JUDGMENT O.P. Saxena, J. - This is an appeal against the judgment and decree dated 17th May 1976 passed by the Additional Civil Judge, Bulandshahr dismissing O.S. No. 169 of 1973 (in) (Civil Judge's Court) for specific performance of an agreement of sale and decreeing the suit for recovery of Rs. 6,000/- as earnest money with interest at 6% per annum. The parties were directed to bear their own costs. 2. Dispute relates to house No. 15 Qazi Bara, Bulandshahr and bounded as given in the foot of the plaint. 3. The Uttar Pradesh Ceiling on Property (Temporary Restrictions on Transfer) Ordinance 1972 came into force with effect from 11th July 1972. Section 3 provided restrictions on transfer during a period of three months from the commencement of the Ordinance. On 11th Sept., 1972, the Ordinance was replaced by U.P. Ceiling on Property (Temporary Restrictions on Transfer) Act 1972, U.P. Act 36 of 1972. U.P. Ceiling on Property (Temporary Restrictions on Transfer) Amendment Act 1972, U.P. Act 45 of 1972 came into force on 31st Dec., 1972. The period was extended up to Jan. 31, 1973. The period was further extended and the restrictions continued even on 28th Feb., 1973. 4. Plaintiff filed the suit for specific performance of the agreement of sale dated 6-3-1972 executed by defendant No. 1 in his favour agreeing to transfer the disputed house for a sum of Rs. 26,000/- out of which a sum of Rs. 6,000/- was paid as earnest money. The sale deed was to be executed by 28th Feb. 1973. The plaintiff's case was that defendant No. 1 told him that he would obtain permission from the Commissioner for executing sale deed, but he did not do so. On 17-2-1973, plaintiff sent a notice vide Ex. A-4 to defendant No. 1 who replied to the same vide reply dated 26-2-73 Ex. 12. On 28-2-73 the plaintiff and defendant No. 1 went to the office of Sub- Registrar Bulandshahr and gave applications there. On 5-4-73, defendant No. I executed agreement of sale Ex. B-8 in favour of, defendants Nos. 2 to 4 agreeing to transfer the property in their favour for a sum of Rs. 25,000/-. Defendant No. I also gave possession over the house to the defendants No. 2 to 4. This agreement is said to have been executed in continuation of an earlier agreement dated 17-1-72 vide copy Ex. B-5. B-8 in favour of, defendants Nos. 2 to 4 agreeing to transfer the property in their favour for a sum of Rs. 25,000/-. Defendant No. I also gave possession over the house to the defendants No. 2 to 4. This agreement is said to have been executed in continuation of an earlier agreement dated 17-1-72 vide copy Ex. B-5. The plaintiff's case was that the agreement . dated 17-1-72 was forged, fictitious and ante- dated. It was said that defendants Nos. 2 to 4 were very well aware if the earlier agreement of sale in favour of the plaintiff on 14-4-73. Plaintiff sent notices vide copies Ex. 17 to all the defendants but some of them gave wrong replies. The plaintiff claimed that he has been and is ready and willing to perform his part of the contract and defendant No. 1 committed breach of the agreement when he did not obtain any permission from the Commissioner and did not execute any sale deed in favour of the plaintiff as agreed. 5. The suit was contested by defendant No. 1 with the allegations that the agreement dated 17-1-72 was duly executed by him in favour of defendants Nos. 2 to 4 and one Allah Mehar, that subsequently Allah Mehar came along with the plaintiff and told the defendant No. I that the defendants did not want to get the sale deed executed in terms of the agreement dated 17-1-72 and he could execute an agreement of sale in favour of the plaintiff, that believing Allah Mehar, defendant No. 1 executed the agreement of sale in favour of the plaintiff, that defendant No. 1 asked Allah Mehar to bring back the earlier agreement of sale and take Rs. 500/- but the latter told him that the earlier agreement of sale was with the other defendants and he would bring it to him and take back the money, that defendant No. I was ever ready and willing to execute the sale deed in favour of the plaintiff, that the plaintiff was not ready and willing to get sale deed executed, that he made various efforts to obtain forcible possession over the house, that the pontiff obtained a fictitious allotment order in his favour behind the back of defendant No. I while he knew that defendant No. 1 was himself living in the house, that on coming to know about the allotment order, defendant No. 1 moved an application before the Rent Control and Eviction Officer and the allotment order was cancelled, that defendants Nos. 2 to 4 protested to him as to why he executed the agreement of sale in favour of the plaintiff while the time to execute the sale deed in terms of the agreement of sale dated 17-1-72 had not expired, that plaintiff and Allah Mehar had deceived defendant No. 1 when they told him that defendants Nos. 2 to 4 did not want to purchase the property in pursuance of the agreement dated 17-1-72, that there was a quarrel between the plaintiff and defendants Nos. 2 to 4 after the latter came to know about the agreement dated 6-3-72 in favour of the plaintiff, that on 5-4-73, the defendant No. 1 executed another agreement of the sale in favour of defendants 2 to 4, that the plaintiff had full knowledge of the agreement of sale dated 17-1-72, that he committed default in getting the sale deed executed in his favour on 28-2-73 in accordance with the terms of the agreement, that the earnest money was forfeited and the plaintiff was not entitled to get back the same and that the suit for specific performance of the agreement of sale is liable to be dismissed. 6. Defendants Nos. 2 to 4 contested the suit with the allegations that plaintiff was well aware of the agreement of sale dated 17-1-72, that a sum of Rs. 500/- was paid as earnest money at the time of the agreement dated 17-1-72 and it was agreed that the sale deed would be executed by 15th July 1973, that a sum of Rs. 2 to 4 contested the suit with the allegations that plaintiff was well aware of the agreement of sale dated 17-1-72, that a sum of Rs. 500/- was paid as earnest money at the time of the agreement dated 17-1-72 and it was agreed that the sale deed would be executed by 15th July 1973, that a sum of Rs. 19,500/- was paid as earnest money at the time of the agreement of sale dated 5-4-73 and the balance was agreed to be paid by 15th July 1973 by which date the sale deed was to be executed, that on 5-4-73 defendants Nos. 2 to 4 obtained possession over the house in part performance of the agreement of sale and they are entitled to the benefit of Section 53 A of the Transfer of Property Act, that there was collusion between the plaintiff and defendant No. 1 and the latter executed the agreement dated 6-3-72 in favour of the plaintiff, that the said agreement is not binding on the defendants, that the plaintiff is not entitled to get the specific performance of the agreement of sale on the basis of the same and that defendants Nos. 2 to 4 are entitled to obtain a sale deed in pursuance of the agreement of sale dated 5-4-73. 7. Plaintiff filed rejoinders to the written statement filed by the two sets of defendants. 8. In the rejoinder filed to the written statement of defendant No. 1, it was said that plaintiff never went to defendant No. I along with Allah Mehar, that the plaintiff had no knowledge of the agreement dated 17-1-72, that the said agreement has been fabricated and ante-dated subsequently, that the agreement dated 5-4-73 executed by defendant No. 1 in favour of the plaintiff is fraudulent and collusive, that permission could only have been obtained by defendant No. 1 and the plaintiff could not obtain the permission as the title in the property vested in favour of defendant No. 1 and that there is no question of forfeiting the earnest money. 9. In the rejoinder filed to the written statement of defendants Nos. 2 to 4, it was said that the agreement dated 5-4-73 was fraudulently executed in order to defeat the agreement in favour of the plaintiff, that defendants Nos. 9. In the rejoinder filed to the written statement of defendants Nos. 2 to 4, it was said that the agreement dated 5-4-73 was fraudulently executed in order to defeat the agreement in favour of the plaintiff, that defendants Nos. 2 to 4 and Allah Mehar are in collusion with each other, that the agreement dated 6-3-72 executed by defendant No. I in favour of the plaintiff is legally enforceable against the defendants Nos. 2 to 4 as well and that the plaintiff is entitled to specific performance of the agreement of sale dated 6- 3-72. 10. On the application of the plaintiff, Allah Mehar was brought on the record as defendant No. 5. 11. Defendant No. 5 supported the case of defendants Nos. 2 to 4 regarding the execution of the agreements of sale dated 17-1-72 and 5-4-73 but he did not admit playing any role in the execution of the agreement of sale dated 6-3-72 in favour of the plaintiff. 12. The Additional Civil Judge accepted the plaintiff's version regarding the due execution of the agreement of sale dated 6-3-72 executed by defendant No. 1 in his favour. He rejected the contention that this agreement was collusive and is not binding on the contesting defendants. He did not accept the version of the contesting defendants regarding the due execution of the agreement of sale dated 17-1-72 and held that it was a fictitious document. He, however, found that the plaintiff was not ready and willing to perform his part of the contract as he did not take permission from the Commissioner for the execution of the sale deed. He rejected the plea that time was essence of the contract. In view of the findings, he dismissed the suit for specific performance of the agreement of sale and granted a decree for refund of the earnest money. He directed the parties to bear their own costs. Hence this appeal. 13. Sri Murlidhar, Advocate for the appellant challenged the findings that it was the duty of the appellant to have obtained the permission from the Commissioner and that as he failed to obtain the permission, it should be deemed that he was not ready and willing to perform his part of the contract. 14. Dr. Gyan Prakash, Advocate appearing for the contesting respondents Nos. 14. Dr. Gyan Prakash, Advocate appearing for the contesting respondents Nos. 2 to 4 challenged findings that time was not the essence of the contract and that the agreement dated 17-1-72 was a fictitious document. He also took the plea regarding the frustration of the contract. 15. The first point for determination in this appeal is as to whether the agreement dated 17-1-72 was a fictitious, forged and ante-dated document. 16. The original agreement is not on the record. It was filed before the Rent Control and Eviction Officer, Bulandshahr and the record was summoned to prove the document. The agreement was scribed by none else than defendant No. 1 on a stamp of Rs. 2.50 purchased in the name of defendant No. 5 Allah Mehar. D.W. 3 Khurshid Alam was one of the marginal witnesses. Defendant No. 1 agreed to transfer the house in favour of defendants Nos. 2 to 5 for a sum of Rs. 25.000/. A sum of Rs. 500/- was paid as earnest money. The balance of the sale consideration was to be paid at the time of the execution of the sale deed. The sale deed was to be executed by 15th July 1973. D.W. 1 Kishan Lal Narang, D.W. 4 Mohd. Hanif (D. 2) and D.W. 3 Khurshid Alam are the three witnesses examined in this connection. I shall refer to their evidence briefly before coming to the circumstances which would show that the agreement of sale dated 17-1-72 is a fictitious, forged and ante-dated document. 17. D.W. 1 Kishan Lal Narang stated that he scribed the agreement dated 17-1-72 after receiving Rs. 500/- as earnest money at his house. The agreement was scribed at 9.30 a.m. Besides him, Mohd. Hanif, Habibul Rahman, Dost Mohammad and Allah Mehar were present. On the previous evening he and Mohammad Hanif had gone to the house of Basdeo, petition writer and had got a draft prepared. It was a Sunday arid no stamp was available. The talk of the agreement was taking place for the last three days. On the day the agreement was scribed, Allah Mehar brought the stamp. He did not know from where the stamp was brought. He has the draft ready with him and it was not necessary to go to any scribe. He did not know if he had mentioned the boundary of the house about which the agreement was executed. On the day the agreement was scribed, Allah Mehar brought the stamp. He did not know from where the stamp was brought. He has the draft ready with him and it was not necessary to go to any scribe. He did not know if he had mentioned the boundary of the house about which the agreement was executed. After this, Allah Mehar came to him along with the plaintiff and told him that he did not want to purchase the house, that plaintiff and defendant No. 2 Mohammad Hanif are related and that he should enter into an agreement of sale with the plaintiff. He further told him that the other executants of the agreement of sale had gone out. He insisted that as he was also one of the, purchasers, he should have no hesitation in accepting his words. He executed the agreement of sale in favour of the plaintiff at the instance of Allah Mehar. Allah Mehar was not present at the time the agreement dated 5-4-73 was executed. At that time Mohammad Hanif, Habibul Rahman and Dost Mohammad were present along with 7 or 8 persons whose names he did not know. He was asked as to why it was not mentioned in the agreement dated 5-4-73 that Allah Mehar did not want to purchase the house in pursuance of the agreement dated 17-1-72. He replied that he did not get it mentioned as Allah Mehar had told him on 6-3-72 that he and other defendants did not want to purchase the house. He was conscious that Allah Mehar had given wrong information in so far as other defendants were concerned. He admitted that - Allah Mehar had deceived him earlier. He stated that he had no meeting with Mohammad Hanif and others till 28-2-73 even though these persons lived at Bulandshahr. In para 5 of the written statement filed by him, it was said that he tried to contact defendants Nos. 2 to 4 but they were not at Bulandshahr at that time and the contesting defendant could not contact them. In his statement, he said that he did not consider it proper to meet defendants 2 to 4. In para 5 of the written statement filed by him, it was said that he tried to contact defendants Nos. 2 to 4 but they were not at Bulandshahr at that time and the contesting defendant could not contact them. In his statement, he said that he did not consider it proper to meet defendants 2 to 4. He asked for the agreement of sale dated 17-1 72 from Allah Mehar and also agreed to refund the earnest money but the latter told him that he should not worry and he would return the agreement of sale and take back the money. He met Allah Mehar after two months. He met him 5 or 6 times and asked him for the return of agreement of sale dated 17-1-72 but the latter gave the same reply. He went to Meerut on 21-3-73 to find out about the application for permission and he found that no application was given by the plaintiff. He met defendants Nos. 2 to 4 on the same day and told them about this. He executed the agreement dated 5-473 in favour of defendants Nos. 2 to 4 as he needed money and no permission had been obtained. 18. D.W. 4 Mohd. Hanif deposed regarding the two agreements of sale dated 17-1-72 and 5-4-73. The talk regarding the agreement dated 17-1-72 took place two days earlier. On 15th Jan., 1972 he went to see the house along with Allah Mehar. On 16th Jan., 1972 he and the other three defendants went to Kishan Lal Narang and had talks with him. The talks finalised by about 8 or 9 p.m. The agreement dated 17-1-72 was executed at the house of Kishan Lal at about 9 a.m. On the previous evening, he and Allah Mehar had gone to Basdeo petition writer for getting a draft prepared. He did not remember if the draft was in Urdu or Hindi. Other purchasers had not gone to the house of Basdeo. He stated later that he and Allah Mehar had gone to the house of Basdeo at about 6 or 7 p.m. He had said earlier that the talks had finalised by about 8 or 9 p.m. He had got the draft prepared from Basdeo, petition writer in order to save time. He had to go to Hapur in connection with his timber business. He had to go to Hapur in connection with his timber business. He purchases beams and takhtas from Hapur and brings the articles in a truck. He did not go to Hapur for this purpose every day but he had to go once in a week or two weeks. As he had to go to Hapur on 17th January, he got the draft of the agreement prepared on the previous evening. On 17th January he and Allah Mehar went to the house of Suresh Chandra Sharma and brought the stamp. According to D.W. 1 Kishan Lal Narang, only, Allah Mehar had gone to bring the stamp. The stamp was purchased in the name of Allah Mehar. It was Allah Mehar who signed the register of the stamp vendor and not he. He had no meeting with defendant No. 1 between 17-1-72 and the allotment of the house in favour of the plaintiff. The allotment was made on 15-3-73. Ex. B-1 is the copy of the application dated 21-3-73 given by defendant No. 1 for the cancellation of the allotment order. Ex. B-3 is the copy of the order dated 30-3-73 whereby the allotment order was cancelled in the presence of the allottee and the owner. He later on said that he met Kishan Lal Narang 5 or 6 days prior to the agreement dated 5-4-73. He had no talk with him earlier but only Dua Salam used to take place. No talk took place regarding the sale of the house. Allah Mehar told him about a month prior to the execution of the agreement that he did not went to take the house but he did not tell him about the agreement in favour of the plaintiff. He had no knowledge of the agreement of sale in favour of the plaintiff prior to 5-4-73. There was no quarrel between him and the plaintiff regarding the said agreement of sale. In para 5 of the additional pleas of the written statement filed by defendant No. 1, there was a reference to a quarrel between the plaintiff and defendants 2 to 4 when the latter came to know about the agreement of sale in favour of the plaintiff. 18A. D.W. 3 Khurshid Alam proved the execution of the agreement of sale dated 17-1- 72 and his signature as a marginal witness. 18A. D.W. 3 Khurshid Alam proved the execution of the agreement of sale dated 17-1- 72 and his signature as a marginal witness. He stated that the agreement of sale was executed at the house of Kishan Lal. The agreement was scribed from a draft prepared earlier. The witness was a partner of defendant No. 2 Mohd. Hanif in some business in 1974-75. He was Chairman of the Municipal Board and in 1968 he had given a lease of Municipal Board land to a brother of defendant No. 2. He stated that the agreement was read over after it was executed. When an agreement is scribed on the basis of a draft, it is the draft which is read over earlier and finally approved before the agreement is scribed. The talk of an agreement of sale did not take place in his presence. He did not remember if the agreement was put down with a fountain pen or with a pen and ink. He did not remember if a Bangladesh stamp was affixed at that time. He denied that he became a witness of a fabricated document and came forward to make a false statement on account of his close relationship with defendant No. 2. 19. D.W. 2 Krishna Prasad was examined to corroborate the version of defendant No. 1 that on 6-3-72 plaintiff and Allah Mehar came to him and told him that the defendant did not want to purchase the house and he could execute the agreement of sale in favour of the plaintiff. He stated that Allah Mehar had told the defendant No. I that the earlier agreement dated 17-1-72 was with Mohd. Hanif and he had gone out. Allah Mehar had taken him to the house of Kishan Lal Narang as he was going there to persuade him for another agreement of sale. The witness told Kishan Lal Narang that as Allah Mehar was not prepared to purchase the property, he should give it to the plaintiff. He did not remember the month or the season. He did not remember if it was the beginning or the end of 1972. He knows English months. He is a teacher in a Municipal School. He denied that he came forward to depose falsely even though he never accompanied to the place of Kishan Lal Narang. 20. He did not remember the month or the season. He did not remember if it was the beginning or the end of 1972. He knows English months. He is a teacher in a Municipal School. He denied that he came forward to depose falsely even though he never accompanied to the place of Kishan Lal Narang. 20. The Additional Civil Judge has rightly refused to piece reliance on the statement of D.W. 2 Krishna Prasad and D.W. 3 Khurshid Alam. There are discrepancies in the statements of D.W. 1 Kishan Lal Narang and D.W. 4 Mohd. Hanif. There are, however, circumstances which are very material. Firstly the agreement dated 17-1-72 is said to have been scribed by defendant No. 1 Kishan Lal Narang. The agreements dated 6-3-72 and 5-4-73 were scribed in due course by the scribes. There is much force in the contention that no professional scribe was ready to scribe a document in a back date and, therefore, the executant himself had scribed the agreement. Secondly, the stamp of the agreement of sale was in the name of Allah Mehar. Defendant No. 2 Mohammad Hanif and defendant No. 3 Habibul Rahman are real brothers. Defendant No. 4 Dost Mohammad is also close to them. Defendants 2 to 4 had obviously th share in the house. They wanted to purchase the house and had the stamp been purchased on 17-1-72, the same would have been purchased in the name of Mohd. Hanif who is said to have accompanied Allah Mehar for purchasing the stamp. What is more probable is that at the time the agreement was fabricated, no stamp of 17-1- 72 could be available and Allah Mehar had a stamp of that date. The stamp was, therefore, obtained from him and he was fraudulently joined as one of the prospective vendees. Thirdly, in the agreement of sale dated 17- 1-72 vide copy Ex. B-5. it was specifically mentioned.: "Moheeda Awwal Hai". In the normal course there is no recital of such a nature in the agreement of sale. The recital was deliberately made because it was known that the agreement was bring forged, fabricated and ante-dated. Fourthly, the statement of D.W. 2 Mohd. Hanif regarding getting the draft prepared from Basdeo, petition writer earlier as he had to go to Hapur next day does not inspire confidence. The recital was deliberately made because it was known that the agreement was bring forged, fabricated and ante-dated. Fourthly, the statement of D.W. 2 Mohd. Hanif regarding getting the draft prepared from Basdeo, petition writer earlier as he had to go to Hapur next day does not inspire confidence. Had the agreement been executed in due course, he could have postponed his visit to Hapur by a day and the agreement could have been executed in the Tahsil itself. Fifthly, in the agreement of sale dated 6-3- 72 vide Ex. 1, no mention was made of the agreement of sale dated 17-1-72 or the representation made by Allah Mehar who is said to have gone along with the plaintiff and told defendant No. 1 that the prospective vendees of the agreement of sale dated 17-1- 72 did not want to purchase the property. There is no reason why defendant No. 1 should not have contacted the contesting defendants 2 to 4. According to para 5 of the additional pleas of the written statement filed by defendant No. 1, he could not contact the defendlants 2 to 4 as they were not at Bulandshahr. The statements of D.W. 1 Kishan Lal Narang and D.W. 4 Mohd. Hanif, however, show that defendants Nos. 2 to 4 were very much at Bulandshahr. The entire story about the representation made by Allah Mehar to defendant No. 1 is a cock and bull story. No reasonable person could have acted on the representation made by Allah Mehar without any reference to defendants Nos. 2 to 4. It was not mentioned in the agreement dated 6-3-72 that it was the second agreement. Sixthly, had Allah Mehar made any representation to defendant No. 1, he would have returned the original agreement of sale but he did not do so on the ground that it was with defendants 2 to 4. As a reasonable and prudent person defendant No. 1 could not have accepted the assurance of Allah Mehar that he would rerun the agreement soon thereafter and he should have contacted defendants Nos. 2 to 4 who were in possession of the agreement. Had there been any such genuine agreement, he would have certainly done so. Seventhly, the sum of Rs. 500/- was not refunded to the prospective vendees of the agreement of sale dated 17-1-72 on 6-3-72 or on any date subsequent thereto. Ex. 2 to 4 who were in possession of the agreement. Had there been any such genuine agreement, he would have certainly done so. Seventhly, the sum of Rs. 500/- was not refunded to the prospective vendees of the agreement of sale dated 17-1-72 on 6-3-72 or on any date subsequent thereto. Ex. B-9 is a receipt given by Allah Mehar on 19-3-73 on receipt of Rs. 125/- from defendants Nos. 2 to 4. This receipt also appears to be a fictitious document. Eighthly, no mention was made in the agreement of sale dated 5-4-73, Ex. B-8 that this agreement was being executed in supersession of the agreement dated 17-1-72 as Allah Mehar was no longer interested in purchasing the house. The earlier agreement of sale was only referred at the end of the agreement for adjusting Rs. 500/- as earnest money given at that time. Ninthly, even though defendant No. 5 Allah Mehar supported the case of defendant No. 1, he did not support the version of defendant No. 1 regarding the role played by him in the execution of the agreement of sale in favour of the plaintiff. He was a material witness. The Additional Civil Judge has rightly criticised his non-production. Had he come in the witness box, it could have been known as to whether he ever wanted to purchase the house along with other defendants or why he gave up his intention to purchase the house. The entire story regarding Allah Mehar at any point of time being a prospective vendee is a concocted one. Lastly, defendant No. 1 and defendant No. 2 met several times after the agreement of sale dated 17-1-72. Defendant No. 2 must have known that there was a restriction on the transfer of property and permission had to he obtained from the Commissioner. There is no evidence to show that at any time defendants Nos. 2 to 4 asked defendant No. I either orally or in writing to obtain the permission from the Commissioner in pursuance of the agreement dated 17-1-72. Had there been any genuine agreement they would have done so. 21. For the reasons given above, I hold that the agreement of sale dated 17-1-72 was a forged, fabricated and ante-dated document. 22. The second point for determination in this appeal is as to whether the plaintiff or defendant No. 1. Had there been any genuine agreement they would have done so. 21. For the reasons given above, I hold that the agreement of sale dated 17-1-72 was a forged, fabricated and ante-dated document. 22. The second point for determination in this appeal is as to whether the plaintiff or defendant No. 1. had to obtain permission from the Commissioner as provided in Section 3(5) of U.P. Act No. 36 of 1972 as amended by U.P. Act No. 45 of 1972 which came into force on 31st Dec., 1972. 23. Section 3(5) of U.P. Act 36 of 1972 provided as below:- "Notwithstanding anything in this section, the Commissioner of the Division on being satisfied that the present market value of urban property held by a by person along with members of his family on April 1, 1969, as well as on the date of commencement of this Act does not exceed two lakhs of rupees, may permit him to transfer the whole or part of such property. Explanation-In this sub-section, `family' in relation to a person, means his or her spouse and minor sons and daughters, (other than married daughters)". 24. A perusal of the provision, shows that application for permission had to be given by the vendor and not by the vendee. 25. In para 4 of the plaint, it was alleged that defendant No. 1 told the plaintiff that he would try to get the permission to execute a sale deed from the Commissioner but he did not do so. 26. In para 4 of the written statement filed by defendant No. 1, para 4 of the plaint was not admitted. 27. In the additional pleas raised by defendant No. 1 it was not specifically alleged that plaintiff had told him that he would obtain the permission from the Commissioner. 28. Order 8, Rule 5(1) C.P.C. provides : - "Every allegation of fact in the- plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of defendant, shall be taken to be admitted except as against a person under disability : Provided that the Court may in its discretion require any fact so admitted to be proved otherwise than by such admission." 29. In Dr. In Dr. Jagjit Singh v. Giani Kartar Singh, AIR 1966 SC 773 , it was held that it is open to the Court to exercise its discretion and require a party to prove a fact even though an admission of the said fact by the opponent can be inferred by the strict application of 0. 8, R. 5 C.P.C. No such order was passed by the Court. 30. In view of the provisions of O. 8, R. 5(1) C.P.C., the allegation made by the plaintiff in para 4 of the plaint shall be taken to be admitted against defendant No. 1 who was not suffering from any disability. 31. Sri Murlidhar placed reliance on certain cases in support of his contention that if a permission had to be obtained before execution of the sale deed, it was the duty of defendant No. 1 to have obtained the same. 32. In Moti Lal v. Nanhe Lal, AIR 1930 PC 287 , it was held that in an agreement of sale there is an implied covenant on the part of the vender to do all things necessary to effect the transfer. This would include an application under Section 59(1) of the Central Provinces Tenancy Act. 1920 to the Revenue Officer to sanction the transfer. 33. In Nathulal v. Phool Chanel, AIR 1970 SC 546 , it was held that where by a statute a property is not transferable without the permission of the authority, an agreement to transfer the property must be deemed to be subject to the implied condition that the transferor will obtain the sanction of the authority concerned. 34. In Ved Prakash v. Shishupal Singh, AIR 1984 All 288 , this Court considered the provisions of U.P. Act 36 of 1972. It was held that the responsibility for obtaining the permission was on the vendor. 35. Dr. Gyan Prakash submitted that there was no restriction on transfer of property at the time of agreement dated 6-3-72. The restriction was imposed on 11th July 1972. As there was no restriction on transfer of immoveable property at the time of the agreement, there could be no statutory duty, on the part of defendant No. 1 to obtain the permission. The parties could agree that permission would be obtained by the vendee. 36. I am unable to accept the contention of Dr. As there was no restriction on transfer of immoveable property at the time of the agreement, there could be no statutory duty, on the part of defendant No. 1 to obtain the permission. The parties could agree that permission would be obtained by the vendee. 36. I am unable to accept the contention of Dr. Gyan Prakash that the imposition of restriction on transfer of immoveable property after the agreement made any difference. It was the duty of the vendor to obtain the required permission. If there was any restriction at the time of the agreement itself, it would be the duty of the vendor to obtain such permission even if the restriction on transfer had been imposed after the agreement. Firstly, the permission had to be obtained as the execution of the sale deed could be done only after the permission. Secondly, under the provisions of Section 3(5) of U.P. Act No. 36 of 1972 only the vendor could apply for permission. Thirdly, there was no pleading by defendant No. 1 that after the restrictions on the transfer of immoveable property were imposed, it was agreed between the parties that the plaintiff would obtain the permission. 37. P.W. 1 Hashmuddin stated that after the agreement the restrictions on transfer were imposed, that he had talk with defendant No. 1 and that he told him that he would obtain the permission. He further stated that defendant No. 1 did not actually obtain any permission and the sale deed could not be executed before 28-2-73. In his cross-examination, he stated that he had talks with defendant No. 1 regarding the permission, that defendant No. 1 kept on putting off the matter, and that he used to tell him that he would go to Meerut on such and such date or such and such date, that he did not give any written notice to defendant No. 1 and that defendant No. 1 never told him that he had given any application to the Commissioner, Meerut Division. 38. 38. D.W. 1 Kishan Lal Narang stated that after the restrictions were imposed, he told the plaintiff that permission had to be obtained that the plaintiff told him that he should not bother, that the plaintiff obtained his signature on a Vakalatnama and a form of application for being moved before the Commissioner, Meerut Division and that he told him that he would go to Meerut for this purpose. In his cross-examination, he stated that the plaintiff obtained his signatures on 15-12-72 when none else was present. He admitted that he made no mention of these facts in the written statement: After 28-2-73 he went to Meerut and found out that no application had been given. He had gong to Meerut on 21-3-73. 39. The plaintiff gave an application for temporary injunction on 31st May 1973. He filed an affidavit in support of the application. Annexure A (Paper No. 9-ga) is the copy of an application dated 12-4-73 given by defendant No. 1 to the Commissioner, Meerut Division for the requisite permission. Had defendant No. 1 been keen to honour the agreement of sale with the plaintiff, he could have given such an application before 28-2-73. 40. Dr. Gyan Prakash placed reliance on Ex. A-4, copy of the plaintiffs notice dated 17-2-73. It was decided (recited?) :- "Bainama 28-2-73 E.tak tahrir hona tha magar hukm sarkar se bainamon ka tahrir hona rok diya gaya hai jiski babat ijazat commissioner saheb hasil ki ja rahi hai. Bainama khulne par ya ijazat commissioner mime par jo bhi waqya pahle ho jayega uske andar tin din ke bainama kara lenge". 41. I am unable to accept the contention of Dr. Gyan Prakash that the words "Jiski babat ijazat Commissioner Saheb hasil ki ja rahi hai" mean that it was agreed between the parties that the plaintiff would obtain the permission or that plaintiff meant by these words that he had given application for permission. I have referred to the statement of P.W. 1 Hashmuddin which shows that defendant No. 1 had told him that he would obtain the permission and every time he used to tell him that he would move the application for permission on such and such date or such and such date. The plaintiff could very well assume that defendant No. 1 was taking the necessary steps for permission on the basis of the assurances given by him. The plaintiff could very well assume that defendant No. 1 was taking the necessary steps for permission on the basis of the assurances given by him. By no stretch of imagination, an inference can be drawn that the plaintiff has taken steps for obtaining the permission from the commissioner. 42. Even if the contention of Dr. Gyan Prakash is correct and the said recital in the notice amounts to an admission, the record shows that the admission was erroneous. 43. In Nagubai v. B. Shama Rao, AIR 1956 SC 593 , it was held that admission is not conclusive. It can be shown to be erroneous or untrue so long as the person to whom it was made had not acted to his detriment. 44. In A.P. Bhargava v. B.S. Bhargava, 1957 All LJ 350 : AIR 1957 All 1 (FB), it was held that the effect of a previous admission can be removed by proving facts which go to show that the admission was erroenous. 45. Before referring to the facts which go to show that the admission was erroneous, I may make a note of the statement of D.W. 1 Kishan Lal Narang that the plaintiff obtained his signature on a Vakalatnama and a form of application on 25-12-72. A perusal of U. P. Act 36 of 1972 would show that there was no provision for such a permission when the Act came into force on 11th Sept. 1972. This provision was introduced for the first time by U.P. Act No. 45 of 1972 which amended U.P. Act No. 36 of 1972 and introduced sub- clause (5) in Section 3 with effect from 31-12-72. There could be no question of the plaintiff having gone to defendant No. 1 on 25-12-72 with a form of application or Vakalatnama for his signature. The statement of D.W. 1 Kishan Lal Narang on this point is totally false. 46. The relevant facts which go to show that the alleged admission was erroneous are :- (1) Defendant No. 1 did not specifically refute the plaintiffs allegation that he had promised to obtain the permission. (2) Defendant No. 1 did not specifically allege in the written statement that the plaintiff had agreed to obtain the permission from the Commissioner, Meerut Division. The relevant facts which go to show that the alleged admission was erroneous are :- (1) Defendant No. 1 did not specifically refute the plaintiffs allegation that he had promised to obtain the permission. (2) Defendant No. 1 did not specifically allege in the written statement that the plaintiff had agreed to obtain the permission from the Commissioner, Meerut Division. (3) Under Section 3(5) of U.P. Act 36 of 1972, the permission could be obtained by defendant No. 1 and not by the plaintiff. (4) There is no reliable evidence to show that the plaintiff ever obtained the signature of defendant No. 1 on any application or Vakalatnama. (5) The statement of D.W. 1 Kishan Lal Narang shows that when he went to Meerut on 21-3-73, he found that no application for permission had been given. (6) The application for permission was actually given by defendant No. 1 on 12-4-73 vide Annexure A referred to above. 47. I, therefore, hold that the plaintiffs version is correct, that defendant No. 1 had agreed to obtain the permission, that the recital referred to in the notice Ex. A-4 does not amount to an admission that the plaintiff had moved an application for permission before the Commissioner, Meerut Division, that the aforesaid recital was based on the assurances given by defendant No. 1 and that even if it was an admission, as alleged; it has been proved to he erroneous. 48. The third point for determination in this appeal is as to whether time was of the essence of the contract. 49. The agreement of sale dated 6-3-72 provided that the sale deed would be executed by 28-2-73. Section 55 of the Contract Act provides- "When a party to a contract promises to do a certain thing at or before a specified time, or certain things at or before specified times, and fails to do any such thing at or before the specified time, the contract or so much of it as has not been performed, becomes viodable at the option of the promisee, if the intention of the parties was that time should be of the essence of the contract." 50. The fixation of a period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. See Jamshed Kodaram Irani v. Burjorji Dhunjibhai, AIR 1915 PC 83 . 51. The fixation of a period within which the contract has to be performed does not make the stipulation as to time the essence of the contract. See Jamshed Kodaram Irani v. Burjorji Dhunjibhai, AIR 1915 PC 83 . 51. If the contract relates to the "sale of immovable property, it will be normally presumed that time is not of the essence of the contract. Sri Murlidhar relied upon Gomathinayagam Pillai v. Palaniswami Nader, AIR 1967 SC 868 , Govind Prasad Chaturvedi v. Hari Dutt Shastri, AIR 1977 SC 1005 , Govind Lai v. C.K. Sharma, AIR 1978 All 446 and Ved Prakash v. Shishupal Singh, AIR 1984 All 288 . 52. Dr. Gyan Prakash placed reliance on the following observations made in Gomathinayagam Pillai v. Palaniswami Nader, AIR 1967 SC 868 (supra) at p. 871 : "Intention to make time of the essence, if expressed in writing, must be in language which is unmistakable : it may also be inferred from the nature of the property agreed to be sold, conduct of the parties and the surrounding circumstances at or before the contract. Specific performance of a contract will ordinarily be granted, notwithstanding default in carrying out the contract within the specified period, if having regard to the express stipulations of the parties, nature of the property and the surrounding circumstances, it is not in-equitable to grant the relief. If the contract relates to sale of immovable property, it would normally be presumed that time was not of the essence of the contract. Mere incorporation in the written agreement of a clause imposing penalty in case of default does not by itself evidence an intention to make time of the essence." On p. 872, the Supreme Court observed :- "It is true that even if time was not originally of the essence, the appellants could by notice served upon the respondent call upon him to take the conveyance within the time fixed and intimate that in default of compliance with the requisition the contract will be treated as cancelled. As observed in Stickney v. Keeble, 1915 AC 386 where in a contract for the sale of land the time fixed for completion is not made of the essence of the contract, but the vendor has been guilty of unnecessary delay, the purchaser may serve upon the vendor a notice limiting a time at the expiration of which he will treat the contract as at an end. In the present case appellants 1 and 2 have served no such notice, by their letter dated July 30, 1959 they treated the contract as at an end. If the respondent was otherwise qualified to obtain a decree for specific performance, his right could not be determined by the letter of appellants 1 and 2". 53. Dr. Gyan Prakash referred to the reply notice dated 26-2-73 Ex.A-3/Ex-12 sent by defendant No. 1 to plaintiff. It was said that plaintiff was told a number of times to obtain permission of the Commissioner, that the plaintiff replied that permission would be received shortly, that he was told plainly that he should positively obtain permission before 28-2-73 and obtain the sale deed after which defendant No. 1 would not be liable to execute the sale deed, that it was none of the concern of defendant No. 1 as to whether plaintiff obtained permission or not, that defendant No. 1 was ready to execute sale deed by 28-2-73 and that thereafter plaintiff would not be entitled to obtain the sale deed from him. It was submitted that defendant No. 1 was entitled to make time the essence of the contract by correspondence and he did so by sending the reply notice. 54. The legal position is that in an agreement of sale of immovable property there is a presumption that time is not of the essence of the contract. Whether such a condition exists in a particular case will depend on the intention of the parties and circumstances of the case. 55. The plaintiffs notice dated 17-2-73, vide Ex.A-4 saying that he would obtain sale deed within 3 days of the permission and impliedly seeking extension of time, does not mean that time was of the essence of contract. 56. Apart from reply notice dated 26-2-73, there is no oral or documentary evidence to show that either party intended that time should be of the essence of the contract. 56. Apart from reply notice dated 26-2-73, there is no oral or documentary evidence to show that either party intended that time should be of the essence of the contract. This fact was not specifically pleaded in the written statement filed by defendant No. 1. In para 8 of the additional pleas in the written statement filed by defendant No. 1, all that was said was that the sale deed in favour of plaintiff was to be executed by 28-2-73. No issue was pressed on the plea. D.W. 1 Kishan Lal Narang did not say so in his deposition before the Court below. After the agreement of sale, restrictions on transfers were imposed. 57. The provisions of S. 3(5) of U.P. Act No. 36 of 1972 show that defendant No. 1, the vendor alone and not the plaintiff, the vendee could obtain permission. 58. In Govind Lal v. C.K. Sharma, AIR 1978 All 446 , condition No. 3 of the agreement of sale provided that mortgage deed in favour of G. Alphanzo was to be cleared and paid by the vendors before the execution of sale deed. The sale deed was to be executed in 6 months. It was held that in such a case time could not be of the essence of the contract. 59. In the present case permission had to be obtained by defendant No. 1 before executing the sale deed. This was a condition precedent to the execution of sale deed. How could defendant No. 1 take the stand that it was no concern of his as to whether a permission was obtained or not? The decision in Govind Lal v. C.K. Sharma (supra) is applicable and time could not be of the essence of the contract. 60. The Additional Civil Judge has rightly held that time was not of the essence of the negative. 61. The fourth point for determination in this appeal is as to whether the doctrine of frustration is applicable. Sec. 56 of the Contract Act provides- "An agreement to do an act impossible in itself is void. A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. Sec. 56 of the Contract Act provides- "An agreement to do an act impossible in itself is void. A contract to do an act which, after the contract is made, becomes impossible, or, by reason of some event which the promisor could not prevent, unlawful, becomes void when the act becomes impossible or unlawful. Where one person has promised to do something which he knew, or, with reasonable diligence, might have known, and which the promisee did not know to be impossible or unlawful, such promisor must make compensation to such promisee for any loss which such promisee sustains through the non-performance of the promise". 62. In Satyabrata Ghose v. Mugneeran Bengur and Co., AIR 1954 SC 44 , it was held that doctrine of frustration is really an aspect or part of the law of the discharge of the contract by reason by supervening impossibility or illegality of the act agreed to be done and hence comes within the purview of Section 56 of the Contract Act. 63. In Sushila Devi v. Hari Singh, AIR 1971 SC 1756 , it was held on p. 1759: "The impossibility contemplated by S. 56 of the Contract Act is not confined to something which is not humanly possible. If the performance of a contract becomes impracticable or useless having regard to the object and purpose the parties had in view then it must be held that the performance of the contract has become impossible. But the supervening events should take away the basis of the contract and it should be of such a character that it strikes at the root of the contract". 64. In Ved Prakash v. Shishupal Singh, AIR 1984 All 288 , this Court considered the effect of the restrictions imposed on the transfer of property by U.P. Act No. 36 of 1972. It was held that it was the duty of defendant-appellant to obtain permission for transfer. There was no absolute bar on transfer. Relying on Boothalinga Agencies v. V.T.C. Poriaswami Nadar, AIR 1969 SC 110 , it was held that the doctrine of frustration does not apply to a self induced frustration. 65. In this case also the position was similar. Defendant No. 1 did not apply before the Commissioner prior to 28-2-73 for permission to sell. The doctrine of frustration could not be pleaded for his own inaction. I decide the point in the negative. 66. 65. In this case also the position was similar. Defendant No. 1 did not apply before the Commissioner prior to 28-2-73 for permission to sell. The doctrine of frustration could not be pleaded for his own inaction. I decide the point in the negative. 66. The fifth point for determination in this appeal is as to whether the plaintiff is entitled to specific performance of the agreement of sale. 67. The recitals in the plaint and the statement of P.W. 1 Hashmuddin clearly show that the plaintiff was and had been ever willing and ready to perform his part of the contract. He went to the office of the Sub-Registrar on 28-2-73. Ex. 3 is the copy of the application given by him before the Sub-Registrar between 2 P.M. and 3 P.M. Ex. A-2 is the copy of the application given by defendant No. 1 during the same period. Ex. A-1 is the copy of the application given by defendant No. 1 between 3 P.M. and 4 P.M. Ex. 2 is the copy of the application given by the plaintiff between 3 P.M. and 4 P.M. In the application Ex. 3 given by the plaintiff, it was clearly mentioned that he had come prepared with the balance of the sale consideration. In the application Ex. 2 it was also mentioned that in case the execution of the sale deed and its registration was possible, he was prepared to get the sale deed executed and registered. P.W. 1 Hashmuddin stated that Kishan Lal Narang asked him to obtain the sale deed without permission and he replied that in case it was permissible, he was willing. Both the plaintiff and defendant No. 1 had given two applications each between the same time i.e. between 2 P.M. and 3 P.M. and between 3 P.M. and 4 P.M. on 28-2-73. It is not possible to believe the statement of D.W. 1 Kishan Lal Narang that he did not meet the plaintiff on 28-2-73. Defendant No. 1 is an unscrupulous person. After the agreement in favour of the plaintiff, he began negotiating with other persons. The notice Ex. A-4 dated 17-2-73 was given by the plaintiff to Saghir Mohammad and also Bashir Mohammad besides defendant No. 1 Kishan Lal Narang. Defendant No. 1 is an unscrupulous person. After the agreement in favour of the plaintiff, he began negotiating with other persons. The notice Ex. A-4 dated 17-2-73 was given by the plaintiff to Saghir Mohammad and also Bashir Mohammad besides defendant No. 1 Kishan Lal Narang. It was mentioned that plaintiff had come to know that defendant No. 1 did not want to execute the sale deed in his favour and he warned to execute the sale deed in favour of the other two persons. Defendant No. 1 actually entered into an agreement of sale with defendants Nos. 2 to 4 on 5-4-73. He also applied for permission to the Commissioner, Meerut Division on 12-4-73. He set up a fictitious, forged and ante-dated agreement of sale dated 17-1-72 to support the case of defendant No. 1. I am unable to accept his version that the plaintiff was not ready and willing to perform his part of the contract as he had no ready money. I hold that the plaintiff was ever ready and willing to perform his part of the contract. 68. In view of my findings above, I am of the opinion that the Additional Civil Judge erred in refusing the decree for specific performance of the agreement of sale and in passing the decree only for the refund of the earnest money. 69. The appeal is allowed and the judgment and decree passed by the court below are set aside. The suit for specific performance of the agreement of sale dated 6-3-72 executed by defendant No. 1 in favour of the plaintiff is decreed. The plaintiff is directed to deposit Rs. 19,000/- and expenses for stamp and registration in the court below within a month. Defendant No. 1 is directed to execute the sale deed in favour of the plaintiff within a week thereafter. The expenses for stamp and registration will be borne by the plaintiff. Defendants 1 to 4 are further directed to deliver possession over the house to the plaintiff within the same period. In case of default the plaintiff would be entitled to get the sale deed executed by the Court and also obtain possession over the house through the Court. The plaintiff will get the costs of both the Courts from defendants Nos. 2 to 4.