1989SCMR1258 (PLP)

Q.M. Saleem, Senior Advocate Supreme Court and Muhammad Aslam Chaudhry, Advocate‑on‑Record for Petitioner. Nemo for Respondent. Date of hearing: 21st February, 1989. USMAN ALI SHAH, J.‑‑The petitioner seeks leave against the judgment and order dated 29‑1‑84 of the Lahore High Court, Lahore, passed in R.S.A.No. 281/83, where by suit for specific performance of the petitioner was dismissed through out. An agreement to sell regarding half portion of a House No.59ti, measuring 4‑1/2 marlas belonging to the respondent was entered between the petitioner and the respondent for a sale consideration of Rs.4,500, vide Iqrarnama dated 17‑6‑1968. The petitioner paid Rs.3,000 as earnest money to the defendant/respondent and the remaining amount of Rs.1,500 was agreed to be paid at the time of registry i.e. 18‑7‑1968. It was also agreed that in case of failure on the part of the respondent he would pay Rs.1,000 more, in addition to the actual money received by h n. On the alleged refusal of the respondent from receiving the remaining money and get the registry done, the petitioner filed a suit for specific performance. The suit was resisted by the respondent and raised a preliminary objection of limitation. The respondent also admitted the execution of the lqrarnama dated 17‑6‑1968, but deposed that the plaintiff/petitioner has failed to pay the remaining money and get the registry done in his name till 18‑7‑1968, therefore, he was refused the agreement of sale‑deed. The learned trial Judge accepted the respondent's plea and dismissed the suit of the petitioner vide his order dated 15‑2‑1983. Both the 1st appeal and regular second appeal of the petitioner received the same treatment. The learned counsel for the petitioner contended before us that the respondent has admitted in his statement the receipt of Rs.3,000 as price of 3 marlas at the rate of Rs.1,000 per marla and the remaining amount of Rs.1,500 being the price of 1‑1/2 marlas was agreed to be paid later, which fact is proved from the receipt Exh.P.2 dated 1‑11‑1969, upon which the respondent handed over the possession of the disputed premises to the petitioner, is amounting to extend the period of limitation. 1n our view this contention of the learned counsel needs consideration of this Court as the payment on 11‑1‑1969 would show that there was no refusal till then, if that be so, then under Article 113 of the Limitation Act, the plaintiff/petitioner could file the suit within a period of 3 years i.e. upto 30‑10‑1972. The petitioner had filed the suit on 23‑10‑1972 which is apparently within time, which makes the case of the petitioner arguable. In the circumstances, we grant leave to appeal and fix the security as Rs.5,

000. Appeal shall be prepared on the present record with direction to the parties to file necessary documents, if any. Status quo is to be maintained. M.B.A./N‑165/S Leave granted.