MAULVI ANWARUL HAQ, J.--- On 10-4-1999 the respondent filed a suit against the appellant. In the plaint, it was stated that the appellant is the owner of the property mentioned in para.1 of the plaint, which is in the form of a shop. He agreed to sell the suit shop to the respondent for a consideration of Rs,8,10,000. A sum of Rs,2,00,000 was paid as earnest and the receipt was acknowledged by the appellant while executing agreement, dated 23-8-1998. According to the terms, Rs,1,00,000 were to be paid on 15-9-1998, another Rs,1,00,000 were to be paid on 15-10-1998 while the balance was to be paid upto 23-12-1998 whereupon the sale-deed was to be executed and registered in favour of the respondent. It is stated in the plaint that not only did the respondent pay the said further amount of Rs,2,00,000 but also on the demand of the appellant paid him Rs,90,000. Thus, leaving a balance of Rs,3,20,000. This amount was tendered for payment but the appellant sought extension of time and the parties agreed to complete the transaction by 11-1-1999. A second agreement was accordingly executed on 23-12-1998. According to the respondent, he was always ready and willing to perform his part of the agreement but the appellant has refused to do so. A decree for specific performance was accordingly prayed for. The appellant filed his written statement. He admitted the execution of agreement, dated 23-8-1998. However, he stated that the consideration was Rs,7,10,000 and similarly the amount of earnest paid was Rs,1,00,000. He also admitted the execution of the second agreement, dated 23-12-1998 and the receipt of the further amounts as alleged. He took the plea that since the appellant failed to tender the balance amount by 11-1-1999, the agreement has come to an end as time was of the essence of the contract. Issues were framed. Evidence of the parties was recorded. The learned trial Court decreed the suit on 18-12- 2002. A learned Additional District Judge, Sheikhupura, dismissed the first appeal, filed by the appellant, on 15-3-2003.
2. Learned counsel for the appellant contends that the learned Courts below failed to read the second agreement Exh. P.S. According to him, the terms were specific and the respondent had to raise a wall before the said date, which was not done by him. He also relies on the statement of D.W.2 to urge that the evidence on record has been misread. Learned counsel for the respondent, on the other hand, vehemently argues that this is a case where all the facts stand admitted and a reading of the said second agreement itself would show that time was not of the essence of the contract.
3. I have gone through the records of the learned trial Court, with the assistance of the learned counsel for the parties. I have already reproduced above the material contents of the pleadings. It will be seen that there is no dispute as to execution of the two agreements i,e, Exh.P.4 and Exh.P.5 as also receipt of the several amounts mentioned therein. The plea of the respondent that the consideration amount was Rs,7,10,000 and not Rs,8,10,000 and similarly the amount of earnest was Rs,1,00,000 and not Rs,2,00,000 has rightly been disbelieved by the learned Courts below in the face of the said admitted documents. Even otherwise nothing turns on the said plea as parties are ad idem that the balance amount payable is Rs,3,20,000 and this amount stands deposited in the trial Court pursuant to an interim order passed by it.
4. Coming to the said contentions of the learned counsel for the appellant, I have examined both the agreement i,e, Exh.P.4. And Exh.P.5. Vide Exh.P.4 dated 23-8-1998, the transaction was to be completed by 23-12-1998. It is admitted on all hands that it was the appellant who requested for extension as some requisite documents were not obtained by arid the request was granted by the respondent. It is so written in Exh.P.5 admittedly executed by the appellant. It is well-settled that in cases of agreements to transfer immovable property, the time is not normally the essence of the contract. However, where one or the other party takes such a plea then not only the wordings. Of the agreement but attending circumstances are also to be considered to determine as to whether the parties intended time to be of the essence of the contract. To my mind, in the admitted circumstances of the case noted above, the learned Courts below have very correctly concluded that time was not of the essence of the contract in question and that the parties did contemplate the performance within a reasonable time. The suit was filed on 10-4-1999 with the said averments and the amount was deposited in Court under its order on 6-11-1999.
5. So far as the question of construction of said wall is concerned, no such plea has been taken in the written statement and the said D.W.2, namely, Ali Hassan or for that matter, the appellant did not utter a word about any such wall or the failure of the appellant to construct the same in the course of evidence. The R.S.A. Is accordingly dismissed but without any orders as to costs.