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Petitioner: NAZIMA BEGUM and others VS Respondent: HASINA BEGUM:
Court Name: Lahore High Court Judge(s): Munir A. Sheikh Title: NAZIMA BEGUM and others vs HASINA BEGUM: Case No.: Regular Second Appeal No, 2 of 1992 Date of Judgment:1993-04-27 Reported As: 1993 CLC 2409 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' The defendants' appeal against judgment and decree dated 17-12-1991 passed by the Additional District Judge, Lahore by which the appeal filed by them against judgment and decree dated 26- 6-1991 passed by trial Court through which suit filed by the respondent for specific performance of agreement of sale was decreed, has been dismissed. 2. Both the Courts below have recorded concurrent findings of fact against the appellants and in second appeal the same could legally be challenged only if the same had proceeded upon a misapprehension or were shown to be condemnable on any of the grounds mentioned in section 100, C.P.C. Since learned counsel for the appellants at preliminary hearing voiced their grievance that the lower appellate Court did not allow them to go through the evidence during hearing of the arguments therefore, in order to satisfy myself whether the evidence was misread, misconstrued or any material piece of evidence did not receive consideration, I permitted learned counsel to take me through the evidence. The entire evidence produced by both the parties both oral and documentary has been examined with the assistance of learned counsel for the parties. 3. Appellants 4 to 8 through agreement of sale (Exh. P.9) executed on 2-11-1980 agreed to sell their property known as Abdul Majid Hotel, Old Anarkali, Lahore to the respondent for a consideration of Rs,1,75,000 out of which an amount of Rs,25,000 was paid as earnest money. The time fixed in this agreement for completion of sale-deed and payment of the remaining price before the Sub- Registrar was up to 2-2-1981. The case of respondent/plaintiff had throughout been that from 2-11- 1980 appellants 4 to 8 were repeatedly asked to execute the sale-deed but they declined. Subsequently, appellants 4 to 8 sold the said property to appellants 1 to 3 through five different sale-deeds all executed on 6-6-1981, and registered on 30-6-1981. The respondent filed suit on 7-9-
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1983 for ppecific performance of agreement of sale against appellants 4 to 8. Subsequently, by order dated 29-9-1984 passed by the trial Court on the application of the respondent moved under Order 1, Rule 10, C.P.C. Appellants 1 and 2 were impleaded as defendants 6 and 7 in the suit. The appellants 1 and 2 filed written- statement on 8-12-1984. The trial Court reflected the controversies arising from the pleadings of the parties in the following issues framed on 13-12-1990: (1) Whether the plaintiff was ready to perform his part of the contract on and before the stipulated period? O.P.P. (2) Whether the sale executed by defendants Nos, 1 to 5 in favour of defendants Nos, 6 and 7 is ineffective upon the rights of the plaintiff because they are mala fide purchaser with notice of the agreement to sell in favour of the plaintiff? OPP. (3) Whether the defendants 1 to 5 were in knowledge of the civil suit for permanent injunction, if so, its effect? O.P.P. (4) Whether the plaintiff is entitled to decree for specific performance, if so, at what terms and conditions? O.P.D. (5) Whether the plaintiff has not come to the Court with clean hands? O.P.D. (6) Whether the suit is bad for laches and uncondonable delay? O.P.D. (7) Whether the time was essence of the contract? O.P.D. (8) Whether the plaintiff himself has committed breach of the contract and has failed to get the sale-deed executed in her favour within the stipulated period? O.P.D. (9) Whether the defendants are entitled to forfeit the earnest money ? O.P.D. (10) Whether the contract has now become ineffective in light of section 56 of the Contract Act, as the property has been further sold to the defendants 5 to 6? O.P.D. (11) Whether the suit is barred by time? O.P.D. 6 and 7. (12) Whether the defendants Nos, 6 and 7 are bona fide purchaser for consideration without notice? O.P.D. 6 and 7. (13) Whether the suit is barred under Order 2, Rule. 2, C.P.C.? O.P.D. 6 and 7. (14) Whether the plaintiff is estopped by her own conduct to file the present suit? O.P.D. 6 and 7. (15) Whether the suit is not properly valued for the purpose of court-fee and jurisdiction? If so, what is its correct valuation? O.P.D. 6 and 7. (16) Whether the suit is not maintainable? O.P.D. 6 and 7. (17) Relief. 4. On 22-1-1991 respondent filed another application under Order 1, Rule 10, C.P.C. For impleading appellant No, 3 Muhammad Afzaal as one of the defendants in the suit. The trial Court passed an order on 14-2-1991 for impleading him as one of the defendants. He was summoned who filed written-statement on 10-4-1991. Since the pleas raised by appellant No, 3 were similar to those already raised by the appellants 1 and 2 therefore, the trial Court on 4-5-1991 passed an order in the presence of the learned counsel for the parties that there was no necessity to frame any other issue because the issues already framed sufficiently covered all the controversies arising from the written-statement of newly-added defendant i,e, appellant No, 3. It appers that none of the learned counsel appearing for the parties requested for framing of any additional issue. 5. The respondent/plaintiff examined Ch. Muhammad Jamil, Advocate as P.W. 1, Muhammad Aslam as P.W. 2, Muhammad Usman as P.W. 3, Muhammad Shoaib as P.W. 4, Muhammad Akram Dar, as P.W. 5, Khalifa Ghulam Hassan as P.W. 6, Shaukat All as P.W. 7, Manzoor Ahmad as P.W. 8, and P.W. 9. The documentary evidence produced by the respondent in the case was as follows:- (i) Exh. P.1 notice dated 5-2-1981 issued by Ch. Muhammad Jamil, Advocate P.W.1 to appellants 4 and 6 to 8.
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Exh.P.2 a postal receipt dated 19-3-1981 addressed to Mr. Makhdoomi, Advocate counsel for appellants 4 to 8 for despatch of notice. Exh. P3 notice dated 28-2-1981 issued by Muhammad Jamil, Advocate P.W.1 addressed to Mr. Makhdoomi Advocate. (iv) Exh. P.4 original application moved by respondent before the Sub-Registrar containing order of Sub-Registrar returning the same to the respondent. (v) Exh. P.5 notice published in Newspaper Sayasat dated 13-6-1982 on behalf of respondent by S.M. Baqar Girdezi, Advocate. (vi) Exh.P.6 another notice published in Daily Mashriq on 3-4-1981 on behalf of respondent by Mr_Girdezi, Mr. Advocate. (vii) Exh P 7 is a receipt evidencing payment of Rs,300 as expenses of publication of notice in Daily `Mashraq' (Ext. P.6). (viii) Exh.P.8 special power of attorney executed by respondent/plaintiff in favour of Manzoor Ahmad her son-in-law (P.W. 8 and P.W. 9). (ix) Exh.P.9 original agreement of sale dated 2-11-1980 (x) Exh.P.10 a copy of undated telegram addressed to Agha Jehangir Jang at 74-A, New Model Town, Lahore issued by the respondent. (xi) Exh.P.11 a copy of telegram addressed to Agha Nadar Jang by respondent at 74-A, New Muslim Town, Lahore, and (xii) Exh.P.12 copy of interim orders passed by the Civil Court in a suit filed by respondent for permanent injunction earlier to the institution of the present suit. 6. In rebuttal, the appellants examined Agha Safdar All as D.W.1, Haji Shair Muhammad as D.W.2, Munir Ahmad Butt as D.W.3, Muhammad Makki as D.W. 4. 7. The documentary evidence produced by the appellants was as given below: Exh.D.1 a notice dated 12-2-1981 issued on behalf of vendors/appellants 4 to 8 to respondent calling her to pay the remaining price within 14 days otherwise the agreement would stand forfeited. Exh.D.2 a public notice published in Daily 'Imroze' on 1-4-1981 on behalf of appellants 4 to 6 that they were intending to sell the property. (iii) Exh.D.3 special power of attorney dated 29-5-1981 executed by appellants 1 to 3 in favour of Sher Muhammad Makki. (iv) Exh.D.4 judgment dated 22-5-1991 passed in Writ Petition No, 5055 of 1985. 8. The trial Court through judgment and decree dated 26-6-1991 decreed the suit. Issues 1, 8 and 9 were discussed and decided together in favour of repondent/plaintiff and against the appellants. It was held that the respondent was ready to perform her part of contract and had not committed the breach of the same. Issues 2 and 12 were answered in favour of the plaintiff. Issue No, 3 was answered in favour of the appellants. It was held that there was no convincing evidence produced by the plaintiff to prove that defendants 1 to 5 /appellants 4 to 8 were in the knowledge of the suit filed by the plaintiff for permanent injunction. Issue No, 5 was answered against the defendants and in favour of the respondent/plaintiff. It was held that the plaintiff did not approach the Court with unclean hands as alleged. 9. The trial Court under issue No, 7 held that in view of the extension of time given by appellants 4 to 8 through notice Exh Dl for execution of sale-deed the time could not be regarded as the essence of the contract therefore, issue No, 7 was answered in favour of the plaintiff. Issue No, 10 was answered against the appellants and it was held that merely because the property had been further sold by appellants 4 to 8 the contract had not become ineffective under section 56 of the Contract Act. Under issue No, 13 it was held that the suit was not barred under Order 2, Rule 2, C.P.C. Issue No, 14 was answered in favour of the plaintiff after holding that there was no convincing
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evidence on record to prove that the plaintiff was estopped to file the suit. Under issue No, 15 it has been held that the suit was properly valued for the purpose of court-fee and jurisdiction. Issue No, 16 has been answered in favour of the plaintiff after holding that the same was maintainable. Consequently, the suit was decreed. 10. In appeal filed by the appellants before the lower appellate Court, the findings recorded by the trial Court were upheld and through judgment and decree dated 17-12-1991. 11. Learned counsel for the appellants argued that it is not correct that in every case of contract of sale of immovable property, time was not to be treated as essence of the contract and this question is to be decided on ascertainment of the intention of the parties to the contract with reference to the terms of the contract itself. He maintained that in the present case since it was provided in the contract that the sale-deed was to be executed on or before a specified date on payment of remaining sale price before the Sub-Registrar at the time of registration of the sale- deed failing which the agreement would stand cancelled and earnest money forfeited therefore, the intention of the parties was manifest that the time was intended to be the essence of the contract and the respondent having failed to get the sale-deed executed before the date fixed in the agreement on payment of balance transfer price therefore, according to the said term the agreement stood cancelled and was no longer enforceable. 12. The argument though appears to be ingenious but is not tenable in the facts and circumstances of this case and the close scrutiny of the evidence produced by the parties. 13. The correctness of the submission that in every case regarding contract of sale of immovable property it cannot be assumed that the time is never to be treated to be the essence of contract cannot be disputed as in each case the intention of the parties whether the time was essence of the contract was to be ascertained from the terms of the agreement itself and with reference to material brought on record in evidence in the suit. It may be mentioned here that merely because a particular date was given in the agreement of sale for completion of the sale-deed and payment of balance of transfer price failing which it was provided that the agreement would stand cancelled and earnest money forfeited would not be sufficient to hold that in a case of contract of sale in immovable property the time was intended to be the essence of the contract unless it was ascertainable from the agreement itself that the vendor was compelled to sell the property in order to accomplish such objects regarding which time factor was very material so far as he was concerned of which the vendee had due notice. For example if it had been mentioned in the agreement that the vendor was selling the property for raising money in order to pay off the loan obtained by him from the bank within the time schedule given by the bank and if not paid accordingly the vendor would be adjudged a defaulter or other such like compelling circumstances. Had there been anything disclosed in the agreement that the time which was being fixed in the agreement for completion of sale was relevant and material with I reference to those circumstances there could have been a valid basis for raising argument that it was intended to be the essence of contract of which the A vendee had due notice. In view of this in the present case it cannot be held that time was the essence of the contract and in such a case according to firmly settled law the performance of agreement from either party as regards his part could be made within reasonable time. 14. Even if for the sake of argument, it is accepted that time in this case should be treated the essence of the contract the legal effect of the same would be that a party to the contract had an option against the defaulting party to repudiate the contract which repudiation could be conveyed in writing to the defaulting party or expressed through conduct i,e, by taking no further steps regarding the said agreement, having no dealing with the defaulting 'party by maintaining complete silence and inaction from which it could be implied that the said party was not ready to treat the contract alive after the date fixed in the agreement relying upon self-executory clause
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regarding recission of agreement after the said date. In this case the appellants Nos, 4 to 8 the original vendors issued notice (Exh.D.1) on 12-2-1981 to respondent through which they called upon her to get the sale-deed completed and registered within fortnight therefrom and intimating that failing which the earnest money would stand forfeited from which it was clear that either the time was not intended to be the essence of the contract and even if that was so the right of repudiation was not exercised by not negotiating with the defaulting party any further but intention was expressed not to repudiate till further fifteen days from the receipt of the said notice by the respondent. This notice was sent through post. There is no evidence as to on which date it was despatched and even if it is assumed that the same was despatched on the same date i,e, 12-2- 1981 it would have normally taken at least 4/5 days to reach the addressee, therefore, it can safely be presumed that right of repudiation was not exercised and was not intended to be exercised till before 27-2-1981 in any case and the contract was kept alive at his option. From this it can also be concluded that the respondent if was ready and willing to perform her part of contract before the said date would be deemed to have discharged her obligations regarding readiness and willingness to perform her part of contract. 15. As I have already observed both the Courts below have recorded concurrent findings of facts on disputed questions of fact, therefore, in order to succeed in this second appeal the appellants are required to establish that the said findings had proceeded upon a misapprehension or were condemnable on any of the grounds mentioned is section 100, C.P.C. Which would obviously include misreading, misconstruction and non-reading of any material piece of evidence. In order to determine whether these findings do suffer from any such legal infirmity I proceed to discuss the evidence produced by the parties in this case. Exh.P.4 is the original application which the respondent moved before Sub-Registrar to record her present' in order to show that she intended to perform her part of contract which was returned to her by the Sub-Registrar that she should intimate the vendor before approaching him. The argument of learned counsel for the appellants that this unilateral act of respondent without intimation the appellants could not be treated as evidence against the appellants of her willingness to perform her part of agreement because there was no stipulation in the agreement Exh.P.9 that on a particular date the parties were to appear before the Sub-Registrar has force. Exh. P. 1 is a copy of notice dated 5-2-1981 which was issued by P.W.1 Ch. Muhammad Jamil, Advocate on behalf of the respondent to appellants 4 to 8 in which it was stated that the respondent requested many times verbally for the registration of sale-deed but the same was postponed on one or the other pretext and that she was ready and willing to complete the purchase and called upon them to complete the sale-deed before the Illaqa Magistrate within 15 days. Learned counsel for the appellants submitted that complete address of appellants 4 to 8 was not written in this notice as they were shown to be residents of new Muslim Town, Lahore and the number of house was not deliberately given because it was not in fact intended to reach the said appellants as respondent had no intention to get the sale-deed completed. The argument would have some force had appellants 4 to 8 provided to the respondent their addresses in the agreement of sale itself on which they could be contacted and the notices sent to them on the said addresses. In the agreement Exth.P.9 the addresses of appellants 4 to 8 have been given as under:-- "Residents of New Muslim Town, Lahore", therefore, if the notice was addressed to them on the said address and due to incomplete addresses the same had not reached them as alleged the fault lies with them for which the respondent cannot be blamed. In Exh. D1 which was admittedly issued on behalf of appellants 4 to 8 by the learned councel Mian Ayub Ahmad Makhdoomi, Advocate, they were shown to be residents of New Muslim Town, Lahore and no number of house or the Bungalow was given. It does not lie in the mouth of appellants 4 to 8 that they did not receive a number of correspondence from the respondent on account of incomplete address given by her."
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16. As I have already observed that no evidence was produced as to on which date in fact notice dated 12-2-1981 (Exh. Dl) was delivered to respondent in order to determine the date on which the period of 14 days fixed in the said notice for completion of sale-deed was to be counted, I would presume that notice dated 28-2-1981 issued by the respondent in reply thereto was within the said period of 14 days. In cross-examination of Ch. Muhammad Jamil P.W.1, learned counsel for appellants 4 to 8 confronted him with a photostat copy of notice mark 'A' dated 19-3-1981 and it was suggested to him that the same bore his signatures who did not deny the presence of his signatures but stated that being photostat copy he was not in a position to give definite reply. This document having been produced by appellants 4 to 8 from their custody therefore can legitimately be used as evidence against them to which learned counsel for appellants 1 to 3 i,e, the subsequent vendees has taken strong exception. He argued that this document cannot be used in evidence unless the said vendees/appellants were given opportunity to cross-examine the author. He argued that such a document cannot be used against the subsequent vendees because the vendors and the respondent might have colluded to defeat their rights. I am afraid from the material on the record any such inference could have been even remotely raised that there was collusion between appellants 4 to 8 and the respondent. The present appeal has been filed jointly by the vendors and the subsequent vendees as appellants. There is no material on the record that at any stage of the proceedings either before the trial Court or in appeal appellants 4 to 8 expressly or impliedly showed any intention not to prosecute the case vigilantly on account of collusion. Even otherwise, the question regarding readiness and willingness to perform contract between the appellants 4 to 8 and respondent relates to the period long before appellants 1 to 3 came into picture by purchasing the property subsequently therefore, they could not raise any objection as to events taking place between the vendors and respondent No, 1. This document is dated 29-3-1981. A bare reading of this document shows that after the receipt of notice dated 5-2- 1981 the appellants 4 to 8 did not close the matter but issued another notice which has not been produced on the record. It was in reply to the said further notice issued on behalf of appellants 4 to 8 that this reply dated 19-3-1981 was written. It was reiterated on behalf of the respondent that the allegations of the said appellants regarding inaction on the part of the respondent to get the sale- deed registered or written was wrong and she was ready and willing to get the sale-deed registered. 17. Learned counsel for the appellants pointed out that postal receipt Exh.P.2 produced by the respondent cannot be relatable to notice Exh.P.1 dated 5-2-1981 as the said postal receipt is dated 19-3-1981. This postal receipt, it appears, relates to issuance of notice mark 'A' which is dated 19-3- 1981 therefore, nothing turns on this. Issuance of notice dated 5-2-1981 has been proved through the evidence of P.W.1 Ch. Muhammad Jamil, Advocate and there is no good reason to disbelieve him as his evidence could not be shaken in the cross-examination. The respondent made efforts to get the relevant record from the G.P.O. Lahore produced through P.W. 2 which was not produced because according to this witness such record after 18 months was destroyed. The same is the position with regard to the record of telegrams brought on record and record of 'Daily Newspaper Sayasat' as stated by P.W. 3 and P.W.4. This evidence read with evidence of Manzoor Ahmad P.W. 8 who appeared in affirmative evidence as attorney of respondent and thereafter as P.W.9 in rebuttal is sufficient to establish that the respondent was ready and willing to perform her part of agreement before the option of repudiation of contract was exercised therefore the findings of the two Courts below on this aspect of the case do not suffer from any illegality or misreading, misconstruction or non-reading of any material piece of evidence. 18. Learned counsel for the appellants argued that prior to the filing of the present suit the respondent filed a suit for permanent injunction to restrain appellants 4 to 8 from selling the property instead of filing the suit for specific performance of agreement which remedy was
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available to her, the intention was to avoid the specific performance of agreement which was sufficient to hold that she was not ready to perform her part of agreement. He also pointed out that the addresses of appellants 4 to 8 were not correctly given in the said suit with the mala fide intention that they might not be served. It has already been held that the respondent was ready and willing to perform her part of agreement within the time fixed by appellants 4 to 8 themselves for repudiation of contract through notice dated 12-2-1981 therefore, the respondent was within her right to file suit for specific performance of contract within the period of limitation prescribed under the law and before doing that if on account of wrong legal advice given to her she filed suit for permanent injunction the same did not detract from her bona fides, adversely affecting her right to seek specific performance of agreement within limitation. As regards the allegations of giving incorrect address of appellants 4 to 8 suffice it to say that as has been observed above, the fault lies with the said appellants in not providing full particulars of their addresses in the agreement of sale as also subsequent notice issued (Exh.D.1). 19. Learned counsel for appellants 1 to 3 argued that in the list of documents produced under Order 13, Rule 1 and Order 7, Rule 14, C.P.C. Most of the documents were not either produced at the time of first hearing of the suit or relied upon in the list of reliance therefore, the same could not have been produced in evidence unless order by the Court was expressly passed. Excepting document Exh. P.4 no objection was raised by the appellants against the late production of the other documents and their admission in evidence. I am not persuaded to allow the appellants to raise this objection at this stage which they should have raised at the relevant time i,e, when the documents were produced and admitted in evidence. 20. The next question which falls for consideration is whether appellants 1 to 3 had succeeded to prove that they had no notice of agreement…
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