1987 PLP 3257 (MLD)

Usman Ghani Rashid for Applicant. Khalid.M.Ishaque assisted by Amir Hani Muslim for Respondent. Date of hearing: 30th .August, 1987. By this common judgment, I intend to dispose of the above two Revision Applications. The brief facts leading to the filing of the above Revision Application are that the present applicant by a Sale Agreement dated 10-8-1966 (Ex.8) agreed to sell a plot of land bearing old survey No.41 and New Survey No.468, situated in Deh Mehran. Tapo Malir, Taulka and District Karachi, measuring 1400 square yards, at Rs.7 per square yards for a total consideration of Rs.9,800 out of which a sum of Rs.500 was paid by respondent No.1 to the applicant and the balance was to be paid at the time of the transfer of the plot in favour of respondent No.1. The respondent. No.1 served a legal notice dated 5-8-1974 (Ex.9) alleging therein that in spite of repeated promises, the applicant had not completed the Sale Agreement. The above notice was replied to by Respondent No.1 by his Advocate's letter dated 12-8-1974 (Ex.10), whereby he denied the averments contained in Respondent No. l's Advocate's above notice and had alleged that the default was on the part of the Respondent No.1. It was also alleged that after cancelling the agreement he sold the same to Respondent No.2 in June, 1974. It appears that thereafter Respondent No.1 filed Suit No.2368 of 1974 for specific performance of the Sale Agreement. He also filed suit No.1737 of 1975. Both the above suits were contested by the present applicant. The learned trial Court on the basis of the pleadings of the parties framed as many, as 14 Issues. Respondent No. l in support of the suit examined himself and two witnesses namely, P.W.1 Chaudhary Bashir Ahmad and P.W.2 Muhammad Rauf, whereas the applicant examined himself and two witnesses i.e. D.W.2 Faiz Muhammad and D.W.3. Ghulam Rasool. The learned trial Court after hearing the parties decreed both the suits by a common judgment dated 3-1-1981. The applicant being aggrieved by the above judgment/decree filed First Appeal Nos.63 of 1981 and 64 of 1981 but the same were dismissed by a common judgment dated 29-2-1984. The applicant being aggrieved by the above judgments/ decrees has filed the above two Revision Applications.

2. Mr. Usman Ghani Rashid, learned counsel for the applicant in support of the above Revisions has vehemently argued that the suit of the respondent for specific performance was barred by limitation inasmuch as it was filed in 1974 in relation to the Sale agreement of 1966. It may be observed that Respondent No.1 in para 5 of the plaint has averred that the cause of action accrued on 10-8-1966 and finally on 12-8-1974 when the applicant refused to complete the sale transaction. The applicant in reply to the above pars, in para 5 of the written statement had raised the plea of limitation but had averred that no cause of action had accrued to Respondent No.1. It also appears that the question of limitation was not argued before the learned trial Court. However, this point was raised before the learned 1st Appellate Court and, was considered which is evident from the appellants court's judgment. The learned appellate Court has recorded a finding of fact even on the question of limitation against the present applicant.

3. I have gone through the evidence, of the parties on record. According to the statement of the appellant he had allegedly cancelled the Sale Agreement in May, 1974. If the above statement of the applicant is to be accepted as correct, in that event it is evident that even the applicant kept the sale Agreement alive till May, 1974. This lends support to the conclusion arrived at by the learned is Appellate Court that in fact refusal on the part of the applicant was in 1974 and, therefore, the suit was within time as it was filed in 1974 within the period of 3 years from the date of refusal as per Article 113 of the First Schedule to the Limitation Act. The finding on the question of limitation, in my view, seems to be in consonance with the evidence on record. There are other concurrent findings on the other questions which need not be disturbed in these Revision Applications.

4. Both the Revision Applications are, therefore, dismissed but there will be no order as to costs. S.Q./A-181/K????????????????????????????????????????????????????????????????????????? Application dismissed.