Tabassam Gul vs Rana Mubarik Hussain etc.

Stereo. H C J D A 38.

JUDGMENT SHEET

LAHORE HIGH COURT

RAWALPINDI BENCH RAWALPINDI

JUDICIAL DEPARTMENT

C.R. No.536 of 2024

Lt. Col. Tabasam Gul vs. Rana Mubarik, etc.

(Retd.)

JUDGMENT

Date of Hearing: 28.09.2026 Petitioner by: Ch. Shaharyar Tariq, Advocate.

Respondent No.1 by: Mr. Yasir Ummad, Advocate.

Respondent No.2 by: Ms. Kinz ul Saadat Siddique, Deputy Attorney General.

Mr. Muhammad Ikhlaq Awan, Advocate.

Respondent No.3 by: Barrister Muhammad Awais Arshad, Assistant Advocate General.

Anwaar Hussain, J. This Court is confronted with a question arising at the intersection of the two fundamental principles of law of contracts: the law will not enforce an uncertain bargain, yet it will not permit an otherwise concluded agreement to fail, merely, because the parties have not fixed a calendar date for its performance. The former protects parties against the obligations to which no definite consent can be attributed; the latter preserves the sanctity of a bargain whose essential terms are certain, leaving only the time of performance to be determined according to law. The present case requires this Court to locate the dividing line between the two.

2.The legal question, for determination, therefore, is as under:

C.R. No.536 of 2024

Whether absence of a fixed date for performance renders an otherwise concluded agreement to sell void for uncertainty, or, where the essential terms of the bargain are certain and its performance contemplates fulfilment of a regulatory prerequisite, the law supplies the requirement of performance within a reasonable time?

A related question is how such “reasonable time” is to be determined where the agreement itself contemplates procurement of an NOC/security clearance before the transaction can be completed.

3.The facts giving rise to these questions lie in a narrow compass. The petitioner, an elderly widow and retired armed forces officer (Lieutenant Colonel), intended to sell her residential house and move to a smaller residence. On 07.02.2022, she entered into an agreement to sell her house, to respondent No.1 (“the respondent”), for Rs.39,100,000/-. She received Rs.4,000,000/- as earnest money, while the balance consideration was agreed to be paid at the time of the transfer/registration. No particular date for completion was inserted in the agreement. The agreement, however, expressly required the petitioner to, inter alia, provide the requisite NOC from the Housing Authority i.e., respondent No.2/Housing Directorate GHQ, Rawalpindi (“the Cantonment”). Moreover, the property being situated in a military area, its transfer also involved the requisite security clearance qua the respondent.

4.The petitioner herself applied for the requisite NOC as well as security clearance. The respondent served legal notice, dated 09.06.2022, upon the petitioner calling upon her to complete the transaction and, upon her failure to do so, instituted the suit for specific performance, on 26.07.2022. The petitioner contested the suit principally on the grounds that absence of a stipulated date rendered the agreement uncertain; and that the respondent did not possess the requisite funds. Her advanced age and the circumstances attending execution were also pressed into defence.

C.R. No.536 of 2024

5.The Trial Court, after recording the evidence of the parties, decreed the suit vide judgment dated 13.12.2023, holding the agreement to be capable of enforcement and the respondent to have established his readiness and willingness to perform. The Appellate Court below, through judgment dated 24.06.2024 maintained these findings of the Trial Court. Hence, this civil revision.

6.Learned counsel for the petitioner contends that leaving the time for completion unspecified struck at the certainty and enforceability of the agreement itself in terms of Section 29 of the Contract Act, 1872 (“the Act”); that the respondent did not possess the requisite funds when the agreement was executed or when the legal notice was sent; that the marginal witnesses had neither signed every page nor witnessed the precise bargain between the parties; and that the circumstances attending execution, including the petitioner’s advanced age, were not appreciated in their correct perspective, by the Courts below. Learned counsel for the petitioner further contends that the agreement was executed in haste and under a sense of insecurity, as the petitioner, admittedly living alone and not allowing strangers inside her house, had herself come to the garage to sign the agreement. Reliance has been placed upon case reported as Akhtar Waheed v. Muhammad Hussain and others (2025 SCMR 551). He further asserts that the prices of the property in the vicinity was increasing and the respondent merely blocked the property of the petitioner to get the advantage, without having requisite funds to purchase the same.

7.Conversely, learned counsel for the respondent submits that execution of the agreement and receipt of Rs.4,000,000/- stand admitted; that the agreement itself contemplated procurement of the NOC and security clearance from the Cantonment and the petitioner herself applied for the same; that immediately upon security clearance, the respondent made the corresponding financial arrangements; and that his bank

C.R. No.536 of 2024

statements and banker’s cheque established financial capacity at the relevant time. He further submits that notice was promptly served and the suit was instituted on 26.07.2022, leaving no room to infer either abandonment or want of readiness and willingness on part of the respondent. Reliance has been placed upon case reported as Muhammad Iqbal v. Mehboob Alam (2015 SCMR 21). Learned Deputy Attorney General alongwith learned counsel for the Cantonment submit that the written rapt of the NOC for transfer of the property was issued alongwith security clearance on 20.04.2022. They also contend that all remaining clearance like No Demand Certificate (“NDC”), etc., were done by first week of June, 2022. They contend that all formalities were initiated at the request of the petitioner in respect of NOC, security clearance and NDC.

8.Arguments heard. Record perused.

9.The controversy turns upon a distinction which is subtle but decisive: certainty of the bargain is not the same thing as certainty of the date of its performance. The former concerns the existence and content of consensus; the latter concerns the point in time at which an existing obligation must be discharged. The law insists upon certainty of the former, but does not invariably require the parties themselves to supply the latter.

10.This distinction is embedded in the statutory scheme of the Act. Section 291 renders an agreement void whose meaning is uncertain or incapable of being made certain. Section 462, on the other hand, expressly Agreements void for uncertainty. Agreements, the meaning of which is not certain, or capable of being made certain, are void.

46.Time for performance of promise where no application is to be made and no time is specified.– Where, by the contract, a promisor is to perform his promise without application by the promisee, and no time for performance is specified, the engagement must be performed within a reasonable time. Explanation.– The question "what is a reasonable time" is, in each particular case, a question of fact.

C.R. No.536 of 2024

contemplates a contract in which no time for performance has been specified and requires the promise to be performed within a “reasonable time”—the reasonableness thereof being a question of fact. The two provisions are complementary, not conflicting. Section 29 contemplates what has been promised and whether that promise is ascertainable; Section 46 answers when an otherwise ascertainable promise is to be performed where the parties have themselves supplied no date. The error lies in treating the absence of an agreed date for performance as if it necessarily rendered the bargain uncertain.

11.Tested against this distinction, the petitioner's principal objection cannot prevail. The agreement identifies the parties and the property, fixes the total consideration at Rs.39,100,000/-, records payment of earnest money i.e., Rs.4,000,000/- and makes the balance payable at the time of transfer/registration. It further obliges the petitioner to procure the requisite NOC, security clearance, etc. Nothing material concerning the bargain was, therefore, left incapable of ascertainment. What remained unspecified was not what the parties had agreed to do, but the precise date on which an otherwise ascertainable bargain was to culminate.

12.Before proceeding further it is imperative to note that the agreement comprises of two pages and both are signed by the parties. Additionally, second page is also signed by both the witnesses, which contemplates following three important clauses:

“1. That the seller has received a sum of Rs.40,00,000/- (Rupees Forty Lac only) out of which Rs.1,00,000/- (One Lac only) in Cash and Rs.39,00,000/- (Rupees Thirty Nine Lac only) vide pay order No. 2527942 Dated 07-02-2022 Drawn on HBL Main Airport Road, Jhanda Chichi Branch, Rawalpindi from the aforesaid purchaser as Biana amount and the receipt of which the seller hereby acknowledges.

2.That the balance amount of the deal which is Rs.3,51,00,000/- (Rupees Three Crore, Fifty One Lac only) will be paid by the purchaser to the seller as per following details:

C.R. No.536 of 2024

a. Rs.1,00,00,000/- (Rupees One Crore only) will be paid by the purchaser to the seller as part payment at the time of photo session for GHQ NOC at Facilitation Centre Housing Directorate GHQ Rawalpindi.

b. Rs.2,51,00,000/- (Rupees Two Crore Fifty One Lac only) will be paid by the purchaser to the seller as full and final payment at the time of sale deed at Sub Registrar Office Rawalpindi on or before ____________, subject to completion of all transfer formalities including issuance of NOC for sale from MEO Office Rawalpindi Circle.

3.That the seller on receipt of biana will ensure the following:

a. Will apply to Housing Dte. GHQ for issuance of NOC for transfer in favour of the purchaser or his nominee.

b. Will obtain authorized construction NOC from respective section of Housing Dte. GHQ.

c. Will apply to station headquarters Rawalpindi for security clearance of the purchaser as per GHQ SOP’s.

d. Will obtain NDC from Cantt Board Chaklala Cantt.

e. Will obtain clearance of dues certificate from Askari colony No. X management.”

(Emphasis supplied) The requirement of NOC, security clearance, NDC in terms of the agreement in general, and clause 3 in particular, assumes significance because the petitioner herself admits not only its necessity but also that she was obligated to perform these promises in the first instance before seeking payment of the balance consideration. Admittedly, the petitioner submitted the requisite applications with the Cantonment. The regulatory process was thus neither an afterthought nor an explanation subsequently devised by the respondent; it formed part of the contractual setting and was actually acted upon. This conduct is important, not because it can rewrite the agreement, but because it illuminates the factual setting in which the time

C.R. No.536 of 2024

for performance has to be assessed. Where both the contractual text and the conduct of the parties proceed on the footing that transfer awaited regulatory clearance, absence of a calendar date cannot reasonably be construed as requiring immediate performance irrespective of that process.

13.The expression “reasonable time” deliberately resists reduction to a fixed numerical formula. Its content is supplied by the transaction to which it applies. The nature and value of the property, reciprocal obligations undertaken by the parties including regulatory prerequisites, the time reasonably consumed in fulfilling them and the promptitude displayed thereafter are all relevant. The agreement was executed on 07.02.2022; the petitioner pursued the requisite clearance; NOC/security clearance was obtained in 20.04.2022; and the respondent got prepared Bankers cheques of Rs.10,000,000/- on 28.04.2022 in terms of clause 2(a) of the agreement quoted hereinabove. Even though there was no clarity regarding provision of remaining obligations of the petitioner in terms of obtaining the NDC from the Cantonment and clearance of dues in terms of sub-clauses (d) and (e) of clause 3 of the agreement, a legal notice followed on 09.06.2022 and the suit was instituted on 26.07.2022. There is no unexplained hiatus in this sequence suggestive of abandonment or speculative waiting on part of the respondent. The interval was substantially referable to a regulatory step contemplated by the agreement, pursuit whereof was required by the petitioner herself.

14.At this juncture, statement of the petitioner as DW-1 is relevant, which reads as under:

"ریمے دوکنب ںیم ااکؤٹن ںیہ۔ ںیم کنب ااکؤٹن وخد آرپٹی رکیت وہں۔ ںیم ےن اگڑی ریھک اور وخد ( رکیتوہں۔۔۔۔ہیدرتسےہہکہیوسدارکلناجسد اصبحےنوسداےطرکواایاھت۔ہیدرتسےہdrive)یہ ہکرکلن اجسدےک ےٹیبنسح زہشاد اسںیم وگاہ ےھت۔اورہی یھب درتسےہہک اوہنںےنریمےاسےنم دطختسہن

C.R. No.536 of 2024

اعمدہہ ےک تحت ںیم ےن اکی الھک ووصل ایک۔ ہی یھب درتس ےہ ہک07.02.2022 ےیک اھت۔ ہی درتس ےہ ہک "(ےیلےھت۔PAY ORDER)ےکتحتذبرہعی07.02.2022الھکروےپاطمبقباعمدہہ39ںیمےنغلبم The above statement, when read as a whole, is more revealing for what it admits—and what it does not say—than for the petitioner's assertion that the agreement was got executed in haste. She acknowledges the transaction, receipt of the amount paid thereunder and her continued retention and use of that money; yet she neither alleges any coercion, pressure or incapacity attending the execution nor states that she ever offered to return the amount, or treated it as forfeited. Even when served with the legal notice, she neither replied to it nor offered to return the earnest money. Equally significant is the absence of any evidence showing when she had completed her own part of the pre-transfer requirements: the NDC, non-encumbrance certificate or other requisite clearance, to establish that all such documents stood ready with her in April, May or June 2022 and that completion was thereafter held up by the respondent. In this manner best evidence was withheld. Therefore, her bare assertion that the intermediary procured her signatures in haste, therefore, sits uneasily with her own subsequent conduct.

15.Learned counsel for the petitioner next questions the agreement because the marginal witnesses had not signed each of its pages and relies, in this regard, upon case of Akhtar Waheed supra. The principle stated in the cited authority must necessarily be understood in its factual setting. In that case, the agreement comprised two pages and the first page did not bear the signatures/thumb impressions of the parties or the witnesses, a circumstance which assumed material significance in determining whether the agreement sought to be specifically enforced stood proved in the form asserted. The present case rests on a materially different footing. The petitioner admits execution of the agreement, acknowledges receipt of

C.R. No.536 of 2024

Rs.4,000,000/- thereunder and thereafter herself initiated the process in respect of obtaining approvals from the Cantonment etc., contemplated for its completion. She does not assert that her signatures were obtained upon blank papers, that any page was substituted, or that any material term was subsequently interpolated or fabricated. The evidentiary consequence attaching to the unsigned page in the cited case cannot, therefore, be mechanically transplanted to an admitted and acted-upon transaction of the present character. Rules of proof exist to resolve uncertainty about facts; they cannot be converted into ritualistic formalities to recreate uncertainty about a fact which the party herself admits.

16.Nor does the statement of a marginal witness that the precise bargain or antecedent negotiations were not settled in his presence materially advance the petitioner's case. An attesting witness is not a contracting party, and every negotiation preceding execution need not take place in his presence. His testimony may define the limits of his personal knowledge of the negotiations; it does not negate a written agreement admittedly executed by a party. An admitted fact does not become disputed merely because an attesting witness knows less about its antecedent circumstances than the person who admits it.

17.Similarly, the plea founded upon the petitioner's advanced age and gender must equally be approached with doctrinal care. The law rightly protects a person whose age, gender, seclusion, dependence or other vulnerability impairs the ability to understand a transaction or exposes that person to coercion or undue influence. But the foundation of that protection is vulnerability proved in the circumstances of the particular case, not a generalized assumption that age or gender diminishes contractual agency. The petitioner is an educated retired armed forces officer, who admittedly drives herself, independently operates her bank accounts and manages her affairs. The transaction itself proceeded from a

C.R. No.536 of 2024

conscious objective: she intended to dispose of a larger residence and move to a smaller one. The evidence that she controlled access to her residence and came outside herself for execution of the document is equally inconsistent with the dependence now sought to be inferred, on account of old age, gender and seclusion.

18.These circumstances are relevant cumulatively and not as presumptions of law. An educated person, a retired officer or one who independently manages financial affairs may still, on appropriate evidence, be subjected to fraud, coercion or undue influence. But no such evidence has been established here. Nor was advice or participation of a male family member a legal prerequisite to the petitioner's ability to deal with her own property. A protective doctrine must remain faithful to the vulnerability which justifies it. Protection of autonomy cannot, by an inversion of its purpose, become a reason for denying autonomy where the evidence demonstrates its exercise.

19.The respondent was nevertheless independently required to establish readiness and willingness to perform his reciprocal obligation. That requirement is not satisfied merely by establishing the agreement; it ensures that specific performance is sought by a purchaser genuinely capable and desirous of completing the transaction. Readiness, however, must be tested at the stage when performance is reasonably due. The agreement did not require Rs.35,100,000/- to remain immobilized from 07.02.2022 onwards. Record when cumulatively examined, depicts that after payment of the earnest money, the next payment due was Rs.10,000,000/- in terms of clause 2(a) of the agreement at the time of photo session for GHQ NOC and despite the fact that the petitioner never intimated the respondent for her readiness to appear before the GHQ photo session, the respondent got prepared a pay order of Rs.10,000,000/- in terms of clause 2(a) of the agreement, which prima facie, exhibits his

C.R. No.536 of 2024

readiness and willingness to discharge his obligations in-line with the terms and conditions of the agreement. Thereafter, there is nothing on record that the petitioner after obtaining remaining clearance from the office of the Cantonment regarding the NDC or clearance of dues from Askari Colony, approached the respondent for making the payment albeit the respondent on his own has sent a legal notice receipt whereof is duly acknowledged that he is ready with the entire balance sale consideration on 09.06.2022, a degree of prompt financial preparedness, which, in a transaction involving regulatory clearances to be completed by the petitioner, strongly corroborates the readiness and willingness of the respondent. Readiness is not synonymous with sterilization of money. It denotes the ability to command the requisite funds when the contractual obligation matures for performance, coupled with conduct manifesting an abiding willingness to perform. The law is concerned with capacity and bona fides, not with insisting that substantial capital remain economically idle from the inception of a transaction despite an antecedent contractual step yet to be completed, on part of the vendor, in present case, obtaining NOC for security clearance, clearance of dues, or NDC, inter alia, from the Cantonment, per clause 3 of the agreement.

20.Similarly, the circumstance that property prices were rising during the relevant period does not alter the legal character of the bargain. Market appreciation may subsequently make a transaction appear commercially unattractive to one party, but it neither converts certainty into uncertainty nor, without something more, releases a party from a voluntarily assumed obligation. Contractual certainty would lose much of its meaning if the binding force of a bargain were permitted to rise and fall with the subsequent market value of its subject matter. This was not a case where the purchaser remained inactive for years and invoked the period of limitation only after subsequently arranging funds and by that time prices

C.R. No.536 of 2024

were changed manifold. No doubt, the period of limitation merely prescribes the outer limit for instituting proceedings; it does not dispense with the requirement of readiness and willingness, which must be assessed in the context of the contractual obligations and the parties’ conduct. Conversely, a short interval substantially occupied by regulatory formalities to be completed by the vendor cannot, without evidence of default on the purchaser’s part, be treated as proof of his financial incapacity. The petitioner’s failure to establish completion and communication of her own contractual readiness, viewed alongside the respondent’s early financial arrangements and prompt recourse to enforcement, provides further justification for maintaining the concurrent findings of the Courts below.

21.The petitioner’s challenge, when reduced to its essentials, thus rests upon four circumstances: absence of a fixed date, absence of signatures of marginal witnesses on every page, limitations in the personal knowledge of one such witness, and her advanced age. None survives examination against the admitted and proved facts. The absence of fixed date is answered by the statutory concept of reasonable time read with the regulatory process (NOC, etc.) contemplated and pursued by the petitioner herself; the objection to attestation by admitted execution and absence of any plea of substitution or interpolation; the witness's limited knowledge by the distinction between attesting an instrument and negotiating its terms; and the plea of vulnerability by the petitioner's own evidence concerning the independent and conscious management of her personal affairs. The respondent's prompt conduct upon clearance, supported by contemporaneous banking evidence and followed by immediate recourse to enforcement, answers the distinct requirement of readiness and willingness.

C.R. No.536 of 2024

22.There is also a broader doctrinal coherence in this conclusion. Contract law seeks neither to manufacture bargains for parties nor to defeat bargains which they have in fact made. Section 29 of the Act performs the former function by refusing enforcement where consensus is too indeterminate to ascertain; Section 46 thereof performs the latter by supplying a standard of reasonable time where the obligation is certain but its temporal machinery is incomplete. The judicial task, is therefore, one of preservation without reconstruction: to enforce what can objectively be ascertained from the bargain, while refusing to invent an obligation, which the parties never assumed.

23.In view of the above discussion, the legal questions framed hereinabove is answered by holding that absence of a fixed calendar date does not render an otherwise certain agreement void where its essential terms are ascertainable and the time for performance can objectively be determined according to law. Certainty determines what the parties have bound themselves to do; reasonable time is examined when that ascertainable obligation was performed. The two inquiries cannot be conflated.

24.Consequently, no illegality, material irregularity, misreading or non- reading of evidence has been demonstrated in the findings of the Courts below. This civil revision, being devoid of merit, is dismissed, with no order as to costs.

(ANWAAR HUSSAIN)

JUDGE

Approved for reporting

Judge Announced in open court and, dictated on the same date, however, finalized on 16.10.2026.

Maqsood*