' AMIN-UD-DIN KHAN, J.--- Through this appeal appellant has challenged the judgment and decree dated 26-2-2013 whereby suit for specific performance filed by the appellant was dismissed.
2. Brief facts of the case are that plaintiff-appellant on 5-3-2005 filed a suit for specific performance on the basis of agreement to sell dated 21-6-2004 (Exh.P.1) wherein the date for performance, of the agreement was 21-12-2004. Written statement was filed wherein agreement and receipt of the earnest money i,e, Rs,2,00,000 and on 27-9-2004 sum of Rs,50,000 has also been admitted to have been received. The main defense pleaded in the written statement is that the time was essence of the contract and further that plaintiff has violated the terms of the agreement.
With regard to receipt of payment of Rs,50,000 on 27-9-2004 as pleaded in para 4 of the plaint is concerned, in its reply it is denied that same was received on the pretext of clearance of dues/utility bills etc. It was pleaded that it was mutually agreed between the parties that plaintiff had to pay this amount. Learned trial court framed the following issues on 26-1-2006:- "(1) Whether the plaintiff is entitled to a decree for specific performance of agreement to sell as prayed for? OPP
(2) Whether the plaintiff has not come to the Court with clean hands? OPD
(3) Whether the plaintiff has defaulted payment of balance consideration amount within stipulated period? OPD
(4) Whether the defendants are entitled to recover special costs from the plaintiff? OPD
(5) Relief.
' Learned trial court invited the parties to produce their evidence. Both the parties produced their respective oral as well as documentary evidence. Vide judgment and decree dated 26-2-2013 learned trial court dismissed the suit. Hence, this appeal.
3. Learned counsel for the appellant argues that the consideration amount of the agreement was Rs,29.,00,000. The plaintiff-appellant has paid Rs,2,00,000 as earnest money at the time of agreement on 21-6-2004 and subsequently on the demand of the defendants-respondents Rs,50,000 was received by the defendants for clearance of utility bills.
' Amount is admitted between the parties, though, argues that payment of Rs,50,000 was not agreed between the parties as plaintiff had to pay the balance amount at the time of registration of the sale deed in his favour. While relying upon "Muhammad Nawaz Khan and another v. Mst.
Farrah Naz" (PLD 1999 Lahore 238) argues that in the agreements relating to the immovable properties ordinarily the time is not essence of the contract and further that the language of this agreement shows that the time was never the essence of this contract, therefore, argues that the evidence produced by the plaintiff-appellant proves that respondents-defendants have refused to perform their part of contract, therefore, plaintiff was forced to file this suit and he has filed the same without any delay.
4. On the other hand, learned counsel for the respondents has supported the findings recorded by the learned trial court and has prayed for dismissal of the suit.
5. When we confronted to the learned counsel for the respondents that how the time was the essence of the contract, when there is no such condition in the agreement, while relying upon "Ali Muhammad v. Shah Mohammad and others" (PLD 1987 Lahore 607) and "Bank of Bahawalpur Ltd. v.
Punjab Tanneries, Wazirabad Ltd. And 2 others" (PLD 1971 Lahore 199) argues that grant of decree for specific performance is a discretionary relief with the Court and relies on "Sree Lal Chamaria v.
Hariram Goenka and another" (AIR 1926 Calcutta 181) to argue that plaintiff was to show readiness of performance of his part.
6. We have heard learned counsel for the parties and gone through the record with their able assistance.
7. The agreement to sell (Exh.P.1) is admitted between the parties. Payment of earnest money of Rs,2,00;000 on the day of writing of agreement to sell i,e, 21-6-2004 is admitted between the parties. Receipt of Rs,50,000 by the defendants on 27-9-2004 is also admitted between the parties, which has also been noted on the backside of the 2nd page of the agreement. It is admitted that under the agreement possession has not been delivered to the other side. Case of the plaintiff is that he contacted the defendants-respondents to perform their part and receive the balance amount and transfer the suit property through instrument of sale in accordance with law. So far as case pleaded by the defendants that they repeatedly approached the plaintiff for payment of balance consideration amount and defendants were ready to perform their part of contract, is concerned, we have noticed that defendants have introduced a new story of purchase of property in the village by them while producing evidence, which has not been pleaded in the written statement. They have admitted in the cross-examination that for preparation of the sale deed they were to procure latest documents of title from the Patwari which they had not got prepared at the time fixed in the agreement for execution of sale-deed. They admitted in the cross-examination that out of four shops, which are part of the suit property, one shop was not vacated. D.W.-2 the witness produced by the defendants has admitted that due to heart ailment defendant was admitted in the hospital and he undergone the bypass operation. We have noticed that learned trial court confirmed ad interim injunction on 28-11-2005 already granted, on the ground that the tenants are in possession of the suit property and it has not been got vacated from them. We have gone through the findings recorded by the learned trial court. Learned trial court on Issue No,1 while recording the findings was also influenced by the fact that plaintiff has not produced the record of ownership of defendants in the evidence. We are of the view that these findings are not sustainable under the law. A decree in a suit for specific performance declares the maturity of rights of the plaintiff to get the property. It does not transfer the proprietary right in favour of decree-holder. To get the immovable property from the defendants transfer of property through execution of the decree if the judgment-debtor refuses to get the instrument of transfer registered in accordance with law in the normal procedure, the court transfers the suit property through its agent at that time the court takes into consideration the latest ownership documents of the judgment- debtor/defendant and on the basis of the ownership documents the suit property is transferred. In this case when there is no denial of ownership of defendants, there was no occasion to non-suit the plaintiff on this score, if there was any doubt in the mind of the court, the plaintiff could have been directed to produce the ownership record of the defendants, therefore, these findings are not sustainable under the law.
8. As we have observed that language of this agreement does not make the time as essence of the contract and when the pleading and evidence of the defendants is contradictory on this point, therefore, defence of the defendants cannot be accepted. We can take light from the judgment of the august Supreme Court of Pakistan reported as "Binyameen and 3 others v. Chaudhry Hakim and another" (1996 SCMR 336), wherein it has been held as under:--- "It is also a well-settled principle that no evidence can be led or looked into in support of a plea which has not been taken in the pleading. A party is required to plead facts necessary to seek relief claimed and he would be entitled to produce evidence to prove those pleas. Variation in pleading and proof is not permissible in law. A party pleading an oral agreement cannot prove it by producing a document which does not speak of the oral agreement but speaks of a written agreement. This would amount to substituting a completely new plea which had not been pleaded."
' On this point further reliance can be made on "Abdul Haque and others v. Shaukat Ali and 2 others"
(2003 SCMR 74).
' Even otherwise, the circumstances are that admittedly, the earnest money was paid and after payment of earnest money of Rs,2,00,000, on 27-9-2004 payment of further sum of Rs,50,000 was not the responsibility of the plaintiff-appellant to pay the same but even then he has paid as pleaded by him that utility bills were to be cleared by the defendants and pleading of defendants that it was agreed between the parties, we are conscious of the law that pleading of any oral condition in contradiction to the written agreement has no value in the eye of law, therefore, with regard to payment of Rs,50,000 on 27-9-2004 the case pleaded by the defendants is not acceptable. Light can be taken from "Mst. Saeeda Anwar and 3 others v. Malik Bashir Ahmad and others" (2009 MLD 1314).
9. Further how a prudent man can imagine that a person who has paid Rs,2,50,000, he is not taking the benefit of the property, as the possession has not been delivered to him and nothing is in his hand except the two papers of the agreement, how he will delay the payment of the remaining amount to weaken his case and further when the date of performance was 21-12-2004 and suit has been filed on 5-3-2005 shows that plaintiff-appellant was prompt in his action and he has not delayed the matter. Even at the time of filing of the written statement defendants have refused to perform their part of contract on the ground that time was essence of the contract and we have observed that same is not borne out from the record. When questioned to the learned counsel for the defendants that whether any notice was issued to the plaintiff if the time was the essence of the contract, the answer is in the negative.
10. When it is on the record that additional sum for clearance of utility bills was paid by the plaintiff- appellant and further that admittedly suit property was in possession of the tenants and on 28-11- 2005 at the time of decision of the application for interim injunction the learned trial court has noted that property is still with the tenants, which clearly shows that defendants were not in a position to fulfil their part of contract, therefore, plaintiff was justified in pressing for fulfilment of the conditions through the court in the light of law laid down by the august Supreme Court of Pakistan reported as "Seth Essabhoy v. Saboor Ahmad (PLD 1972 Supreme Court 39), which also shows that plaintiff has come to this Court with clean hands. The case-law referred by the learned counsel for the respondents is not applicable to the facts of this case, therefore, same is not helpful for them.
11. In this view of the matter, the findings recorded by the learned trial court on Issues Nos.1 and 3 are reversed. Plaintiff is entitled to the decree for specific performance and on Issues Nos. 2 and 4 the findings of trial court against the defendants are confirmed. No cross-objection or cross- appeal has been filed, therefore, same are confirmed. Resultantly, while allowing this appeal, we set aside the judgment and decree passed by the learned trial court and decree the suit of the plaintiff-appellant with costs throughout subject to deposit of remaining amount of Rs,26,50,000 with the learned trial court within 30 days from today. If the plaintiff-appellant is failed to deposit the same before the learned trial court within 30 days, the suit shall be deemed to have been dismissed.