1. AMIN-UD-DIN KHAN, J.--- Through this appeal appellants have challenged the judgment and decree dated 2-6-2009 whereby suit for specific performance filed by respondent No.1 was decreed.
2. 2.Brief factsofthecasearethatplaintiff/respondentNo.1on20-8-2003 filed a suit for specific performance of an agreement to sell dated 12-5-2003. Written statement was filed. Agreement was admitted but the violation of the agreement was alleged of the part of the plaintiff-respondent and it was prayed that suit be dismissed.
3. 3.The learned trial Court on 2-3-2007 recorded the statement of the learned counsel for the parties that execution of agreement to sell (Exh.P.2) is admitted between the parties, therefore, the only controversy between the parties was that who violated the terms of the agreement. While deciding stay application on 14-1-2004 the plaintiff was directed to deposit the remaining consideration amount of Rs.40,00,000/- in the court within three weeks. Issues were framed on9-2-2004.
4. Additional Issue No.3-A was framed on 20-11-2008. Parties were directed to produce their respective evidence. Both the parties produced their oral as well as documentary evidence. Vide judgment and decree dated 2-6-2009 learned trial court decreed the suit. Hence this appeal by some of the defendants/judgment-debtors whereas legal heirs of original defendant No.3 are respondents Nos.2 to 4, who have not filed the appeal and they also admitted the judgment and decree passed by the learned trial Court.
5. 4.Learned counsel for the appellants argued that the time was essence of the contract; that the plaintiff-respondent has failed to perform his part of contract within the stipulated period, therefore, he was not entitled to decree for specific performance in his favour. Learned counsel though has argued the case at length but his arguments revolved around the point that as time was essence of the contract, therefore, on 11-8-2003, which was the date for performance of the contract, plaintiff failed to perform his part, therefore, he was not entitled to decree. Relies on "Mst.
6. Amina, Bibi v. Mudassar Aziz" (PLD 2003 Supreme Court 430), "Mst. Shaheen Kausar v. Shakeel Ahmed' (2005 YLR 1347), "Zahid Rahman v. Muhammad Ali Asghar Rana" (2007 CLC 1814), "Saeed Naseem Cheema v. Mrs. Rukhsana Khan" (2010 M LD 123), "Mukhtar Hussain and others v. Sohbat Ali and another" (2011 SCM R 1926) and "Mst. Munawar Shahzadi v. Muhammad Ghafoor" (2013 CLC 880).
7. 5.On the other hand, learned counsel for respondent No.1/plaintiff argues that contract as a whole is to be seen and the language of the contract shows that in this contract as it was a contingent contract, therefore, time cannot be said to be the essence of this contract. Further states that it was the defendants who have violated the terms of the agreement and the filing of suit as well as deposit of remaining sale consideration are prompt, therefore, learned trial Court has rightly granted a decree in his favour.
8. 6.We have heard learned counsel for the parties and have gone through the record with their able assistance.
9. 7.The crucial issues in this suit are Issue Nos.1 and 3-A. No-doubt, the learned trial Court in a very short sentence without any reason on the basis that as a specific time is fixed for performance and a penalty is provided for non-performance, therefore, found that time was essence of the contract.
10. We are afraid that these are not the only parameters for declaring time to be the essence of a contract of immovable property. It is general law that in a contract for transfer of immovable property, ordinarily time is not essence of contract except the parties intend for the same and specifically mention that time is the essence of the contract. The bare perusal of the agreement (Exh.P2) shows that the intention of the parties was never that in this agreement time is essence of the contract. We are conscious of the fact that respondent No. 1/plaintiff has not filed any cross- objections but the findings of learned trial Court that time was essence of contract is not a decree against the plaintiff/respondent No. 1, therefore, we can see and scrutinize these findings even without filing of cross-objections by respondent No.1/ plaintiff.
11. 8.As we have noted that mentioning of specific date for performance and penalty for non- performance does not make automatically the time as essence of contract. For making the time as essence of contract intention of the parties must be specifically mentioned in clear words in the agreement. In this agreement we have noted that no such intention is available. Even otherwise, it is mentioned in the agreement that the seller party will handover the clear possession of the suit property to the purchaser or in the alternate the seller party will satisfy the purchaser with regard to possession of the suit property in possession of the "Qabzeen" and further the seller party was obliged to produce "Fard" of property. Meaning thereby the ownership recorded with specific measurement as well as clearance of the suit property from all encumbrances.
12. 9.Now the question of performance of contract and the defaulter party arises. Learned trial Court has found that plaintiff has performed his part of contract and it was the defendant party who failed to perform his(??) part of contract in accordance with the contract. The facts in series are that last date of performance of contract was 11-8-2003. Plaintiff produced P.W.1, Sub-Registrar of that time as well as Exh.P.l an application moved before the Sub-Registrar, to show his presence before the Sub-Registrar at the relevant date, which shows that plaintiff way; present and willing to perform his part of contract. The suit has been filed on 20-8-2003, 9 days after the cut-off date. In the plaint he has shown his willingness to pay the consideration amount and perform his part of contract. By the orders of the Court the remaining amount was deposited in the Court within three weeks from the date of lie order dated 14-1-2004.
13. 10.The arguments of the learned counsel that the pleading of the plaintiff in Para No.6 of the plaint does not match with the evidence produced by the plaintiff. We have gone through the pleadings as well as evidence. It is principle of law that in pleadings each and every detail is not required to be mentioned, it is the evidence which proves the pleadings wherein each and every requisite detail is proved. These details cannot be termed as contradiction with the pleadings. Photocopy of the legal notice (Exh.D.11) has also been produced in the statement of learned counsel for the defendant on 14-4-2009 but without proving the same in accordance with law it was not helpful for the defendants.
14. 11.As we have noted that defendants were bound to handover vacant possession of the suit property or get the same confirmed from the occupants of the property and produce "Fard" of ownership as well as clearance certificate, even it has not been proved by the defendants that before the date for performance they were having the copy of "Fard" as well as NOC and possession with them to deliver the same to the plaintiff. In this view of the matter, the case-law cited by learned counsel for the appellants is not applicable to the facts of this case, hence, same are not helpful for the appellants.
15. 12.For what has been discussed above, we are unable to disagree with the findings recorded by the learned trial Court that defendants failed to perform their part contract. Resultantly, no case for interference by this Court is made out, therefore, this appeal having no force stands dismissed with no order as to costs.