MAULVI ANWARUL HAQ, J.--- This judgment shall decide RFA No. 120 and RFA No. 121 of 2001 as they proceed against common judgment of a learned Civil. Judge, Islamabad.
2. On 12.11.1996 respondent No. 1 filed a suit against the appellant and the remaining respondents. In the plain it was stated that the appellant agreed to sell property mentioned in para 1 of the plaint, respondent No. 1 executed agreement dated 25.6.1995. The possession of basement portion was delivered to respondent No. 1 on 25.8.1995. The total consideration as settled at Rs.50,00,000/-. A sum of Rs.10,00,000/- was paid as earnest while remaining Rs.40,00,000/- were to be paid to the appellant at the time of transfer of property which was settled at 15.8.95 but later it was extended to 15.10.95. It was then stated that the appellant had assured respondent No. 1 that she is exclusive owner of the property and would be responsible for removing hurdles in the way of transfer of property in favour of respondent No. 1. However, it turned out that the property stood transferred jointly to the appellant and respondent No. 2 and the CDA had not approved the sub-division. An approval was accorded on 14.2.1996 whereby portion No. 189-A stood transferred to the appellant thus time was not essence of the contract and he is ready and willing-to pay the balance amount.
A notice was served but of no avail and besides a stay order also stands issued on the basis of some collusive proceedings. With these averments a decree for specific performance of agreement dated 25.6.95 was sought. The suit was contested by the appellant who filed a written statement. The agreement and its execution was admitted. Delivery of possession of basement was admitted. It was however, stated that respondent No. 1 had failed to pay the balance amount as promised by him on or before 15.8.95. Regarding the proceedings by CDA it was stated that some formalities were to be completed and process was on. CDA also filed a written statement but it is neither here nor there. However, it has been reported that the property was jointly transferred and thereafter was subdivided in equal portion vide order dated 14.2.96 of the CDA.
3. Now the appellant also filed a suit against the respondent on 23.12.1996. In this suit it was confirmed that the property was jointly purchased by the appellant and respondent No. 2 and that on 25.6.95 the appellant entered into an agreement to sell the house with respondent No. 1 for consideration of Rs.50,00,000/-. A sum of Rs.10,00,000/- was paid as earnest. The basement was handed over while balance amount was paid by 15.8.1995. The execution of the agreement in the said terms was also pleaded. It was complained that the respondent was bound to pay Rs.40,00,000/- on or before 14.8.1995 but had failed to do so. Thereafter it was stated that on the expiry of the date mentioned in the agreement to sell, for payment of balance amount, repeated demands were made on respondent No. 1 to perform his part of the agreement and to pay the balance but he failed to do so. On 3.9.1995 a notice was served which was responded on 10.7.1996. It was stated that petitioner had not extended the period of payment and had not signed any such document. She accordingly forfeited the earnest and is entitled to recover Rs.15,000/- per month for use and occupation of the said basement. She accordingly sought a declaration that the agreement dated 25.6.1995 stands rescind and for possession of the basement. This suit was also contested by respondent No. 1 on the basis of his contentions in specific performance suit. Both the suits were consolidated and proceedings were conducted in the suit filed by respondent No. 1 for specific performance of contract. Following issues were framed by the learned Trial Court:-
(1) Whether the suit titled Syed Hassan Sajjad v. Mehmood Begum is based on Mala fide intention and is not maintainable? OPD
(2) Whether the suit titled Syed Hassan Sajjad v. Mehmood Begum has been filed to black mail the defendant? OPD
(3) Whether Syed Hassan Sajjad has no cause of action to file the suit titled Syed Hassan Sajjad v.
Mehmooda .Begum for Specific Performance? OPD
(4) Whether Syed Hassan Sajjad is entitled to get a decree for specific performance as prayed in the suit titled Syed Hassan Sajjad v. Mehmooda. Begum? OPP
(5) Whether Meh. Nood Begum has no cause of action to file the suit titled Mehmooda Begum v.
Syed Hassan Sajjad for declaration and permanent injunction? OPP
(6) Whether Mehmooda Begum had no right to cancel the impugned agreement to sell? OPP
(7) Whether suit titled Mehmooda Begum v. Hassan Sajjad for declaration and permanent injunction is frivolous and Syed Hassan Sajjad is entitled to special costs u/S. 35-A, CPC? OPP
(8) (9) (8) Whether Mehmooda Begum is entitled to declaration, possession and permanent injunction as prayed in the plaint of suit titled Mehmooda Begum v. Syed Hassan Sajjad?
OPD (9) Relief.
Evidence of the parties was recorded. Issues Nos. 1 to 3 were not pressed. Issue No. 4 was answered in favour of respondent No. 1. Issue No. 5 was answered in favour of the appellant. Issue No. 6 was answered in accordance with issue No. 4. Issues Nos. 7 and 8 were answered in the negative. The suit filed by respondent No. 1 was accordingly deceased subject to deposit of balance amount of Rs.37,00,000/-. The suit filed by the appellant was dismissed.
2. Rana Mashood Ahmad Khan, learned counsel for the appellant contends that a bare reading of agreement Exh.P1 would show that it was settled that balance amount shall be paid on or before 15.8.1995 and non-payment of the amount was to result in forfeiture of earnest money and cancellation of the agreement and as such time was of the essence of the contract. Learned counsel for the appellant further contends that although receipt of Rs.3,00,000/- was admitted yet since respondent had not pleaded that the amount was paid towards performance of agreement, any evidence to the said effect could not have been given. The precise contention is that evidence of respondent No. 1 that he had paid Rs.3,00,000/- in further performance of the agreement has been considered in violation of the principle of secundum allegata ad probata. According to the learned counsel a sum of Rs.3,00,000/- was paid towards the value of furniture and fixture in the basement, the possession whereof was delivered to respondent No. 1.
3. Mr. Habib-ul-Wahab-ul-Kheri, learned counsel for respondent No. 1 supports the impugned judgment and decree in favour of his client with reference to evidence on record. According to the learned counsel the appellant had admitted the receipt of the said amount of Rs.3,00,000/- and since no explanation yeas referred, it was to be deemed that the amount has been paid in performance of the agreement. Refers to the contents of notice issued by the appellant as also from the suit filed by her to assert that even in these documents the appellant has pleaded that she had been calling upon respondent No. 1 to perform agreement even after the dated fixed in the agreement for payment. Learned counsel further refers to the evidence on record to demonstrate that it was admitted position that the appellant was not in a position to perform her part of the contract on or before 15.8.1995.
4. We have gone through the learned Trial Court record with the assistance of the learned counsel for the parties. It will be noted that most of the facts of this case are admitted, either in the pleadings or in the witness box. Now the admitted facts are that the appellant lady and respondent No. 2 were joint allottees/transferees of the property in question. The appellant promised to transfer the half of the said property as described in the plaint and in the agreement vide agreement dated Exh.P1. Execution of this agreement with all its contents is admitted. It admittedly bears signatures of the appellant, her husband Muhammad Pervaiz Shah and respondent No 1/plaintiff. Receipt of Rs.10,00,000/- as earnest is admitted Receipt of Rs.3,00,000/- stands acknowledged vide Exh.P2 by husband and attorney of the appellant as DW-1.
5. Now upon a plain reading-of agreement Exh.P1 it appears that time for performance of agreement was fixed as 15.8.1995 when the balance was to be paid by respondent No. 1 to the appellant and property was to be transferred. It also contains the usual. Assurance of title of clear transferable title and promise to remove any lacuna therein.
6. Now it is well-settled that in the matter of immovable property time is never to be essence of a contract. Further reference be made to the cases of Abdul Hamid v. Abbas Bhai-Abdul Hussain Sodawaterwala (PLD 1962 S.C. 1) and Seth Essabhoy v. Saboor Ahmad (PLD 1973 SC 39). Another settled point is that merely because date and time is fixed. In the contract for performance would not make the time essence of the contract. Rules applicable is that contract has to be performed in a reasonable time and further intention of the parties had to be gathered from attending circumstances of the case as to whether they intended time to be of the essence of the contract Muhammad Ramzan v. Asadu/iah (2000 YLR 398).
7. Now applying the said test to the circumstances of the present case that emerged on reco,,d.
Now it is true that there is no pleadings from either side regarding admitted fact that a sum of Rs.3,00,000/- was paid to the appellant by respondent No. 1, said fact stands admitted. Now the document Exh.P2 was introduced in the statement of PW-1 i.e. Respondent No. 1. Now he states that he paid Rs.3,00,000/- towards consideration of the property vide receipt Exh.P2 which was pigned by the appellant as well as her husband. Now the said statement was not questioned in the cross- examination. On the other hand, it was suggested to him that he had not paid the said amount of Rs.3,00,000/- and that he had forged the receipt. Now Muhammad Pervaiz husband and attorney appeared as DW-1. In his examination-in-chief he did not utter a word about said payment of Rs.3,00,000/-. He was cross-examined and confronted with Exh.P2. He admitted that Exh.P2 bears his signatures as also of wife.
8. Now learned counsel for the appellant is right that the parties cannot be allowed to prove what is not pleaded by them. However, in the instant case what has happened that the fact stands admitted by the appellant without any demur. Now we have already stated above that the fact was introduced, in the statement of PW-1. It was not questioned in cross-examination or examination-in-chief of DW-1. While in cross-examination he admitted the document Exh.P2. Now a fact that has been admitted need not to be proved. As such respondent No. 1 would not be required to prove said fact which has been admitted. Now the said admitted document shows that a sum of Rs.1,00,000/- was paid on 24.12.1995 and Rs.2,00,000/- on 27.12.1995. It is being stated before us today that the amount was received towards fixtures in the basement. However, it was not suggested neither DW-1 stated any thing to this fact while admitting P2 to PW-1. Be that as it may, we find that the case as to why the property was not transferred and payment was not made was put to Muhammad Pervaiz Shah D.W.1. He admitted the same without any demur. He admitted that Malik Wan had filed a suit and obtained stay order .Against alienation of the property by the appellant. He admitted that sub-division application was filed on 10.10.95 by the appellant and respondent No. 2. He admitted that according to sub-division approved on 14.3.1996 unit No. 189-A was allotted to the appellant. He then admitted that Malik Irian had obtained stay order against CDA and because the same CDA could not transfer the property. Finally he admitted as follows:- {{URDU TEXT}}-114-k LS,..::35L. Ftril.r.; (*i 40 ft; LI! Lf.{{URDU TEXT}} He admitted that he had not given any intimation in writing to respondent No. 1 regarding the alleged cancellation of the contract.
9. It will thus be seen that it is the appellant's own case that even after the passage of date fixed in the agreement she insisted for performance. She is fact received part of consideration after the said date. She admitted the circumstances which constituted hurdle in her way to transfer the property and in any case ultimately sub-division was sanctioned in Feb. 1996. This has further to be seen in the light of admission made by the attorney of the appellant in the witness-box in the matter of performance of agreement and real intentiok of the parties as to at what point of time the balance amount of consideration was required to be paid. We accordingly do find that evidence. On record does not suggest that the parties ever intended time to be of the essence of the contract, notwithstanding mentioning of the said date i.e. 15.8.1995 in the agreement Exh.P1. 10.
Learned counsel for the appellant then with reference to the judgment in the case of Ch. Shah Muhammad and 6 others v. Muhammad !Shag and 5 others (2001 CLR 1188) argues that filing of the suit was delayed by respondent No. 1 and in the meanwhile value of the property has enhanced and that following the said judgment we should enhance the amount of consideration. We do not find this contention to be tenable for the reason that substantial portion of the consideration amount was paid as earnest and major portion the entire ground and first flour) remained in possession of the vendor. This being so, the case for enhancement of consideration is not made out. However, learned counsel's final contention is that it was own prayer of the respondent No. 1 notwithstanding the payment of said amount of Rs.3,00,000/-, that decree be passed on payment of Rs.40,00,000/- which the respondent No. 1 is ready to pay. Learned counsel relies on paras 2 and 4 of the plaint. We confronted Mr. Habib-ul-Wahab-ul-Khari, Advocate, particularly when there is also reference to