2026 PLP 162 (MLD)

Shahid Bilal Hassan, J.

Succinctly, respondents/ defendants Nos.5 to 7 were owners in possession of the land measuring 15-Kanals 8-Marlas, out of total land measuring 48-Kanals 12-Marlas, bearing Khewat No.143, Khatuni No.314, Khasra Nos.302, 536, 542, 543, 549, 550, 557, 558, 830, as per Record of Rights for the year 2004-2005, situated at Mohal Mauza Partanwali, Tehsil and District Sialkot, vide mutation No.2328 dated 24.01.2003; that the said respondents struck a deal of sale with the present petitioner/plaintiff qua the suit property against consideration of Rs.2,310,000/- vide agreement dated 25.02.2010 and received Rs.1,000,000/- in presence of witnesses at the time of execution of said agreement; that there-after the respondent No.5 further received Rs.170,000/- from the petitioner/plaintiff; that the target date for completion of agreement was fixed as 15.03.2010; that besides, it was also agreed between the parties that if any litigation started, the same would be defended by the defendants at their own expenses and period of limitation will be considered as extension in time for execution of sale deed till the final disposal of the said litigation; that in the meanwhile, defendants Nos.5 to 7 further sold out land measuring 11-Kanals 7-Marlas to defendants Nos.2 to 4 against sale consideration of Rs.3,000,000/- vide mutation No.2620 dated 11.03.2013 only to avoid the performance of agreement to sell dated 25.02.2010, which has also been sought to be declared null and void. Vide order dated 06.05.2013, the name of respondent No.1 was deleted by the learned trial Court. The suit was contested by the respondents Nos.2 to 4 and respondents Nos.5 to 7 by submitting separate written statements. The divergence in pleadings of the parties was summed up into issues. The petitioner produced his evidence, oral as well as documentary. Respondents Nos.5 to 7 conducted cross-examination on P.W.1 to P.W.5 but their right to cross-examination on P.W.6 was closed on 05.01.2021 by the learned trial Court. However, the respondents Nos.2 to 6 neither opted to cross-examine the P.Ws. nor their right was closed by the learned trial Court. The respondents/defendants failed to produce their evidence, so their right to lead evidence was closed vide order dated 12.07.2021 by the learned trial Court. After demise of defendants Nos.5 to 7 their legal heirs were impleaded as party through amended plaint. The legal heirs of defendant No.5 i.e. defendants Nos.5A, 5C, 5D, 5E, 5F and defendants Nos.7A, 7-C, 7D recorded their conceding statements on 21.03.2022, 09.04.2022 and 21.04.2022 qua arrival of a compromise with the petitioner/plaintiff, whereby the said defendants acknowledged the agreement to sell dated 25.02.2010 executed by their predecessor in favour of the petitioner as well as receiving of their respective shares from remaining sale consideration, who also showed no objection on decreeing the suit in favour of the petitioner. Defendants Nos.5A, 5C, 5D, 5E and 5F also tendered their joint affidavit as Mark-A whereas defendants No.s7A, 7C and 7D also submitted their joint affidavit as Mark-B. After submission of amended plaint, defendants Nos.2 to 4 disassociated the proceedings of the suit, who were proceeded against ex parte on 22.02.2022 and 11.01.2023 respectively after substituted service. After hearing arguments, the learned trial Court vide impugned judgment and decree dated 18.03.2023 dismissed suit of the petitioner. The petitioner being aggrieved preferred an appeal but the same was dismissed vide impugned judgment and decree dated 27.10.2023 by the learned appellate Court; hence, the instant revision petition.

2. Heard.

3. It is a settled law that limitation is not a mere technicality or a hyper technicality rather once limitation expires, a right accrues in favour of the other side by operation of law which cannot lightly be taken away as has been held in Asad Ali and 9 others v. The Bank of Punjab and others (PLD 2020 SC 736). Moreover, it is a settled principle of law that question of law even if not taken or raised by the opposite party, could be considered by the Courts even at appellate and revisional stage. Reliance is placed on Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 SC 212), United Bank Limited and others v. Noor-Un-Nisa and others (2015 SCMR 380), wherein it was held:- Under section 3 of the Limitation Act, 1908, it is the bounden duty of every Court of law to take notice of the question of limitation even if not raised in defence by the other contesting party(s). Earlier to the above said judgments, the Supreme Court of Pakistan dealt with the same proposition in Almas Ahmad Fiaz v. Secretary Govt. of Punjab and others (2006 SCMR 783), Lahore Development Authority v. Mst. Sharifan Bibi and another (PLD 2010 SC 705) and Sardar Anwar Ali Khan and 10 others v. Sardar Baqir Ali through Legal Heirs and 4 others (1992 SCMR 2435).

4. Article 113 of the Limitation Act, 1908 provides three years for filing such suit from the date fixed for the performance or if no such date is fixed, when the plaintiff has notice that performance is refused; reliance is placed on judgments reported as Haji Abdul Karim and others v. Florida Builders (Pvt.) Limited (PLD 2012 SC 247) and Atta Muhammad v. Maula Bakhsh and others(2007 SCMR 1446). In the present case, the petitioner sought decree for specific performance of agreement to sell dated 25.02.2010 with the assertion that the target date was 15.03.2010 which was extended as per terms and conditions of the agreement, automatically, due to pendency of the civil litigation inter se Muhammad Sharif and his other co-sharers. It is evident from the record that no injunctive order germane to suit property was ever passed by any Court of competent jurisdiction in proceedings of the civil litigation and nothing as such was incorporated in the revenue record till the target date and the same position remained till 17.10.2012. Meaning thereby the petitioner failed to perform his part of agreement till the target date and even he did not issue any notice showing his willingness to perform his part and the petitioner remained indolent for a considerable period. He instituted the suit after transfer the suit property in favour of the respondents Nos.2 to 4, on 06.05.2013, which was beyond the period of limitation, prescribed under Article 113 of the Limitation Act, 1908, from the target date. In this regard the ratio of judgment reported as Haji Abdul Karim and others v. M/s. Florida Builders (Pvt.) Limited (PLD 2012 SC 247) has rightly been appreciated by the learned Courts below. The payment of subsequent amount Rs.170,000/- on different dates has not been proved by the petitioner because the purported marginal witness of the receipt Mark-A, Mark-B has not been produced by him and signatures of respondent Muhammad Sharif seems to be different from the signatures made on purported agreement to sell Ex.P

1. Therefore, the learned trial Court has rightly concluded that the receipts Mark-A to Mark-C have been maneuvered only to cover up the limitation and to establish that the time was not essence of the contract.

5. Pursuant to the above, the learned Courts below while considering law on the subject and facts of the case have rightly concluded that the suit of the petitioner/plaintiff was barred by limitation. In such scenario, if the suit is found to be barred by limitation, then plaint has to be rejected forthwith without resorting to the evidence or framing of any issue. Reliance is placed on Hakim Muhammad Buta and another v. Habib Ahmed and others (PLD 1985 SC 153); however, in the instant case, the learned Courts below have minutely dilated upon the evidence of the parties and have also rightly non-suited the petitioner on merits as well. There appears no legal infirmity or illegality in the impugned judgments and decrees warranting interference by this Court in exercise of revisional jurisdiction under section 115, Code of Civil Procedure, 1908. The findings recorded by the learned Courts below are upheld and maintained.

6. Resultantly, it is held that the learned Courts below have committed no illegality, irregularity and wrong exercise of jurisdiction, rather after evaluating evidence on record have reached to a just conclusion. The impugned judgments and decrees do not suffer from any infirmity, rather law on the subject has rightly been construed and appreciated. As such, the concurrent findings on record cannot be disturbed in exercise of revisional jurisdiction under section 115 of Code of Civil Procedure, 1908. Reliance is placed on judgments reported as Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469), Cantonment Board through Executive Officer, Cantt. Board Rawalpindi v. Ikhlaq Ahmed and others (2014 SCMR 161), Muhammad Farid Khan v. Muhammad Ibrahim and others (2017 SCMR 679), Muhammad Sarwar and others v. Hashmal Khan and others (PLD 2022 SC 13) and Mst. Zarsheda v. Nobat Khan (PLD 2022 SC 21) wherein it has been held that:- There is a difference between the mis-reading, non-reading and mis-appreciation of the evidence therefore, the scope of the appellate and revisional jurisdiction must not be confused and care must be taken for interference in revisional jurisdiction only in the cases in which the order passed or a judgment rendered by a subordinate Court is found perverse or suffering from a jurisdictional error or the defect of misreading or non-reading of evidence and the conclusion drawn is contrary to law. This court in the case of Sultan Muhammad and another v. Muhammad Qasim and others (2010 SCMR 1630) held that the concurrent findings of three courts below on a question of fact, if not based on misreading or non-reading of evidence and not suffering from any illegality or material irregularity effecting the merits of the case are not open to question at the revisional stage. Further in judgment reported as Salamat Ali and others v. Muhammad Din and others (PLD 2022 SC 353), it has invariably been held that:- Needless to mention that a revisional Court cannot upset a finding of fact of the Court(s) below unless that finding is the result of misreading, non-reading, or perverse or absurd appraisal of some material evidence. The revisional Court cannot substitute the finding of the Court(s) below with its own merely for the reason that it finds its own finding more plausible than that of the Court(s) below.

7. For the foregoing reasons, the revision petition in hand comes to naught and the same stands dismissed in limine. MQ/M-126/L Revision dismissed.