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Petitioner: Muhammad Ali Ansari VS Respondent: Manzoor Ahmad Paracha
Court Name: Lahore High Court Judge(s): Mahmood Ahmad Bhatti Title: Muhammad Ali Ansari vs Manzoor Ahmad Paracha Case No.: R.S.A. No, 37 of 2005 Date of Judgment:2014-03-19 Reported As: K.L.R. 2015 Civil Cases 91 Result: R.S.A. dismissed
JUDGMENT
JUDGMENT ' MAHMOOD AHMAD BHATTI, J. --- This Regular Second Appeal calls into question the legality, correctness and validity of the judgment and decree dated 05.04.2005 passed by a learned Addl. District Judge, Multan, whereby he reversed and overturned the judgment and decree dated 17.10.1995 passed by the learned Civil Judge, Multan, thereby decreeing the suit of Manzoor Ahmad Paracha, the respondent for possession through specific performance. 2. Before proceeding further, it would be in order to recall that Regular Second Appeal bearing No, 37 of 2005 assailing the judgment and decree dated 05.04.2005 passed by the learned Appellate Court below was dismissed in the first round of litigation by the judgment and decree dated 08.6.2009 passed by this Court. The same was brought under challenge by Muhammad Ali Ansari, the defendant by filing Civil Appeal No, 401-L-2011 before the Hon'ble Supreme Court of Pakistan. It came up for hearing before the apex Court on 21,5.2013, when the appeal was allowed in the following terms:--- "In view of the fair stand taken by learned counsel for the respondent/plaintiff, this appeal is allowed and the impugned judgment is set aside. R.S.A. No, 37/2005 shall be deemed to be pending before the learned High Court and we are sanguine, the learned Senior Judge, Lahore High Court, Multan Bench while dealing with this case would keep in mind the agony which the parties had to undergo on account of protracted litigation. The record be remitted to the Lahore High Court, Multan Bench forthwith and the case be put up before the learned Senior Judge of the said Bench in the week commencing 3.6.2013." 3. The plain, unvarnished and undisputed facts are that Muhammad Ali Ansari, the appellant herein entered into an agreement to sell dated 21.2.1991 with Manzoor Ahmad Paracha, the respondent for
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the sale of plots Nos. 377 and 378, admeasuring 2 kanals, situated in Block-F, Shah Rukn-e-Alam Colony No, II, Multan for a consideration of Rs, 13,60,000/- at the rate of Rs, 34,000/- per Marla. Shorn of details, the vendor/appellant admitted to have received an amount of Rs, 1,50,000/- as earnest money. As per the terms of the agreement in question, the vendor was to execute a sale-deed in favour of the vendee by or before 20.3.1991, on the receipt of the balance of the sale consideration amounting to Rs, 12,10,000/-. Regardless of what prevented the parties (which will be adverted to at the appropriate place in the course of this judgment) from completing the transaction and executing the sale-deed, the fact remains that the transaction could not go through. Evidently, the vendee instituted a suit for possession through specific performance on 30.3.1991, that is to say, within 10 days of the cut-off date stipulated in the agreement to sell dated 21.2.1991. 4. The defendant entered appearance and filed the written statement. The above-mentioned facts were not disputed by him, but he took the plea that time was the essence of the agreement, and that the plaintiff did not have ready money to pay him the balance amount of Rs, 12,10,000/-, with the result that the agreement between the parties stood rescinded. The controversy between them crystallized into the following issues:--- "(i). Whether the defendant agreed to sell the suit plots to the plaintiff vide sale agreement dated 14.2.1991 and 21.2.1991 and received Rs 1,50,000/- from him? OPP (ii) Whether the plaintiff is entitled to the relief prayed for? OPP (iii) Whether the plaintiff has no cause of action and locus standi to file the suit? OPD (iv) Whether the plaintiff is estopped by his words and conduct to file the suit? OPD (vi) Whether the suit is male fide? OPD (vii) Relief." 5. It goes without saying that both the parties led pro and contra evidence in support of their respective pleas. The plaintiff examined Akhtar Hussain Bukhari (P.W.1), Muhammad Ramzan (P.W.2), Muhammad Ishaque Qureshi (P.W.3), Muhammad Rafique Siddiqui (PW.4) and Malik Muhammad Younas as P.W.6 and himself appeared as PW.5. It is pertinent to mention that P.W.1 was the stamp vendor who sold the stamp paper on which Muhammad Ramzan (P.W.2) scribed the agreement to sell in question. As for P.W.3, Muhammad Ishaque Qureshi, who appeared alongwith the record pertaining to plots Nos. 377 and 378, he was a record keeper in the Land Revenue Branch of Multan Development Authority, Multan (MDA). He also produced copies of the applications moved by the parties with the MDA. Muhammad Rafique, P.W.4 was not only a marginal witness to Ex.P.1, the agreement to sell but he also claimed to have accompanied the plaintiff to the Office of the MDA with the object of getting the presence of plaintiff marked before the relevant authorities on the cut-off date. Needless to add, Manzoor Ahmad Paracha, P.W.5 reiterated the contents of his plaint and stressed that he was always willing to fulfill his part of the agreement. On the contrary, he alleged that the vendor tried all tricks of the trade with a view to frustrating the agreement to sell in question. He deliberately absented himself from MDA and when the defendant/appellant made himself scarce, the plaintiff was left with no option but to institute the suit for specific performance of the contract. Be that as it may, in documentary evidence, the plaintiff tendered as many as 13 documents and closed his evidence the case of the plaintiff. He proceeded to U.S.A. And appointed Rana Muhammad Arshad his general attorney, who appeared as D.W.3. He also examined Muhammad Rafi, D.W.1, an employee of MDA and Hamayat Ali as D.W.2. The defendant also tendered a number of documents in the evidence, which primarily proved ownership of the vendor/defendant with regard to the suit plots. An effort was also made to establish that the plaintiff had not appeared before the relevant authorities of MDA on the cut-off date to get the plots transferred in his name. One of the witnesses produced also testified that the plaintiff did not have sufficient funds to fulfill his part of the agreement, by paying the balance of the sale consideration amounting to Rs, 12,10,000/-.
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6. At the conclusion of the trial, the learned Trial Court seized with the suit proceeded to dismiss it by holding that time was the essence of the agreement to sell and that the plaintiff had failed to carry out his part of the bargain, resulting in rescission of the agreement made between the parties to the /is. This was held by the judgment and decree dated 17.10.1995. 7. Feeling aggrieved by the aforesaid judgment and decree dated .17.10.1995, the plaintiff/respondent instituted an appeal, which was allowed by an Addl. District Judge. Multan vide judgment and decree dated 05.4.2005, the validity whereof is the subject-matter of this second appeal. 8. In the post-remand phase, the arguments of the learned counsel for the appellant and the respondent were recorded in the open Court. 9. Learned counsel for the appellant contends that the decree-holder/plaintiff did not set out material facts in the plaint, and unless a fact is alleged in the pleadings, the plaintiff cannot be allowed to lead evidence to prove it. He has drawn the attention of the Court to paragraph No, 5 of the plaint to urge that it was not averred therein that the plaintiff had money to pay to the defendant/vendor/appellant. He drew the inference from this that the plaintiff did not have any money at all on 20.3.1991, the cut-off date when the plaintiff was to fulfill his part of the agreement. Reference was made to the testimony of Muhammad Rafique Siddiqui (P.W.4) and Manzoor Ahmad (P.W.5), who are alleged not to have uttered a single word to the effect that the plaintiff had taken with him an amount of Rs, 12,10,000/- when he allegedly went to the office of the Director General, MDA on 20.3.1991. Learned counsel for the appellant is critical of the statement of Malik Muhammad Younas, P.W.6. According to him, he stated in the examination-in-chief that on the relevant date, the plaintiff had the money with him. He elaborates that since the deposition of P.W.6 was recorded on another date, he improved upon the stand taken by the plaintiff and the rest of the witnesses produced by him. Learned counsel for the appellant forcefully contends that time was the essence of the agreement. According to him, this question has long been settled by the superior Courts. In this respect, he placed reliance on the cases reported as "Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala" (PLD 1962 SC 1), "General Manager, The Punjab Provincial Cooperative Bank Ltd. And another v. Muntazir. Hussain Shah" (1999 SCMR 2484) and "Rab Nawaz and 13 others v. Khan and 14 others" (1999 SCMR 1362). 10. As for the scope of the second appeal, learned counsel for the appellant submits that since both the judgments and decrees passed by the Courts below are at variance, the evidence produced by the parties is to be reappraised/re-appreciated. In this respect, he places reliance on the judgment of Hon'ble Supreme Court of Pakistan reported as "Muhammad Bashir v. Station House Officer, Okara Cantt and others" (PLD 2007 SC 26) 11. Learned counsel for the respondent rebutted, refuted and controverted the arguments advanced by the learned counsel for the appellant. To begin with, he argued that it was concurrently held by both the learned Courts below that the execution of the agreement to sell in question was admitted by the defendants in the written statement, and that the plaintiff was not required to prove it, as is manifest from the provisions of Article 81 of the Qanun-e-Shahadat Order, 1984. He made the argument that paragraph No, 5 of the plaint was being misconstrued and misinterpreted. According to him, the only inference to be drawn therefrom is that the plaintiff has all along been ready to carry out his part of the agreement to sell. He was at pains to explain that the plaintiff was to fulfill his part of the agreement by the 20th of March, 1991, and in order to show his bona fides, he went to the office of the Director General, MDA and submitted an application that his presence be marked. In this behalf, the plaintiff tendered in evidence an application made by him to the Director General, MDA as Exh.P.7. At the same time, he invited the attention of the Court to Exh.P.14, an application made by the appellant/defendant on 24.3.1991 to the Director General, MDA to urge that the vendor was conscious of the fact that the parties were to approach the office
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of Multan Development Authority by a certain date. However, he absented himself from there between 20.3.1991 and 23.3.1991 and turned up there on 24.3.1991, which goes to show that the vendor/defendant was deliberately avoiding to appearing before the Director General, MDA between 20.3.1991 and 23.3.1991. Learned counsel for the respondent submitted that there are no material discrepancies and contradictions in the depositions of PWs. They are at one that all of them went to the office of the Multan Development Authority on 20.3.1991. He underscored that the vendor/defendant/appellant did not examine himself as a witness, thereby avoiding and evading to be subjected to cross-examination. This shows that he was not ready to face up to the facts. As for the testimony of his attorney, who appeared as D.W.3, no transaction was made in his presence, and he was not aware of the facts relating to the execution of the agreement to sell and as to how the payment was to be made. He further submitted that the written statement filed by the defendant was not signed by him, and his signature is conspicuous by its absence at the foot of the written statement. It was vehemently argued by him that time is not regarded as the essence of the agreement to sell regarding immovable properties. In this behalf, he placed reliance on the cases reported as "Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala" (PLD 1962 SC 1), "Seth Essabhoy v. Saboor Ahmad"(PLD 1973 SC 39), "Muhammad Hussain and others v. Dr. Zahoor Alam" (2010 SCMR 286) and "Mst. Gulshan Hamid v. Kh. Abdul Rehman and others" (2010 SCMR 334). Towards the end of his submissions, he prayed for the dismissal of the RSA. 12. At this stage, it would be expedient to state that the learned Trial Court took the view that since the plaintiff had not expressly stated in the plaint that he was always ready and willing to perform his part of the agreement, it could be inferred that he was not in a position to carry out his part of the bargain. According to the learned Trial Court, unless a plaintiff makes such an averment in the plaint, a suit for performance cannot be decreed in his favour. The other ground which prevailed with the learned Trial Court was that time was the essence of the agreement, but since the plaintiff did not make contact with the defendant within the time stipulated in the agreement, the agreement in question was rendered unenforceable at law. 13. On the other hand, the learned Appellate Court took the contrary view, holding that it was not necessary for the plaintiff to allege in the plaint that he was ready and willing to fulfill his part of the agreement. It also reached the conclusion that in the case of immovable properties, time is not to be considered as the essence of an agreement. To put it simply, the views of both the learned Courts below are diametrically opposed to each other. 14. From the preceding paragraphs of this judgment, it is crystal clear that three fundamental questions arise for consideration:--- (a) Whether the plaintiff is bound to make an averment in the plaint that he has all along been willing and ready to fulfill his part of the agreement? (b) Whether time is the essence of an agreement to sell relating to immovable properties? (c) Whether time may be made the essence of an agreement unilaterally or by serving a notice upon the other party or can the same be inferred from the peculiar facts and circumstances of a particular case? 15. Before entering into the discussion as to the questions posed above, it would be instructive to reproduce Section 55 of the Contract Act, 1872 and Article 113 of the First Schedule to the Limitation Act, 1908:--- "55. Effect of failure to perform at fixed time, a contract in which time is essential.-- When a party to a contract promises to a certain thing at or before a specified time., or certain things at or before specified time, and fails to do any such thing at or before the specified time, the contract, or so much of its as has not been performed, becomes voidable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract. Effect of such failure when time is not essential.--If it was not the intention of the parties that time should be of the
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essence of the contract, the contract does not become voidable by the failure to do such thing at or before the specified time; but the promisee is entitled to compensation from the promisor for any loss occasioned to him by such failure." {{TABLE}} Article 113 of the First Schedule to the Limitation Act, 1908 Description of Suit Period of Limitation Time from which period beings to run For specific Three The date fixed for the performance years performance, or if no a contract such date is fixed, when the plaintiff has notice that performance is refused. Article 113 of the First Schedule to the Limitation Act, 1908 Description of SuitPeriod of LimitationTime from which period beings to run For specific Three The date fixed for the performance years performance, or if no a contract such date is fixed, when the plaintiff has notice that performance is refused. 16. To return to the first question whether the plaintiff is bound to make an assertion/averment in the plaint that he was and is ready and willing to perform his part of the agreement, it was authoritatively held by the Hon'ble Supreme Court of Pakistan in the case reported as "Maksud All and others v. Eskandar Ali" (PLD 1964 S.C. 381 at 390) that: "So far as the question of making any express averment in the pleading of such readiness and willingness is concerned, we are of the view that although there can be no doubt that this is the invariable practice of pleading, and if we may say so, a desirable practice, designed to give a clear and express notice to the opponent of the case sought to be made out, it cannot be said that this is a rule of law which would render the structure of the suit itself defective or that without it a proper cause of action would not appear on the plaint. We are, therefore, unable to accept the contention of the learned counsel that the present suit was bound to fail in the absence of such an averment." 17. The above question also came up for consideration before a Division Bench of this Court in the case reported as "Hakeem Ghulam Rasool v. Sh. Lmdad Hussain and another" (PLD 1968 Lahore 501 at page 505) in which it was held that:- "As observed by the Lord Campbell in Court v. The Ambergate, etc. Railway Company (1851): "in common sense the meaning of such an averment of readiness and willingness must be that the non-completion of the contract was not the fault of the plaintiff, and that they were disposed and able to complete it if it had not been renounced by the defendants." The failure of the plaintiff to express specifically in clear terms his readiness and willingness to perform his part of the contract does not disentitle him to specific performance." 18. In the case reported as "Muhammad Safdar Ansari and another v. Abdul Majeed"(PLD 1988 Lahore 216 at page 221), this contention was raised but was repelled by observing as under:- there appears to be nothing in the Specific Relief Act, which would indicate that there must be an express averment in the plaint to this effect and in default the suit shall fail." 19. Moving on to the second question whether time is the essence of an agreement in relation to immovable properties, it was considered by the apex Court in the case reported as "Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala" (PLD 1962 S.C. 01) and answered as follows:--- "In Jamshed Khodaram Irani v. Burjorji Dhunjibhal (43 IA 26), the Judicial Committee of the Privy Council had occasion to observe that "Section 55 of the Indian Contract Act, 1872, does not lay
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down any principle which differs from the law of England as to contracts for the sale of land. Specific performance of a contract of that nature will be granted although there has been a failure to keep the dates assigned by it, if justice can be done between the parties and if nothing in (a) the express stipulation of the parties, (b) the surrounding circumstances, make it inequitable to grant relief. An intention to make time of the essence of the contract must be expressed in unmistakable language; it may be inferred from what passed between the parties before, but not after, the contract is made. It was also laid down in that case that "equity will not assist where there has been undue delay on the part of one party to the contract, and the other has given him reasonable notice that he must complete within a definite time." 20. In another judgment reported as "Sandoz Limited and another v. Federation of Pakistan and others"(1995 SCMR 1431 at 1451), the Hon'ble Supreme Court of Pakistan deduced the following principles after quoting standard works on the subject such as Chitty on the Contracts, American Jurisprudence and Pollock on Contracts:--- "From the above-quoted passages from the above well-known treatises, it is evident:--- (i) The parties to a contract may make time for the performance of their contract as the essence by expressly providing that "time is of the essence" or by using any other words which may manifest that the intention of the parties is that the time shall be of essence of the contract. (ii) That the intention of the parties as to the factum, whether the time for the performance of the contract is of the essence or not may be ascertained by the nature of the contract or the circumstances of the case. If the nature of the contract is such that nonperformance of the same within the stipulated period rendered the contract for the promisee useless or of no benefit, the time for the performance shall be construed as of the essence. (iii) That if non-performance of the contract within the stipulated period does not cause any loss or injury to the promisee, time is not regarded as the essence of the contract even when a date for completion of the contract is specified." (Emphasis added) 21. In the case reported as "Mrs. Mussarat Shaukat All v. Mrs, Safia Khatoon and others"(1994 SCMR 2189), it was authoritatively held by the apex Court:- "The relief of specific performance being an equitable relief, it can be refused by the Court only if the equities in the Case are against the. Plaintiff. The Court while refusing to grant a decree for specific performance to a plaintiff must find something in the conduct of plaintiff which disentitled him to the grant of equitable relief of specific performance, or the Court reaches the conclusion that on account of delay in seeking the relief, the circumstances have so materially changed that it would be unjust to enforce the agreement specifically. The specific performance of a contract cannot be refused merely because it is lawful for the Court to refuse it." ' The apex Court further held' that:- ' It may also be mentioned here that where the parties have not treated the date fixed for performance of the contract relating to immovable property as the essence of the contract at the time of entering into the agreement, subsequently, one of the parties to the contract cannot unilaterally make the time as the essence of the contract (see Abdul Hamid v. Abbas Bhatti, PLD 1962 SC 1). (Bold for emphasis) 22. Turning to the third question formulated above as to whether time could be made essence of an agreement unilaterally or by serving a notice upon the other party, it was first considered in the case reported as "Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala Al," (PLD 1962 S.C. 01 at 06) (supra), where the following observations were made:--- "The principle, that if time is not originally made of the essence of a contract for sale of land one of the parties is not entitled afterwards, by notice, to make it of the essence, unless there has been some default or unreasonable delay by the other party, was laid down as long ago as 1879 by Fry J. In Green v. Sevin (3). That principle was re-affirmed in Smith v. Hamilton and another (4). The
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following extract from Fry. Judgment in Green v. Sevin was, inter alia, cited with approval by Harman, J. In the last-named case:--- ' What right then had one party to limit a particular time within which an act was to be done by the other? It appears to me that he had no right so to do, unless there had been such delay on the part of the other contracting party as to render it fair that, if steps were not immediately taken to complete, the person giving the notice should be relieved from his contract. It has been argued that there is a right in either party to a contract by notice so to engraft time as to make it of the essence of the contract where it has not originally been of the essence, independently of delay on the part of him to whom the notice is given. In my view there is no such right. It is plain upon principle, as it appears to me, that there can be no such right. That which is not of the essence of the original contract is not to be made so by the volition of one of the parties, unless the other has done something which gives a right to the other to make it so. You cannot make a new contract at the will of one of the contracting parties. There must have been such improper conduct on the part of the other as to justify the rescission of the contract sub modo, that is, if a reasonable notice be not complied with. That this is the law appears to me abundantly plain. ' This proposition has received the support of standard text books on the subject - See Fry on Specific Performance Para. 1092, 6th Edition, and Cheshire & on Contracts, page 450, 5th Edition." ' To the same effect are the observations of the august Supreme Court of Pakistan in the case of Mrs. Mussarat Shaukat" reported as 1994 SCMR 2189. 23. Perhaps the stage is set to consider the ancillary question whether the suit in hand could be regarded as barred by time. 24. In the case reported as "Ghulam Nabi and others v. Seth Muhammad Yaqub and others" (PLD 1983 S.C. 344 at 353) the august Supreme Court of Pakistan…
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