Judgment Sheet
IN THE HIGH COURT OF SINDH AT KARACHI
Second Appeal No. 44 of 2009
Appellant : Mrs. Musarrat Islam,
through Mr. Abdul Qadir Mirza Advocate.
Respondent No.1 : Mrs. Farzana Anwer,
through Mr. Iftikhar Javed Qazi Advocate.
Respondent No.2 : Sub-Registrar T-Division-XVI,
Gulshan-e-Iqbal, Karachi, called absent.
Date of hearing : 22.08.2019 and 28.08.2019.
J U D G M E N T
NADEEM AKHTAR, J. – Suit No.381/2005 filed by the appellant for specific performance and permanent injunction in respect of residential bungalow constructed on Plot No. R-49, measuring 120 sq. yds., Block 19, Gulistan-e-Jauhar, KDA Scheme No.33, Karachi, (‘suit property’) was decreed against respondent No.1 by the learned trial Court vide judgment and decree dated 17.05.2008 and 22.05.2008, respectively. In Civil Appeal No.68/2008 filed by respondent No.1, the above decree was set aside by the learned appellate Court by allowing the said appeal vide impugned judgment and decree dated 10.08.2009 and 17.08.2009, respectively, which have been impugned by the appellant in the present second appeal.
2. Relevant facts of the case are that the above Suit was filed by the appellant against respondent No.1 claiming that vide agreement of sale dated 07.11.2004 (‘the agreement’), the latter had agreed to sell the suit property to her in consideration of Rs.1,450,000.00 out of which part payments of Rs.10,000.00 and Rs.195,000.00 were made by her through cash and cheque, respectively ; the balance sale consideration of Rs.1,245,000.00 was to be paid by her within ninety days at the time of transfer of valid and unencumbered title of the suit property and execution of the sale deed in respect thereof in her favour by respondent No.1 ; during the above mentioned period of ninety days, respondent No.1 was required to redeem the suit property which was lying mortgaged with House Building Finance Corporation (‘HBFC’) ; the time mentioned in the agreement for completion of the sale was of the essence of the contract, but respondent No.1 failed to redeem the suit property and due to such failure on her part, she could not complete the sale in favour of the appellant ; despite repeated requests and demands by the appellant and also a legal notice by her, respondent No.1 did not perform her agreed part of the contract ; and, vide letter dated 28.03.2005 issued by respondent No.1 in response to the appellant’s legal notice, she refused to complete the sale. In this background, the above Suit was filed by the appellant against respondent No.1 for specific performance of the agreement and injunction in respect of the suit property.
3. The Suit was contested by respondent No.1 by filing written statement wherein execution of the agreement was admitted by her, but it was alleged that breach thereof was committed by the appellant as she did not prepare the draft of the sale deed nor did she arrange a pay order for the balance sale consideration ; the appellant also did not issue any notice or letter showing her readiness or willingness to perform her agreed part of the contract ; and, due to such failure on the part of the appellant, the agreement stood terminated and the advance part payment made by her stood forfeited. It was stated by respondent No.1 in her written statement that after repaying the loan, she got the title documents of the suit property released from HBFC on 26.01.2005 i.e. within ninety days of the agreement.
4. In view of the divergent pleadings of the parties, following issues were settled by the learned trial Court :
“1. Whether the Suit as framed by the plaintiff is maintainable and plaintiff has any cause of action to file the same against the defendant ?
2. Whether the plaintiff has herself violated the terms and conditions of the agreement dated 7.11.2004 ?
3. Whether the time was essence of the contract dated 7.11.2004, if so, who has violated the terms and conditions of the agreement ?
4. Whether the plaintiff showed her willingness and readiness to perform the part of her contract after execution of agreement and before filing of Suit, if so, what is its effect ?
5. Whether the sale deed admit / execute (!) by the Sub-Registrar, when the suit property was mortgaged with the HBFC, what is its effect ?
6. Whether plaintiff is entitled for relief claimed ?
7. What should the decree be ?”
5. The appellant / plaintiff examined herself and her son, who was a witness to the agreement, and in support of her case she produced relevant documents, including the agreement, whereafter they were cross-examined. Respondent No.1 also examined herself and she produced the clearance certificate, and she was also cross-examined. After examining the evidence produced by the parties and hearing the arguments advanced on their behalf, the learned trial Court decreed the appellant’s Suit as prayed by her. However, the learned appellate Court did not agree with the findings of the learned trial Court which were reversed, and accordingly the appeal filed by respondent No.1 was allowed through the impugned judgment.
6. I have heard learned counsel for the parties at length and with their assistance have also examined the material available on record. Record shows that execution of the agreement has all along been admitted by respondent No.1. Record further shows that the only ground on which the agreement was purportedly terminated by her was that the appellant did not arrange / pay the balance sale consideration within ninety days, which was of the essence of the contract, although original title documents of the suit property were received by her from HBFC within the said period. The Suit was also contested by her mainly on the above ground. It may be noted that it was not her case that she was not obliged to redeem the suit property by getting the original title documents thereof released from HBFC before completion of the sale in favour of the appellant. Regarding release of the original title documents from HBFC, it was claimed by her in her written statement that she got the same released from HBFC on 26.01.2005 i.e. within ninety days of the agreement. However, in her cross-examination, it was categorically admitted by her that the stamp paper for the deed of redemption was purchased on 28.06.2005 ; the deed of redemption was registered on 27.06.2006 ; and, it was registered after about one year and seven months from the date of the agreement. It was further admitted by her in her cross-examination that the suit property was lying mortgaged with HBFC at the time of execution of the agreement ; and, she had not gone through the contents of HBFC’s letter dated 26.01.2005 minutely, whereby she was required to appear in person before HBFC for the deed of redemption. It may be noted that a copy of HBFC’s above letter dated 26.01.2005 was filed by respondent No.1 herself along with her reply / objections to this appeal, wherein it was clearly stated that she had to appear in person before HBFC on any working day to enable HBFC to take action for return of the title documents and redemption of the assignment deed.
7. In addition to the above admissions, it was further admitted by respondent No.1 in her cross-examination that she had not cleared the dues of Rs.23,751.00 payable in respect of the suit property to Cantonment Board Faisal.
8. In view of the above, the admitted position that has emerged in this case is that the suit property was lying mortgaged with HBFC when the parties had executed the agreement ; respondent No.1 had agreed to transfer valid, unencumbered and marketable title of the suit property in favour of the appellant within ninety days of the agreement ; original title documents of the suit property were released by HBFC and the suit property was redeemed by respondent No.1 when the deed of redemption was executed on 27.06.2006 i.e. after one year and seven months from the date of the agreement and after one year and four months of the expiration of the period of ninety days stipulated in the agreement ; respondent No.1 alone was responsible for the above delay as she did not go through the contents of HBFC’s letter dated 26.01.2005 minutely, whereby she was advised to appear in person before HBFC on any working day to enable HBFC to take action for return of the title documents and redemption of the assignment deed ; it was never pleaded or claimed by respondent No.1 that the suit property was redeemed by her within the period of ninety days stipulated in the agreement ; the only statement that was made by her in her written statement was that she got the title documents released from HBFC on 26.01.2005, and even this statement was incorrect ; respondent No.1 was not in a position up till 27.06.2006 to complete the sale in favour of the appellant by transferring valid, unencumbered and marketable title of the suit property in her favour ; and, it was respondent No.1 who had committed breach of the agreement as she had failed and had eventually refused to perform her agreed part of the contract.
9. The above facts clearly show that it was an admitted position that respondent No.1 had not only promised, but was legally obliged to redeem the suit property by getting the original title documents thereof released from HBFC before completion of the sale in favour of the appellant. Needless to say that without first redeeming the suit property, respondent No.1 could not complete the sale and/or perform her agreed part of the contract. Thus, the appellant could also not perform her agreed part of the contract nor was she legally obliged to do so in terms of Section 51 of the Contract Act, 1872, unless the suit property was redeemed by respondent No.1 making it completely free from all charges and encumbrances. This being the legal position and the promises of both the parties being reciprocal in nature and dependent on the performance each other, the appellant could not be said to have committed breach of the agreement, especially when respondent No.1 had admittedly committed breach of the agreement as already held by me in the preceding paragraph.
10. The above important aspect of the case was not appreciated by the learned appellate Court and in fact the impugned judgment is completely silent in this regard. I am of the considered view that the findings of the learned appellate Court that no cause of action had accrued to the appellant for filing the Suit as she had failed to pay the balance sale consideration within the period of ninety days stipulated in the agreement which was of the essence of the contract, were not correct in view of the breach committed by respondent No.1 and also as it is well-settled that time mentioned in the agreement for sale of immovable property is not of the essence of the contract. It would not be out of place to mention here that the entire balance sale consideration, which was not disputed, was deposited by the appellant before the learned trial Court. Thus, the Suit of the appellant was rightly decreed by the learned trial Court
11. In Karim Bakhsh through L.Rs and others V/S Jindwadda Shah and others, 2005 SCMR 1518, it was held by the Hon'ble Supreme Court that when findings of two courts below were at variance, the High Court was justified in appreciating the evidence to arrive at the conclusion as to which of the decisions was in accord with the evidence on record. After examining and appreciating the evidence, I have come to the conclusion that the findings of the learned trial court were in accord with the evidence on record, and those of the learned appellate court were contrary to the admitted facts and the evidence on record. In Abbas Ali Shah and 5 others V/S Ghulam Ali and another, 2004 SCMR 1342, the Hon'ble Supreme Court was pleased to hold that ordinarily the findings of the appellate court are not interfered with in second appeal if the same are found to be substantiated by evidence on record and are supported by logical reasoning ; if the findings of the two courts are at variance, the conflict would be seen to assess the comparative merits of such findings in the light of the facts of the case and reasons in support of two different findings given by two courts on a question of fact ; and, if findings of the appellate court are not supported by evidence on record and the same are found to be without logical reasons or are found arbitrary or capricious, same can be rejected in second appeal. I have already held that the findings of the learned appellate court were contrary to the admitted facts and the evidence on record ; the above important aspect of the case was not appreciated by the learned appellate Court and in fact the impugned judgment is completely silent in this regard ; and, the impugned judgment is contrary to the law laid down by the Superior Courts. Thus, the impugned judgment, being not sustainable in law, cannot be allowed to remain in the field.
12. Foregoing are the reasons of the short order announced by me on 28.08.2019 whereby this second appeal was allowed with no order as to costs, the impugned judgment and decree passed in the respondent No.1’s Civil Appeal No.68/2008 were set aside, and the judgment and decree passed by the learned trial court in the appellant’s Suit No.381/2005 were maintained.
________________
J U D G E