Citation Name: 2024 YLR 445 LAHORE-HIGH-COURT-LAHOREBookmark this Case AZHAR JAVAID vs Malik MUSHTAQ NOOR O

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Citation Name: 2024 YLR 445 LAHORE-HIGH-COURT-LAHOREBookmark this Case AZHAR JAVAID VS Malik MUSHTAQ NOOR O. VI, R.2---Contract Act (IX of 1872), S. 55---Specific Relief Act (I of 1877), S. 12--- Suit for specific performance---Evidence in departure of pleading of material fact(s)---"Facta probanda"---Scope---Petitioner/plaintiff instituted suit for specific performance, however, he failed to deposit remaining consideration in the Court; thereafter he developed his case and adopted the stance that some tenants were having possession of the suit property and the respondent had breached the condition of handing over vacant possession of the suit property---Held, that said stance was never the case of the petitioner/plaintiff when the suit was instituted as in the entire plaint, no such fact was pleaded, of which, he was mindful during his examination, and even deposed to said effect---Order VI, R. 2 of the Civil Procedure Code, 1908, required that the pleadings should contain a statement, in a concise form, of the material facts, on which the concerned party relied for his claim or defence---Allegations, of failure of condition by not retaining possession or renting out the suit property, formed facta probanda, which was a material fact and was required to be pleaded and then proved through evidence---Such material fact when not pleaded could not be deposed in the evidence---Evidence in departure of pleading of such material fact(s) could not be given any weight---No illegality or infirmity had been noticed in the impugned judgments and decrees passed by both the Courts below---Revision was dismissed, in circumstances. Citation Name: 2024 YLR 445 LAHORE-HIGH-COURT-LAHOREBookmark this Case AZHAR JAVAID VS Malik MUSHTAQ NOOR S.55---Specific Relief act (I of 1877), S. 12---Suit for specific performance---agreement to sell---Time as essence of the agreement--- Intention of the parties---Delay / failure to deposit remaining consideration in the Court---"Willingness" of the party---Scope---Petitioner/vendor instituted suit for specific performance of agreement to sell while the respondent instituted suit for partition regarding the suit-property; suit filed by the petitioner was dismissed whereas suit filed by the respondent was decreed and he (respondent) was directed to return the earnest money (of Rs.27,00,000/-) to the petitioner---appeal filed by the petitioner was also dismissed by the appellate Court---Plea of the petitioner was that time was not of the essence in the agreement contending that in the cases of immoveable properties mere mentioning of the date in an agreement was not sufficient to construe the intention that the time was of essence---Validity---Contents of the agreement-in-question revealed that the parties specifically agreed that the remaining payment of Rs. 3,800,000/- (thirty eight hundred thousand rupees) was required to be made by a final date (cut-date), which was followed by a stipulation that upon failure of the same, the earnest money of Rs. 2,700,000/- (twenty seven hundred thousand rupees) would be forfeited---There was nothing in the agreement-in-question suggesting that when entering into the agreement real intention of the parties was that time should not be an essential clause so that the petitioner could get support from second part of S. 55 of the Contract act, 1872---Intention of the parties to ensure the performance of obligations within the given time was further evident from the answer of the petitioner in his cross-examination by virtue of which he not only admitted existence of cut-date but also that he was not present on said cut-date---Unmistaken language of the agreement-in-question and close reading of evidence left no doubt that the time, as postulated, was of essence---In the present case, though the suit was filed soon after the final date settled by the parties for payment of remaining consideration but the petitioner instead of depositing the remaining consideration at the time of filing of the suit, admittedly caused a frustrating delay of about three and half years from institution of the suit for depositing of remaining consideration or in making such request to the Trial Court, in regard of which , he made admission while adducing his evidence---Petitioner had even failed to demonstrate his willingness and/or capacity to perform the agreement as per the agreed terms, by failing to deposit remaining consideration or by making the request to the Trial Court after three and half years of institution of the suit---No illegality or infirmity had been noticed in the impugned judgments and decrees passed by both the Courts below---Revision was dismissed, in circumstances.

Citation Name: 2024 YLR 445 LAHORE-HIGH-COURT-LAHOREBookmark this Case AZHAR JAVAID vs Malik MUSHTAQ NOOR O — 2024 YLR 445 LAHORE-HIGH-COURT-LAHORE

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