IN THE SUPREME COURT OF PAKISTAN
(Appellate Jurisdiction)
MR. JUSTICE MUSHIR ALAM
MR. JUSTICE QAZI MUHAMMAD AMIN AHMED
CIVIL APPEAL NO. 108 OF 2015
Against the judgment dated
22.4.2014 passed by High Court
of Sindh Circuit Court, Hyderabad
in 2nd Appeal No. 02 of 1990
Mst. Rehmat & others 
.Appellant(s) 
I
VERSUS
Mst, Zubaida Begum & others 
... Respondent(s)
For the Appellant(s): 
Mr. Muhammad Munir Paracha, ASC
Syed Rifaqat Hussain Shah, AOR
Syed Tahir Hussain, Husband of
Appellant No.3
For Respondent No. l.(LRs) Mr. M. Ishtiaq Ahmad Raja, ASC
Date of Hearing: 25.8.2020
JUDGMENT
MUSHIR ALAM, J. Admitted facts giving rise to the instant Civil
Appeal, arising out of leave granting order dated 9.2.2015, are that
one, Mst. Ashfaq Jehan' being owner of the suit property, through her
attorney Hamid Hussain Khan, entered into sale agreement dated2
April 1973 (Ex.91) with Mst. Zubaida Begum3 for a total sale
consideration of Rs.45,000/, out of which Rs.500/- was paid as
earnest money at the time of execution of the agreement. Balance
1 since decease (through her LRs) Appellant No.2 herein /Defendant No.1
2 Pages No. 127 to 129 of the paper book CA No. 0812015
since deceased through LR5/ Respondent No.1 herein! Plaintiff
CML APPEAL NO, j080F2015 
2
consideration was agreed to be paid before the registrar at the time of
execution of sale deed. In terms of clause 4 of the sale agreement the
vendor took upon herself, responsibility to obtain: i) Income Tax
certificate; ii). NOC from Excise and Taxation Authority, Hyderabad,
Certificate/ receipts showing payment of electricity and Water charges;
and iv) Mutation in the City survey record kept in the city survey Office,
Hyderabad, required to execute the sale deed.
2.
It was admitted by Shaikh Muhammad .ShanffDW-1 4 on behalf of
the Ashfaq Jehan that at her request, further sum of Rs.25,500/- and
another sum of Rs.10,000/- were paid to the vendor, through her
daughter in law, Mrs. Salma Waris, on 31.5.1973 and 11.12.1973
respectively through Cheques 5 being part payment towards balance
sale consideration and, on payment of last-mentioned amount through
cheque, Mst. Zahida Begum the vendee was put in possession of the
subject property thereof.
3.
From the record, it appears that instead of coming forward to
execute sale deed, Shaikh Muhammad Sharif, despite being aware of
the sale transaction, executed sale deed in respect of suit property in
favour of his wife Ms. Rehmat (since deceased) 7. On coming to know
such facts, the Plaintiff/ Respondent No.1 filed a FC suit No.144 of
1977 for specific performance of an agreement to sell dated April 1973,
and for cancellation of a registered sale deed dated 24 th February
19778 executed by the attorney of said Ashfaq Jahan the Appellant
No.2 in favour of his wife Appellant No.1 with respect to the suit
property.
Cross examination of DW-I paper book in CA No. 108/2015 page 123
Bank Certificate Ex.92 and 93 respectively ibid.
the attorney of legal heirs of Mst, Ashfaq Jahan (since deceased)
Trough LRs Appellant 1 (i) to (v) herein
Pages No. 144 to 147 ibid
i
CIVIL APPEAL NO. 108 OF 2015 
3
4. The said FC Suit No. 144 of 1977 was partially decreed by the
learned trial court on 21st July 1988 by observing that Mst. Ashfaque
Jehan (defendant No.1 of the suit) was liable to pay the sum of
Rs.36.000/- received from respondent No.1 as part of sale
consideration9. The judgment of the learned trial court dated 21st July
1988 was assailed by respondent No.1 before the Court of Additional
District Judge Hyderabad, who vide his judgment dated 22nd
November 1989 1 0 set aside the judgment and decree of the learned
Trial Court and decreed the suit in favour of respondent No.1. The
decision of the learned Additional District Judge was impugned by the
appellant No.1 before the learned High Court in Second Appeal No.2 of
1990, which vide its short order dated 11 th December, 2000 and
detailed judgment dated 26 th January, 2001 11 , set aside the judgment
dated 22nd November, 1989 of the 1 81 Appellate Court. The said
judgment was assailed by respondent No.1 in Civil Appeal No.2111 of
2001 before this Court and vide Order dated 02.04.2007 12, with the
consent of parties, the judgment dated 26th January, 2001 was set
aside and the case was remanded back to the learned High Court for
re-consideration of the controversial questions of law and facts in the
light of evidence on record. The learned bench of the High Court of
Sindh, Circuit Court, Hyderabad vide its judgment dated 22.4.201413
impugned before us in this Civil Appeal No.108 of 2015 upheld the
judgment dated 22.11.1989 passed by the 1st Appellate Court
dismissing the Appeal No.2 of 1990.
Pages No. 67 to 82 of CA No. 108/15
10 Pages No. 57 to 66 of CA No. 108/15.
Pages No. 93 to 116 of CA No. 108/15
Pages 51 ofCMA 2694
13 Pages 20-46 of CA No. 108/is.
CEVILAPPEAI. NO. 108 OF 2015 
4
5. 
We have heard counsels for both the parties before us and 
A
perused the record with their able assistance. The learned counsel for
the Mst. Rehmat, Appellant No.1 argued that time was the essence of
the contract to sell, executed between Mst. Ashfaq Jahan the Appellant
No.1 and Mst. Zubaida Begum respondent No.1 was rightly rescinded
and revoked as the respondent No.1 failed to perform her part of
contract within time. He emphasized that the appellant No.1
purchased the suit property worth Rs.60,000/- after serving legal
notice through registered post dated 02.12.1975 as well as publicized
the notice through newspaper dated 11. 12.1975 upon the respondent
No. 1. He further argued that before purchasing the suit property, the
appellant No. 1 procured the clearance certificate through her son from
the Sub-Registrar Hyderabad on 18.12.1976; and thereafter, the sale
deed was duly registered through Sheikh Muhammad Sharif as 
0
Attorney of the vendor on 24.02.1977. He contended that the appellant
No.1 being the bona fide purchaser of the suit property rightly got the
sale deed registered in her name after fulfilling all the legal formalities
as such the impugned judgment of the learned bench of the High
Court suffers from legal infirmities and liable to be set aside.
6. Conversely, the learned counsel for the respondents vehemently
argued that the respondent No.1 purchased the suit property vide
agreement executed in the year, 1973 and paid a sum of Rs. 36,000/-
of the total sale consideration of Rs.45,000/-. He further argued that
the remaining sum of Rs.9,000/- was payable on fulfilling the
contractual obligations as mentioned in clause 4 of the agreement to
sell dated April 1973, which Mst.Ashfaq Jahan failed to perform till
date. He highlighted that the respondent No.1 was handed over the
piWsical possession of the suit property on payment of further
.1
CIVIL APPEAL NO. 108 OF 2015 
5 
-
consideration of Rs.35,000/- as noted above and in part performance
thereof on 11. 12.1973 by her attorney. He contended that the learned
1t Appellate Court had taken care of all the factual and legal aspects
of the case in its judgment dated 22nd November, 1989 and the same
was rightly upheld by the learned bench of the High Court vide the
impugned judgment.
7. It transpires from the record that the litigation with respect to
the suit property arose between the parties when Mst. Zubaida Begum
respondent No.1 14, Mst. Rehmat l3ibi appellant No.1 15 and appellant
No.2 Hamid Hussain, son of appellant No.2 and attorney of Mst.
Ashfaq Jahan in agreement dated April, 1973 and Mohammad Sharif
Sheikh husband and attorney of Mst. Rehmat Bibi appellant No.1 in
registered sale dated 24111 February, 1977 were all alive. The seller as
well as the original and subsequent purchasers of the suit property
appeared through their respective attorneys before the Trail Court.
One Muhammad Idrees the attorney and husband of Mst. Zubaida
Begum, appeared as PW-1 16 and exhibited the agreement dated April,
1973 and other documents as Ex-91 to 103 in the Trial Court. Sheikh
Muhammad Sharif, duly constituted attorney of Mst. Ashfaq Begum,
Appellant No.2, appearing as DW-1 17 in the Trial Court specifically
admitted the factum of sale transaction between the respondent No.1
and Mst. Ashfaq Jehan by deposing in cross examination that:
£rMst Zubeida plaintiff had given cheques of Rs.
25,500 on 25.05.1973 and cheque of Rs. 10,000
on 11.12.1973. It is a fact that these cheques
were given towards the part payment of
consideration of sale." (Page No. 123 of paper
book No. CA 108 of 2015).
14 Plaintiff in FC Suit No. 144 of 1977
Is Defendant No.2 in PC Suit No. 144 of 1977
16 ages 117-120 of CA No.108/15
 122 -123 of CA No. 108/ 15
CIVIL APPEAL NO. 108 OF 2015 
C
8. 
As to the possession, he admitted in his examination in chief
that 'As Muhammad Idrees was my friend, therefore, I allowed him for
temporary shelter but after two days; they backed out from their
promises and have not yet vacated the house18'. He further admitted in
his cross-examination as DW- 1 that 'It is a fact that since 1973 till
today Mst. Zubeida is in possession, voluntarily says that possession is
illegal19'. These admissions of DW-.l who is the attorney as well as the
husband of appellant No.1 are sufficient enough to establish that the
sale transaction was entered between Mst. Ashfaq Jehan and the
Respondent No.1 in the year 1973 and the vendee paid a sum of Rs,
36,000/- in part performance of sale consideration while the
possession was also delivered to her. It is an established principle of
law that facts admitted need not be proved, reference can be made to
Article 30 of the Qanoon-e-Shahadat Order 1984 and the case of Nazir
Ahmed versus M. Muzaffar Hussain 20, wherein Paragraph No.8 of the
judgment this Court observed that:
8. So far as the execution of agreement is concerned,
the appellant Nazir Ahmad who appeared as D. IV 1
admitted the execution of the agreement for sale of
the property in dispute for consideration of Rs. 50,000
and the execution of the agreement was further
testified by Allah Ditta Scribe of the document who
appeared as D. IV 4. The said wil ness appeared twice
in the Court; firstly as P. IV .1 and secondly as D. IV 4
and admitted the thumb impression of Nazir Ahmad
and signatures of Rashid Ahmad appellants on the
agreement to sell 'ExkP. 1). It means that the
execution of agreement is admitted not disputed and
it is well settled proposition of law that the admitted
facts need not to be proved. The admission has been
defined in Article 30 of the Qanun-e-Shahadat Order,
1984 which reads as under:-
"30. Admission defined. An admission
is a statement, oral or documentary,
which suggests any inference as to any
18 Page No. 123 of CA No. 108/ 15
19 Page No. 123 of of CA No. 108/15
2-2flDSCMR 1639 
4
4
CIVIL APPEAL NO. 108 OF 2015 
7
fact in issue or relevant fact, and which
is made by any of the persons, and
under the circumstances, hereinafter
mentioned."
9. 
The Appellant, under facts and circumstances of the case, can
neither claim nor could substantiate, that she is bona fide purchaser
without notice to the earlier transaction. In a case Jaiwanti Bai v.
Amir Corporation 21 in paragraph 19 and 20 it was held 'that the right
of a person having established that they were equipped with
unregistered instrument, which were prior in time, and were in
possession of property in part performance of such instrument, would
rank superior even against the subsequent registered instrument'.
Therefore, in the instant case, the position of respondent No.1 being in
possession of the suit house since 1973, having paid 80 % of the total
sale consideration, much before time fixed in the sale agreement and
much before performance of reciprocal obligations set out under
clause 4 of the agreement, on the part of the Respondent No.2, is
much stronger than that of the appellant No.1; more particularly the
possession is specifically admitted by DW-1 in his statement in view of
the Nazir Ahmed's case supra.
10. The crucial question that now requires consideration of this
Court is as to whether the time is essence of the agreement dated
April, 1973. Perusal of the said agreement reveals that the vendor
Mst. Ashfaq Jahan sold the suit property as an absolute owner to the
respondent No.1 Mst. Begum in lieu of Rs.45,000/-(Rupees Forty-Five
Thousand Only), whereof as sum of Rs.500/- was paid as earnest
money as mentioned in clause (1) of the said agreement. Clause 2 of
the said agreement mentioned that 'The balance of the said sale price
21 PLD 2021 SC 434
CIVIL APPEAL NO. 108 OF 2015
that is, Ra44,5001- (Rupees Forty Four Thousand and Five Hundred)
only shall be paid by the SECOND PARTY  to the FIRST PARTY  in cash
before the Registrar Hyderabad, at the time of registration of sale deed
in respect of the said property or if the parties agree, at any time before
registration22.' It is pertinent to mention here that no cut-off date was
given in the sale agreement for the payment of remaining sale
consideration as it was settled between the parties that the remaining
sum could be paid at the time of registration of sale deed or at any
time before registration. Clause 4 of the said agreement made it
mandatory for the 'First Party' that is the vendor Mst. Ashfaq Jahan to
obtain all documents necessary for registration of the suit property in
the following terms:
"4) That the FIRST PARTY  shall obtain all
documents necessary for registration of the said
property in the name of the SECOND PARTY ,
namely:-
i) 
Income Tax clearance certificate.
No objection certificate from the Excise &
Taxation Authority, Hyderabad.
Certificate/Receipt showing payment of
electricity and water charges.
iv) 
Mutation in the Cit!J survey record kept in
the City Survey office, Hyderabad. -----"
11. Clause 4, of the agreement as reproduced above, reveals that the
appellant No.2 while acting as an attorney of his mother Mst. Ashfaq
Jahan was required to procure all the documents noted therein, before
the execution of sale deed. These conditions manifest that the
agreement dated April 1973 contained reciprocal promises on the part
of vendor as well vendee and both the parties were required to perform
their respective part of the contract in order to accomplish the sale
geNo.127ofCANo.1O3/15
CIVIL APPEAL NO. 108 OF 2015 
9
transaction; however, the vendor failed to perform her part of
reciprocal obligations and did not procured requisite documents,
except the Income Tax Clearance Certificate; which is also apparent
from the perusal of notices Ex.9 1, Ex. 116, Ex. 11823. As the vendor
Mst. Ashfaq Jahan herself failed to perform her part of contract,
therefore, she Could not rescind and revoke the agreement dated April
1973, after the delivery of possession of the suit property to the
respondent No.1 and the receipt of a sum of Rs. 36000/= i.e 80% of the
total sale consideration in part performance of performance of sale
transaction. It can safely be concluded that the time was never the
essence of the agreement dated April 1973 and the failure on the part
of the promisor/vendor to perform her part of contract could not put
her into a position of rescinding or revoking the contract in terms of
Section 51 of the Contract Act, 1872. Moreover Section 54 of the
Contract Act, 1872 even makes the promisor liable to make
compensation to the promisee for any loss suffered by him due to non-
performance of a reciprocal promise on the part of promisor. Section
54 reads as follows:
"54 Effect of default as to that promise which
should be first performed. - In contract
consisting of reciprocal promises. When a
contract Consists of reciprocal promises, such
that one of them cannot be performed, or that
its performance cannot be claimed till the other
has been performed, and the promisor of the
promise last-mentioned fails to perform it, such
Promisor cannot claim the performance of the
reciprocal promise, and must make
compensation to the other party to the contract
for any loss which such other party may
sustain by the non-performance of the
contract"
23 Pages No. 130 to 137 of the paper book No. CA108/2015
CIVIL APPEAL NO. 108 OF 2015 
10
12. We fully agree with the findings of the learned bench of the High
Court given in paragraphs No 29 W 31 of the impugned judgment to
this effect and the case laws mentioned therein. It may be observed
that while granting leave on 9.2.2015, it was noted that the appellant
on execution of sale deed dated 24.4.1977 in her favour by the
attorney of the appellant No.2 had filed a suit for possession under
section 8 of the Specific Relief Act, and question that required
resolution was, which of the party was entitled to equitable relief
under sections 8 and 27 of the Specific Relief Act, 1877, if any. It is
noted that this Court on 15.4.2020 also directed the parties to file
concise statement to show whether respondent No.1 had deposited
balance sale consideration or otherwise.
13. CMA Nos.2694 of 2015 and 4737 of 2020 was filed by the
learned counsel for the Appellant No.1 and Respondent No-1
respectively, which show that suit No.99 of 1997 24 was filed by the
Appellant No.1, Mst. Rehmat Bihi, for possession under section 8 of
Specific Relief Act, 1877 on the strength of sale deed dated 24.2. 1977,
which suit remained pending for over seven years and eight months
and, on failure of the plaintiff in suit to lead any evidence, it was
dismissed under Order 9 Rule 8 CPC vide reasoned order dated
16 .4. 1986.25 It was pointed out by the learned counsel for the
Respondent No.1 that after dismissal of her suit and during pendency
of proceedings in the instant matter, Appellant No.1 dishonestly
executed sale deed dated 20.12.2000 in favour of appellant No.3 Mst.
Khurshid Jehan, who was later added as a party and being proceeded
ex-parte. The earlier sale deed was executed by her husband (Sheikh
U
24 Page 11 of CMA 4737/2020
Pages 14-15 of CMA 4737/20.
CIVIL APPEAL NO. 108 OF 2015 
11 
1
Muhammad Sharif) as an attorney of the Vendor (Mst. Ashfaq Jahan).
The appellant No.1 was fully aware of earlier transaction and delivery
of possession to the Respondent No.1 in part performance of the
agreement to sell. The Conduct of the Appellant No. 1, since deceased,
smack foul, as during pendency of instant proceedings, she further
executed sale deed dated 22 . 12 .200026 in favour of Appellant No.3
Khursheed Jehan, more so when there is nothing on record to show
that appellant No.3-Khurshid Jahan had paid sale consideration to
the Vendor at the time of obtaining sale deed in her favour. Said
Respondent No.3 also filed a suit for possession under Section 8 of
the Specific Relief Act, fate of which is not known. It may be observed
that suit No. 99/197727 filed by the Appellant No.1 under Section 8 of
the specific Relief Act was dismissed under Order 9 Rule 8 CPC on
16 .4 . 198628, to which no exception was taken by the Appellant,
Respondent No.3 having stepped into shoes of the Appellant No.1
cannot claim better right and title than what was possessed by the
Appellant No.1 and cannot be allowed to circumvent the consequence
of dismissal of earlier suit by her predecessor as provided for under
Order 9 Rule 9 CPC, which bars fresh suit in respect of same cause of
action.
14. Since the Plaintiff was put in possession on 11 . 12 . 197329 on
payment of 80% of the sale consideration in part performance of the
sale agreement dated April 1973, Specific Performance is an equitable
relief, Respondent No. 1, since represented by LRs, cannot be absolved
of their obligations to pay the remaining balance sale consideration of
26 Pages 17-22 of CMA 4737/20
27 Page 11-13 of CMA No. 4737/2020
28 Page 14-15 ibid
hen Rs. 10,000/ was paid through Cheque dated 11.12. 1973 (making total
nsideration of 36000/- out of 45,000/-)
CIVIL APPEAL NO. 108 OF 2015 
12 
.1
Rs.9000/,(being 20% of the total sale Consideration) which they
were obliged to pay within reasDnable time from the date of sale
agreement or at the latest on filing suit for specific performance.
Contention of learned counsel for respondent No.1 that neither the
appellate Court nor the High Court made any direction to deposit
balance sale consideration. It may be observed that, a vendee seeking
specific performance of an agreement to sell is essentially required to
demonstrate that he is and was always ready and willing to perform
his reciprocal obligation to pay balance sale consideration. If balance
consideration is not offered or paid earlier, best time to demonstrate
such "readiness and willingness to perfonn"30 is offering balance sale
consideration at the time of filing suit for specific performance. In
cases where contract consist of reciprocal promise such that one of
them cannot be performed or that its performance cannot be claimed
till the other has been performed 31 . Indeed in this case obligation to
pay balance sale consideration was dependent and would occur on
discharge of the obligation on the part of the Mst. Ashfaq Jahan/
vendor to procure documents as mentioned in clause 4 of the
agreement, noted in paragraph 10 above, which apparently were not
performed till filing of the suit. Since the respondent had paid 80% of
the sale consideration before contingency agreed in the agreement to
sell and was put in possession in part performance may not be
entitled to claim compensation in terms of section 19 of Specific Relief
Act read with section 54 of the Contract Act, Property subject matter
of Sale Agreement Ex 91, being (Eastern Portion) of House No, 08, C.S
No. A-34/27-28, Amil Colony, Hyderabad is now in the heart of City,
30 ee_eection 51 of the Contract Act
1 Section 54 Contract Act and implication for non performance of reciprocal
obligation, in a sequence required to be performed
I 
- 
--
CIVIL APPEAL NO. 108 OF 2015
t
falls within category 132 Respondent/ Plaintiff is enjoying possession
since on 11.12-1973,33withholding 20% of the balance sale
consideration cannot be justified, it would just and equitable to direct
the Respondent No.1 to deposit 20% of the balance sale consideration
as per value of the suit properly in accordance with the prevalent
valuation table in respect of suit property issued by the Federal
Board of Revenue and or Authority, within a period of 30 days from
the date of such determination by the learned Executing Court, on
deposit of the amount and, which may be disbursed to the LRs of Mst.
1
Ashfaq Jahan/ vendor/ defendant No.1 in suit(since deceased) on
determination and deposit of such amount, sale deed be executed in
favoaur of legal heirs of respondent No.1 in accordance with Order 21
Rule 32 CPC. 
I
15. For what has been discussed above, the instant Civil Appeal No.
108 of 2015 stands dismissed with no order as to costs. The findings
given by the learned bench of the High Court in the impugned
judgment, subject to above are upheld with the observation that any
sale transaction with respect to the suit property after the agreement
in April, 1973 stands annulled and any subsequent transaction in
respect of suit property from appellant No.1 is also hit by the principle
of Us pendens and has to sink and swim with the appellant No.1 Mst.
Rehmat Bibi; needless to observe that the Appellant No-1 and or
32 S.R.O. 0"3(1)/2019.- In exercise of the powers conferred by sub-section (4) of
section 68 of the Income Tax Ordinance, 2001 (XLIX of 2001) and in supersession of
its Notification No. S.R.O. 116(1)/2019 dated the 1st February, 2019 and or any
other current valuation table in vogue on the date of this judgement,
33 When Rs. 10,000/ was paid through cheque dated 11. 12.1973 (making total
consideration of 36000/- out of 45,000/-)
13
V 
.. -
Judge
I 
--
CIVIL APPEAL NO. 108 OF 2015 
14
V
S
Appellant No.3 may well be within their right to claim damages for 
1:
wrongful transaction from their respective vendors.
Announced at Islamabad. on 
_________
"Approved for Repo fling"
