1985 PLP 1563 (MLD)

"(a) That it be declared that possession of the plaintiff on the above land being in pursuance of legal, valid and binding agreements of sale as mentioned above, the same is protected under the law, and the defendant or any person claiming through him is debarred from dispossessing the plaintiff. (b) That permanent injunction be issued against the defendant restraining him from entering or interfering with the possession of the plaintiff or with the water rotation of plaintiff on the above land directly or indirectly." The respondent contested the suit. In his written statement, the respondent stated that the consideration stipulated in the agreement had, not been paid, and the agreement had fallen through. He also made an averment that the possession of the suit land was handed over to the Applicant, and therefore, protection under section 53-A of the Transfer of Property Act was available in favour of the petitioner. The learned Senior Civil Judge framed the following issues:- (1) Whether defendant is not agriculturist, and whether provisions of D . A . R . Act are not applicable to the present suit ? (2) Whether date of execution of the sale-deed was fixed to be upto 1-12-1966, and whether it was agreed that if the plaintiff failed to get the sale-deed executed upto the said date, the sale agreement was to stand cancelled, and earnest money forfeited ? (3) Whether sale agreement in dispute stands cancelled, and earnest money forfeited due to breach of contract on the part of the plaintiff ? (4) Whether subsequent sale agreement were executed by the defendant on 9-2-1967, 14-11-1969 and 14-4-1970 in favour of the plaintiff ? (5) Whether possession of the suit land was delivered to the plaintiff as asserted by him ? (6) Whether defendant directed the plaintiff to pay Rs.500 to the Agricultural Development Bank on his behalf ? (7) Whether suit is maintainable in its present form ? (8) Whether suit is properly valued, and plaint is sufficiently stamped? (9) What should the decree be ? The most germane issue is Issue No. 7, which concerns the maintainability of the suit. It is the case of the respondents that the proper remedy, which was available to the applicant, was a suit for specific performance of the agreement of sale, and not a suit for an injunction. Placed in these circumstances, the applicant had, on 17-7-1975, viz., after nearly four years of the filing of the suit, made an application under Order VI, rule 17, C.P.C. seeking amendment of the plaint, so as to enable the plaintiff to seek the relief for specific performance. I have been informed by the Advocates on either side that this application was dismissed on the ground that ft was barred by time. A Revision Application was also preferred against the dismissal of this application for amendment of the plaint, and that too without success. This order has, therefore,. become final. The short question, which has engaged my attention, is, whether the suit was maintainable. In that regard, there are several hurdles, which the applicant had to cross, but he had not been able to cross the same. Firstly, even if this suit, which was one for declaration, is considered to be a suit for specific performance, then to it was miserably barred by time. Article 113 of Schedule 1 to the Limitation Act is a complete answer. On the other hand, the provisions of Order II , rule 2, C.P.C. would also seem to defeat the right of the applicant to obtain any relief in the nature of specific performance. These provisions read that every suit shall include the whole of the claim, which the plaintiff is entitled to make in respect of the cause of action, although the plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court. It must be straightaway stated that the exception to the main rule would not apply in this case, because, if the plaintiff relinquishes any part of his claim, viz. his right to obtain specific performance, then the suit must fail for the simple reason that the plaintiff has given up .such right on which he based his plaint. What is more that such relinquishment should be with the intention of bringing the suit within jurisdiction of the Court. Even this would not apply, because the Courts of Senior Civil Judges are Courts of unlimited pecuniary jurisdiction. It would, therefore, appear that Order I I, rule 2, C . P. C . would defeat the suit in so far as any relief on the basis of the agreement is concerned. As far as the grant of injunction was concerned, the prayer clause in the plaint is indeed novel. The applicant/ plaintiff claims to have an agreement in his favour. He states that he had got possession also. Now, if he wanted to retain that possession, he can do so only on the basis of the rights that he has, and that right emanates from the sale agreement alone. In such circumstances, I fail to understand as to why a suit for specific performance could not have been filed by the applicant. This remedy was available, which has not been availed. Mr. Abdur Rahim Kazi, however, contended that, although the plaintiff has not claimed the relief for specific performance, he could, by virtue of section 53-A of the Transfer of Property Act, protect his possession. On that ground also, I am of the view that apart from the position in law, he cannot protect his possession on ground of an agreement, execution whereof has become time-barred. Apart from this fact, granting any relief to the applicant would be unconscienable in the circumstances of this case. Patently, the agreement was executed in 1966. Full two decades have passed by. Admittedly, full consideration has not been paid; full court-fee for obtaining relief of specific performance has also not been paid. The suit for specific performance has also become miserably time-barred. In these circumstances, allowing the applicant' any benefit on account of this transaction would be patent injustice to the opposite party. Mr. Anwar A. K. Khokhar has also invited my attention to another aspect of this case on the basis of Supreme Court Judgment in the case of Sibtain Fazle v. Star Film Distributors and another. The case is reported in P L D 1964 S C 337, and the last para at page 355 of the said report is relevant. Mr. Justice Kaikaus was dealing with the situation when a person had filed a suit for a declaration when, in fact, he should have sued for specific performance. His Lordship observed that any equitable ground of relief, which would have been open to the defendant for resisting a suit for specific performance, would also be open to him in a suit for injunction. Applying that principle in the instant case, if the suit for grant of specific performance could have been dismissed, then, on the same process of reasoning, even, a suit for declaration, or, injunction would be dismissed. After all, it is well-known that very often parties avoid filing suit for specific performance and come forward to seek a relief of declaration and injunction, because the grant of such relief gives the parties total protection against eviction. For the above reason, I am of the view that this suit was barred by limitation, and Order. rule 2, C.P.C. disables the applicant from obtaining any relief on the ua%.Ls of the agreement in his favour. This revision application is dismissed. A. A. Revision dismissed.