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Civil Petition for Leave to Appeal No. 512 of 1984, decided on 24^th October, 1984.

(On appeal from the judgment and order of the Lahore High Court, dated 27‑2‑1984 in Regular Second Appeal No. 19 of 1984).

--‑‑‑Art. 185(3)‑‑Civil Procedure Code (V of 1908), S. 100 Second appeal‑‑Suit for specific performance of contract‑‑Question whether time was essence of contract held wholly irrelevant in view of concurrent finding of Courts below that plaintiff had taken steps to perform contract within stipulated time‑‑Such plea not put into issues and no adjudication having been made by Court before whom suit was contested, further, held, a question of intention of parties dependent upon terms of contract, conduct of parties before executing contract and surrounding circum stances, was not a pure question of law but a question of fact which required to be enquired into and parties had to be given opportunity to adduce evidence thereon‑‑Such plea could not be raised in second appeal or before Supreme Court.

Mian Munawar Hussain, Advocate Supreme Court instructed by Mian Ata‑ur‑Rehman, Advocate‑on‑Record for Petitioners.

Hamid Aslam Qureshi, Advocate Supreme Court with Advocate‑on -Record for Respondent No.l.

Date of hearing: 24th October, 1984.

This is a petition for leave to appeal from the order, dated 27‑2‑1984 passed by‑ a learned Judge of the Lahore High Court, Lahore, whereby a Regular Second Appeal filed by the petitioners was dismissed in limine and the decree passed by the trial Court for specific performance of contract for sale of immovable property against the petitioners was maintained.

2. The petitioners are the successors‑in‑interest of one Marghubul Haq. On 10‑12‑1977 respondent Syed Shaukat Ali brought a suit for specific performance of contract, on the allegation that Marghubul Haq had entered into an agreement, dated 22‑7‑1976, to sell house No. S‑IV‑S‑II situated in Naushahi Gunj, Bagh Gul Begum, Mozang, Lahore, in his favour. According to the averments made in the plaint, the deceased seller had received a sum of Rs.1,000 as earnest money and the balance of Rs.35,000 was to be paid before the Sub‑‑Registrar, Lahore, at the time of execution of registered sale‑deed within three, months from the date of the agreement. However, according to the plaintiff the seller did not perform his part of the contract although he was requested in that behalf by the plaintiff on many occasions.

3. The petitioners, who as already stated, succeeded to the interests of deceased Marghubul Haq, did not deny the execution of the agreement and the receipt of earnest money. They, however, resisted the suit on the plea that the balance of the consideration amount was not offered within the period stipulated in the agreement and, therefore, the agreement had lapsed on account of efflux of time stipulated therein on account of breach on the part of the seller. The trial Court after hearing the evidence of the parties decreed the suit on 15‑11‑1982 holding that the purchaser was willing to perform his part of the contract, but the deceased seller refused to execute the sale‑deed and, therefore, the plaintiff was entitled to specific performance. In this connection reference was made to the evidence on record to the effect that the plaintiff had visited the office of the Sub‑Registrar, Lahore, awaiting the arrival of the deceased seller but the latter did not turn up, which happened during the originally stipulated period for performance of the contract. Additionally the Court also found that a notice in writing was served by the purchaser on the seller for execution 'of the sale‑deed, as well as an application was moved before the Sub‑Registrar, Lahore, which corroborated the assertion of the plaintiff that he was willing to abide by the contract.

4. These findings were affirmed by the learned Additional District Judge, Lahore, who dismissed the appeal of the petitioners by his judgment, dated 19‑11‑1983.

5. Before the High Court the sole ground urged in support of the Second Appeal was that the Courts below had fallen into error in misreading the evidence on record, inasmuch as, they had ignored the evidence produced by the petitioners to the effect that the plaintiff could not arrange the balance amount payable by him although he was called upon to perform his part of the contract. This contention has been repelled by the High Court on the ground that there appears no convincing evidence in support of this assertion, for, if it were so the petitioners would have served such notice upon the plaintiff or approached the Sub‑Registrar in token of their willingness to execute the registered sale‑deed. Additionally, and more importantly, the High Court held that in the present case it did not appear that time was of the essence of the contract, since the case involved the sale of an immovable property which generally is not a contract of which time is of essence. The learned Judge also referred to the conduct of the petitioners in this behalf which did not indicate that they regarded time as of the essence of the contract.

6. Before us the learned counsel sought to assail the view taken by the High Court and urged that a telegraphic notice was sent by the seller to the plaintiff calling upon him to compete the sale, which is clear proof that it was not the seller who committed the breach. However, he conceded that this document has not been produced in evidence and we are, therefore, not able to take into consideration this evidence. He also argued that the notice sent by the plaintiff and placed on record has not been proved according to law but there is no force in this argument as the learned counsel has conceded that the address shown on the copy of the notice is the correct address of the seller. In these circumstances, there is a presumption of law that the notice must have been served in due course. In any case, it was for the petitioners to object to the mode of proof of the document at the stage of evidence and nothing has been pointed out to us that such objection was taken when this document was received in evidence. Lastly, the learned counsel urged with reference to the terms of the agreement executed between the parties that time was of the essence of the contract. As we have already pointed out the concurrent finding of the Courts below is to the effect that the plaintiff had taken steps to perform the contract within the stipulated time, which we are not inclined to upset,' the question whether time was of the essence of the contract is wholly irrelevant. But even otherwise this plea does not seem to have been, put into issues and no adjudication was made by the Courts of fact before whom the suit was contested between the parties. The question raised is, in accordance with long line of authorities, a question of intention of the parties dependent upon the terms of the contract, the conduct of the parties before executing the contract and the surrounding circumstances. Accordingly this is not a pure question of law but a question of fact which required to be enquired into and parties had to be given opportunity to adduce evidence thereon. The petitioners could not, therefore, raise this plea at the stage of Second Appeal or before us in these proceedings.

7. The petition, therefore, fails and is accordingly dismissed.

M.I. Petition dismissed.

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