' NISAR HUSSAIN KHAN, J.---In this revision petition, judgment and decree of learned Additional District Judge-I, Bannu, dated 2-6-2011, has been challenged by the petitioner, whereby his appeal against the judgment and decree of learned Civil Judge-V, Bannu, dated 28-10-2010, was dismissed.
2. The brief facts giving rise to the instant petition are that, Haji Shah Alam Khan respondent filed a suit for specific performance of the contract, against the petitioner with regard to the suit property, mentioned in the- heading of the plaint, on the basis of an agreement, dated 2-11-2008. The suit was contested by the petitioner-defendant, on variety of grounds, factual as well as legal, by filing written statement. Both the parties were invited to adduce evidence in support of their respective stance, which they did. On conclusion of trial, the suit of respondent was decreed by learned. Civil Judge, Bannu, against which, petitioner filed appeal, which was dismissed by learned Appellate Court, with some modification, whereby, relief of possession to the respondent, was declined.
Hence, this revision petition.
3. Learned counsel for the petitioner argued that agreement was executed between the parties on 2-11-2008 and balance amount of sale consideration was agreed to be paid within a period of one and half month, but the respondent has failed to comply with the terms and conditions of the agreement, so the suit is liable to be dismissed, as time was the essence of the contract; that defendant specifically raised such plea in his written statement. He maintained that consequential relief has not been sought, so the suit was also liable to be dismissed on this score, ' as well; that agreement so executed, between the parties is uncertain, so is not executable, as description of the property is not mentioned in the agreement.
4. Conversely, learned counsel for the respondent while responding to the arguments of the learned counsel for the petitioner, argued that DW.1, has accepted the execution of the agreement in respect of the suit, property, so the objection with regard to un-certainty of agreement, is not tenable. He maintained that the agreement pertains to sale of immovable property, to which, principle; time being essence of the contract, is not applicable. He maintained that receipt of huge amount of Rs,20,70,000 is admitted by the petitioner, so the concurrent findings of facts, recorded by both the Courts below, may not be interfered with, by the High Court, in its revisional jurisdiction.
5. Arguments of the learned counsel for the parties heard and record perused with their valuable assistance.
6. The perusal of pleadings of the parties divulge that execution of agreement, as alleged by the plaintiff-respondent, is not denied by the petitioner-defendant, in his written statement, so it is an admitted position that the agreement was executed between parties on 2-11-2008. Likewise, the description of the property, given by the plaintiff in his plaint, has also not been disputed by the defendant-petitioner, in his written statement. Rather he has gone a step ahead by disclosing that Mutations Nos. 2729, 2730, 2731 and 276, were entered on his behalf in pursuance of the said agreement and that the property mentioned in the plaint, ,the same, which is recorded in the said mutations. In view of this unequivocal admission of the defendant in his pleadings, it needs no proof in terms of Art.113 of the Qanun-e-Shahadat Order, 1984. Although, the agreement does not contain the description of the property, but the petitioner-defendant, has not only admitted this fact in his written statement, but also by his attorney in his Court statement. So the objection of learned counsel for the petitioner with regard to un-certainty of the agreement, is not tenable.
7. The recital of the agreement reveals that 171 Kanals and 10 Marlas, landed property of petitioner, from two villages, was agreed to he purchased at the rate of Rs,25,000 per Kanal by the plaintiff- respondent, out of which, Rs,20,70,000 was paid to the petitioner, at the time of execution of the agreement, which is about half of the total sale consideration of the suit property. There is a stipulation in the said agreement that the remaining sale consideration, would be paid in lump sum within a period of 1-1/2 months. It is also stipulated therein, that in case of rescission, the rescinding party would pay the double commission of the property as well as the earnest money.
This last part of the agreement, relating to rescission of contract, is not related to the lump sum payment of the balance amount of sale consideration within a period of 1-1/2 months. The simple construction which can be deduced from the wording of the agreement,- is that no party of the agreement would resile from his .Commitment for a time beyond the period fixed for the payment of balance amount. Had there been the intention of the parties to put such stipulation, they might have inserted with clear words in the agreement that in case of non-payment of balance amount, within a period of 1-1/2 month, the agreement would stand automatically revoked and earnest money would stand forfeited, but there is no such express provision in the agreement. In absence of any such covenant in the agreement, the Court cannot introduce any construction itself, that the time is essence of the contract, merely for the reason that vendee has been bound to pay the balance amount within a period of 1-1/2 months, which too is not supported by the evidence, adduced.
8. In support of the case, respondent-petitioner has examined Patwari Halqa, who produced the Revenue Record of the suit property and un-attested mutation. Muhammad Iqbal Khan, a Property Dealer, who struck the bargain between the parties was also examined. He endorsed the contents of the agreement, executed between the parties. He is also the marginal witness of the agreement, as well It was brought on record in his cross-examination by the petitioner that when the plaintiff along with this P.W., approached the petitioner-defendant, before the expiry of period fixed in the agreement, to pay the balance amount and attest the mutation, he did not accompany them, on the pretext, that he was in .Fasting. It is also in his cross-examination that one Ghaffar, brother of the petitioner, has also moved an application to Patwari Halqa that the suit property should not be entered in the name of the plaintiff-respondent. Waheedullah Khan, is the Petition-writer, who is the author of the agreement. While Shah Alam Khan plaintiff himself appeared as P. W.5. He, reiterated the same version in his Court statement, which was alleged in the plaint. He stated in his examination-in-chief that brother of the petitioner filed an application before Patvvari Halqa not to attest the mutation of suit property in favour of the plaintiff-respondent.
' He further stated that 6/8 days before the expiry of stipulated period, plaintiff, his brother Haji Nasrullah Khan and Haji. Muhammad Iqbal Khan, went to the defendant-petitioner to request him to accompany them to Tehsil Office for attestation of mutation and receipt of balance amount, but he did not accompany them, on the pretext, that he was in fasting. He further stated that thereafter again he visited the house of the petitioner-defendant, after Eid-ul-Adha for compliance of the agreement and payment of the balance amount, but he refused. This part of the statement of plaintiff-respondent, has not been challenged by the petitioner, during cross-examination, which amounts to admission, on the part of the defendant. The tenor of cross-examination on the plaintiff-respondent, suggest that the value of the suit property, with the passage of time, has increased, so the petitioner-defendant is not willing to honour the agreement executed with the plaintiff-respondent. In rebuttal, the defendant did not opt to appear iii the witness box to depose in favour of his stance taken in his written statement. Rather Noman Khan, his son, recorded his sole statement, who not only admitted the execution of the agreement, but also admitted the receipt of Rs,20,70,000. The stance taken by this DW, is that the balance amount way not paid within a period of 1-1/2 months, stipulated in the agreement, so he moved an application to Tehsildar/Revenue Officer for cancellation of the mutation. In cross-examination, he admitted the execution of the agreement as well as receipt of Rs,20,70,000. However, he showed his ignorance about the visit of the plaintiff Shah Alam with his brother Haji Nasrullah Khan and Haji Muhammad Iqbal Khan to his father, a week before the expiry of stipulated period, for payment of balance sale consideration and attestation of mutation. He admitted in his cross-examination that his father is all right and is not sick and is also residing in Bannu City. The defendant-petitioner, did not appear before the Court to make a statement on oath to rebut the evidence of the plaintiff-respondent, because he was the person who was aware of the actual facts. Whereas, his son has shown his ignorance about the visit of above named person to his father and request of plaintiff-respondent for payment of remaining sale consideration before the target date. The nonappearance of the defendant in the witness box, would go a long way to prove that he purposely avoided to face the cross-examination. On the other hand, the facts which were in his personal knowledge, could have been deposed by himself and none else. The facts mentioned in the written statement would not be sufficient for proving his stance, because pleading are never considered as evidence, unless the same is proved by A the party himself, while deposing in the witness box and offering himself for the cross-examination. This principle was laid down by the Hon'ble Supreme Court in case titled, ("Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others" PLD 1972 Supreme Court 25).
9.. The agreement was executed on 2-11-2008, while the suit was filed by complainant on 21-3- 2009, after a period of three months of the stipulated time of payment of balance sale consideration. Some time might have consumed by the plaintiff-respondent to persuade the defendant-petitioner, at local level, on failure of which, he approached the Court, in quite a reasonable time. This shows the vigilance and anxiety of the plaintiff-respondent, because he had already paid an amount of Rs,20,70,000 about half of sale consideration of the suit property. So it does not appeal to reason that after payment of such a huge amount, he would delay the payment of balance amount to get his money forfeited., without any reason.
10. In view of the evidence discussed above, time was not the essence of the contract, as it was not expressly provided in the agreement. Had it been so, even then, this principle is not applicable to the contracts relating to immovable property as in the words of Hon'ble Supreme Court, in case titled, "Seth Essabhoy v. Saboor Ahmed" PLD 1972 SC page 39, "It is well settled principle of law that in contracts relating to immovable property, time is not of the essence of the contract, and the claim of the appellant, even if it were accepted that he had given three day's notice to the respondent for completion of the contract, failing which it would come to an end, cannot at all be considered to be a reasonable time".
' Likewise, in case titled, "Abdul Hamid v. Abbas Bhai Abdul Hussain Sodawater Wala (sic)" it has been held that:- "The Judicial Committee of the Privy Council had occasion to observe that "section 55 of the Indian Contract Act, 1872, does not lay down any principle which differs from the law of England as to contracts for the sale of land. Specific performance of a contract of that nature will be granted although there has been a failure to keep the dates assigned by it, if justice can be done between the parties and if nothing in (a) the express stipulation of the parties, (b) the surrounding circumstances, make it inequitable to grant relief. An intention to make time of the essence of the contract must be expressed in unmistakenable language; it may be inferred from what passed between the parties before, but not after, the contract is made. It was also laid down in that case that "equity will not assist where there has been undue delay on the part of one party to the contract, and the other has given him reasonable notice that he must complete within a definite time."
' The same principle was reiterated in case titled, "Muhammad Hussain and others v. Dr. Zahoor Alam" 2010 SCM R 286.
11. The preponderance of the evidence and accumulative effect of appraisal of evidence vividly suggest that petitioner-defendant had received half of amount of Rs,20,70,000 in the year 2008 from the plaintiff and thereafter tried to back out from the agreement when he was offered some higher rate by some other party and he is merely refusing to honour the agreement on one pretext or the other by carving out lame excuses to put the whole blame on respondent and fetch double benefit thereby. It is evident from the evidence and circumstances of the case that petitioner was contacted by respondent-plaintiff, before the expiry of stipulated time fixed for payment of balance amount and attestation of mutation. But he put off the matter on the pretext that he was fasting. This fact is deposed by an independent witness Iqbal Khan Property Dealer and not specifically denied by the attorney of the petitioner.
12. Learned appellate Court has wrongly modified the decree of the learned Trial Court by setting aside its finding with regard to delivery of possession of the suit property to the plaintiff, on the ground, that it was not prayed for in the suit. The perusal of the plaint transpires that although, possession is not distinctly claimed under the separate head, but it is so prayed in prayer (A) of the plaint, wherein it has been alleged that defendant No,1, is liable to deliver the possession of the suit property according to the principles of the property and he has also asked for any other relief to which he is found entitled. While imparting justice, it is the substance and not the form of the suit to be considered and the party should be given, to which he is found entitled. The litigants C may not be entrapped into procedural technicalities. Rather the Courts should apply its dynamic approach to do complete justice, while appreciating the pleadings and the evidence. Although no revision petition has been filed by the respondent against the findings of the appellate Court, qua this part of its judgment, but while sitting in revisional jurisdiction, the Court can suo Motu rectify any illegality or material irregularity, found in the judgments of the lower Court under section 115 Code of CiviL Procedure. Hence, the, judgment of the appellate Court to the extent of modification of the decree of the trial Court, is set aside. However, no misreading or non-reading of evidence or any other illegality or material irregularity has been found in the concurrent findings of facts recorded by both the courts below. Thus, E this revision petition being meritless is hereby dismissed with the aforesaid modification. Parties to bear their own costs.