2002 PLP 1022 (CLC)

4. I have gone through the trial Court's records, with the assistance of the learned counsel for the parties. The suit was for specific performance of the agreement, dated 23-6-1974. Execution of this agreement was admitted. This agreement states that the agreement is to be performed by 30-6-1974. The matter is, therefore, governed by the first part of Article 113 of Schedule to the Limitation Act, 1908 and the suit had to be filed within three years of the said date. I may state here that the respondent had proved and the appellant while appearing in the witness-box had not denied that notice mark "A", dated 17-8-1975 was served by the respondent upon him informing him that because of the non-performance the agreement stood cancelled w.e.f. 30-6-1974 and the earnest money stands forfeited. To my mind this was sufficient notice of refusal to- perform. Thus the suit was to be brought within three years of 30-6-1974 or within three years of the service of said mark "A" dated 17-8-1975. The suit has been filed on 16-12-1982 and is barred by time.

5. Alongwith the suit an application under section 14 of the Limitation Act was filed. In the application it was stated that the appellant had been prosecuting the civil proceedings against the respondent in the Courts and that these proceedings were being un-prosecuted in good faith and with due diligence and that he had been same cause of action. Although not so prayed specifically but the intention was to claim benefit of section 14 for exclusion of the time spent in the said alleged civil proceedings being conducted by the appellant in Courts.

6. Section 14(1) of the Limitation Act, 1908 provides that the time during which the plaintiff has been prosecuting civil proceedings with due diligence whether in a Court of first instance or in a Court of Appeal against the defendant, shall be concluded where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature is unable to entertain it. It will thus be seen that in order to avail the benefit of said section 14 the following conditions must exist:-- (i) Prosecution of another civil proceeding with due diligence, (ii) The proceedings should be in a Court of first instance or in a Court of Appeal against the defendant. (iii) The proceedings should be founded upon the same cause of action and (iv) Prosecuted in good faith in a Court which from defect of jurisdiction or other cause of like nature, is unable to entertain it. Under explanation (i) the time to be excluded is the entire period of pendency of the suit including the date on which that suit was instituted and the day on which the proceedings therein ended.

7. As stated by me above an application under section 36 of the Registration Act, 1908 was filed before the Sub-Registrar on 9-9-1974 who refused registration on 2-11-1974. Application before the Registrar under section 73 of Registration Act, was filed on 8-11-1974 who dismissed the same on 16-6-1979.

8. So far as these proceedings are concerned, I find that these are neither civil proceedings nor were they pending in a Court of first 1 instance or in a Court of appeal within the meaning of section 14 of the Limitation Act, 1908. I have no manner of doubt while going upon the specific terminology used in said section 14 that the civil proceeding: mentioned in section 14 is by all means a civil suit or a civil appeal. Explanation (ii) to section 14 makes it clear when it lays down that a plaintiff resisting an appeal shall be deemed to be prosecuting a proceeding. The term `cause of action' is also relateable to a civil suit. Court of first instance and Court of Appeal. are terms to be found in the Code of Civil Procedure with reference to suits and appeal filed thereunder. It is also not the case of the appellant that the Sub-Registrar or the Registrar had no jurisdiction to entertain the applications. They have not dismissed the applications on the ground that they do not have jurisdiction to decide the matter as to whether the appellant has a right to get the document registered. Thus the time consumed in the said proceedings by no means can be said to have been consumed in the prosecution of another civil proceedings whether in a Court of first instance or in a Court of Appeal. This time comes to 55 days in the case of application under section 36 and four years seven months and eight days in the matter of application under section 73 of the said Act.

9. Coming to the suit filed under section 77 of the Registration Act, the said section provides that where a Registrar refuses to order the document to be registered then a person claiming under such document (the appellant in the present case) may within 30 days after making the order of refusal institute in the Civil Court within the local limits of whose original jurisdiction is situated the office in which the document is sought to be registered a suit for a decree directing the document to be registered in such office if it be duly presented for registration within 30 days after passing of such decree. Copy of this suit is Exh.P.4 and the relief prayed is that the Registrar, Gujranwala he directed to register the sale-deed, dated 30-6-1974. The suit was resisted inter alia following issue was framed:-- (2) Whether this Court has no jurisdiction to try this suit? This issue was answered in negative as it was not pressed. The learned Court while deciding Issue No.10 in the said. case held as a fact that the execution of the sale-deed has not been proved and that the appellant is not entitled to the relief prayed for. The copy of the judgment, dated 23-10-1982 is Exh.P.5. It will thus be seen that it was not a proceeding in a Court which for defect of jurisdiction or other cause of like nature was unable to entertain it.

10. In the overall background of the case, to my mind it cannot be said at all that the appellant had conducted the said proceedings in good faith or with due diligence. Apart from the refusal of registration by the Sub-Registrar in the first instance the respondent had put the appellant on notice that he had not performed the contract within the stipulated period and that respondent has no intention of performing the same and the same stands cancelled and the earnest money forfeited. Appellant still persisted in continuing the said proceedings. Be that as it may, neither the application before the Sub-Registrar or the Registrar and as well the suit under section 77 can be said to be the proceeding, the prosecution whereof by the appellant entitles him to the exclusion of the time spent by him in the same, for reasons stated in said section 14 of Limitation Act.

11. In view of the above discussion I find that the impugned judgment of the learned Additional District Judge does not suffer from any error or law so as to enable this Court to interfere with the same in this second appeal which is accordingly dismissed with costs. S.A.K./A-344/L Appeal dismissed.