SAQIB NISAR, J.---Appellant's suitor specific performance against the respondents, has been dismissed, vide judgment and decree dated 24-9-1995.
2. Briefly stated the facts of the case are that on 3-11-1988, appellant brought a suit for specific performance against the respondents stating that through an agreement to sell dated 12-10-1988, the respondents, had agreed to sell their land measuring '10' Kanals. 16 Marlas bearing Khasra Nos,2440, 2441, situated in Mauza Sadhoke. Tehsil Lahore Cantt. District Lahore. in favour of the appellant for a consideration of Rs,3,37,500 out of which the respondents received an amount of Rs,10,000 as earnest money; it was agreed between the parties that the transaction shall be finalized by 28-10-1988, when the appellant shall make the balance payment of consideration and the respondents shall execute and finalize the sale in his favour. It is the case of the appellant, that the respondents despite his approach, did not conclude the sale, resultantly: the suit. The suit was contested by the respondents, who in their written statement, took up the plea that the appellant, was not ready and willing to perform his part of the agreement by making the payment of the balance consideration; the appellant never approached the respondents for the execution and finalization of the transaction before the target date i,e, 28-10-1988. Out of the pleadings of the parties, following issues were framed:-
(1) Whether the suit is not maintainable in its present form ? OPD
(2) Whether the suit is false. frivolous and vexatious if so. its effect? OPD
(3) Whether the plaintiff has no cause of action to bring the suit? OPD
(4) Whether' the land described in the agreement is incorrect and misconceived, if so, its effect?
OPD
(5) Whether the plaintiff has fulfilled all the requirements of the agreement. it so. whether the plaintiff is entitled to get the agreement specially enforced? OPD
(6) Relief.
It may be pertinent to State here, that during the trial, the appellant, moved an application I under Order VI, rule 17 read with section 151, C.P.Cs. seeking amendment in the plaint so as to correct. exact area of the disputed suit-land, which application was allowed; amended plaint was accordingly tiled, the respondents filed their amended written statement, and for the first time in the written statement, took up the, plea that the respondents, had agreed to sell the suit property for the reason, that they had to buy another property and it was made clear, to the appellant, that for such other transaction the money was needed by them immediately. It may, however, be mentioned that this amendment was brought in the written statement without the permission of the Court, resultantly. the appellant objected and 'requested the Court for the deletion of the unauthorized amendment; the counsel for the respondents, made a statement that such change in the written statement should not be considered.
3. After the framing of the issues parties produced evidence. The plaintiff appellant examined Muhammad Azam as who stated that he alongwith the appellant has approached the defendant No,1 on 25-10-1988, the defendant was not at home, his son apprised the two that he has gone to Rawalpindi and the transaction shall be finalized on his return.".W.2/Shahab Din, has also made the statement on the above lines. He has also stated that he alone went to the defendant No,1 on subsequent date, but again could not succeed in meeting with the defendant.
P.W.3, is the plaintiff himself. The agreement to sell, dated 12-10-1988, is Exh.P.1. Conversely, the defendants/respondents examined Amjad Ali as D.W.1. who is the son of defendant No,1, D.W.2 is Fayyaz Ali, stated that he knew the parties, and that the appellant,. did not fulfil his part of the agreement; in cross-examination, he has admitted that he is the real nephew of the defendant No,1 D.W.3 is the defendant (vendor). Besides, the respondent produced Exh.D.1, the legal notice dated 6-11-1988, issued by Mr. Irshad Ahmad Qureshi. counsel for the defendants, stating that the agreement to sell has expired ana cannot be enforced. The learned Court below after conclusion of the trial, has dismissed the suit finding against the appellant, on Issue No,5 and holding that, in tact the appellant, had not performed his part of the agreement by making the payment of the balance consideration till the target dated i,e,28-10-1988: it is further held by the Court, that the time was essence of the agreement to sell between the parties. and on account of the lapse of the time and due to the non-fulfilment of the obligations by the appellant, the agreement cannot be specifically enforced.
4. Learned counsel for the appellant has argued, that in case of an agreement to sell for the immovable property, the time ordinarily is not of the essence of the contract. In this regard, he has placed reliance on the following judgments:-
(1) 2000 CLC 184 Haji Abdur Rehman v. Niaz Ali,
(2) 1999 CLC 207 Abdul Habib Durrani v. Toriali,
(3) 1998 CLC 265 Muhammad Ratique and another v. Mst. Bashiran Bibi and 5 others,
(4) 1996 MLD 322 Haji Adam All Agaria v. Asif Hussain and 2 others.
(5) 1995 PSC 1096 Sandoz Limited v. Federation of Pakistan and another.
(6) 1993 CLC 2409 Nazima Begum and others v. Hasina Begum.
(7) 1992 CLC 1069 Bashir Ahmad v. Abdul Majid and 7 others and
(8) PLD 1987 Lah. 166(2) Mehraj Din v. Karam Din.
It is 'further argued, that the respondents without the permission of the Court, had made unauthorised amendment in the amended written statement, and pleaded that the date 28-10- 1988 was fixed for the finalization of the transaction, because the respondents, had to utilize the purchase money for buying another property. But subsequently, when confronted, the learned counsel for the respondents made a statement. that such amendment in the written statement, should not be considered. However, the respondents, subsequently led evidence beyond the scope of their original written statement and this defence has been taken into account by the learned trial Court, which has serious reflection on the impugned decision. In support of his argument. that no evidence beyond the scope of the pleadings of the parties can be led or considered by the Court. the learned counsel for the appellant has placed reliance on Mst. Baswar Sultan v. Mst.
Adeeba Alvi (2000 SCMR 326) and Noor Muhammad and another v. Muhammad Ishaq and another (2000 M LD 251).
5. We have heard the learned counsel for the, parties.In the agreement to sell Exh.P.1, there is a usual clause, that if. the appellant fails to make the payment of the balance consideration uptil 28- 10-1988. the agreement shall stand terminated and the amount of earnest money shall be forfeited. However, according to the statements of P.Ws. examined by the appellant, it stands established that the appellant, was trying to approach the respondent *No,1, before the target date, for the finalization, of the transaction, but it is the respondent/ defendant, who did not meet the appellant. No effective cross-examination has been conducted on the statements of P.Ws. The reason of the trial Court, that one of the P.Ws. is a Property Dealer and the appellant. is also a Property Dealer, therefore, his statement cannot be given much weight, is not well-founded.
Particularly, because in the cross-examination the deposition of the P.Ws. have not been shattered.
There is another important aspect of the case, that the plaintiff/appellant. had tiled the suit on 3- 11-1988, just four days after the target date and the notice issued to the appellant, by the . counsel for the defendants, is dated 6-11-1988, this notice though not proved in accordance with law, but still considering that the notice was got issued by the respondents through a counsel, is after the tiling of the suit, and would be of no avail to the respondents. The respondents, in their written statement, had never pleaded that 'the time was the essence of the agreement between the parties. In the amended written statement. they did not to improve their defence by averring that they had to purchase another property, with the sale price paid to them by the appellant, but as mentioned earlier. this amendment was conceded by the respondents' side to be unauthorized, and therefore, cannot be taken into account. Therefore, the evidence led by the respondents, to establish that the time was the essence of the contract, is beyond the scope of their pleadings, and such evidence could neither be adduced by the respondents, nor can be taken into consideration by the Court, on the basis of the settled principles of law mentioned above. The respondents defendants, have failed to prove, that the time was the essence of the contract, this is neither spelt from the agreement to sell nor has been set up as a defence in the original written statement.
Moreover, the appellant, had promptly filed the suit on 3-11-1988. this by itself shows, that the appellant was ready was willing to perform his part of the agreement. Simply for the reason. that the appellant before the target date, did not give any notice to the respondents in writing or purchased the stamp papers and got the sale-deed drafted, are not the circumstances which can have any reflection on the readiness and willingness of the appellant. Besides, from the statements of P.Ws. as mentioned earlier, it stands amply proved that the respondents, were trying to avoid to meet the appellant, with .the obvious object, that the target date could pass and. he has a lame excuse to avoid the agreement.
6. The notice Exh.D.1, as mentioned above, is dated 6-11-1988 which is during the pendency of the suit; the respondents/ defendants, could easily, on the first date of heating, give a statement, that the suit should be decreed, on the payment of the considerationamount. Rather the respondents choose to contest the matter, which shows that it is the respondents, who intended to wriggle out of the agreement to sell.
7. In the light of above, by allowing this appeal the judgment and decree of the trial Court, is set aside, the suit of the appellant. is allowed and the appellant. is directed to make deposit of the balance amount of consideration i,e, Rs,3.27.500 with the trial Court, 'within a period of two months from today, failing which the suit of the appellant, shall be deemed to have been dismissed. No order as to costs.