2006 PLP 1014 (MLD)

JAWWAD S. KHAWAJA, J.

The respondents Nos.3 and 4, who are represented by counsel, are proceeded against ex parte because none has appeared on their behalf even though the name of their learned counsel is duly listed. The other respondents are also proceeded against ex parte because they have failed to appear personally or through counsel although they have been duly served.

2. The petitioners/plaintiffs impugn the concurrent decrees of the learned trial Court dated 16-4-1998 and of the learned appellate Court dated 9-4-2001, whereby a suit filed by the petitioners/plaintiffs seeking specific performance of agreement (Exh.P.1) dated 18-4-1984, has been dismissed.

3. Both Courts below have held that the agreement required to be proved through the testimony of two attesting witnesses but the petitioners/plaintiffs had produced one witness, namely, Allauddin, who appeared as P. W.1. Learned counsel has, however, pointed out that the requirement for two witnesses became law only through the Qanun-e-Shahadat Order which was promulgated on 26-10-1984 i.e., more than six months after the agreement (Exh.P.1) was executed. In the circumstances, it was argued that the provisions of Article 17 read with Article 79 of the Qanun-e-Shahadat Order were not attracted in the present case. This legal proposition is well-founded and is supported by the ratio in the cases titled Syed Muhammad Sultan v. Kabir-ud-Din and others (1997 CLC 1580) and Abdul Wali Khan through Legal Heirs and others v. Muhammad Saleh (1998 SCMR 760).

4. I also need to note that although the respondents had raised an objection as to the maintainability of the petitioners' suit on the ground of limitation, the learned trial Court had held that the suit was within time. The respondents did not file any cross-objection in respect of this finding when the petitioners filed an appeal. Notwithstanding this position, the learned appellate Court, on its motion, proceeded to hold that the suit was time-barred. This finding was given solely on the basis that the agreement (Exh.P-1) was executed on 18-4-1984, while the petitioners/plaintiffs filed their suit on 10-1-1993. I have gone through the agreement (Exh.P.1) and find that no date for the execution of a sale-deed has been specified therein. In the circumstances, the period of limitation would start running only upon refusal of the respondents/defendants to execute a conveyance. In the present case, the respondents/sellers had obtained sanction of Mutation No.490 (Exh.P-4) in favour of Mushtaq Ahmad (respondent No.2). The filing of the suit is within a period of three years from the aforesaid mutation. In the circumstances, the question of limitation was wrongly decided by the learned appellate Court. The appellate judgment and decree, on this score, are a result of jurisdiction exercised illegally and with material irregularity.

5. In the foregoing circumstances, this petition is allowed and the impugned judgments and decrees dated 16-4-1998 and 9-4-2001 are set aside. As a consequence, the suit of the petitioners/plaintiffs is decreed as prayed for, subject to deposit of balance amount by the petitioners with the learned trial Court within 60 days from today. Failing such deposit, this petition shall stand dismissed without any further order. H.B.T./G-142/L Revision allowed.