' MAULVI ANWARUL HAQ, J.--- On 9-2-2002 the appellants filed a suit against the respondents. After explaining the constitution of the appellants as a Firm and its partners and that of the respondents as a Company and its Directors, it was stated that acting under a resolution passed by the Board of Directors of the Company, the respondent No,3 having been duly authorized, entered into an agreement with the appellants to sell the suit property, described in the plaint, in favour of the appellants for a consideration of Rs, seventy-four crore. An earnest of Rs,3,20,00,000 was paid and the agreement was executed on 1-10-1995. Thereafter, it was stated that although it was stated in the agreement that the possession of the entire land along with the structures and fixtures, etc., total measuring 59 Acres, 5 Marlas had been handed over, in fact, the appellants were put in possession of only 35 Acrs of land. Out of the remaining land 14 Acres were under Labour Quarters which were to be got vacated by the respondents while a 3rd plot measuring 10 Kanals, 9 Marlas was subject-matter of an ongoing litigation which was to be delivered after the decision of Board of Revenue. The remaining land was not delivered being under the Chairman Rest House, Officers Colony and Mill Offices. They were authorized to demolish the structures and to remove the machinery and to sell the same at their will. Regarding the said 14 Acres of land under the Labour Colony, a provision was made in the agreement that the time for performance will be correspondingly enlarged in case of delay in the delivery of possession. After taking over the said partial possession, the structures thereon were removed along with the machinery. These were sold and after adding some personal funds, a total sum of Rs,32,00,00,000 was paid to the respondents. It was then stated that possession of 14 Acres of land under the Labour Colony was delivered towards the end of May, 1998 while the said 10 Kanals, 9 Marlas under litigation still has not been delivered as the litigation is pending. According to the schedule agreed to by the parties in the said agreement dated 1-10-1995, the appellants were required to pay an additional amount of Rs,1,80,00,000 within four months from 1-10-1995. After clearing the liabilities of the respondents vis-a-vis some Bank loans, the balance worked out was Rs,55,34,81,000. The amount above Rs,50,00,00,000 was to be paid within one year of 1-10-1995 while the said remaining Rs, fifty crore were to be paid in two equal instalments on 30-6-1997 and 31-1-1998 i,e, the period of first instalment was eight months w,e,f, 1-10-1996 and the second instalment seven months from 30-6- 1997. However, this was dependent upon the performance of their part of the contract by the respondents. The appellants were always ready and willing to perform their part of the contract and towards this end they cleared all the Bank loans mentioned in the agreement as detailed in para.14 and over and above they made some cash payments to the respondents. However, after the liquidation of the said liabilities and the removal encumbrances upon the property, the respondents started a compaign of avoiding the performance of their part of the contract. They issued letters dated 19-10-1999, 23-10-2000 and 5-1-2001 alleging breach of contract. Particular reference was made to the letter, dated 19-10-1999 whereby the respondents refused to deliver possession of the remaining land to the appellants and claimed damages and further to claim the balance outstanding of amount of Rs,4-,27,77,860. Then there is reference to a notice dated 5-1- 2001 with the averment that the complete possession has not been given whereas the appellants have obtained Railway land on lease facing Shabnam Cinema on Samundari Road and have also const acted a road and have got a Scheme for carving out plots approved from Municipal Corporation but all this has gone waste because of non-delivery of possession of the Officers Colony. They have also got restored all the utilities. It wa's then stated that apart from retaining possession of part of the suit-land, the respondents are also carrying on their business as a sole agent of Lever Brothers Pakistan Limited and are liable to pay mesne profits as they are holding on to the possession in violation of the agreement. Then there is reference to loss suffered because of the non-performance of the agreement by the respondents. The suit being for all purposes one for specific performance, the prayer made therein is couched in terms of a declaration that the agreement is binding upon the parties and the respondents are liable to perform their part of the contract and that the notices issued are without lawful authority and that the appellants are being unlawfully restrained from performing the agreement in accordance with its terms and that the period for payment of the balance amount as agreed shall commence from the date of delivery of the complete possession. The respondents were also called upon to render accounts for using the premises including the machinery and the goods and to adjust the same in the consideration. A decree for specific performance was prayed for accordingly.
2. The written statement was filed by the respondents on 28-2-2002. The execution of the agreement and receipt of earnest was admitted. The terms of the agreement as narrated in the plaint were also admitted. The receipt of a total sum of Rs,31,04,37,529 was also admitted.. However, it was stated that this amount was generated from the sale of the machinery and the building material. Regarding the Labour Quarters, it was stated that they were got vacated on 25-5-1998 and delivered to the appellants. The issuance of the said letter was not only admitted rather it was stated in response to para. 8 of the plaint that the contents of letter dated 19-10-1999 be read as an integral part of the written statement. A detailed statement has been made in response to paras.13 and 14 of the plaint, which have been replied together. Following is the plea taken by the respondents in response to the assertion of the appellants that possession, in fact had not been delivered of the entire property. This contained in clause (vii)(b) of paras.13 and 14 of the written statement on merits:--- "(b) The defendants would also like to record that the permission-granted to the plaintiffs to sell the machinery and building material and to take other steps to float the housing scheme was as a gesture of goodwill which is evident from the fact that the different steps were taken by the defendants to facilitate the plaintiffs to implement the agreement on their part although the defendants were not legally obliged to do the same. In the letter, dated 10-10-1999 the plaintiffs have taken a stand to wriggle out of the agreement by asserting that the defendants have failed to deliver the possession of the property of the Mills under the agreement. The said assertions are misconceived and have no legal sanction as the possession of the property under sale cannot be delivered unless agreed sale price is paid and sale-deed is executed under different clauses of the agreement to sell. From the letter of the plaintiffs dated 10-10-1999 it is reflected that the plaintiffs wanted to get the possession of the entire property without making payment of the sale price and without getting the sale-deed registered which was not the intention of the parties as stated in the agreement to sell dated 1-10-1995."
' In reply to para.15 of the plaint on merits, a vehement denial was recorded that the plaintiffs have possession of any part of the Mills premises. It was further added that the appellants were granted permission only to dismantle the machinery and demolish building of the Mills which activity was abandoned by them since long. It was then clarified that even the said 10 Kanals, 9 Marlas of area under litigation is also in the possession of the respondents. It was also complained that the appellants have sold the machinery, etc. At price higher than one disclosed and that no accounts have been rendered and after a plunder they themselves abandoned the contract. At the same time, they have claimed mark-up on the balance amount due under the contract. In doing so, they have claimed mark-up on the full amount of Rs,twenty-five crore representing the second instalment but so far as the first instalment is concerned, the mark-up has been claimed on what is described as the remaining amount of the first instalment.
3. The learned trial Court framed issues on 29-3-2002. These were later amended and ultimately the parties went on trial on the following issues:---
(1) Whether the plaintiffs have not approached the Court with clean hands? OPD
(2) Whether the plaintiffs have violated the terms and conditions of the impugned agreement to sell and if so, whether the agreement to sell rescin%ed? OPD
(3) Whether the suit is bad for misjoinder and non-joinder of necessary parties? OPD
(4) Whether the defendants are entitled to get the claim balance amount with mark-up at the bank rate? OPD
(5) Whether the plaintiffs have got no cause of action and locus standi and the suit is liable to be dismissed under Order VII, rule 11, C.P.C.? OPD
(6) Whether the defendants violated the terms of contract? OPD
(7) Whether the suit of the plaintiff is within time according to the terms and conditions of the contract? OPP
(8) Whether the plaintiffs are ready to make the payment of balance consideration amount? OPP
(9) Whether the plaintiffs are entitled to get specific performance of agreement to sell? OPP
(10) Relief.
' Evidence of the parties was recorded. Vide judgment and decree, dated 12-6-2004 the learned trial Court dismissed the suit. Issues Nos.2, 6 and 9 were discussed in detail and were decided against the appellants. Issues Nos.1, 3, 4 and 5 were answered against the respondents. Issue No,7 was answered against the plaintiffs but without any reasons except that none of the counsel pressed the issue. Issue No,8 was declared redundant.
3. Mr. Ahmad Waheed Khan, Advocate/learned counsel for the appellants contends that the learned trial Court has failed to read the pleadings of the parties and. Consequently has recorded conclusions under Issues Nos.3, 6 and 9, which cannot be sustained in this first appeal. According to him, the judgment also suffers from misreading and non-reading of the evidence on record particularly in juxta-position to the pleadings of the respondents. Mr. Najam-ul-Hassan Kazmi, Advocate/ learned counsel for the respondents, on the other hand, contends that notwithstanding the state of pleadings on record, the case has to be decided with reference to the terms recorded in the agreement and then the evidence of the parties. He has pointed out to the statements of several witnesses including those produced by the appellants to urge that possession had been delivered but was later abandoned by the appellants and as such they had no reason to withhold the payment of the balance amount of consideration. The learned counsel also is critical of the prayer made in the plaint as according to him the appellants want the Court to re-write the agreement between the parties in the matter of the time schedule for payment of the balance amount of consideration. Learned counsel argues that the plaint and the evidence led by the appellants is tantamount to varying or contradicting the terms of the agreement in writing and this is not permissible under Articles 102 and 103 of the Qanun-e-Shahadat Order, 1984 Relies on the cases of tlazratullah v. District Council, Haripur 1997 SCM R 1570, Bolan Beverages (Pvt.) Limited v.
PEPSICO Inc. And 4 others PLD 2004 SC 860 and Muhammad Akbar Khan v. Sultan Ghani and others 1970 SCM R 696. He vehemently insists that relief of specific performance is dependent upon an absolute readiness and willingness on the part of the plaintiffs, which is absent in the present case.
In the matter of the pleadings of his clients, he refers to the case of Haji Abdul Ghafoor Khan through Legal Heirs v. Ghulam Sadiq through Legal Heirs PLD 2007 SC 433, Gerry's International (Pvt.) Ltd. Through Managing Director v. Messrs Qatar Airways through Area Manager PLD 2003 Kar.
253 and Syed Sadiq Hussain Shah v. Mst. Saban 1988 CLC 678.
4. We have gone through the trial Court record, with the assistance of the learned counsel for the parties. We have already reproduced above the material contents of the pleadings. As noted by us above, the execution of the agreement is undisputed. The receipt of a total amount of Rs,31,04,37,529 is also admitted. The learned counsel for the parties have also taken us through the entire evidence on record bringing to our notice various portions thereof which go to support one or other of the parties according to their learned counsel. The agreement is Exh.P.1. It is a rather elaborate documents spreading over ten pages. After stating the names and status of the respective parties with reference to their authority to enter into agreement, it narrates the description of the property, which stands divided in three plots. Plot No,1 measures 51 Acres, 6 Kanals, 3 Marlas, Plot No,2 measures 6 Acres, 2 Marlas and Plot No,3 measures 1 Acre, 2 Kanals. The total, thus, comes to 59 Acres, 5 Marlas. The subject-matter of the agreement is the said land along with all machinery building of the Factory, Officers Colony, Labour Colony, boundary wall and all utilities. This is the property that was agreed to be sold by the respondents to the appellants. The total consideration settled was Rs, seventy-four crores. The receipt of Rs,3,20,00,000 as earnest vide cheques dated 12-9-1995 (Rs,20,00,000) and 28-9-1995 (Rs,3,00,00,000) is acknowledged. Clause
(1) narrates that possession of the entire factory except land measuring 14 Acres under the servant quarters has been delivered to the appellants with authority to utilize the same or to alienate the same including demolition of the building and sale of material and machinery. Clause (2) narrates the details of the loans from Habib Bank Limited, Factory Area Branch, Faisalabad, NDFC, Faisalabad and Muslim Commercial Bank Circular Road, Faisalabad (MCB). It was stipulated that the appellants shall pay the amount due to NDFC and MCB within 30 days of the agreement which payment shall be made through the appellants and guarantees, etc. Will be redeemed. Regarding the loan of Habib Bank Limited, it was agreed that the schedule for re-payment shall be settled by both the parties with the Bank and the amount due to this Bank will be paid through the sale of machinery, etc. And the property shall be redeemed. The appellant was to pay the mark-up to be accrued from the date of agreement. Clause (2-A) narrates that a sum of Rs,1,80,00,000 will be paid within six months by the appellants to the respondents. After adjusting all these payments, the balance amount was worked out at Rs,55,34,81,000. It appears that this was a tentative calculation and it was provided that whatever amount, which is over and above Rupees fifty-crores will be paid by the appellants to the respondents within one year from the date of the agreement.
Regarding balance Rupees fifty crores, it was agreed that it will be payable in two equal instalments. The first instalment will be paid within eight months after the date of said initial payment and the second instalment within eight months thereafter. The total period was calculated as 27 months w,e,f, 1-10-1995. Clause (3) narrates that 14 Acres of land under the quarters, which has not been delivered shall be got vacated by the respondents within six months at their own expense and possession will be delivered to appellants. It was further stipulated that in case the respondents fail to deliver possession, the payment schedule will be subject to the point of time when the said land is got vacated and delivered. Clause (4) obliges the respondents to pay all the dues of the staff and labour as also income-tax, sales tax, excise duty, etc. Till the date of agreement. Clause (5) is with regard to Plot No,3 and provides that the parties will pursue the matter in Court. However, the expenses will be borne by the respondents. We deem it necessary to reproduce the clause (6) of the agreement hereunder:- {{URDU TEXT}} ' Clause (7) confers all the authorities upon the appellants to get the requisite demarcation, survey and plans approved. Clause (8) confers power upon the appellants to enter into agreements for sale of plots and to receive earnest money and further an undertaking by the respondents to execute the sale-deeds on the asking of the appellants. Clause (9) narrates that the respondents agreed to execute powers of attorney for facilitating the alienation. Clause (10) authorizes the appellants to issue advertisements through media for the sale of the machinery etc. And land.
Clause (11) entitles the appellants to file suits for specific performance on denial of the respondents to execute the sale-deeds, etc. Clause (12) narrates that all expenses pertaining to the said 14 Acres of land till the delivery of possession will be borne by the respondents. Clause (13) obliges the respondents to get all utilities restored. Clause (14) provides for resolution of all matters between the parties regarding the said factory and land till the performance of the contract by Mr. Abdul Rehman for the respondents and Sh. Javed Rafi for the appellants. Clause (15) provides for arbitration in case of dispute.
5. A reading of the said agreement clearly indicates that the matter of possession of the entire land except the Plot No,3 under litigation was of significance in the matter of performance of the terms of the agreement by the parties. This is evident from the provisions with reference to the said 14 Acres of land under the Labour Quarters whereby provision was made for enhancement of the period of performance proportionate to the time spent in getting the land vacated. We have reproduced clause (6) of the agreement above. To our mind the parties did contemplate some other reason as well causing obstruction in the matter of performance of the contract in accordance with its terms and provision was made for extension of time.
6. Mr. Najam-ul-Hassan, Advocate/learned counsel for the respondents wants us to read the agreement and the plaint then to proceed directly to the evidence without considering the written statement filed by his clients. We have already noted in detail above that there is no denial whatsoever rather it has been insisted by the respondents in the written statement that they were not agreeable to hand over possession without first being paid by the appellants. The judgments cited by learned counsel for the respondents as noted above have been examined. All these judgments pertain to an implied admission within the meaning of Order VIII, rule 5, C.P.C. In the present case, nothing has been left to any implication. The pleadings of the parties cannot be stated to be random neither the pleas can be stated to be result of inadvertence. On the other hand, the record clearly shows that the respective stance taken by both the parties was well- considered and, in fact, has been taken long before the commencement of the present litigation in their respective communications to each other. We have already noted above that letter, dated 19- 10-1999 (Exh.P.W.16/8) is to be treated as a part of the written statement itself as stated by the respondents in their written statement. The relevant para. Of the written statement reproduced by us above is, in fact, verbatim reproduction of para.5(b) of the said letter addressed by the respondents to the appellants and repeatedly referred in their written statement. Till date no attempt has been made to amend the written statement. The impugned judgment is completely silent as to the said contents of the written statement although some portions of the pleadings have been reproduced therein. We, therefore, do hold that the respondents not only admitted but insisted in their written statement that the complete possession was not delivered and that it could be delivered only after payment of the amount of consideration as stipulated in the agreement. So far as the oral evidence is concerned, suffice it to say that the plea ultimately taken in the course of evidence that possession was delivered of the entire land could not have been taken or even allowed to be taken being violative of the rule of "Secundum allegata et probata". Reference be made to the case of Amir Shah v. Ziarat Gul 1998 SCM R 593 and Binyameen and 3 others v.
Chaudhry Hakim and another 1996 SCM R 336. We have examined evidence as well and the over all impression we get, is that part of the land including the Mills or Factory was handed over but some part was not so handed over. Now coming to the contention of Mr. Najam-ul-Hassan Kazmi, Advocate, with reference to Articles 102 and 103 of the Qanun-e-Shahadat Order, 1984, we find that it is not at all a case of oral evidence pertaining to any change in the terms of the agreement. So far as the appellants are concerned, they are complaining about the breach of the agreement whereunder they were required to pay the balance amount of consideration after the delivery of entire possession. In fact, it is the case of the respondents in the written statement that the balance amount was to be paid before the delivery of the possession. The precise contention is that possession cannot be delivered without payment of consideration. In the said case of Hazratullah, a condition was pleaded and sought to be proved regarding the closure of a Bus Stand. The entire agreement was reproduced and it was held that no such condition is there in the agreement and could not be added to it on the basis of oral evidence. The judgment in the case of Bolan Beverages (Pvt.) Limited was recorded in a case arising out of an order deciding an application for temporary injunction. The said case of Hazratullah was referred to accordingly in connection with what was being pleaded as an agency agreement. In the said case of Muhammad Akbar Khan, some land was sold by Muhammad Akbar Khan to the respondents in the said case by means of a registered sale-deed which narrated that the entire amount of consideration has been paid. The respondents filed a suit for possession of the land sold. Initially, the appellant before their Lordships admitted the receipt of balance amount of consideration. However, later he got his written statement amended to urge that no amount of consideration has been received. With reference to all the attending circumstances and the peculiar facts of the said case, it was held that the said Muhammad Akbar Khan is bound by the recital in the sale-deed notwithstanding the alteration in the amount of consideration.
7. To our mind, the rule laid down in the said cases with reference to the facts thereof is not attracted to the present case. The said provision of law bars any variation in the terms of the contract on the basis of oral evidence. In the present case, the fact that the entire possession was not delivered stands admitted in the written statement itself. The receipt of a sum of Rs,31,04,37,529 is admitted. There is also no denial that all the Banks have been paid off. The admitted receipts leave the balance less than Rs,fifty crores. We, therefore, do find that the appellants were ready and willing to perform their part of the contract and were prevented from performing the remaining part in view of non-delivery of possession of the entire land as agreed to by the parties.
The findings on Issues 2, 6 and 9 are accordingly reversed. So far as Issue No,7 is concerned, even going by the pleadings of the parties, the date stipulated for performance has yet not expired and there is no question of the suit being barred by time. We have already noted above that the learned trial Court has proceeded to decide the issue against the appellants only for the reason that none of the counsel has pressed the same. Other issues have already been answered by the learned trial Court against the respondents and the findings have not been agitated before us. The R.F.A. Is accordingly allowed. The impugned judgment and decree dated 12-6-2004 of the learned trial Court is set aside and the suit filed by the plaintiffs-appellants against the defendants- respondents is decreed. Coming to the question of relief, we have already referred to all the contents of agreement (Exh.P.1) above. It is certainly an extraordinary document. We have already held above that the payment of the remaining amount of consideration is dependent upon the delivery of the entire land. We, therefore, direct that the respondents shall immediately deliver possession of the entire land subject-matter of the agreement (Exh.P.1). This will be simultaneously followed by the payment of the remaining amount of the first instalment i,e, Rs,17,95,62,471 while the second and the last instalment of Rupees twenty-five crores shall be paid seven months after the said date when the possession is delivered and the said first instalment is paid. While so ordering we are taking into account the time taken by this litigation. Upon delivery of possession and the payment of the entire amount, the agreement shall be performed on its terms by the parties.
8. The records be remitted back immediately.