IN THE SUPREME COURT OF PAKISTAN 
 
 
 
 
 (Appellate Jurisdiction)  
 
Present:  
 
 
MR. JUSTICE MUSHIR ALAM 
MR. JUSTICE MAZHAR ALAM KHAN MIANKHEL 
MR. JUSTICE YAHYA AFRIDI 
 
C.M.A.4053/2018 in C.A.637/2018 and C.A.637/2018 
(On appeal from the judgment dated 13.2.2018 passed by the Islamabad 
High Court, Islamabad in RFA No.166/2013) 
 
Mst. Samina Riffat & others   
 
 
(In both cases) 
 
 
 
 
                …Applicants/Appellants  
 
 
 
 
 
VERSUS  
 
Rohail Asghar & others  
 
 
 
(In both cases) 
…Respondents  
   
For the applicants/ 
appellants:  
 
 
Mr. Haroon Irshad Janjua, ASC 
Mr. Mehmood A. Sheikh, AOR 
 
Respondent No.1: 
 
Mr. Junaid Iftikhar Mirza, ASC 
  
Syed Rifaqat Hussain Shah, AOR 
 
Respondent No.4: 
 
Ch. Riasat Ali Gondal, ASC 
Raja Abdul Ghafoor, AOR 
 
Date of Hearing:  
 
4.5.2020 
 
ORDER  
 
 
MUSHIR ALAM, J-.  This appeal arises out of the impugned 
judgment dated 13.2.2018, passed by the Islamabad High Court, 
Islamabad, in RFA No. 166/2013. Respondent No. 1, on 4.1.2005, 
filed a suit for specific performance of sale agreement dated 
4.10.2004 before Civil Judge. Suit was contested by the Appellant 
(Defendants No. 2 and 3), filed written statement on 7.03.2005 it 
was specifically pleaded that they are ‘Pardah Nasheen’, defendant 
No.1 being their brother took undue advantage of relationship, 
struck the deal to their disadvantage. It was specifically pleaded 
that since the plaintiff failed to pay balance consideration within 
period stipulated therein. It was pleaded that through notice dated 
08.12.2004 and reply dated 28.12.2004 to plaintiff notice deal was 
C.M.A.4053/18 in C.A.637/18, etc 
 
2 
cancelled and, earnest amount in terms of clause 6 of the 
agreement was forfeited. In paragraph 4, again it was specifically 
pleaded that the agreement dated 4.10.2004 for failure to pay 
balance consideration, within stipulated period, is cancelled and 
earnest money stand forfeited. Defendant No. 1, who is brother of 
appellant, filed a conceding written statement favouring the 
Plaintiff.  
2. 
 
Alongwith the suit an application under Order XXXIX 
Rules 1 & 2 read with Section 151 CPC was filed by Respondent No. 
1, seeking restraining order against the appellants not to 
sell/transfer the suit property. The learned trial court on 19.7.2005 
while deciding the application on merits directed the respondent 
No.1/vendee  “to deposit the balance sale consideration amounting 
to Rs.1,50,00,000/- (in terms Clause 3 of the sale agreement) within one 
month otherwise the stay granted in favour of Plaintiff  shall be 
deemed to be cancelled”.  It is matter of record the balance sale 
consideration, as directed was not deposited. 
3. 
 
The suit proceeded on merits and Khalid Mehmood, 
duly appointed special attorney of Plaintiff Rohail Asghar, was 
examined as PW-1. In cross examination, he admitted that 
contesting Defendants (appellants herein) are ‘Purdah Nasheen’ 
ladies. They did not sign the agreement in their presence; and their 
signatures were procured later by the Defendant No.1. He narrated 
in vivid detail how the earnest money through pay order  
was paid to the appellants here in.  However, He could not  
furnish any details of payment of Rs. Twenty lacs to Defendant 
No.1, though the witness denied the suggestion that the sale 
agreement was procured from the Defendants No.2 and 3  
C.M.A.4053/18 in C.A.637/18, etc 
 
3 
(appellant herein) in concert with their brother at value much below 
the market price and no advance was paid to their brother. He 
admitted in cross examination that the “present market value of 
the suit property is 4 to 5 crores” he declined to purchase the 
property at the current market value. As regard time fixed for 
performance and clause providing for forfeiture of earnest money 
he deposed as follows.   
 ہدہاعم رگا ہک ےہ دوجوم طرش ہی ںیم EX-P.2  "
 وت یئگ یک ہن ادا مقر ہیقب ردنا ےک ےنیہم ود ےک
 ےہ تسرد ہی ۔یگ ےئاج وہ طبض مقر یئگ یک ادا
 ہن مقر دقن ایاقب ےن ںیم ےدہاعم ردنا ےک ہام ود ہک
 ید ےک ںوصح ےک ںویئاھب نہب ںونیت ےھجم ۔یھت
 مکح ٰیوعد نارود ۔ےہ ہن مولعم ںیم ےراب
 قباطم ےک ہلصیف ےک تساوخرد یک یعانتما
 تلادع مقر ایاقب ےن ںیم مقر ایاقب یگیئادا طرشب
"۔ےہ یئاورک ہن عمج ںیم 
 
It may be observed that the Defendant No.1 did not cross examine 
the plaintiff’s witness nor adduced any evidence.  
4. 
 
Mst.Samena Riffat, appellant /Defendants 2 appeared 
as DW-1 and was cross examined by the Plaintiff only. In her cross 
examination she categorically stated that “we sisters are still ready 
to sell the property to the Plaintiff at present market value”   
5. 
 
After recording the evidence, suit was dismissed by the 
learned trial court on merits with cost of Rs.10,000/- vide 
judgment dated 7.10.2013. Which Judgment came up for scrutiny 
in Regular First Appeal No. 166 of 2013. Learned Division bench of 
the High Court though maintained the judgment and decree of 
dismissal of the suit for specific performance.  In paragraph 13 of 
the impugned judgment, returned with a conclusion that “It is 
admitted position that the appellant could not show compliance 
with the said order. We are of the view that had the appellant  
C.M.A.4053/18 in C.A.637/18, etc 
 
4 
been in a position to pay the balance sale consideration within a 
period of two  months from the date of execution of sale 
agreement  or even prior to the filing of the suit , he would have 
shown compliance with the order of the court dated 19.07.2005 
passed by the learned civil Court  by depositing Rs. 1,50,00,000/- 
in court within a period of one month from the date of passing of 
said order. Before or even after the institution of suit, the appellant 
did not show his bonafide by making pay order or drawing a 
cheque in favour of the Respondents No.1 and 3 (appellant herein) for 
an amount equivalent to the balance consideration. As regards the 
Appellant’s plea that the Respondents No.1 to 3 was supposed to 
obtain an NOC from the CDA for transfer of suit house, there is no 
such obligation imposed on respondent No. 1 to 3 under the terms 
of the agreement to sell”.  Learned Bench of the High Court under 
the given fact and circumstances of the case while relying on the 
case of Mst. Gulshan Hamid v. Kh. Abdul Rehman1 came to a 
conclusion that that the time was essence of the contract, 
maintained the dismissal of suit and appeal was dismissed. 
However, in the concluding paragraph 18 of the impugned 
judgement held: - 
“In view of the above, we do not find any merit in 
this appeal, which is accordingly dismissed with no 
order as to costs. Since no notice was served by 
respondents No.2 and 3 on the appellant that the 
earnest money would be forfeited if the balance sale 
consideration was not paid within the time stipulated 
in the agreement to sell, it is ordered that 
respondents No.2 and 3 shall return the earnest 
money received by them alongwith profit as would 
be payable on defense saving certificates of the 
National Savings to the appellant. Respondent No.2 
(Mst. Samina Riffat), appeared as DW-1, and 
deposed that she and her sister had each received 
Rs.10,00,000/- from the appellant. As regards 
                                                
1 2010 SCMR 334 
C.M.A.4053/18 in C.A.637/18, etc 
 
5 
respondent No.1, since he in his written statement 
had expressed his willingness to perform the 
agreement, he is directed to return the earnest 
money amounting to Rs.20, 00,000/- without profit.”  
 
6. 
 
Learned counsel for the appellants contends that the 
appellants alongwith their brother inherited the suit property, 
which was negotiated for sale by their brother through agreement 
noted above, for a total sale consideration of Rs.1,90,00,000/- out 
of which Rs.20,00,000/- (twenty lacs) was statedly paid to Shahid 
Mehmood  respondent No. 2 (brother of the appellants), and ten lac 
each (i.e. 5.26% of total sale consideration) to the appellants 
herein. Balance consideration in terms of the agreement to sell 
dated 4.10.2004 was to be paid within two months in terms of 
Clause-3 of the agreement. Per Clause-5 and 6, on failure of 
vendors to transfer the property in terms of agreement they were 
liable not only to refund the advance together with equivalent sum 
as compensation and correspondingly on failure of the vendee to 
pay the balance sale consideration, the vendors were entitled to 
forfeit the earnest amount paid in advance.  
7. 
 
It appears that respondent No. 1, instead of coming 
forth to perform his part of reciprocal obligation to pay the balance 
sale consideration within period stipulated, through notices called 
upon the appellants to comply with certain conditions, which were 
not the part of the agreement. Later on, respondent No. 1 filed a 
suit for specific performance on 4.1.2005; alongwith the suit, he 
filed an application under Order XXXIX Rules 1 & 2 CPC seeking ad-
interim injunctive relief.  
8. 
 
Learned 
trial 
court 
on 
19.7.2005 
directed 
the 
plaintiff/respondent “to deposit the balance sale consideration of 
C.M.A.4053/18 in C.A.637/18, etc 
 
6 
Rs.1, 50, 00,000/- within one month in the court. Otherwise stay 
granted today in favour of plaintiff/respondent shall be deemed to 
as cancelled”. It is a matter of record that during trial of suit or 
even during pendency of RFA, balance consideration was neither 
offered nor deposited. Consequently, suit was dismissed, which was 
maintained in appeal. However, the learned Bench of the High Court 
deemed appropriate to direct refund of the earnest money and so 
also burdened them with payment of profit on the earnest amount 
as would be payable on Defense Saving Certificates to the 
respondent No.1 in terms of the last paragraph of the impugned 
judgment as reproduced hereinabove. 
9. 
 
Learned Counsel for the appellant argued that it was 
concurrently 
held 
by 
both 
the 
court 
that 
it 
was 
the 
Plaintiff/Respondent No. 1 who was at fault and committed breach 
of the contract. It was urged that the learned bench on one hand 
relied upon the case of Ghulam Hamid2  to conclude that “By failing 
to pay the balance sale consideration in accordance with the said 
agreement or in compliance with the said order, the appellant 
cannot be considered to have done equity. This conduct of the 
appellant stripped him from bonafides and disentitled him for grant 
of equitable relief.” It was argued that once both the courts were at 
unison that the breach, if any, was on the part of Plaintiff, the 
defendant were justified to forfeit the earned amount which was 
well within the contemplation of the same agreement.       
10. 
 
Learned counsel for the respondent No. 1 has appeared 
and defended the impugned para noted above. It is stated that 
since breach was on the part of the Petitioners/defendants 2 and 
                                                
2  2010 SCMR 334 
C.M.A.4053/18 in C.A.637/18, etc 
 
7 
the Respondent No.1/Plaintiff was not obliged to pay the balance 
sale consideration, the unless the Defendants procured the 
requisite NOC was obtained from the CDA.  
11. 
 
In rebuttal it was urged by the learned Counsel for the 
Appellant that issue of NOC was raised merely to buy time and 
delay payment of balance consideration, which became due and 
payable within two (2) months from the date of execution of sale 
agreement dated 4.10.2004 within the contemplation of Clause 3 
of the sale agreement. Respondent No.1 even failed to comply with 
the directions as contained in the order dated 19.7.2005 passed by 
the learned trial court. He further contends that unless, breach of 
contract on the part of petitioner/vendor was established; they 
cannot be burdened with return of forfeited amount that too with 
profit. It was urged that the direction contained in paragraph 18 of 
the impugned judgment is against the spirit of the agreement 
between the parties. 
12. 
 
We have heard the arguments and perused the record.   
Entire controversy revolves around the terms of the agreement for 
sale and the bargain struck between the parties. Clauses 1, 3,5 & 6 
being relevant stipulated as follow: -  
 
1. That all the liabilities, dues to the said property 
shall be cleared, paid by the sellers. 
 
2. That the purchaser has agreed to pay the 
remaining sum of Rs.1,50,00,000/- (Rupees One 
Crore Fifty Lac Only) to the sellers after Two 
months from the date of signing this agreement 
at the time of execution of sale deed in favour of 
purchaser or any of his nominee(s).  
 
3. That if the Sellers withdraw from  this deal or not 
to transfer the said property in favour of the 
purchaser or any of his nominee(s)  then they 
shall pay back the entire sale consideration 
already  received from the purchaser along with 
an equal amount as compensation, or purchaser 
C.M.A.4053/18 in C.A.637/18, etc 
 
8 
will have the full right to get transferred the said 
property  through the court of law,  at the risk 
and cost of the sellers, in  his own name or any 
of his nominee(s).  
 
5. That if the Sellers withdraw from  this deal or not 
to transfer the said property in favour of the 
purchaser or any of his nominee(s)  then they 
shall pay back the entire sale consideration 
already  received from the purchaser along with 
an equal amount as compensation, or purchaser 
will have the full right to get transferred  the said 
property  through the court of law,  at the risk 
and cost of the sellers, in  his own name or any 
of his nominee(s).  
 
6. That if the Purchaser backs out from this deal or 
fails to pay the remaining consideration within 
prescribed 
period, 
then 
this 
deal 
will 
be 
considered canceled and the received earnest 
money will be forfeited.” 
 
13. 
 
Clauses as reproduced do not contemplate any 
obligation on the part of the appellants to obtain NOC, as rightly 
noted by the learned trial as well as the High Court. Learned 
counsel for the respondent No. 1 was not able to demonstrate from 
record that any dues against the property were outstanding. The 
respondent No.1 to avoid making payment of balance sale 
consideration cannot import or press any condition extraneous to 
the conscious bargain struck between the parties. Generally, in 
respect of sale of immovable property, time is not considered as of 
the essence of the Contract. However, parties may consciously 
strike a deal to make time essence of the contract by providing 
certain consequences for breach of reciprocal obligation casted 
upon them, in such cases, time is treated as essence of the 
contract3. In instant case, as could be noted that, where vendor 
backs out from the deal and avoid to execute conveyance deed, 
clause 5 of the agreement stipulated that “then they shall pay back 
the entire sale consideration already received from the purchaser 
                                                
3 Mst.. Gulshan Hamid v. Kh. Abdul Rehman 2010 SCMR 334 Paragraph 15. 
C.M.A.4053/18 in C.A.637/18, etc 
 
9 
along with an equal amount as compensation.” Likewise for failure 
of the vendee to perform his part of the obligation in terms of 
clause 6 “in event he backs out from this deal or fails to pay the 
remaining consideration within prescribed period, then this deal 
will be considered canceled and the received earnest money will be 
forfeited”. In terms of Section 51 of the Contract Act (IX of 1872); 
where a contract is dependent on discharge or performance of 
reciprocal promise or obligations to be performed or discharged. 
The Promisor need not perform his part of promise or obligation, 
unless the promisee, (here in this case the vendee) “is ready and 
willing to perform his reciprocal promise.” In cases arising out of 
sale of immovable property, a vendee seeking specific performance 
has to demonstrate his readiness and willingness to perform his 
part of reciprocal obligation as to payment of balance sale 
consideration. The question what is readiness and willingness to 
perform a contract was attended to by a learned division bench of 
the West Pakistan High Court (Karachi) in the case of Abdul Hamid    
v. Abbas Bhai- Abdul Hussain.4 It was held5 that “In the first place, 
willingness to perform ones contract in respect of purchase of 
property 
implies 
the 
capacity 
to 
pay 
the 
requisite 
sale 
consideration within the reasonable time. In In the second place, 
even if he has the capacity to pay the sale consideration, the 
question still remains whether he has the intention to purchase the 
property. On consideration of all the facts it appears that the 
appellant was not in a position to pay the balance sale 
consideration.  At any rate, the appellant was not willing, even if 
he had the capacity to pay the money, to have the sale deed 
                                                
4 PLD  1959 (WP). Karachi 629 
5 Ibid 632 
C.M.A.4053/18 in C.A.637/18, etc 
 
10 
completed.”  As noted above, the learned trial court vide order 
dated 19.7.2005 was indulgent in giving one months’ time beyond 
the period agreed in the sale agreement, to deposit balance 
consideration, which was not availed nor any attempt was made to 
deposit the amount during the pendency of the appeal. Since there 
is nothing on record to show, that the Appellants/Defendant 2 and 
3 committed any breach, mere observation of the appellate court 
that since the Defendants 2 and 3 did not issued any notice making 
time essence of the contract is not justified under facts and 
circumstances of the case, even if it is presumed no notice to such 
an effect was issued, very fact specific plea was raised in the 
written statement that for failure to make the payment of the 
balance sale consideration within stipulated period rendered the 
agreement rescinded and earnest amount forfeited is sufficient 
notice, such fact coupled with fact that the Plaintiff on one hand 
failed to offer sale consideration within agreed period, secondly did 
not tendered the amount despite order of the learned trial Court 
dated 19.7.2005 and even after the suit was dismissed on 
7.10.203 no effort was made to deposit the balance consideration 
what to speak of making any offer. The Appellant in cross 
examination agreed to sell the property at the current market 
value. The Respondent No.1 not only conceded that consequence 
for not making payment in time would result in forfeiture of the 
earnest money. He declined the offer of the appellant to purchase 
the property at current value. In a recent case6 this court approved 
the forfeiture of the 3.5 % earnest amount, where the bidder failed 
to make the balance payment within time. In the instant case 
                                                
6  Space Telecommunication (Pvt) Ltd. v. Pakistan Telecommunication Authority 2019 SCMR 101 
C.M.A.4053/18 in C.A.637/18, etc 
 
11 
earnest amount paid to the appellant represent merely 5.26% of 
total sale consideration.          
14. 
 
At this stage, learned counsel for the appellants on 
instructions states that out of sheer benevolence appellants are 
prepared to refund 50% of the earnest amount received by them 
i.e. Rs.5,00,000/- (five lac) each to the respondent No.1 as a 
humane consideration. We record our appreciation for the conduct 
of the appellant, displaying grace toward the Respondent No.1, to 
which he was not otherwise entitled under the facts and 
circumstances of the case. We would, therefore modify the 
impugned judgement to the extent that appellants shall refund 
Rs.5,00,000/- (five lac) each to the respondent No. 1 through pay 
order within 45 days from the date of receipt of this order. Appeal 
allowed, with partial modification as noted herein. In view of the 
above CMA 4053/2018 also stand disposed of.   
 
 
 
Judge  
 
 
 
 
Judge 
 
 
 
Judge  
Islamabad,  
4th May, 2020 
Sarfraz /-  
‘Approved for reporting’ 
