JUDGMENT SHEET

LAHORE HIGH COURT, LAHORE (JUDICIAL DEPARTMENT)

Civil Revision No. 37938 of 2019

Muhammad Ali Shamim Vs Farah Idrees etc

Petitioner by:- M/s Barrister Rafey Zeeshan Javed Iqbal, Ahsan Zahoor & Mansoor Ali

Khan Advocates

Respondent No.1 & 2 by:. Mr. Shahzad Mehmood Butt, Advocate Respondent No.3 by. M/s Rana Muhammad Majid, Mehar

Ali Hassan and Madam Mehwish Shahid Advocates

Date of hearing: - 26.05.2022

JUDGMENT

SAFDAR SALEEM SHAHID, J:Through instant civil revision

Muhammad Ali Shamim petitioner has challenged the validity of

judgment and decree dated 08.03.2019 passed by learned Addl. District

Judge, Lahore whereby Judgment and Decree dated 07.02.2018 passed by

learned Civil Judge Ist Class, Lahore was upheld.

2. It is pertinent to mention here that respondents No.1 & 2 filed the

suit for Specific Performance of Agreement to sell dated 20.08.2004

alongwith Declaration and Permanent Injunction against the

petitioner/defendant Muhammad Ali Shamim, whereas the petitioner has

also filed the suit for Declaration, Possession and Mandatory and

Permanent Injunction against the respondents namely Farah Idrees and

Sheikh Muhammad Idrees respondents No.1 & 2. Both the aforesaid suits

were consolidated by the learned trial court and consolidated judgment

was passed by the learned trial court.

03. Brief facts of the case in hand are that respondents Farah Idrees

and Sh. Muhammad Idrees / respondents Nos. 1 & 2 preferred suit for

specific performance with permanent injunction against the petitioner,

C.R. No.37938 of 2019

2

contending therein that respondent No.1 Farah Idrees entered into an

agreement to sell dated 20.08.2004 with petitioner / defendant for

purchase of land measuring 03 - Kanals bearing plot No. 11 , Block - C ,

Model Town , Lahore i.e. Half portion of said plot , which is total

measuring 06 - Kanal for total consideration of Rs. 1,70,00,000 / -

Plaintiff / respondent No. 1 paid Rs.40,00,000 / - as earnest money

through demand draft No.498714 , dated 20.08.2004, while balance

consideration Rs, 1,30,00,000 / - was to be paid on or before 15.10.2004

As per agreement to sell dated 20.08.2004 plaintiff / respondent No.1 and

defendant / petitioner agreed that plaintiff / respondent No.1 shall assume

the consequences and responsibility of two civil suits, which were

pending at that time and all the costs in this respect shall be borne by

plaintiff / respondent No. 1. Petitioner / defendant executed a power of

attorney dated 20.08.2004 in favour of plaintiff / respondent No.2 for the

purpose of handling and contesting those cases. That plaintiff / respondent

No.1 was made entitle to get the sale deed / transfer papers executed

through court in case the defendant to transfer the suit property. After

settlement of disputes with the parties, said suits were dismissed by the

concerned court. After that plaintiffs/respondents became ready to

perform their remaining part of agreement and with the mutual consent of

the parties, defendant/petitioner applied to the Cooperative Model

Housing Society / respondent No.3 for issuance of NOC for transfer of

property through execution of sale deed in favour of plaintiff/respondent

No.2 and society issued NOC in favour of plaintiff No.2 on 16.12.2004.

The plaintiffs / respondents No.1 & 2 requested the defendant / petitioner

to execute the sale deed but he informed that on 29.12.2004 one Ali

Muhammad filed a suit for possession through specific performance in

respect of suit property, in which court passed the status quo order. The

defendant / petitioner delivered the copies of that suit to plaintiffs/

respondents and also physical possession of suit property to plaintiffs as

part performance of the agreement to sell but time for execution / transfer

C.R. No.37938 of 2019

3

of property was mutually extended until the disposal of said suit or

vacation of status quo . Due to pendency of suit and in presence of status

quo order parties mutually extended the time for execution of sale deed on

many occasions but defendant / petitioner started pressurizing the

plaintiffs for payment of balance amount despite of fact that suit was

pending . The defendant / petitioner with malafide issued notice dated

13.03.2006 to the plaintiffs to the effect that the agreement to sell dated

20.08.2004 has become null and void and demanded return of possession

of the suit property , hence , respondents/plaintiffs Nos . 1 & 2 filed suit.

04. Whereas , the petitioner/defendant filed a suit for declaration ,

possession with permanent injunction , wherein it has been contended

that he was always ready and willing to fulfill his obligation under the

agreement to sell and to show his bonafide without receiving the balance

amount applied for NOC before Model Town Society , however ,

purchaser failed to fulfill her commitment to make payment on or before

15.10.2004 . The petitioner / plaintiff of second suit opted not to exercise

the right to forfeit the earnest money at this time as he was willing and

interested in completing the sale transaction with the

respondent/defendant No.1 and this possession was clarified to them

through letter dated 18.01.2005. The suit of Ali Muhammad was

manipulated by respondents Nos. 1 & 2 in order to frustrate the agreement

to sell as they were unable to pay the balance amount. After repeated

requests to the plaintiff No.1 / respondent No.1 for fulfilling her

obligation to pay the balance amount , the defendant / petitioner wrote

final letter on 13.03.2006 by exercising his right of forfeiture of earnest

money under the agreement to sell and consequently, the agreement to sell

stood null and void and no propriety right of any kind stood in favour of

plaintiffs/ respondents No. 1 & 2 but with malafide they took possession

of suit property unlawfully by evicting the security employed by the

defendant / petitioner and raised the construction over the suit property .

C.R. No.37938 of 2019

4

So, petitioner / defendant filed a suit for declaration, possession with

permanent injunction.

05. Adversaries contested the suits by filling written statements and

both the suits were consolidated by learned trial court vide order dated

21.03.2014 , wherein plaintiffs/respondents , of earlier suit / defendants of

later suit were stood as plaintiffs while petitioner/defendant of earlier suit

/ plaintiff of later suit was stood as defendant/petitioner . Out of divergent

pleadings of the parties following consolidated issues were framed:

CONSOLIDATED ISSUES:

1. Whether the plaintiffs entered into an agreement to sell dated

20.08.2004 with the defendant regarding the suit property? OPP

2. Whether notice dated 13.03.2006 is liable to declared as null and

void ab- initio and a product malafide on behalf of the defendant

and same is ineffective against the rights of the plaintiffs qua the

property? OPP

3. Whether the plaintiffs are entitled to get decree for specific

performance of the agreement to sell dated 20.08.2004 , declaration

and permanent injunction as prayed for OPP

4. Whether the plaintiffs have stopped by their own conduct rendered

the agreement to sell void as per para - 9 of the agreement to sell

which is a mutually agreed and enforceable terms of the said

agreement to sell mutually agreed between the plaintiff No.1 and

the defendant? OPD

5. Whether the suit is bad for misjoinder of the parties in its present

form , hence , same is liable to be dismissed? OPD

6. Whether the defendant is liable to be declared as lawful owner of

the property and entitled to get the possession of the suit property?

OPD

7. Whether the defendant is entitled to get decree for recovery of

possession and permanent injunction? OPD

C.R. No.37938 of 2019

5

8. Whether the suit of defendant is not maintainable in the eye of the

law as the defendant has filed this suit just to blackmail the

plaintiffs? OPD

9. Whether defendant has come to the court with unclean hands? OPP

10. Whether the defendant has no cause of action? OPP

11. Whether the defendant has filed the instant suit as counterblast?

OPD

12. relief

06. Learned trial court also framed additional issues on the request of

defendant / petitioner after accepting his application . Additional issues

are reproduced hereunder:

ADDITIONAL ISSUES

5-A. Whether the plaintiff breached the agreement to sell dated

20.08.2004? OPD

5-B . Whether the term breach by the plaintiff was fundamental in

nature, which vitiate the agreement to sell dated 20.08.2004

and entitled the defendant to repudiate the agreement to sell?

OPD

5-C. Whether the plaintiff is not entitled to an order of specific

performance of agreement to sell dated 20.04.2008? OPD

5-D. Whether the plaintiff is in breach of status quo order passed

by this learned court on 02.04.2012 in suit filed by the

defendant titled " Muhammad Ali Shamim Vs. Farah Idrees

etc "? OPD

07. After framing of issues both the parties were invited to furnish

evidence.

Oral evidence of the plaintiff

08. Plaintiff during this marathon of litigation has produced following

evidence;

Sr. No. PWs Name of witnesses

C.R. No.37938 of 2019

6

1. PW-1 Muhammad Idrees / plaintiff No.2

2. PW-2 Ch . Nazir Amad (stamp vendor)

3. PW-3 Sheikh Muhammad Arshad s / o Muhammad Nazir

Documentary evidence of the plaintiffs

Sr. No. Exhibits Name of witnesses

1. Ex-P-1 Special power of attorney in favour of Muhammad Idrees by Farah Idrees

2. Ex-P-2 Agreement to sell dated 20.08.2004

3. Ex-P-3 Pay order No.498714 dated 20.08.2004

4. Ex-P-4 Special power of attorney executed by defendant in favour of Muhammad Idrees

5.

Ex-P-5 Certified copy of suit for possession through

specific performance titled Muhammad Arif vs Syed Muhammad Ali Shamim alongwith

order dated 04.09.2004

6.

Ex-P-6 Certified copy of suit for specific performance titled Ch . M. Younis vs M .

Ali Shamim etc " alongwith order dated 07.09.2004

7. Mark-A Copy of Share Certificate of the defendant regarding suit property.

8. Mark-B Copy of application moved by defendant for

NOC issued by the Cooperative Model Town , Society , Model Town Lahore.

9. Mark-C Copy of NOC issued by the Cooperative

Model Town , Society , Model Town Lahore.

10. Mark-D Copy of application to SHO Police Station

Model Town , Lahore moved by defendant.

11. Mark-E Copy of legal notice dated 13.12.2004 issued by plaintiff No. 1 to defendant.

12. Mark-E/1 Copy of legal notice dated 15.10.2004.

13. Mark-F Copy of cash / transfer slip dated

05.04.2016.

C.R. No.37938 of 2019

7

Oral evidence of defendant / appellant

Sr. No. DWs Name of witnesses

1. DW-1 Muhammad Ali Shamim / Defendant

2. DW-2 Naeem Bari , Inchage Record Department Property , Model Town Society

Documentary evidence of defendant / petitioner.

Sr. No. Exhibits Name of witnesses

1. Ex-D-1 Letter dated 29.03.12 issued by Cooperative

Model Town Society Model Town , Lahore bearing Ref NO.CED / 755 / 12

2. Ex-D-2 Letter dated 28.03.12 written by defendant

to the present Cooperative Model Town Society

3. Ex-D-3 Receipts of courier

4. Mark-DA Copy of reply to the legal notice dated

18.01.2005

5. Mark-DB Copy of letter dated 18.01.2005 issued by

defendant to defendant No.2

6. Mark-DC Copy of letter dated 10.02.2005 issued by defendant to the plaintiff No.2

7. Mark-DD Copy of letter issued by defendant to the

plaintiff No.2 dated 07.11.2005

8. Mark-DE Copy of reply to the show cause notice dated 19.10.2004

9. Mark-DF Copy of reply dated 13.03.2006

After hearing the arguments of learned counsel for the parties, the learned

trial Court gave issue-wise findings on the basis of evidence as well as the

pleadings the following relief was granted to the respondents/plaintiffs

No.1 & 2:-

The suit of the plaintiffs/respondents

No.1 & 2 for specific performance of

agreement to sell, declaration and

permanent injunction is decreed in

favour of the plaintiffs/respondents No.1

& 2 and against the defendant/petitioner

as prayed for while second suit of the

defendant/petitioner for declaration,

C.R. No.37938 of 2019

8

possession, mandatory and permanent

injunction is hereby dismissed.

9. The aforesaid judgment and Decree was assailed before the learned

Appellate Court through Civil Appeal No.50 of 2018 which was upheld

by the said court vide judgment and decree dated 08.03.2019. Being

aggrieved by the said judgment and decree, the petitioner/defendant filed

the instant Civil Revision before this Court.

10. Learned counsel for the petitioner/defendant while arguing the case

showed his reservation regarding the judgments of both the courts below

with the version that the both the courts below ignored the main question

in dispute between the parties; that agreement to sell Exh. P-2 was

misinterpreted by both the courts below; that the contents of agreement to

sell Exh.P-2 are very clear and conditions No.5 & 9 of the agreement to

sell have been misinterpreted by both the courts below; that it was

incumbent upon the respondent No.1/plaintiff to make the payment of

remaining consideration to the defendant/petitioner on the targeted date i.e

15.10.2004 and only after receipt of balance consideration, the

petitioner/defendant was under obligation to transfer the suit property in

the name of the plaintiff/respondent No.1 but he (respondent

No.1/plaintiff) failed to make payment of balance consideration within the

stipulated period, rather, the plaintiff /respondents themselves managed to

file a frivolous suit on behalf of one, Ali Muhammad, titled as Ali

Muhammad vs Syed Muhammad Ali Shamim and got status quo order

dated 29.12.2004; that the respondents/plaintiffs were never ever ready to

perform remaining part of their obligation under agreement to sell dated

20.08.2004 and they avoided the payment under the agreement to sell,

hence the petitioner/defendant was constrained to issue a letter dated

13.03.2006 to the plaintiffs/respondents, however, despite several verbal

assurances from the plaintiffs and letters of the defendant/petitioner, no

positive response was shown from the plaintiff’s side. It was further

argued that the due date for payment of the balance consideration under

C.R. No.37938 of 2019

9

the agreement to sell dated 20.08.2004 was 15.10.2004 and non-

compliance of the terms and conditions on the part of the

plaintiffs/respondents rendered the same as null and void ; that the relevant

evidence has also been misread by both the courts below which is

necessary to be discussed and elaborated for just decision of the case; It

was further argued that both the courts below had relied upon those

factors which were not in existence in document Exh.P-2; that NOC from

a model Town Society was not a question of Exh. P-2( agreement to sell)

but unnecessarily both the courts below had relied upon that factors which

have been agitated by the respondents; that malafide on the part of the

respondents/plaintiffs was obvious that they did not make the payment of

balance consideration within the stipulated period inspite of having NOC

from the concerned Department and they illegally and forcibly occupied

the property in question without any title but both the courts below did

not consider this aspect of the matter; lastly while relying on the cases

reported as Mst. Samina Riffat and others vs Sohail Asghar and others

(2021 SCMR 07) and Inayatullah Khan and others vs Shabir Ahmad Khan

( 2021 SCMR 686) learned counsel for the petitioner submits that the

relevant evidence was neither taken into consideration nor discussed by

both the courts below, hence impugned judgments and decrees passed by

both the courts below are not sustainable in the eyes of law;

11. On the other hand, learned counsel for the respondents/plaintiffs

has vehemently opposed the instant civil revision with the version that

suit for Specific Performance of Agreement to Sell dated 20.08.2004

alongwith declaration and permanent injunction was filed within time and

agreement to sell Exh. P-2 was an admitted document; that the

respondents/plaintiffs have not only fulfilled all the required conditions

but also produced all the relevant evidence before the learned trial court

which was rightly considered and analyzed by both the courts below; that

the defendant/plaintiff remained failed to perform his part of the

agreement and by his own words and conduct, he extended the time of

C.R. No.37938 of 2019

10

performance of contract, hence, time was not essence of agreement to sell

dated 20.08.2004; It was further argued that it was responsibility of the

plaintiffs/respondents to get decided two suits which were mentioned in

the agreement to sell dated 20.08.2004 but in addition to that suits, at the

time of issuance of NOC from Model Town Society a new civil suit for

specific performance titled Ali Muhammad vs Muhammad Ali Shamim

and status quo order dated 29.12.2004 passed in said suit came on the

surface and its liability was on the defendant/petitioner but he failed to

discharge his liability to get the said suit decided rather, the

plaintiffs/respondents from their own pocket managed to get the said suit

closed, hence, the defendant/petitioner not the respondents/plaintiffs

should have to pay the cost for not performing his part of the contract.

Thus, it is submitted that instant civil revision is liable to be dismissed.

12. Arguments heard. Record perused.

13. Instant civil revision has been filed against the concurrent findings

of both the courts below. Prior to going into the detail of the proposition in

hand, I would like to reproduce the section 2(e) of the Contract Act, 1872,

definition of the Agreement which is the main subject of the proposition.

Under the contract Act under section 2(e): “Agreement defined as “

every promise and every set of promises, forming the consideration for

each other is an agreement”

It means that no more than concord a transaction between two parties,

that may lead to a contract. It consists of mutual expressions, though not

of harmonious intentions or state of mind. It is by the conduct of the

parties by their bodily manifestations, that the court determines the

existence of the agreement. Indeed, an agreement is nothing more than a

manifestation of mutual assent by two or more legally competent persons

to one another. According to clause (e) of section 2 of the Contract Act,

1872 every promise and every set of promises, forming the consideration

for each other in order to constitute an agreement. There must be a

proposal from the second party and response of the other party constitute

C.R. No.37938 of 2019

11

an agreement. In the instant case, both the parties entered into an

agreement which is available on file as Exh. P-2. There is no dispute

regarding its execution between the parties. The actual dispute between

the parties is regarding the interpretation of conditions No.5 & 9. I

would like to reproduce both these conditions as under :-

(5) That the seller has agreed to sell and the purchaser has

agreed to purchase the above said plot at the total price of Rs.1,70,00,000/= (Once Crore and Seventy Lacs

only), out of which Rs.40,00,000/= (Forty Lacs only), has been paid as advance/earnest money by the purchaser to the seller vide Demand draft No. 498714

of 20.08.2004, Bank Al-Habib Limited Branch, Main Branch, Lahore (which is hereby acknowledged). The

remaining amount of Rs. 1,30,00,000/= (One Crore Thirty Lacs only) shall be paid on or before 15th

October 2004. The payment will be deposited in the seller’s following account: Dr. Muhammad Ali

Shamim, PLS Account No. 2255-3, Muslim Commercial Bank, Sidco Centre Branch near PIA

booking office Karachi. The Seller will hand over all original documents relating to the property mentioned

above at the time of Final Payment, The seller shall execute a power of attorney in the favour of Sheikh

Muhammad Idrees, the husband of the buyer at the time of execution of this agreement with the sole purpose to contest the two litigations as quoted above. However,

all costs shall be borne by the purchaser and the purchaser shall not commit any charges, costs or

liabilities on behalf of the seller.

(9) In case the Purchaser fails to pay the balance amount as per the schedule in Para-5 above, irrespective of the reasons for the non-payment, the earnest money will be

forfeited and this agreement will be null and void, and in case the seller refuses or denies to transfer the plot,

the purchaser has the right to get execution of Transfer Papers/Sale Deed through court or to claim double of

the paid earnest money and also expenses incurred in this connection.

I am fortified in my view by the law in case titled Syed Muhammad Saadat Ali Khan vs Mirza Wiquar Ali Beg and others ( AIR (3),

1943 Privy Council 115) has settled this matter as follows:-

C.R. No.37938 of 2019

12

(a) Deed-Construction-Rule of, indicated.

In construing a written document the whole document should be considered, and it is from

the language used therein by the parties and not from any preconceived notion of likelihood or

unlikelihood that the intention of the parties is to be ascertained. It is wrong to start with an inspired assumption that it is unlikely that one

party could or would have assented to a particular provision, and then to hold that

because so unlikely a provision is not contained in the document in clear and express terms, it

cannot have intended to apply.

The petitioner/defendant took stance that time was essence in the

agreement to sell dated 20.08.2004 because it provides for payment of

balance consideration as 15.10.2004 but the plaintiff No.1 failed to make

the payment of balance consideration on the targeted date and even after

the due date, therefore, penal clause of the agreement to sell mention in

condition No.9 will become operative which disentitled the plaintiff

No.1/respondent to get the relief on the basis of agreement to sell dated

20.08.2004.

14. Whereas the version of the plaintiffs/respondents was that

defendant/petitioner failed to perform his part of the contract and by his

own words and conduct he extended the time for performance of the

agreement, therefore, time was not essence of the agreement to sell dated

20.08.2004.

15. The agreement to sell dated 208.2004 is an admitted

document, as both the parties have not challenged its execution or

existence. The basic controversy between the parties is that the

defendant/petitioner is treating the time specified in the agreement as

an essence of the contract whereas the plaintiffs/respondents alleged

that the date was stipulated in the agreement for completion of the

agreement to sell and for effecting registered sale deed in favour of

the plaintiffs/respondents and parties never intended to treat the time

C.R. No.37938 of 2019

13

as an essence of the contract. The agreement Exh.P-2 is available

on the file which shows that the parties had fixed the date of

15.10.2004 for payment of balance of consideration and for

completion of the process of transfer of suit property in favour of the

plaintiffs/respondents. As per agreement to sell (Exh.P-2) the

plaintiff/respondents was to make the payment of balance

consideration of Rs. 1,30,00,000/- on or before 15.10.2004 and the

defendant /petitioner was to hand over the possession of the suit

property to the plaintiffs/respondents and make himself available to

sign all the documents which he has called upon to sign by the

plaintiff/purchaser in connection with the transfer of the suit plot in

favour of the plaintiff/respondents. In para/condition No.9 of the

agreement to sell (Exh.P-2), the obligation was created for the

plaintiff/ respondent No.1 that if she does not pay the balance of sale

price to the defendant/petitioner within the targeted date, the earnest

money shall stand forfeited and if the defendant refused or denies to

transfer the suit plot, an option was given to the defendant/petitioner

to get sale deed through indulgence of the court or to claim double of

the paid earnest money and also expenses incurred in this

connection. In the preceding paragraph, I have already mentioned the

definition of the agreement under section 2(e) of the Contract Act.

Meaning that intention of the parties is very much relevant to

interpret the conditions mentioned in the agreement to sell. These

conditions cannot be independently discussed and un-dissolved. The

intention can only be assessed from the conduct and act of the

parties. In the case of House Building Finance Corporation v.

Shahinshah Humayun Cooperative House Building Society and

others (SCMR 1992 19), the Hounourable Supreme Court has laid

down the principle of construction of an agreement in the following

manner:

C.R. No.37938 of 2019

14

The contract has to be construed strictly and

literally without deviating or implying anything which is not supported by the intention of the

parties and the language of the document. It is a salutary principle of consideration of document

that nothing can be implied in a contract which is inconsistent with its expressed terms. In West Pakistan Industrial Development Corporation,

Karachi v. Aziz Qureshi PLD 1973 SC 222, it was held that a stipulation not expressed in a

written contract should not be implied merely because the Court thinks that it would be a

reasonable thing to imply it. Such an implication can be made only on consideration of the terms

of the contract in a reasonable manner and if the Court is satisfied that it should necessarily have

been intended by the parties when the contract was made. In documents of contracts where

terms and conditions have been exhaustively specified dealing with all possible future and foreseeable contingencies but if certain

fundamental contingencies have been left out which necessarily in the context, facts and

circumstances of the case should have been incorporated and can be spelt out, then the

Court may imply such conditions.

The Contract Act 1872 has given all the details regarding absolute

agreement and the contingent agreement and even the agreement to

sell if not comply with what is the consequent of breach of contract

and if there is variation of contract how it can be assessed and what

are its effects. The petitioner/defendant has raised objection that the

respondents/plaintiffs did not fulfill the condition of deposit of

remaining amount on the due date but at the same time there is

admission on the part of the petitioner/defendant that the letter /legal

notice was sent by the respondent/plaintiff to the petitioner/defendant

that the relevant/original document of the title be provided. This

letter/legal notice was sent on 15th

October 2004 which was

admittedly received to the petitioner on 17/18th

October 2004. The

version of the petitioner/defendant is that the letter/notice was sent

C.R. No.37938 of 2019

15

with malafide intention but regarding the same no evidence was

produced by the petitioner/defendant to prove the allegation of

malafide on the part of the respondents/plaintiffs . The letter dated

15.10.2004 reflects that the respondents/plaintiffs through their

counsel demanded NOC from the Model Town Society and title

documents for verification and completion of sale deed. In the said

letter the respondents/plaintiffs had shown their willingness to pay

the requisite balance amount so that the transaction may be

completed. Surprisingly the petitioner/defendant has mentioned this

letter/legal notice in his written statement with different version that

when he asked about the letter to the respondents/plaintiffs, they

said that although it was given by their counsel yet you should

ignore it and this specific statement was also made by the

defendant/petitioner when he appeared as DW-1 but when the

respondent/plaintiff appeared as P.W-1 neither this question was put

to him nor same was confronted. No effort was made by the

petitioner/defendant to prove the allegation of malafide and it cannot

be assessed through words. It is only an act of the person which can

give the impression/intention regarding the fact of malafide. The

petitioner/defendant filed an application before the learned trial court

on 05.05.2014 with the subject ( Application under section 151 CPC

read with all other enabling provisions of law for order requiring

the plaintiff to pay into Court Balance Amount of agreement to sell)”.

In this application the admission regarding the document Exh.P-2 is

there and in the prayer clause the petitioner/defendant requested the

court that plaintiffs/respondents ( Farrah Idrees and Sheikh

Muhammad Idrees) be ordered to pay the balance amount of the

agreement to sell. This application was contested by the

respondents/plaintiffs with specific version that

respondents/plaintiffs are ready to perform their part of the alleged

agreement to sell and they never denied to pay the remaining

C.R. No.37938 of 2019

16

consideration amount but the petitioner/defendant has to fulfill the

liability on his part by producing NOC and the original papers

regarding the ownership of the land in question. Learned Civil Judge

vide order dated 02.04.2015 directed the respondents/plaintiffs to

deposit the remaining consideration amount i.e 13,000,000/- in the

court. This order was challenged before this Court through Civil

Revision No.1130 of 2015 and vide order dated 15.02.2016, this

Court passed the order with the observation that “ in view of above,

the petitioner is allowed to comply with order dated 02.04.2015 of

the learned trial court within two months and thus petition was

disposed of”. The respondents/plaintiffs deposited the balance

amount of the agreement to sell as per direction of the Court. This

act of the respondents/plaintiffs shows that there was as such no

malice on their part to fulfill the condition of the agreement to sell

Exh.P-2.

16. The version of the petitioner/defendant that the

respondents/plaintiffs did not deposit the amount on the targeted date.

The time was essence in the agreement to sell dated 20.08.2004 as it

provides date for payment of balance consideration i.e 15.10.2004 but the

plaintiff/respondents failed to make the payment of balance consideration

on the due date. The conditions mentioned in the agreement Exh. P-2

were reciprocal which bound down both the parties to fulfill their part.

Section 51 of the Contract Act 1872 clearly provides that when a contract

consists of reciprocal promises to be simultaneously performed, no

promisor need perform his promise unless the promisee is ready and

willing to perform his reciprocal promise whereas in Section 52 of the

Contract Act it is mentioned that where the order in which reciprocal

promises are to be performed is expressly fixed by the contract, they

shall be performed in that order, and, where the order is not expressly

fixed by the contract, they shall be performed in that order which the

nature of the transaction requires. If section 52 of the Contract Act is kept

C.R. No.37938 of 2019

17

in view, it says that nature of the contract should be kept in view while

analyzing the fact that who could be at fault. In the instant case the

payment was regarding the plot in question unless the papers of the

ownership of the property in question were not scrutinized and were

found correct, the respondents/plaintiffs were not under obligation to

make the payment. The condition No.5 of the agreement to sell ( Exh. P-

2) provides that the petitioner/defendant/seller was under obligation to

provide all the original documents relating to the ownership of the

property in question. The property was falling in the Model Town Society

and for the purpose of transfer of the property, the NOC was mandatory,

though, even if NOC is not mentioned in the agreement to sell Exh.P-2

but infact it was mandatory for the petitioner/defendant to obtain NOC

and to provide the other relevant documents of the ownership to the

respondents/plaintiffs and then the responsibility of the

respondents/plaintiffs can be checked. It is settled principle of law that

time is never essence of contract in immovable properties. In

Muhammad Jamil and others vs. Muhammad Arif (2021 SCMR 1108)

the Hon’ble Supreme Court inter alia was seized of a similar issue and

while deciding the petition, it observed as follows:-

“Another fundamental principle, often misconstrued, is

that time is not the essence of the contract in cases of specific performance, in respect of immoveable

property. Generally, reliance is placed on section 55 of the Contract Act

18. The archaic rule that generally,

time is not of essence in contracts involving

sale/purchase of immoveable property19

, could not be used as a ground to grant or otherwise specific

performance, unless the circumstances that prove otherwise are highlighted and proved by the vendor and

or vendee as the case may be.”20

. .

In this respect I have also sought guidance from the case law reported as

“Mst. Samina Riffat and others vs Rohail Asghar and others (2021 SCMR

7), Mst. Jaiwanti Bai vs Messrs Amir Corporation and others (PLD 2021

C.R. No.37938 of 2019

18

Supreme Court 434) and Hafiz Shaikh Anwar-ul-Haque through L.Rs vs

Jehan Khan and others ( PLD 2011 Supreme Court 540 at para No.11 of

the judgment). The other aspect of the proposition is that if time was

essence of contract/agreement dated 20.08.2004 and when time was over

and according to petitioner the promisee had not fulfilled the obligation

on his part then the petitioner was under obligation to give a legal notice

to the respondent/plaintiff for revocation /termination of the agreement to

sell but no step was taken by the petitioner/defendant in this regard ,

rather, legal notices were issued by the respondents/plaintiffs and

petitioner/defendant in reply to those notices, although has mentioned that

time of performance of the agreement is over yet the petitioner /defendant

also made an offer to the respondents/plaintiffs for payment of remaining

consideration amount and to get the property transferred in their name.

Here I would like to reproduce the reply of the petitioner/defendant in

connection with legal notice LLN-02/04 dated 13.12.2004 issued on behalf

of the plaintiff/respondent as under:-

M. M. Alam Chaudhry,

Advocate, Supreme Court, Mozang Link Fund Kot Road, Lahore Tel: 723 8453

Subject: Your Legal Notice LLN-92/04 dated 13/12/04

Dear Sir,

I acknowledge receipt of your above notice on behalf of your client Mrs Farah Idrees w/o Mr Mohammad Idrees; and wish

to state the following: 1. The response to the two points in the notice are already

covered in my letter to you dated October 19, 2004

written in response to your Legal Notice LLN/04 dated

15/10/04. The contents of that letter' are still valid and

operative in my opinion.

2. The NOC from the Model Town Society was obtained on

16/12/2004 and copies given to Sheikh Mohammad

Idrees the same day.

C.R. No.37938 of 2019

19

3. As 11-C's half portion was evacuee property, the TO

coupled with the, membership of the society are the title

documents .A.-copy of the Transfer Order from the

Deputy Settlement Commissioner was couriered to

Sheikh. Mohammad Idrees on 22/12/2004. As far as the

"verification" is concerned, the ownership of this

property has been, authenticated by the Honourable

High Court and the Supreme Court of Pakistan, of

which the buyer is fully aware. He surely didn't get into

a deal and paid Rs. 40 Lacs as forfeitable advance

without satisfying himself on "verification of title".

There has been sufficient delays in meeting the terms of our

agreement and your client has been deliberately delaying the final payment. Which was due on 15 October 2004. More than a month has passed since the NOC from Model Town Society

was received. I would sincerely, request your client to prepare the sale deed

and I will come to Lahore on a mutually agreed date to get the property transferred and registered to his name without

further delays. This, however, is not an open ended offer. According to Para 5 and Para 9 of the "Agreement to sell",

the “Agreement to sell” has become nul and void and the earnest money forfeitable. And I reserve the right to apply it.

However, as stated in my previous letter, 1 do not intend to cause harm to your client but your client has been using

delaying tactics and of late does not even respond to my telephone calls and messages. I must also protect my interests. I request you to urge your client to expedite the full payment

and the transfer of the property on his name”.

Even thereafter another letter dated 10th

February 2005 was sent by the

petitioner/defendant wherein an offer was made but no notice for

termination of the agreement to sell was independently sent to the

respondents/plaintiffs which was the requirement of the law. Although this

offer was one sided and there is no response from the other side yet this

offer show that the petitioner/defendant had trust that’s why he had not

mentioned anything which could be termed as malafide on the part of the

respondents/plaintiffs. The legal notices dated 15.10.2004 (Mark-E/1 and

13.12.2004(Mark-E) severed by the plaintiffs/respondents upon the

C.R. No.37938 of 2019

20

petitioner/defendant are available on file wherein the plaintiff/respondent

reminded regarding the performance of the agreement to sell dated

20.08.2004. The petitioner/defendant during the course of cross-

examination stated that NOC was issued on 12.12.2004 but in the

meanwhile, the Model Town Society remained dysfunctional for two

months. He further admitted that he did not serve any legal notice upon the

plaintiffs/respondents. It was further admitted by him that in the agreement

it was agreed that the responsibility of any other suit apart of two suits

mentioned in the agreement would be on the seller. D.W-1 also contended

that under the letter dated 10.02.2008, the agreement for payment was

extended till 28.02.2005. The version of the petitioner/defendant was that

time was essence in the agreement to sell dated 20.08.2004 as it provides

date for payment of balance consideration as 15.10.2004 but the

plaintiffs/respondents failed to make the payment of balance consideration

on the due date, therefore, the plaintiffs cannot seek decree on the basis of

agreement to sell dated 20.08.2004. From the evidence available on file, it

is evident that the defendant/petitioner did not serve any notice upon the

plaintiffs/respondents requiring him to invoke the condition No.9 of the

alleged agreement to sell after expiry of the period mentioned in the

agreement and he did not terminate the agreement to sell immediately after

lapse of the stipulated period on account of failure in making the

payment of balance consideration, rather, the defendant/petitioner failed

to perform his part of contract and by his own words and conduct he kept

on extending the period of payment of balance consideration. It comes on

record, that the plaintiffs/respondents remained in contact with the

petitioner/defendant for issuance of NOC and providing the relevant

documents for completion of agreement to sell through legal notices

which are available on file wherein the plaintiffs/respondents had shown

their intention to pay the balance consideration. On the request of the

plaintiffs/respondents, the defendant had applied to the Model Town

Society, Lahore for issuance of NOC which was prerequisite for transfer

C.R. No.37938 of 2019

21

of property in favour of the plaintiffs and said NOC was issued on

16.12.2004. It is also an admitted fact that the model town Society

remained dysfunctional for a considerable period and injunctive order

dated 29.12.2004 passed by learned civil Judge in a suit titled Ali

Muhammad vs Muhammad Ali Shamim was intimated to the

defendant/petitioner by the Housing Society and this fact was also in the

knowledge of the plaintiffs/respondents. In the given circumstances, the

apprehension of the plaintiffs/respondents that the defendant/petitioner be

asked to get the injunctive order vacated and thereafter aforesaid suit be

decided before the payment of balance amount because it was the

responsibility of the defendant/petitioner to get clear his title over the suit

property. In these circumstances, I am of the view that the

plaintiff/respondent not only contacted the defendant on the due date for

performance of contract but also made hectic efforts in disposing of the

aforesaid suit, hence the claim of the defendant/ petitioner that the

plaintiffs/respondents failed to make the payment of balance consideration

on the due date is without force and against the record. Keeping in view

the evidence available on file, this Court has reason to believe that the

plaintiffs/respondents have succeeded in proving that they have

performed their part of the contract with bonafide intention by adopting

due process of law in the shape of serving legal notices upon the

defendant/petitioner apprising him for performance of agreement to sell.

Hence, it is held that the time was not essence of contract in the instant

case. The plaintiffs/respondents have already deposited the balance

consideration by the order of the court. The execution of the agreement to

sell dated 20.08.2004 Exh. P-2 and the payment of earnest money of Rs.

40,000,000/- by the plaintiff No.1 to the defendant/petitioner is an

admitted fact and same has been established from the available record ,

therefore, the plaintiff/respondent No.1 is held entitled for the decree of

specific performance of agreement to sell dated 20.08.2004 .

C.R. No.37938 of 2019

22

17. So-far-as the suit for declaration, possession and Mandatory and

permanent injunction filed by the petitioner/defendant against the

plaintiffs/respondents and Cooperative Model Town Society is concerned,

it has been noticed that the defendant/petitioner while appearing before

the learned trial court as D.W-1 deposed that the respondents/plaintiffs got

the possession of the suit property illegally with the help of Model Town

Society, Lahore. He further deposed that the plaintiffs got the possession

of the suit property forcibly by removing the security guards of the

defendant/petitioner. The petitioner/defendant also produced Naeem Bari,

Incharge Record Department, Model Town Society , Lahore in the witness

box. Perusal of record reveals that the such allegation has not been

levelled by the defendant/petitioner in his suit for declaration, possession

and mandatory and permanent injunction. In the said suit the Model Town

Society was impleaded as a party. During the proceedings of the said suit,

the Housing Society filed the written statement wherein the said Society

had shown his lack of knowledge about taking the possession of the suit

property illegally by the plaintiffs/respondents. It is evident from the

record, that the defendant/petitioner did not produce any security guard

before the learned trial court in order to prove that the plaintiff/respondent

had taken the possession of the suit property forcibly by kicking out the

security guards of the defendant. There is nothing on record that the

plaintiffs/respondents got the possession of the suit property illegally and

even the P.W namely Naeem Bari, Incharge Record Department produced

by the defendant/petitioner in the witness box did not depose even a single

word regarding the snatching of possession of the suit property from the

defendant/petitioner by the plaintiffs/respondents. Perusal of record also

reveals that prior to the filing of the suit, the defendant/petitioner sent a

letter to the Housing Society requesting for stoppage of illegal

construction and restoration of the possession over the plot in question

and the Society informed the petitioner/defendant through letter apprising

that the Society did not approve the plan nor accorded permission for

C.R. No.37938 of 2019

23

construction on the plot, however, the Society had not confirmed the

illegal possession of the plaintiffs/respondents over the property in

dispute. It has further been noticed that the plaintiffs/respondents filed the

suit on 17.04.2006 and since then the defendant/petitioner kept on

contesting the suit but he did not make any effort for getting the

possession back from the plaintiffs and no application was submitted by

him at any forum in this regard , rather, the petitioner/defendant filed the

instant suit on 02.04.2012 with the delay of about six years and no

explanation has been furnished by the petitioner/defendant that why he

kept mum for such a long period. As discussed in the preceding paragraph,

in all his correspondence, the defendant/petitioner did not demand for

recovery of possession back from the plaintiffs, rather he kept on

negotiating from the plaintiffs/respondents for making the payment of

balance consideration as per agreement Exh.P-2. Prima facie, it seems

that after getting information about the filing of a civil suit by one Ali

Muhammad and alleged injunctive order dated 29.12.2004 passed by the

court of competent jurisdiction in the said suit, the defendant/petitioner in

order to safeguard the interest of the plaintiff, himself handed over the

possession of the suit property to the plaintiffs. Keeping in view the

evidence available on file, the petitioner/defendant failed to prove that the

plaintiffs/respondents illegally took the possession of the suit property

through any cogent and confidence inspiring evidence, hence, the

petitioner/defendant is not entitled to get the possession of the suit

property from the respondents/plaintiffs. The findings of both the courts

below in this regard are based on sound footings and do not call for

interference by this Court. The case laws referred to by learned counsel for

the petitioner/defendant are not applicable to the facts and circumstances

of the case.

18. Even otherwise, the petitioner has sought reappraisal of evidence

without pointing out any material irregularity or miscarriage of justice.

The appraisal of evidence is the function of the Courts below. In the

C.R. No.37938 of 2019

24

present case, both the Courts below, have discussed the evidence and the

record while giving the findings. Petitioner while approaching this Court

by way of present Constitution Petition was required to point out the gross

mis-reading and non-reading of evidence or jurisdictional defect. In this

regard, reliance is placed on the cases reported as “Malik Muhammad

Hussain vs. District Returning Officer and others” (2008 SCMR 488),

“Shahzad Akhtar vs. District Judge, Muzaffargarh and others” (2020

YLR 2691) and “Noor-un-Nisa and others vs. United Bank Limited

through Authorized Officers and 2 others” (PLD 2021 Lahore 90).

19. Learned counsel for the petitioner has failed to convince this Court

regarding any illegality, material irregularity or jurisdictional defect,

requiring interference through this civil revision, therefore, instant civil

revision having no substance is dismissed. No order as to costs.

(Safdar Saleem Shahid)

Judge M.Shafique

Approved for reporting

Judge