Court met the same fate.

5. Leave was granted to consider, inter alia, whether in the contract of this nature, time was the essence of the contract or it was presumed to be completed in a reasonable time.

6. The learned counsel for the parties heard and the record perused. The three Courts below have non-suited the appellant and their hindiigs are based on sound and cogent reasons. The case of the appellant at the trial that it was stipulated in the agreement Exh. P. 2 and also through the oral agreement that the respondent would re-convey the shop to him on payment of 50 of her claim is fallacious inasmuch as no such intention appears from the said document. The evidence with regard to the oral agreement in this regard being scanty and discrepant could not be relied upon and was, therefore, rightly discarded by the Courts below. Even in the legal notice Exh. P. 1 no such stipulation had been alluded to.

7. The document Exh. P. 2 is a simple and straight agreement reached between the parties, whereby the respondent was to re-transfer the shop to. The appellant within five years if he paid the price of the shop to her. Muhammad Amin (P. W. 2), a clerk of the Deputy Settlement Commissioner, appeared at the trial and deposed that the entire price, viz., Rs, 13,481 was paid by Afst. Umda %gum, thus the appellant was bound to pay the above amount to the respondent.

Whether the respondent paid the price through her compensation book or in cash was none of the concern of the appellant. The record further shows that the appellant has failed to pay the monthly rent of the suit shop to the respondent as was agreed upon and thus violated the terms of the agreement.

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 (1) wherein it has been held : "In order to obtain a relief by way of specific performance of a 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."

9. The view that we, therefore, take is that this appeal has no merit and is dismissed with no order as to costs.

(1) AIR 1932 Lah. 265