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Regular Second Appeal No. 277 of 1985, decided on 19th October, 1986.

‑‑‑S. 22‑‑Transfer of Property Act (IV of 1882), S. 54‑‑Contract of sale, execution of‑‑Vendee neither produced any receipt or other document to prove that he had paid balance contractual amount to vendor nor sent any notice to vendor to execute sale‑deed until filing of suit for specific performance of contract by him‑‑Vendee, held, clearly failed to perform his part of contract‑ ‑Vendee's suit for spec' is performance of contract was rightly dismissed by two Courts below in circumstances.

Ghulam Nabi and others v. Seth Muhammad Yaqub and others PLD 1983 S C 344 ref.

‑‑‑0. XIX, R. 1‑‑Evidence of witness through affidavit Production of‑‑Validity‑‑Witnesses who had sworn affidavits to support plea of plaintiff were not produced by plaintiff either to vouchsafe their testimonies or to make them available for cross‑examination although they were alive‑‑Reliance of plaintiff on evidence led through such affidavits, held, could be of no avail to him particularly when there was no dire h n of Trial Court to lead such evidence as envisaged under 0. XIX, R.1 of Civil Procedure Code (V of 1908).‑‑[Affidavit‑ Witness].

‑‑‑S. 100‑‑Transfer of Property Act (IV of 1882), S. 54‑‑Second appeal‑‑Concurrent findings of Courts below‑‑Effect‑‑Concurrent findings of two Courts below based on evidence on record, held, would be unexceptionable. [p. 794] C

Ch. Mushtaq Ahmad Khan for Appellant.

This‑Regular Second Appeal arises out of judgment and decree, dated 1S‑ 11‑1985 of the learned Additional District Judge, Sialkot whereby, he dismissed appeal preferred by Rehmat Ullah appellant against judgment and decree, dated 25‑4‑1983 of the learned Civil Judge, Shakargarh whereby, he partly dismissed the suit for specific performance of the contract instituted by the appellant.

2. Rehmat Ullah appellant herein, instituted a suit for specific performance of agreement, dated 30‑10‑1966 executed between the parties alleging therein that Tufail Hussain respondent was owner of land measuring 47 Kanals and 7 Marlas situate in village Bhota Rawal, Tehsil Shakargarh, District Sialkot. On 30‑10‑1966 he agreed to sell the same in favour of the appellant for a sum of Rs.12,000. Out of the aforesaid he received Rs.5,000 as earnest money and undertook to get the sale‑deed executed till 30‑1‑1967 on the payment of balance price. The plaintiff paid balance amount of Rs.7,000 but the respondent did not execute sale‑deed in his favour and on 19‑2‑1971 he alienated the land in dispute in favour of other respondents. The suit was contested by Tufail Hussain respondent. A compromise however, took place between the appellant and the vendees and the suit was partly decreed in his favour. The judgment and decree was assailed in appeal. The learned Additional District Judge, Sialkot vide order, dated 4‑2‑1982 re‑framed the issues and remanded the case to the learned trial Court.

On remand the learned trial Judge on 25‑4‑1983 again partly decreed the suit. Rehmat Ullah preferred appeal against the aforesaid judgment and decree but failed. Hence, this second appeal.

3. Learned counsel for appellant contended that the learned lower Courts erred to hold that the time stipulated in the agreement was essence of the contract or that the limitation was to run from the date of execution of the agreement. It was contended that the defendant himself brought on the record documents Exh. D/1 to D/3 which indicate that he had by his own conduct enlarged one time for performance of the contract. The period of limitation would be reckoned from the day post card (Exh. D/3) was despatched to the appellant and period of 15 days allowed to make payment of the price and execution of the sale‑deed. In support of his submission, he relied on Ghulam Nabi and others v. Seth Muhammad Yaqub and others P L D 1983 S C 344. The suit instituted in the year 1973 was within time. It was next contended that the learned lower Courts discarded evidence led by the appellant through affidavits (Exhs. P. 4 to P. 6) which if taken into consideration would have proved that the appellant had been making efforts to perform his part of contract.

4. I have heard learned counsel for the appellant at some length and perused the record with his assistance. As regards the first contention of learned counsel that the time shall be reckoned from the date of post card (Exh. D/3) written in 1971 by the defendant allowing further 15 days to the appellant to honour the terms of the agreement there is some force in this contention, but the fact remains that the appellant produced no receipt or other document to prove that he paid Rs.7,000 to the defendant or that he sent notice to him to execute the sale‑deed until the suit was instituted. It clearly shows that he did not perform his part of the contract. Reliance of the appellant on evidence led through affidavits can be of no avail to him particularly when there was no direction of the trial Court to lead evidence through affidavit as envisaged under Order XIX, Rule 1, C.P.C. which reads:‑‑

"Power to order an point to be roved affidavit.‑‑ (1 )Any Court may at any time or sufficient reason order that any particular fact or facts may be proved by affidavit, or that the affidavit of any witness may be read at the hearing, on such conditions as the Court thinks reasonable:

Provided that where it appears to the Court that either party bona fide desires the production of a witness for cross‑examination, and that such witness can be produced, an order shall not be made authorizing the evidence of such witness to be given by affidavit".

The witnesses who allegedly had sworn affidavits although alive were not produced to vouchsafe their testimonies or make them available for cross‑examination. In my view the concurrent findings of the learned lower Courts in this regard are subject to no exception.

5. This appeal has no merit and is accordingly dismissed in limine.

H.B.T./649/L Appeal dismissed.

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