Muhammad Saleem Akhtar Vs Muhammad Khalid etc

Stereo. H C J D A. 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE.

(JUDICIAL DEPARTMENT)

Civil Revision No.55213 of 2025 Muhammad Saleem Akhtar Versus Muhammad Khalid, etc.

Date of Hearing 05.10.2026 Petitioner by Mr. Bahawal Ishaq Baloch, Advocate. Respondent by M/s Abdul Ghaffar Dhariwal & Ghulam Sarwar, Advocates.

JUDGMENT

Asim Hafeez, J.:- Decisions, subject of adjudication, are at variance. Petitioner has sought enforcement of agreement to sell dated 25.01.2022, whereas respondents claimed rescission / termination thereof – suits were respectively instituted on 07.11.2022 and 26.10.2023. Trial court granted decree of performance of agreement and dismissed claim of rescission. Appellate court reversed consolidated judgments, which dismissed claim of performance of agreement and granted decree of rescission / termination of agreement on the premise of petitioner’s failure to arrange balance consideration within agreed time- period. Dispute concretized is whether, in the context of facts involved, time was essence of the agreement of sale of immovable property, a fact determinable in wake of alleged failure of the petitioner to perform contractual obligation –

payment of balance consideration. Execution of agreement and extension regarding cut-off date, which was allegedly extended till 30.09.2022, is admitted [though respondents claimed that extension was a consequence of coercion by the petitioner but coercion was not substantiated].

2.Facts essential for adjudication, in the context of respective pleadings, are that petitioner claimed that respondents, husband and wife, are foreign residents and since property was jointly owned, therefore, their physical presence is requisite for execution of transfer deed.

Respondents pleaded that cut-off date was the condition precedent clause for payment of balance consideration and delay caused per se attracts incidence of termination by default. Respondents further pleaded that one of them was present in Pakistan at all relevant and sale could be completed but for the absence of readiness of the petitioner and non- availability of funds.

3.Heard. Evidence and judgments perused.

4.There are certain facts, which are not in dispute.

Execution of agreement and contents thereof are admitted.

Respondents, while filing written statement, contends that they were coerced to extend the cut-off date for performance till 30.09.2022. This element of coercion was not proved. And if any coercion was allegedly exercised by petitioner there was

nothing to restrain respondents to seek rescission / termination of agreement after lapse of originally agreed date of performance, which was 30.04.2022. Notably, suit for rescission was filed in October 2023, eleven months after institution of suit for specific performance. Learned counsel for respondents does not dispute the fact that no notice of termination was issued by the respondents, to reiterate the significance of time for performance.

5.Petitioner instituted suit and deposited balance consideration under the orders of the Court. Mere non-deposit of balance consideration, on the first day of filing of suit, does not establish default, absence of readiness or lack of financial means to pay balance consideration, per se. Agreement places obligation by way of a condition, where both vendors or either of them, possessing power of attorney at the behest of co- owner, had to be present in Pakistan for the purposes of execution of deed of sale.

6.Learned counsel for respondents plead that respondent No.2 was available and held power of attorney of her husband, which completes their part of obligation but execution could not materialize due to petitioner’s failure to pay balance consideration by agreed cut-off date.

This aspect, whether power of attorney was available, at given date, needs sharper focus. Photocopy of general power

of attorney dated 21.10.2021 is produced as Mark-DC. And Exh.D-2 was the copy of police report allegedly claiming loss of power of attorney. These documents were produced on the statement of learned counsel and not by any witness. Whether existence of an enforceable general power of attorney, by first respondent to second respondent was proved? Photocopy of general power of attorney was dated 21st October 2021 [Mark- DC], which was executed before the date of execution of agreement. There was no reference to said general power of attorney in the agreement and intent of the parties suggests that if both vendors were not in Pakistan, one of the spouses would ensure possession of general power of attorney [agreement referred to the power of attorney post-agreement because if reference was to an existing general power of attorney, it would identify the document explicitly]. Even if an existing general power of attorney was claimed to be sufficient for the purposes of execution of sale deed, nevertheless there was no justification that why Mark-DC was not referred to in the written statement. There was no reference to Mark-DC in suit for rescission. And above all, it was not the case pleaded in written statement and suit for rescission that respondent No.2 possessed general power of attorney. Filing of police report, qua loss of power of attorney, and production of photocopy thereof denudes claim that property was transferable by 30.09.2022. Alleged Power-of-Attorney was not confronted to

the petitioner to plead performance of obligations by respondent.

7.Respondents had not appeared as witness but were represented through special attorney. Witnesses of respondents DW-1 & DW-2 admitted that they were not witnesses of agreement. DW-1 admitted that first respondent never came to Pakistan after extension in performance date.

8.Now coming to the question of petitioner’s performance. How lack of readiness or absence of money could be attributed to the petitioner. Petitioner filed suit in November, who deposited balance payment on the directions of the Court – no adverse finding was recorded by the court qua failure to deposit after passing of order in this behalf.

[DW-1 admitted factum of deposit of balance consideration].

This aspect was not appreciated by the Appellate Court.

Judgments referred, reported as “Muhammad Imran and others Vs.

Ishfaq Ahmed and others” (2026 SCMR 1063), “Muhammad Humayun and others Vs. Shafqat Ali Nisar and others” (2026 SCMR 1332), “Muhammad Ashraf Anjum Vs. Sabir Hussain and others” (2026 SCMR 36), “Mst. Gulshan Hamid Vs. Kh. Abdul Rehman and others” (2010 SCMR 334), “Muhammad Jamil Vs. Muhammad Arif” (2021 SCMR 1108), “Mst.

Samina Riffat and others Vs. Rohail Asghar and others” (2021 SCMR 7) and “Muhammad Aslam Vs. Muhammad Anwar” (2023 SCMR 1371) are distinguishable, and in none of the cases declaration that time was essence of the agreement was made in such circumstances and facts, as encountered in the case at hand.

9.Presumption of law-cum-fact is attributed to a settled custom / jurisprudence, that time was not essence with respect to the sale of immovable property, unless contrary is proved by virtue of the terms of the agreement and post- agreement conduct of the parties. Extension in time for performance supports the conventional jurisprudence.

Absence of issuance of any notice soliciting performance or lack of prompt action for seeking rescission are relevant facts.

Failure to rely on general power of attorney, for the purposes of execution of sale deed by 30.09.2022, is another relevant fact. Loss of general power of attorney, [general power of attorney available is otherwise a photocopy, which is inadmissible in wake of presentation by counsel and without permission for producing secondary evidence], fortifies the fact that original power of attorney was not available by 30.09.2022 and if respondent No.1 had not travelled to Pakistan, after extension in date of performance - [DW-1 admitted this fact] – then claim of fulfilling an equally significant obligation was not established. Furthermore, in view of the above, no inference could be drawn that time was the essence of the agreement. All aforesaid facts were not appreciated by the Appellate Court, hence, said judgment is not sustainable in law and judgment of the Trial Court deserves affirmation.

10.This civil revision is allowed and judgment of the Appellate Court dated 07.07.2025 is set-aside and decision of the Trial Court dated 08.02.2025 is upheld/affirmed. No order as to the costs.

Judge.

A.D. Mian*

APPROVED FOR REPORTING