LAHORE: The Lahore High Court held in its recent judgment that it is a well-settled principle of law that time is not essence of contracts relating to immovable property.
The court passed these directions in a petition of one Ishtiaq Saleem and observed what is to be determined in such cases is not the form of document but the intention of parties.
The court observed that the failure to perform part of contract by the date fixed in the agreement to sell for payment of remaining consideration amount is not a ground for refusing relief of specific performance unless the circumstances must be highlighted and proved by the owner-vendor of the land that time is essence of the contract.
The court observed merely an express provision in agreement specifying certain time limit for performance of contractual undertaking on the part of promisee would not make specified time as essence of contract in absence of any such specified intendment from construction of document of contract.
The court further observed that in the absence of a provision in the agreement to sell an immovable property that the time fixed for performance of the contract is to be treated as the essence of contract.
The court said it is vividly clear that intention to make time of the essence of the contract must be expressed in unmistakable language and it can be inferred from what passed between the parties before but not after the contract is made.
A mere mention of a specified period in an agreement for completion of sale and payment of balance consideration amount would not make the time as essence of the contract unless it is expressly intended by the parties and the terms of the contract do not permit any other interpretation, the court added.
The court said as far as the case in hand is concerned, it is admitted proposition that on the one hand the petitioner received rupees one lac from the respondents in part performance of the contract and on the other hand retained the possession of the suit property which fact also stands proof of the fact that the petitioner was not ready to perform his part of the contract, the court added.
The court dismissed the petition and observed it has not seen any illegality, irregularity, and misreading or non-reading of evidence on the part of the appellate court.
The findings of the appellate court on the question of facts and law having based upon proper appreciation of oral, as well as, documentary evidence produced in the suit are not open to any interference, the court concluded.
Brief facts are that respondents instituted a suit for specific performance on January 06, 2003, against the petitioner by maintaining that petitioner agreed to sell his land measuring 09-kanals situated at Chak No.19-A of Rahim Yar Khan after receipt of rupees one lac on the condition that respondents remained ready to perform their part but the petitioner failed to abide by his commitment which constrained them to institute the suit.
Copyright Business Recorder, 2023
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