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P L D 2004 Azad J&K 38

 

Before Sardar Muhammad Nawaz Khan, J

 

MUHAMMAD SHARIF KHAN and others‑‑‑Appellants

 

versus

 

Raja MUHAMMAD FARID KHAN and others‑‑‑Respondents

 

Civil Appeal No.80 of 2002, decided on 27th March, 2004.

 

Sardar Khan for Appellants.

 

Said Hussain Kayani for Respondents.

 

ORDER

 

This appeal arises out of the following facts:‑‑

 

2. Raja Muhammad Farid Khan and Muhammad Ishaq sons of Gul Ahmed Khar. respondents herein brought a suit for specific performance of an agreement to sell dated 21‑8‑1989 in the Court of Sub‑Judge Bagh against Muhammad Sharif Khan and others appellants herein regarding a suit land measuring 25 Kanals out of survey Nos.2088/1306 and 2087 1291 situated in village. Thub‑Bandian Tehsil and District Bagh. The plaintiff‑respondents claimed in their plaint that Muhammad Sharif defendant‑appellant executed an agreement to sell on 21‑8‑1989 through which the suit land was transferred to them for a consideration of Rs.1,25,000. According to them, the appellant ‑agreed to register sale deed in their favour within a period of one year. The entire sale consideration was paid to the appellant and the possession of the suit land was also handed‑over to them at the time of execution of agreement to sell resultantly they were in possession of the suit land as owners since then and they had made improvement over the suit land being full owners. Thereafter, the respondents demanded for registration of sale deed in their favour in view of the agreement however, the appellant had been evading the matter on account of certain compulsions but they continued demanding for registration of the sale‑deed in their favour. Lastly on 1‑7‑1996, he refused to register sale‑deed in their favour as promised by him in the agreement which resulted into filing of present suit for specific performance of the contract in the Court of Sub‑Judge Bagh on 5‑8‑1996. The learned Sub‑Judge on objection raised by the appellant returned the suit to the respondents as under Section 8 of Suit Valuation Act the same was not within the pecuniary jurisdiction of the learned Sub‑Judge. Consequently, the suit was brought before learned District Judge Bagh who after due process of law allowed the suit through the impugned Judgment and decree. Hence this appeal.

 

3. The learned Counsel for the appellants during his arguments did not challenge the validity of the Judgment and decree of the Court below on merits however, he raised an objection regarding limitation for filing of the present suit. According to the learned Counsel, the relevant provision of law was Article 113 of Limitation Act which provides three years time for filing a suit for specific performance of a contract. The learned Counsel submitted that if the date for specific performance of the contract was fixed in the agreement itself then it was incumbent upon the respondents to bring their suit for specific performance within three years from the date fixed for the purpose. However, if no date was specified in the contract then the suit for specific performance of the contract was permissible within three years from the notice of refusal for performance by the appellant. The learned Counsel while elaborating his view point contended that the agreement dated 21‑8‑1989 by itself provided a period of one year for its performance and as the respondents failed to bring their suit within three years from the expiry of one year time therefore, the same was to be dismissed on this sole ground. The learned trial Judge, according to the learned Counsel, failed to under stand this legal aspect of the case and it was wrong to hold the present suit within time.

 

4. On the other hand, the learned Counsel representing the respondents contended that the relevant provision of law i.e. Article 113 of Limitation Act provided three years limitation from the date specified in the contract itself or from the notice of refusal. Here in this case, according to the learned. Counsel, no date was specified for performance of the contract therefore, the 2nd Clause of the said Article was attracted in the instant case. The period or time is not the essence while making application of the said Article but the specification of a date is the essence in such like cases. As no date has been specified in the agreement therefore, the suit by the respondents was covered by 2nd clause of Article 113 of the Limitation Act. The appellants had been evading the performance of the contract and finally when he refused to do so on 1‑7‑1996 the respondents filed their suit within three years from date of refusal. Therefore, according to the learned Counsel, the suit was not hit by mischief of limitation.

 

5. The only controversy’ between the parties debated at Bar was about the limitation provided by the present suit. The relevant Article as contended by the learned Counsel for the respective parties is Article 113 of Limitation Act. This Article has two clauses. It provides three years of limitation for filing of a suit for specific performance of a contract. According to 1st clause, if a date is specified in the contract itself then the starting point of limitation is such date as mentioned in the contract and the plaintiff is required to file a suit for specific performance within three years from such date in case of a refusal. The 2nd clause of this provision of law provides that when no such date is specified in the contract then the suit is to be filed within three years from the notice of refusal by the opposite party. Notice of refusal may be formal or in formal. When there is no formal notice by the promisor then the refusal can be gathered from the conduct of the promisor and the circumstances of the case. Article 113 of Limitation Act does not speak of period or time for specific performance but it speaks of specification of a particular date therefore, the argument of the learned Counsel for the appellants regarding one year period for specific performance cannot be allowed to prevail. The fixation of a period or time cannot be allowed to substitute specification of a particular date as provided by the said provision and such like interpretation has no logic behind it. The interpretation of a provision of law besides other requirements is always made primarily keeping in view the language used in it. The provision of Limitation Act in shape of Article 113 clearly shows the starting point of limitation from the date specified in the contract as provided in clause 1st of the said provision. As no particular date has been specified in the contract but only period of one year is mentioned in it therefore, clause 1st of the Article 113 of Limitation Act is no attracted in this case. The relevant clause in the instant case is clause 2nd of the said provision which provides starting point of limitation from the notice of refusal. Here in this case, the respondents have categorically pleaded that they had been demanding for performance of the contract by the appellant but on one pretext or the other he had been evading the registration of the document and finally on 1‑7‑1996 he categorically refused to fulfill his promise. This averment in the plaint is found to have been substantiated satisfactorily through the evidence on record. Almost all the witnesses appearing on behalf of respondents categorically stated that the respondents had been demanding for specific performance of the contract but the appellant evaded the matter which resulted into filing of present suit. Thus, there is no reason to disbelieve the version of respondents pleaded in the plaint and substantiated through the evidence especially in presence of nothing contrary on record. The Limitation Act does not confer a right. It is only a regulatory enactment which regulates the rights of the parties. Such regulatory provision cannot be allowed to extinguish vested right or curtailment of remedies unless all the conditions prescribed for curtailment are fully complied with in letter and spirit. The benefit of doubt, if any, should be given to the party who has acquired right for good consideration and not to one who is trying to back out from his commitment pocketing all the advantages and trying to shield himself behind the regulatory provisions of the statute and trying to deprive the other from the rights acquired. As there is no formal notice of refusal by the promisor therefore, it could be gathered from the conduct of the appellant. He is found to have been evading the registration of the document despite repeated demands by the respondents in presence of number of persons who appeared as witnesses in the Court. There is no evidence on the side of appellant which could justify that he was ready to register the document within one year time or on demand by the respondents. The over all evidence in the light of pleading of the parties clearly suggested to say that the appellant had been putting off the matter of registration of the document and on his clear refusal they brought the present suit within prescribed time limit from the date of denial i.e. 1‑7‑1996 as pleaded by them in clause 4 of their plaint. The suit is therefore, within time and it has been rightly decreed in favour of the respondents by the Court below. As stated earlier, the learned Counsel for the appellants did not challenge the validity of Judgment and decree of the Court below on its merits therefore, by repelling objection regarding limitation the appeal is hereby dismissed.

 

H.B.T/7/AJK Appeal dismissed.

 

 

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