Waseem Hassan Vs Muhammad Nadeem

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Judgment Sheet

IN THE LAHORE HIGH COURT, LAHORE

(JUDICIAL DEPARTMENT)

Civil Revision No.29310 of 2026

Waseem Hassan versus Muhammad Nadeem

Date of hearing 24.09.2026

Petitioner by M/S Ch. Abdul Majeed, Ch.

Zahid Majeed and Ch. Ehsan ul Haq, Advocates.

Respondent by M/S Pervaiz Akhtar Tahir & M.

Amir Nawaz Bhatti, Advocate.

Mohsin Akhtar Kayani, J. Through this civil revision, the petitioner Waseem Hassan has assailed the judgment and decree dated 15.04.2026 passed by the First Appellate Court of District Judge Faisalabad.

2.Learned counsels for the petitioner contends that the petitioner entered into an agreement to sell with the respondent with regard to house measuring 03 marlas falling in square No.45, Khasra No.4/5/2, Khewat No.3038, Khatooni No.8391, mutation No.155978 as per periodical record of rights for the year 2010-11 situated at Chak No.224-RB, Tehsil City, District Faisalabad for consideration of Rs.10,500,000/- whereby he paid Rs.30,00,000/- as earnest money. The agreement to sell has been referred to as Exh.P2 and receipt for payment of amount has been referred as Exh.P3 in this case by the petitioner-plaintiff. He further contends that he paid the additional amount of Rs.29,50,000/- to the real son of the respondent and receipt was also executed in this regard on 14.01.2025 on the demand of the respondent. Later on, the respondent has not performed the acts and, therefore, petitioner was persuaded to file suit for specific

performance on 03.03.2025 within the reasonable timeline of one month fixed for the date of performance i.e. 01.02.2025.

3.He further contends that the balance sale consideration of Rs.45,50,000/- has already been deposited in the court account; however, the respondent denies the receiving of an amount of Rs.29,50,000/- by his son; therefore, the said amount was also deposited in the court account. However, the appellate court has gone wrong while considering the documentary evidence of Exh.P5, the form/periodical record of rights/Fard Jamabandi of the impugned property, and dismissed the claim of the petitioner contrary to the settled principles of the appreciation given by the trial court. He further contends that the agreement has duly been acknowledged by the respondent in the written statement and the entire case of the respondent was that time is the essence of contract; therefore, he is not ready to get the property transferred in the name of petitioner. However, no such evidence has been brought on record.

4.Conversely, the counsels for respondent contends that the agreement to sell has been admitted between the parties; however, the balance sale consideration was not paid in accordance with the timeline fixed in the agreement and, as such, the petitioner failed to perform his part of contract; therefore, suit has rightly been dismissed by the first appellate court.

5.Arguments heard, record perused.

6.Perusal of record reflects that the entire controversy between the parties with regard to the suit property started with the part payment of Rs.29,50,000/- which was allegedly received by the real son of the respondent as a part consideration amount, though agreement was admitted between the parties against the total sale consideration of Rs.10,500,000/- and Rs. 3 million was received as earnest money. Considering the mandate of the pleadings, the trial court has framed issue No.1 i.e. whether the plaintiff is entitled to get decree for possession through specific performance and permanent

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injunction on account of facts and circumstances mentioned in the plaint? OPP. In order to discharge the burden, the petitioner in terms of Article 117 of Qanun-e-Shahadat Order, 1984 recorded his testimony as PW-1 and narrated the entire facts given in the plaint and also produced Bilal as PW-2, Naeem Hassan as PW-3, Saqib as PW-4 and also brought on record the documentary evidence Exh.P1 to Exh.P9 respectively, including but not limited to the agreement to sell, receipt as well as different orders and criminal cases registered between the parties.

7.On the other hand, the respondent appeared as DW-1 and closed his evidence by taking a simple stance that time was the essence and, on the date fixed, the petitioner was unable to pay the balance sale consideration, and in addition to that, he has taken the plea that the receipt dated 14.01.2025 on the back of the agreement is also forged and fictitious, along with another fact that he has not received Rs. 29 lakhs nor put his thumb impression or signature on the back side of the agreement; rather, all those receipts are faked and fictitious.

8.Considering this aspect, this Court has to deal with the first part, which is with regard to the essence of contract as explained in Exh.P2 as under:

کت نم رہظم وکادا رکےن اک اپدنب وہاگ اور نم رہظم ئاادیاد اک ہضب20-20-0202 رتشمی ذموکر ہیقب امتم زرنمث ومرہخ رٹارفسن ررٹسجی قحب رخدیار ای رخدیار سج ےک انم اچےہ رکواےن اک اپدنب وہاگ اعمدہہ ےس ارحناف یک وصرت ںیم نم رہظم .رتشمیوکووصلدشہرمقاکدوانگادارکےناکاپدنبوہاگ

On plain reading of above-mentioned stipulation, it appears that the final date for payment of balance sale consideration was fixed as 01.02.2025 and the payment will be made subject to possession and transfer through a registered instrument. However, in this regard, the respondent was cross-examined. He appeared as DW-1, not able to confirm as to why he did not put his thumb impression on the agreement Exh.P2 or his signature, though, on the other hand, he admitted the fact:-

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وکابعرترحتریولیمکتوکدرتسمیلسترکاتوہںہیارقارانہمریمیراضدنمیےساھکلایگاوررشاطئارقارExh.P2ارقارانہم الھک02 ےک ذرےعی غلبمExh.P3 اںیمس ےس ںیم. الھک ںیم ےط وہا5 انہم یھب ریمی رمیض ےس ےط وہیئ وسدا اکی رکوڑ .روےپادتبایئووصلرکےیل

Therefore, the respondent has been further confronted with regard to his thumb impression on the agreement Exh.P2, referred as Exh.P2/7, as well as the ID card and thumb impression of his son, Ghulam Mohayuddin, as Exh.P2/2, but he answered in the following manner:

رپ ریمےExh.P2 رپ ریما اوگناھٹ سک رطح ےس یلعج ےہ از وخد اہک وخد اسہتخ ےہExh.P2/7 ںیم ہن ہہک اتکس وہں ریمے ےٹیبExh.P2/2دطختس و اوگناھٹ ہنںیہ اسےیلںیماتہک وہں ہیرحتری اوہنں ےنوخدانب یل ےہ ےھجم ملع ہنےہ اس .الغمیحمادلنیاکانشیتخاکرڈربمناوردطختس و اشنناوگناھٹہنےہ

The said response is also materially inconsistent with his earlier admissions and the documentary record. Similarly, it is the responsibility of the respondent to get the copy of periodical record of rights for the purposes of execution of sale deed in favour of the petitioner before the cut-off date fixed in the agreement, and this aspect was also acknowledged by him as under:

ہی درتس ےہ ںیم ےن رفد رپافرہم انیل اھت بت ںیم ےن ررٹسجی رکواین یھت ہی یھب درتس ےہ رفد رپافرہم ےک ریغب ےسےلہپایلاھتوہدمیع01.02.2025.ررٹسجیدمیعےکانملقتنمںیہنوہیتکسیھتوہرفدرپافرہمںیمےندمیعوکدےدایاھت .ےسےلہپوٹپاریےکاپسرفدرپافرہماکادنراجرکواایرگموہںیمےنوجابدوعیاورلثمرپہناگلای01.02.2025 .وکدایاھت The above-mentioned admission, if seen in juxtaposition with the only documentary evidence Exh.P5, the periodical record of right brought on record by the petitioner, reflects otherwise, which reveals that the issuance date of document is 07.03.2025 and same was issued on the request of Waseem Hassan, the petitioner, and not on the request of Muhammad Nadeem, son of Asghar Ali, the respondent. The said contradiction assumes significance as the respondent himself acknowledged that the said document was necessary for registration of the sale deed. However, rather than treating this circumstance alone as determinative of the evidentiary value of his testimony, the same is

to be considered along with the material contradictions between his oral assertions and the documentary record.

9.It is also significant that the contractual stipulation, while fixing 01.02.2025 as the date for completion, does not provide any corresponding consequence against the vendee in the form of automatic cancellation of the agreement or forfeiture of the earnest money for failure to pay by the stipulated date. On the other hand, the agreement expressly provides a consequence in the event of deviation by the vendor. This contractual arrangement is also relevant for determining whether the parties intended the stipulated date to operate as an essential term of the contract against the petitioner. The question, therefore, cannot be determined merely by looking at the date mentioned in Exh.P2. The agreement has to be read as a whole, keeping in view the sequence of reciprocal obligations undertaken by the parties and the consequences which the parties themselves attached to their respective defaults.

10.Now, adverting towards the question of essence, it appears that the respondent never obtained the copy of periodical record of rights for the purposes of sale deed in favour of petitioner from any revenue authority prior to the cut-off date. In this backdrop, this Court has also been guided with the principle set out in section 55 of the Contract Act, 1872, which does not make every date stipulated in a contract automatically essential. The decisive question is the intention of the contracting parties. The Supreme Court of Pakistan explained in (Sandoz Ltd and another versus Federation of Pakistan and others), 1995 SCMR 1431, that section 55 lays down the general principle that time becomes essential where the parties intended it to be so. In transaction concerning immovable property, the consistent approach is that time ordinarily is not of the essence unless agreement, read in its context, demonstrate otherwise. The Foundational Supreme Court authorities (Abdul Hamid versus Abbas Bhai-Abdul Hussain Sodawaterwala), PLD 1962 SC 1, whereby the emerging principle comes from that case is that an intention to make time essential must

appear in unmistakable language or to be established from circumstances existing when agreement was entered into. A mere date for completion is insufficient. The same was also reiterated in (Muhammed Taj versus Arshad Mahmood and 3 others), 2009 SCMR 114, where Supreme Court held that question must be decided on the facts of each case; merely mentioning a particular date for performance does not make time essential; the intention must be gathered from the contractual terms viewed in the factual circumstances. The same principle has also to be considered in the context of the purchaser's readiness and willingness to perform his reciprocal obligation, as the mere conclusion that time was not of the essence does not, by itself, entitle a purchaser to a decree for specific performance. In the light of above-mentioned judgments of the Supreme Court, the Court should examine the agreement as a whole rather than treating the cut-off date in isolation. The material consideration includes the following:-

(i). Whether agreement expressly and unequivocally states that time shall be of the essence;

(ii). Whether it specifies definite consequences of failure by the purchaser to perform by the stipulated date, such as automatic cancellation or forfeiture of the earnest money;

(iii). Whether corresponding consequences are prescribed for default by the vendor;

(iv). The nature and sequence of reciprocal obligations;

(v). Whether performance by the purchaser was conditional upon the vendor first performing some act;

(vi)The conduct and the circumstances surrounding execution of the agreement;

(vii)Whether parties subsequently treated the stipulated date as rigid or continued to treat the transaction as subsisting;

(viii)even if time was not essential, whether parties seeking specific performance acted within reasonable time and remained ready and willing to perform.

11.In the present case, the above factors, when considered cumulatively, do not support the contention that 01.02.2025 was intended to operate as an absolute and rigid date so as to automatically extinguish the petitioner's contractual rights. The language of Exh.P2 does not provide for automatic cancellation or forfeiture against the petitioner, whereas it provides a consequence in case of deviation by the vendor. More importantly, the purchaser's obligation to complete the transaction was connected with the vendor's obligation to obtain the necessary revenue document and facilitate registration of the sale deed.

As a useful contrast appears in Supreme Court decisions, and it appears that the vendor had to perform first a reciprocal obligation, section 51 to section 54 of the Contract Act 1872, dealing with reciprocal promises, must be read with section 55, where purchaser obligation to tender the balance sale consideration or obtain conveyance is dependent upon the vendor first performing an agreed obligation; the purchaser cannot ordinarily be treated as being in default until that antecedent obligation has been performed or duly offered to be performed. The Supreme Court's approach to reciprocal obligation is also reflected in (Mst. Jaiwanti Bai versus Messrs Amir Corporation and others) PLD 2021 Supreme Court 434. The court reaffirmed both propositions generally, time is not the essence of contract for sale of immovable property unless made so, and specific performance operates upon the reciprocal obligations undertaken by the contracting party.

12.It is, however, clarified that the general rule that time is not ordinarily of the essence in contracts relating to immovable property cannot be applied mechanically. Each case has to be examined on the language of the agreement, the intention of the parties, the nature of the reciprocal obligations and the conduct of the parties. In the present

case, these factors, taken together, establish that the stipulated date could not be treated in isolation so as to defeat the petitioner's claim.

13.Therefore, on the cut-off date, this Court identifies the contractual sequence i.e., the vendor has to obtain the form of periodical record of rights issued for the purposes to execute the registered sale deed in favor of the petitioner, which is absent in this case. And in this regard, the vendor has been cross-examined at length, but his given answers are not in line with the documentary evidence, specially Exh.P5, which was obtained by the purchaser/ petitioner by himself, and Exh.P5 was never been handed over or got issued by the vendor/defendant in this case. As a result whereof, this Court is of clear view that mere fixation of date for completion of a transaction relating to immovable property does not, by itself, render time the essence of contract.

14.The significance of this circumstance is not merely that the respondent failed to obtain the document before 01.02.2025; rather, the document was an act necessary to enable the parties to complete the transaction through a registered instrument. The respondent, having undertaken or acknowledged the obligation to obtain such document, could not, in the same breath, rely upon the expiry of the stipulated date to allege default on the part of the petitioner when his own antecedent obligation remained unperformed. The petitioner's conduct after the stipulated date is also material. The suit was instituted on 03.03.2025, the balance sale consideration was deposited in Court and an offer was made to the respondent to receive the amount. Such conduct, viewed alongside the respondent's failure to perform the antecedent obligation necessary for registration, demonstrates that the petitioner remained ready and willing to perform his part of the contract.

15.The intention to accord such consequence to the stipulated period must emerge in clear and unmistakable terms from the agreement, read as a whole, and from the nature and surrounding

circumstances of the transaction. More importantly, where performance of obligation cast upon vendee was dependent upon prior or reciprocal performance by the vendor, the stipulated date cannot be considered in isolation from such antecedent obligation. A contracting party who has himself failed to perform the act necessary for enabling the opposite party to complete the transaction cannot ordinarily take advantage of the expiry of period occasioned by his own default and contend that time was of the essence. This principle stands authoritatively recognized in (Zaheer Ahmed and others versus Abdul Aziz and others) 1983 SCMR 559 wherein Supreme Court held that party guilty of preventing completion of the transaction within time could hardly plead that time was of essence of the contract.

The principle is equally applicable where the alleged default of the vendee is founded upon non-payment of the balance consideration by the stipulated date, but the payment and completion of registration were contractually connected with an antecedent act to be performed by the vendor. In such circumstances, the Court has to determine whether the vendee's obligation had become enforceable in the manner contemplated by the agreement and whether the vendor had himself performed or offered to perform the corresponding obligation.

16.Now adverting towards another technical aspect where the real son of the respondent vendor has allegedly received Rs.29,50,000/- and executed a receipt on the backside of the original agreement and in addition to another receipt dated 16.02.2025, though the respondent, while appearing in a witness box, in categorical term denies this aspect, that his son neither received any amount from the petitioner nor he was authorized; rather, the receipt dated 14.01.2025 and 16.02.2025 are forged receipts and he never received rupees Rs.29,00,000/- nor put his signature and thumb impression on the back of the agreement. He claims that he filed a suit for cancellation of these fictitious receipts titled as “Muhammad Nadeem versus Waseem Hasssan”, but surprisingly his son Ghulam Mohyuddin never appeared in this case to strengthen his argument in clear term.

17.The disputed payment, however, need not be made the sole basis of the determination of the petitioner's entitlement. Even assuming, for the sake of consideration, that the alleged payment of Rs.29,50,000/- to the respondent's son remains disputed, the petitioner's subsequent conduct in depositing the entire balance amount in Court and offering the same to the respondent remains relevant for determining his readiness and willingness to perform the contract.

18.I have also gone through the receipts referred on the date 14.01.2025 and 16.02.2025 which are in dispute within the parties but beside that petitioner side has deposited balance sale consideration in the court as reflected from the bank challan and made an offer to the respondent to receive the balance sale consideration which is Rs.75,00,000/- though they have already paid Rs.29,50,000/- to the son of the respondent however, the respondent present in the court refused to accept such offer. The amount of Rs.75,00,000/- represents the entire balance sale consideration after deducting the acknowledged earnest money of Rs.30,00,000/- from the total consideration of Rs.1,05,00,000/-. The petitioner thus, without prejudice to his assertion regarding the disputed payment of Rs.29,50,000/-, demonstrated his willingness to tender the entire remaining consideration. However, the timeline available in this case reflects that the date fixed in the agreement was 01.02.2025 however by that time the vendor has not obtained the copy of ) )رپافرہم( (رفد عیبdocument for the execution of registered instrument in favour of petitioner, however the suit has been filed on 03.03.2025 and the balance sale consideration was deposited in the court account, all these facts goes in favour of the petitioner and against the respondent who himself has not produced his own son, though, the readiness of the petitioner is always seen on record. It is not the case of respondent that he got issued ) (رفد عیبfor the purpose of transfer and in absence of such aspect, the reciprocal obligation was not performed by the respondent

therefore, time was not the essence of contract and petitioner is entitled to get the decree of specific performance under the law.

19.The petitioner's readiness and willingness is thus not founded merely upon a statement made in the plaint. It is reflected from his conduct: he instituted the suit within a short period after the stipulated date, caused the balance sale consideration to be deposited in Court and offered the same to the respondent even during the proceedings. The respondent, on the other hand, did not establish that he had performed the antecedent obligation necessary for registration by 01.02.2025. In these circumstances, the expiry of 01.02.2025 cannot be treated as a forfeiture of the petitioner's right to seek specific performance, particularly when the respondent's own failure to perform the corresponding obligation materially affected the completion of the transaction.

The trial Court has rightly passed the decree within four corners of law. In such scenario, the judgment of the first appellate Court is clearly in violation of settled principles of law discussed above.

20.As a result whereof, instant civil revision stands allowed, the judgment and decree of the first appellate court dated 15.04.2026 is hereby set-aside, and of the trial Court is restored with direction to the respondent to receive the balance sale consideration already deposited in the court account accordingly and suit of the petitioner-plaintiff stands decreed.

(Mohsin Akhtar Kayani) Judge

Approved for reporting

Judge JahanZaib*