MUMTAZ AHMED vs BASHIR AHMED.
This civil petition for leave to appeal arose from a suit for specific performance of an agreement of sale executed by the petitioner in favor of the respondent. The trial court decreed the suit, and subsequent appeals by the petitioner were dismissed. The core legal questions were whether time was of the essence in the contract and whether the trial court's closure of the petitioner's evidence under Order XVII Rule 3 of the Code of Civil Procedure 1908 was lawful. The Supreme Court of Pakistan held that the mere fixation of a date for payment of the remaining consideration in a sale agreement does not automatically make time the essence of the contract. Furthermore, the Court ruled that the term 'forthwith' in the context of deciding a suit after closing evidence does not require an instantaneous decision, and subsequent adjournments for arguments do not invalidate the closure order. Finding that the petitioner was given multiple opportunities but failed to produce evidence, the Court affirmed that the requirements of Order XVII Rule 3 of the Code of Civil Procedure 1908 were fully met and dismissed the petition.
- Does the mere fixation of a date for payment of the remaining consideration in a sale agreement make time the essence of the contract?
- Does the term 'forthwith' require a court to decide a suit simultaneously with the order of closing evidence under the Code of Civil Procedure 1908?
- Can an order closing a party's evidence under Order XVII Rule 3 of the Code of Civil Procedure 1908 be set aside if the court adjourned the case for arguments to a subsequent date?
- Order XVII Rule 3, Code of Civil Procedure 1908
MUNIR A. SHEIKH, J.-- The suit filed by the respondent for specific performance of the agreement of sale dated 15.5.1984 admittedly executed by the petitioner in his favour was decreed by the Trial Court through judgment dated 2.12.1987. The appeal filed by the petitioner against the said judgment was dismissed by the learned Additional District Judge through judgment dated 6/12/1996 against which RSA filed by him has also been dismissed thought he impugned judgment dated 3.6.1998 by the learned Judge in Chamber of the Lahore High Court against which leave is sought.
2. The evidence of the petitioner was closed through order dated 29.4.1989 after giving him a number of opportunities to produce the same therefore it was a case where the evidence produced by the respondent remained un-rebutted.
3. The execution of the agreement of sale was admitted by the petitioner and the suit was defended on the main ground and we may say the only ground that the respondent-plaintiff failed to perform his part of the said agreement in that he did not make effort to make payment of the remaining amount within the period fixed in the agreement itself.
4. The respondent appeared as his own witness and stated that he was ready and willing to perform his part of the agreement and had attempted to make payment of the remaining amount but the petitioner put off the matter on one pretext or the other. This evidence was not rebutted, for the petitioner's evidence was closed and he did not appear as his own witness also.
5. There is no indication in the agreement itself that the time was agreed to be the essence of the contract whereas in the agreement, merely a date was fixed for the payment of the remaining consideration and in such a situation, it has been held consistently by the Superior Courts that the same would not be in any manner considered in isolation a stipulation .That the time was the essence of the contract. This point could not be agitated, for the evidence of the respondent remained un-rebutted and that he had been making efforts to make payment of the remaining amount within the time fixed in the agreement. Learned counsel for the petitioner submitted that since after closing evidence on 29.4.1989 of the petitioner, the case was not decided forthwith whereas the agreements in the case were heard on subsequent date and the suit decided after three months, therefore, order of closing the evidence of the petitioner should be set aside and he may be granted opportunity to produce evidence.
6. We are afraid, the contention is absolutely without any merits. The expression "forthwith" does not Mean that the suit should be decided simultaneously with the order of closing of evidence of the party. If some time was taken by the party to address arguments in the case for some other reasons and due to engagement of the Court in other case, if the case was adjourned for arguments, the same would not in any manner be taken as an illegality in the order of closing the evidence of the petitioner.
7. Learned counsel has not been able to persuade us that the order dated 29.4.1989 through which the petitioner's evidence was closed suffered from any illegality or arbitrariness. The petitioner failed to produce evidence though number of opportunities were given to him, therefore, the requirements of the provisions of Order XVII Rule 3 CPC where fully complied with.
8. For the foregoing reasons, this petition has no force which is accordingly dismissed and .