2016 C L C Note 93
[Lahore]
Before Ch. Muhammad Masood Jahangir, J
JAVAID IQBAL GHANI and another—Petitioners
Versus
Malik ABDUL SHAFIQUE and 2 others—Respondents
C. R. No. 2769 of 2009, heard on 30th April, 2014.
Syed Muhammad Tayyab for Petitioners.
Khalid Ahmed Ansari for Respondents.
Date of hearing: 30th April, 2014.
JUDGMENT
CH. MUHAMMD MASOOD JAHANG1R, J.—This judgment intends to decide C.Rs. Nos. 2769, 2770 and 2771 of 2009 filed by the petitioners/plaintiffs jointly as the same have arisen out of the consolidated judgment and decrees dated 08.2.2007 passed by the learned trial court whereby the suit for Specific Performance of the Agreements filed by the plaintiffs/petitioners was dismissed whereas the other two suits filed by the defendants-respondents were decreed as well as the judgment and decrees dated 30.6.2009 passed by the learned lower appellate court, whereby the appeals filed by the petitioners-plaintiffs were dismissed.
2. The facts necessitated for the disposal of the instant litigation are that plaintiffs filed a suit for possession through specific performance on the basis of agreements to sell dated 5.7.1984 (Exh.P1) and 21.10.1984 (Exh.P3) regarding the disputed property bearing No.151-A measuring 11 Marlas, 28 sq.ft. situated in Ghulam Muhammad Abad, Faisalabad before the learned trial court against the respondents with the assertions that Malik Abdul Shafique (defendant) was the owner of the disputed house and the plaintiffs/petitioners purchased the said disputed house vide agreements to sell Exh.P1 and P2, that the entire sale consideration was paid to the said vendor and possession was obtained, that Muhammad Rafique defendant intended to purchase the disputed property from the said Malik Abdul Shafique vendor i.e. Malik Abdul Shafique, who was asked time and again to transfer the disputed property in favour of the plaintiffs and restrained from interfering into their possession over the disputed house, but he, finally declined to honour the agreement just two days prior to the institution of the suit, hence the plaintiffs were constrained to file the instant suit. On the other hand, Muhammad Rafique defendant got transferred the disputed property during the pendency of the suit and he filed two declaratory suits before the learned trial court through which he sought declaration against order No.1418 dated 12.10.2004 and letters Nos.182 and 994 dated 6.9.2004 being illegal and unlawful. Malik Abdul Shafique the vendor by filing his independent written statement resisted the suit filed by the plaintiffs with the assertion that the disputed agreements to sell being fake and forged were inoperative upon his rights; and that the suit for specific performance filed by the present petitioners/plaintiffs was barred by time. Muhammad Rafique the defendant also resisted the said suit on the same line by filing his written statement and further asserted that he had already purchased the disputed property from the vendor Malik Abdul Shafique and the same was transferred in his name.
3. The learned trial court consolidated both the declaratory suits filed by Muhammad Rafique defendant with the suit for specific performance filed by the plaintiff/petitioner and framed the following consolidated issues out of divergent pleadings of the parties:-
1. Whether Malik Abdul Shafiq and Malik Naseer Ahmad with connivance of respondent No.1/Sh. Nisar, Deputy Director has dis-obeyed the orders of the court, hence, they are liable to be punished under section 39(3)(sic.) of C.P.C.? OPA
2. Whether order No.1418 dated 12.10.2004 is illegal, void and having no effects on letter No.994 dated 06.09.2004? OPD3
3. Whether defendant No.3 namely Muhammad Rafique is the owner and possessor of the suit property vide letter No.182 dated 06.09.2004 and vide letter No. 994 dated 06.09.2004 issued by the Deputy Director Housing and he is entitled to retain possession? OPD3
4. Whether plaintiffs have purchased the suit property vide agreement dated 05.07.1984 and in view of his agreement was owner and possessor of the suit property? OPP
5. Whether plaintiffs are entitled to get the decree for possession? OPP
6. Whether suit is not maintainable in its present form? OPDs
7. Whether suit is time barred? OPDs
8. Whether plaintiffs have filed this suit with connivance of defendant No.2 and to harass the defendants and defendants are entitled to special costs under section 35-A of C.P.C.? OPDs
9. Whether agreements are false and frivolous and no signatures and thumb impressions have been made by the defendants? OPDs
10. Relief.
4. Both the parties produced their evidence in pros and cons and ultimately the learned trial court after appreciating the evidence available on record dismissed the suit for specific performance of agreements to sell filed by the plaintiffs/petitioners and decreed the declaratory suits filed by the defendant/respondent Muhammad Rafique vide consolidated judgment and decrees dated 08.2.2007. The said judgment and decrees were assailed by the petitioners/plaintiffs by filing three separate appeals before the learned lower appellate court. The petitioners/plaintiffs in the said appeals questioned the findings of the learned trial court rendered on issues Nos.4, 5 and 7. The learned lower appellate court reversed the findings on issue No.4 while maintaining the finding on rest of the issues particularly on issues Nos.5 and 7 and dismissed the said appeals with the observation that though the execution of agreements to sell Exh.P1 and P3 was proved but the petitioner/plaintiff failed to file suit for specific performance within time vide impugned judgment and decree.
5. The learned counsel for the petitioners has argued that the impugned judgments and decrees passed by both the courts below on issues Nos.5 and 7 are patently bad in law and result of misreading and non-reading of evidence, that the suit filed by the petitioners/plaintiffs for specific performance of agreements to sell was quite within time, but the learned lower appellate court has misinterpreted the provisions of Article 113 of Limitation Act while dismissing the appeals, that the said Article provides two situations for the starting point of limitation i.e. when time of performance is fixed in the agreement and the other when time is not fixed in the agreement, that the suit of the petitioners/plaintiffs falls in second part of the said Article and the limitation starts from the date of notice when performance of contract has been refused, that the findings rendered by the learned lower appellate court for declaring the suit filed by the petitioners/plaintiffs as time barred is not sustainable in the eye of law. He lastly prayed for the acceptance of the civil revisions, setting aside of the impugned judgments and decrees passed by both the courts below, decreeing the suit filed by them and dismissal of the declaratory suits filed by Muhammad Rafique defendant.
6. Conversely the learned counsel for the respondents/defendant Muhammad Rafique has argued that the disputed agreement to sell Exh.P1 had been arrived at between the parties on 5.7.1984 and a target date was fixed as 31.12.1984 by the parties for the performance of the agreement, that a penal clause as also inbuilt of the said agreement that in case of failure to pay the balance amount within the stipulated period, the said agreement would be rescinded and the target date was fixed by the parties with their free consent in the agreement Exh.Pl therefore the case of the petitioners/plaintiffs falls within part-1 of Article 113 of Limitation Act 1908, that after elapse of 19 years from the execution of Exh.P1 the suit for specific performance filed by the petitioners/plaintiffs on 13.5.2003 before the learned trial court was hopelessly barred by time. He lastly added that the impugned judgment and decree passed by the learned lower appellate court being comprehensive and well reasoned requires no interference by this Court and prayed for the dismissal of these civil revisions.
7. Arguments heard record perused.
8. Admittedly, no cross-objections were filed on behalf of the respondents-defendants and the only controversy involved between the parties as borne out from the perusal of the impugned judgment and decrees passed by the learned lower appellate court/District Judge is restricted to the issue that whether the suit for specific performance filed by the petitioner/plaintiff was within time or beyond limitation. The learned counsel for the parties have also adduced their arguments only to the extent of finding on issue No.7.
9. The recent development on this issue has made it clear that object and intention behind law of limitation is to govern codes and manners for providing relief where substantive rights are pressed in shape of litigation, the barrier of time limit is result and outcome of public policy which restrict the time for bringing a claim before the court of law as adopted in the legal system provided by statute. It is also in the mind of this Court that time and again the Superior Courts of the State held that litigation should be decided on merits and technicalities be avoided in dispensation of justice, but limitation has also been declared as command of law prescribing time limit within which a right can be exercised or enforced. The said embargo cannot be ignored.
10. The suit for specific performance of contract is governed by Article 113 of Limitation Act 1908, which is reproduced hereunder:
|
113. |
For specific performance of a contract. |
Three years |
The date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused. |
and the bare perusal thereof caters two situations i.e. when time of performance is fixed in the agreement and the other where time is not fixed in the agreement. In the first part starting point of limitation is three years from the date fixed for performance and in the second part time runs from the date when performance is refused. The contention of the learned counsel for the petitioners/plaintiffs that in view of averments made in para 4 of the plaint, the case of the petitioners/plaintiffs fell within second part of the above referred Article is misconceived as the same could not be proved by production of any evidence. For ready reference para-4 of the plaint in verbatim is reproduced as under:-
11. The plaintiff Javed Iqbal Ghani himself appeared as PW1 and produced the other witnesses PW2 to PW7. The learned counsel for the petitioners/plaintiffs has read out the entire depositions of PW1 to PW7, but he remained unable to point out that any one of these PWs including the plaintiffs/petitioners ever stated about the alleged refusal of the defendant/vendor from performance of agreement to sell. In the fag end of his arguments he has mooted that in para-4 of the plaint it was averred that the defendant/vendor had refused to perform his part of the agreement two days prior to the institution of the suit, therefore in the light of such assertions the suit filed by the petitioners was to be considered well within time from the notice of refusal of performance of agreement. It is settled principle of law that mere pleadings cannot be taken into consideration, unless the same are corroborated by producing evidence of unimpeachable character besides the opposite party is afforded opportunity to cross-examination on the said PWs and then to produce evidence in its defence.
12. Conversely the learned ounsel for the respondents has eminently argued that as Exh.P1 provided an inbuilt target date for the performance of the agreement to sell along with a penalty clause, therefore, the suit filed by the petitioners/plaintiffs for specific performance fell within the first part of Article 113 of Limitation Act. He has further argued that the plaintiff (PW1) himself asserted that after the execution of the agreement he had proceeded to Saudi Arabia, who returned in 1990 and even after his arrival he did not institute the suit within a period of three years rather he filed it after a delay of almost 19 years. No doubt after the execution of Exh.P1, another agreement Exh.P3 was also executed between the parties on 21.10.1984, but the said agreement Exh.P3 was a continuation of Exh.P1 as has been vivid that it was also got executed on 21.10.1984 even before the said target date i.e. 31.12.1984 which was an inbuilt of agreement (Ex:P1) for its performance. So the contention of the learned counsel for the defendants/respondents has substance that Exh.P3 was a continuation of Exh.P1 and although Exh.P3 did not disclose any target date, but since it was executed before the target date provided in Exh.P1, therefore, the said target date remained unchanged.
13. For the sake of arguments if it is assumed that no specific date for performance of the agreement was provided in Exh.Pl and Exh.P3 and the case of the petitioners/plaintiffs fell within the second part of Article 113 of Limitation Act, even then the petitioners/plaintiffs failed to prove that when the defendant had refused to perform his part as mentioned in the agreement. As the agreement Exh.P1 alleged to have been settled between the parties provided a clear cut date for its performance and prior to completion thereof the other agreement (Exh.P3) was executed between the parties so the case of the petitioners/plaintiffs clearly fell within the first part of above referred Article. If the intention of the parties was to extend the target date of performance of the said agreement, then in Exh.P3 a specific clause should have been incorporated by the parties. As the parties themselves had fixed the target date in Exh.P1, the stance of the learned counsel for the respondents-defendants that Exh.P3 was a continuation of Exh.P1 finds force and substance. The case of the plaintiffs clearly falls within the ambit of first part of Article 113 of Limitation Act 1908, which provides a limitation of three years, but there is no material available on the record to departure therefrom and the limitation period has rightly been calculated from the target date 31.12.1984 fixed by the parties in Exh.P1. The attitude or conduct of the parties loses its relevancy in the context of the limitation of a suit covered in first part of Article 113 of Limitation Act.
14. So far as the other contention of the learned counsel for the petitioners that as the case related to immovable property and time could not be considered an essence of the contract, but the period of limitation should have been calculated as per para-4 of the plaint is concerned, suffice it to say that the said question has authoritatively been clinched by the august Supreme Court of Pakistan in the judgment reported as (PLD 2012 SC 247) and for ready reference relevant para-7 of the said judgment is reproduced hereunder:-
“7. Before proceeding further in the matter and being still on the subject of limitation (Article 113 ibid), we would also like to dilate upon another submission of the learned counsel for the petitioners that in view of the general principle and on account of the peculiar circumstances of this case the time was not the essence of the contract, therefore, the period of limitation shall be covered as per paragraph No.18 of the plaint attracting second part of the Article. In this regard, in our candid view the noted rule has nothing to do with the proposition of limitation of the specific performance cases. The said rule is not an enunciation of any statutory instrument, but has emerged as the principle of equity for the exercise of discretion by the Courts in specific performance cases. It only touches on the right to enforce the contract and has relevance and nexus in respect of the judicial consideration, whether the agreement/contract should be enforced or not by the court in the set of facts of a given case, by resorting to the said rule and nothing more. Whereas, the limitation is a command of law, prescribing the statutory period within which the right has to be exercised and enforced. The courts thus shall have no lawful authority to ignore the date/period stipulated in the contract, which as a legal consequence is meant to regulate the period of limitation in terms of first part of Article 113 ibid, and on the touchstone of the equitable, discretionary principle, and to hold against the vivid and clear provisions of law, by extending, enlarging or exempting the said period in violation thereof.”
15. The learned lower appellate court has rightly observed that the suit filed by the petitioner/plaintiff is time barred as the prescribed period of limitation was three years, but it was filed after the elapse of almost 19 years. I am in agreement with the findings of the learned lower appellate court on issues Nos.5 and 7. As the learned counsel for the petitioners/plaintiffs has failed to point out any illegality, perversity or jurisdictional defect in the impugned judgment and decrees, which are also not tainted with any misreading or non-reading of the evidence available on the record calling for any interference by this court in the exercise of revisional jurisdiction the scope whereof is narrower and restricted only to the extent of correcting errors of law and facts, if are found to have been committed by the subordinate courts in the discharge of its judicial functions. Resultantly, all these revision petitions having no merits are dismissed with costs.
ZC/J-18/L Revisions dismissed.
