2017 PLP 902 (SCMR)

EJAZ AFZAL KHAN, J.

This appeal has arisen out of the judgment dated 22.3.2012 of the Peshawar High Court whereby the learned Single Judge in its chambers dismissed the revision petition with the modification that the respondent would be entitled to recover the possession notwithstanding it has not been asked for in the plaint.

2. Brief facts of the case culminating in the present litigation are that the appellant agreed to sell the land in dispute to the respondent for a sum of Rs.40,00,000/- vide agreement dated 02.11.2008; that a sum of Rs.20,00,000/- was paid at the time of execution of the agreement while the remaining was agreed to be paid within one and a half months and that when according to the averments in the plaint the needful was not done, the respondent instituted a suit for specific performance of the contract which was decreed throughout.

3. Learned ASC appearing on behalf of the appellant contended that where it has specifically been mentioned in the agreement to sell that the remaining amount would be paid within one and a half months the failure of the respondent to pay the same within the stipulated time would alone be sufficient to non-suit him; that when the respondent himself admitted in para 6 of the plaint that he approached the appellant after the expiration of the stipulated time he is not entitled to the discretionary relief of specific performance; that though the respondent has stated in his evidence recorded in the Court that he approached the appellant before the expiration of the stipulated time, it being an outright departure from the pleading could not be given any credence; that the words used in the agreement leave no doubt that time was of essence of the agreement and that finding of all the fora below having been based on misreading of the agreement and evidence on the record cannot be maintained. Learned ASC to support his contentions placed reliance on the cases of "Fazal-ur-Rehman v. Ahmed Saeed Mughal (2004 SCMR 436), Agricultural Development Bank of Pakistan and another v. Imtiaz Ahmed Gill (1999 SCMR 650), Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others (1999 SCMR 1362), Muhammad Sharif v. Mst. Fajji alias Phaji Begum through Legal Heirs and another (1998 SCMR 2485), Muhammad Nawaz alias Nawaza and others v. Member Judicial Board of Revenue and others (2014 SCMR 914) and Bootay Khan through Legal Heirs v. Muhammad Rafiq and others (PLD 2003 SC 518).

4. Learned ASC appearing on behalf of the respondent defended the impugned judgment by submitting that time in the circumstances of the case could not be held to be of the essence of the contract; that the respondent in the presence of other witnesses approached the appellant before the date stipulated in the agreement for performance of the remaining part of the agreement but the appellant himself declined to do the needful by saying that he was fasting on that day; that where all the three Courts concurrently held that time was not of the essence of the contract, this Court could not take a different view even if, on reappraisal of evidence, it is equally tenable. Learned ASC to support his contention placed reliance on the case of Muhammad Hussain and others v. Dr. Zahoor Alam (2010 SCMR 286), Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others (PLD 1972 SC 25), Seth Essabhoy v. Saboor Ahmed (PLD 1972 SC 39) and Abdul Humid v. Abbas Bhai Abdul Hussain Sodawater Wala (PLD 1962 SC 1).

5. We have gone through the record carefully and considered the submissions of the learned ASCs for the parties.

6. An examination of the agreement to sell would reveal that its remaining part was agreed to be performed within one and a half months on payment of the remaining amount. Respondent in para 6 of the plaint averred that he approached the appellant after expiration of the time stipulated for the performance of the remaining part of the agreement, but the latter declined. When the respondent himself clearly averred in para 6 of the plaint that he approached the appellant after the expiration of the date stipulated in the agreement for the performance of the remaining part of the agreement, it does not lie in his mouth to state in the evidence recorded in the Court that he approached the appellant before such date. The evidence thus led being an outright departure from the pleading could not be led nor could it be read even if it was led. In the case of Muhammad Hawaz alias Nawaza and others v. Member Judicial Board of Revenue and others (supra) we while dealing with a similar situation held as under:- "

7. The next question emerging for the consideration of this Court is whether the appellants have proved what they have pleaded in their plaint? The answer to the aforesaid question is a simple no. In para-3 of the plaint, the appellants have averred that they are tenants of the vendors and now of the vendees, but one of them who appeared in the Court for himself and on behalf of others stated that the suit property was let out to one Sikandar on contract, therefore, they had been paying share of the produce to him. This statement, so to speak, is not consistent with what has been pleaded by the appellants in their plaint. It is, indeed, a clear drift rather an outright departure from what has been pleaded in the plaint. Granted that averments made in pleadings do not constitute evidence but the evidence led in their support must be consistent therewith. Anything stated outside the scope of such averments cannot be looked into. The rule of secundum allegata et probata, not only excludes the element of surprise, but also precludes the party from proving what has not been alleged or pleaded. This Court, in the cases of "Government of West Pakistan (Now Punjab) through Collector, Bahawalpur v. Haji Muhammad) (PLD 1976 SC 469), "Messrs Choudhary Brothers Ltd., Sialkot v. The Jaranwala Central Co-operative Bank Ltd., Jaranwala" (1968 SCMR 804), "Binyameen and 3 others v. Chaudhry Hakim and another" (1996 SCMR 336) and "Major (Retd.) Barkat Ali and others v. Qaim Din and others" (2006 SCMR 562), held that no party can be allowed to lead evidence on a fact which has not been specifically pleaded nor can any evidence be looked into which is outside the scope of pleadings.

7. The argument of the learned ASC for the respondent that the time was not of the essence of the agreement does not appear to be correct when we look at the words used in the agreement providing that the remaining part of the agreement would be performed within one and a half months. If for a while we do not consider the dates mentioned in the agreement showing terminus a quo and terminus ad quern then time would not be of the essence in any contract. If the date stipulated in the agreement is not considered as a terminus ad quern, we are at a loss to understand what else could be considered as a terminus ad quern. Such interpretation of the agreement, quite obviously, would not only put the vendor in a disadvantage but also leave him at the mercy of the vendee who may or may not perform the remaining part of the agreement on one pretext or another. This state of things could be accepted in the sixties and seventies of the 20th Century when the prices of the land used to be static for decades and decades together. Perpetuation of such a state of things in this part of the 21st Century would rather be unfair, unjust and even inequitable when every passing day brings a decrease in the value of the rupee and a manifold increase in the prices of the land. We, thus, do not approve diluting the import of the words used in the agreement expressing terminus a quo and terminus ad quem and envisaging time as of the essence of the contract. The judgments rendered in the cases of "Fazal-ur-Rehman v. Ahmed Saeed Mughal, Agricultural Development Bank of Pakistan and another v. Imtiaz Ahmed Gill, Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others, Muhammad Sharif v. Mst. Fajji alias Phaji Begum through Legal Heirs and another and Bootay Khan through Legal Heirs v. Muhammad Rafiq and others (supra) are instructive and advantageous in this behalf. The judgments rendered in the cases of Muhammad Hussain and others v. Dr. Zahoor Alam, Mst. Khair-ul-Nisa and 6 others v. Malik Muhammad Ishaque and 2 others, Seth Essabhoy v. Saboor Ahmed and Abdul Hussain v. Abbas Bhai Abdul Hussain Sodawater Wala (supra) referred to by the learned ASC for the respondent being different and distinguishable in view of their history and background are not applicable to the case in hand.

8. The argument that where all the three Courts concurrently held that time was not of the essence of the agreement, this Court could not take a different view even if, on reappraisal of evidence, it is equally tenable, would have been correct, had a finding been based on proper appraisal of evidence. But where a finding has been based on misreading, non-reading of evidence, no evidence or even erroneous assumptions of law and facts, mere concurrence of the fora below would not vest it with any sanctity.

9. When considered in this background, we do not think the finding of the fora below can be held to have been based on a proper appraisal of evidence. We, thus, do not feel inclined to maintain it. However, since a sum of Rs.20,00,000/- was received by the appellant who at no stage made any effort to return the same to the respondent or deposit it in the Trial Court or its return to the respondent in the same without considering decrease in the value of rupee and corresponding increase in the prices of the land would be rather unjust. We, in this view of the matter hold that the appellant would pay Rs.30,00,000/- over and above Rs.20,00,000/- to the respondent within a period of three months to be reckoned from today. Needless to say that the respondent would be at liberty to withdraw the amount he deposited in the Court.

10. For the reasons discussed above, we allow this appeal and set aside the impugned judgments in the terms mentioned above. MWA/B-1/SC Appeal allowed.