2013 PLP 777 (YLR)

SYED MUHAMMAD FAROOQ SHAH, J.

By judgment dated 22-5-2010 learned IInd Additional District Judge Shaheed Benazirabad in C.A. No. 09 of 2010 dismissed the appeal and maintained the order passed by learned trial Court in F.C. Suit No. 334 of 2008, whereby the plaint was rejected under Order VII R 11, C.P.C., merely on the ground that the suit was filed at belated stage after more than three years to the date fixed in agreement hence treated as barred under section 113 of Limitation Act.

2. The grounds urged by the learned counsel for petitioner are that the suit of the plaintiff/applicant was neither barred by time nor the same was causeless, thus the provisions of O. VII, R. 11, C.P.C. were not attracted to the facts of the suit. It is reiterated that both the courts below ignored the fact that the respondent No.1 had played fraud/misrepresentation concealing his entitlement over the suit property in existence of other co-sharers therein compelling the petitioner to acquire the possession entering into the agreement to sale; which later proved defective title of the respondents. It is averred by the petitioner that impugned orders and decrees passed by both the courts below in a slipshod manner is liable to be set aside. Learned counsel contended that the limitation is a mixed question of law and facts and can be decided after framing of issues, by way of evidence. To support his contention, learned counsel placed reliance on the case of Muhammad Mushtaq v. Mst. Abida Nasreen (2008 CLC 1507), Pakistan Agricultural Storage and Services Corporation Limited (Passco) v. Qamar-ul-Islam (2005 YLR 879), Major S.M Hafiz v. Shafqat Ali Qureshi and others (2008 YLR 1287), Abdul Rehman Khan v. Muhammad Altaf and others (1997 CLC 1260) (Karachi). In the case of Abdul Rehman Khan the Division Bench of High Court held "Court should not have rejected the plaint when specific and definite allegation of fraud was levelled by the plaintiff but should have inquired into question of fraud". Reliance has also been placed on the case of Muhammad Khan v. District Coordination Officer Bakhar (1984 CLC 997) wherein the Single Bench held that when prima facie a cause of action and plaintiff had locus standi to file suit is available, in such case neither suit can be dismissed for want of cause of action, nor the plaint could be rejected. Learned counsel for petitioner contended that courts are not supposed to act in haste after parties have been summoned, rather should decide the petition under Order VII, R.11, C.P.C. before adjudicating upon anything else. Reliance in this regard is being placed on the case of Mushtaq Hussain v. Province of Punjab through Collector Jhelum District and others (2003 MLD 109). The last citation on the strength of which petitioner sought relief from this court is the case of Sahib Sultan v. Moula Muhammad Ramzan (PLD 2000 Quetta 61), wherein the learned Single Judge observed that if the court comes to the conclusion that even if all the allegations are proved, the plaintiff would not be entitled to any relief whatsoever and rejection of plaint should be by a speaking order and not by a cryptic order.

3. On the other hand, Mr. Khalid Hussain Surhio, learned counsel for respondent No.1 contended that facts of the instant case transpires that plot bearing C.S. No. 2401 area 420 sq.ft Ward "A" Manuabad Nawabshah was owned by defendant/respondent No.1 who sold the same to plaintiff/appellant in the sum of Rs.88,000 by an agreement to sale dated 19-4-2000. The plaintiff/appellant paid an amount of Rs.5,000 to defendant/ respondent No.1 as earnest money and balance amount of Rs.83,000 was agreed to be paid on 25-7-2001 when the defendant/ respondent No.1 agreed to execute the final sale-deed after getting the suit plot mutated in his name. On the same day plaintiff paid an amount of Rs.27,000 under the receipt and handed over vacant possession of the suit plot to plaintiff/appellant. Thereafter, the respondent No.1 did not execute the sale-deed. Learned counsel contended that the averments of the plaint reveals that agreement of sale was executed on 19-4-2000 and sale-deed was to be executed on 25-7-2001 and in non-performance of contract the suit was filed before the court on 23-12-2008, which is beyond the period of limitation as provided under the law. It is well-settled position in relation to Article 113 of the First Schedule to the Limitation Act that if the date for performance of a sale agreement of immovable property is specified therein, the period of three years shall commence from the specified date, but where no date for performance is mentioned in the sale agreement, three years period will commence from the date of refusal to perform and where time was essence of contract period of three years specified of filing suit for specific performance of contract would be start running from the date of fixation in the agreement to sale for its performance and execution of final sale-deed and when the suit filed and the period of three years fixed for performance of agreement, it was held in plethora of citations even of honourable Apex Court that in the mentioned circumstances the suit is barred by time in view of Article 113 of Limitation Act. In the instant suit, if at all, the date of performance of contract was fixed as 25-7-2001, the appellant/plaintiff should have filed a suit for specific performance of contract within three years to the date fixed for performance, as such the suit was barred under section 113 of Limitation Act. To support his contention learned counsel placed reliance on the case of Hafiz Shaikh Anwar-ul-Haque v. Jehan Khan (PLD 2011 SC 540), wherein their lordships held that if time is extended for performance of contract pertaining to immovable property, then time can never be enforced as of the contract. In the case of Muhammad Islam v. Inspector-General of Police, Islamabad (2011 SCMR 8) it was held that question of limitation cannot be considered a "technicality" simpliciter as it has got its own significance and would have substantial bearing on merits of the case. Reliance has also been placed on the case of Muhammad Sami v. Additional District Judge (2007 SCMR 621); NED University of Engineering and Technology v. Ashfaq Hussain Shah (2006 SCMR 453) and in State Bank of Pakistan v. Khyber Zaman (2004 SCMR 1426), their lordships held at relevant pages 10 and 11 that the law of limitation must be followed strictly and reliance is being placed on Chairman, District Screening Committee, Lahore and another v. Sharif Ahmed Hashmi (PLD 1976 SC 258), S. Sharif Ahmad Hashmi v. Chairman, Screening Committee Lahore and another (1978 SCMR 367), Yousaf Ali v. Muhammad Aslam Zia (PLD 1958 SC (Pak) 104), Punjab Province v. The Federation of Pakistan (PLD 1956 FC 72) and Fazal Elahi Siddiqi v. Pakistan (PLD 1990 SC 692).

4. In the case of M. Hannan and others v. Dr. Anwarul Hassan and another (2002 SCMR 361) it was held that plaintiff filed suit in year 1997, which according to Art. 113 of Limitation Act, 1908 had to be filed within three years. No misapplication or non-application of law was found in impugned judgments. Supreme Court dismissed petition for leave to appeal in circumstances. In the case of Saeed Naseem Cheema v. Mrs. Rukshana Khan 2010 MLD 123 the Division Bench of our own High Court headed by present Chief Justice, held that time is essence of the contract as intention of the parties to be gathered from reading the terms of agreement. No effort is made by the party seeking performance of the agreement of sale for payment or even deposit of the balance consideration amount in court. It was further held that specific performance highly inequitable after lapse of decade when the properties in recent past have shown tremendous increase in valuation. In the case of Agra Cooperative Housing Society Limited (1994 MLD 1747), the Single Bench of our own High Court, while dilating upon the provisions of Article 113 of the Limitation Act observed that, "Suit for specific performance could be filed within three years from the date stipulated in the agreement or in case no such date was mentioned in agreement, from the date of refusal-Suits for specific performance having been filed after a lapse of requisite period of three years would be barred by limitation under Art. 113, Limitation Act, 1908".

5. I have considered the arguments advanced by both the learned counsel for the parties at length and perused the file. It is not disputed that agreement to sale was executed in between the parties with regard to the suit property on 19-4-2000 sale-deed was to be executed on 25-7-2001, instant suit was filed on 23-12-2008 before the trial Court after lapse of years together without any sufficient reason and plausible cause. Such belated suit has rightly been treated as barred by learned trial Court in the light of dicta as laid down by the Hon'ble Supreme Court of our country. In the circumstances, the revision application having no merits is hereby dismissed. However, it would be just and equitable to direct the respondent No.1 to return the amount of earnest money of Rs.5,000 which he received at the time of agreement to sale and the remaining amount of Rs.27,000 which he received under receipt. There shall be no order as to costs.

6. This civil revision application stands disposed of in above terms. MH/K-29/K Order accordingly.