1989 PLP 2020 (MLD)

(6) Whether the said contract between the parties cannot be specifically enforced? (7) Whether Rs.3,161 paid as advance can be adjusted towards the rent of said premises? (8) Whether the defendant is entitled to get special costs? (9) What should the decree be?

4. The learned Vlth Extra-Joint Civil Judge, Hyderabad, while dealing with issue No. 1, had held that the time fixed for performance of the said agreement was 8-2-1968 from which date period of limitation will start running and Part-I of Article 113 of Limitation Act will be applicable. Therefore the suit filed by the appellant was clearly time-barred being filed on 15-7-1971. Other issues were also discussed and decided by him and it was held by him that the appellant had committed breach of contract.

5. The appellant being aggrieved by the judgment of Vlth Extra-Joint Civil Judge, Hyderabad, preferred Civil Appeal No. 64/83 in the Court of Ist Addl. District Judge, Hyderabad. In the said appeal it was urged by the appellant that the plea of limitation was not raised by the respondent at all m his pleadings and the case be remanded to the trial Court for framing the issue and for decision thereon. The learned Addl. District, Judge, however, was of the view that the material was before him and it would be convenient that this point may be decided by him as well. Learned counsel for the respondent contended that the plea of limitation may be taken up by the Court any time in view of section 3 of Limitation Act. He also pointed out that the respondent had moved in the suit an application for framing of additional issue with regard to the limitation but no order was passed thereon. The admitted position according to him is that the parties had advanced their arguments in relation to question limitation which was duly considered by the trial Court and then decision was given thereon.

6. The learned Ist Addl. District Judge, after perusal of record before him held that. the time had started running from 7-2-1968 under the agreement dated 7-11-1967, as balance sale consideration of Rs.5,000 was payable within three months, whereas the suit was filed on 15-7-1971 and hence hit by Article 113 of Limitation Act. With regard to decisions on other issues the learned Addl. District Judge agreed with the trial Court and held that the agreement of sale stands automatically cancelled after the breach from the side of the appellant who had no cause of action to file the present suit.

7. In support of his contention, Mr. Jhamat Jethanand, learned counsel for the appellant, referred to me the case of Mst. Bibi Khatoon and 7 others v. Abdul JAI (PLD 1978 SC 213) wherein it was held that suit for specific performance of contract to sell shall fall not within first part but within second part of Article 113 and limitation shall run from the date respondent-plaintiff had notice of refusal of performance and not from date of issue of P.T.D. Next he referred to me the case of Mst. Amil Begum and others v. Mehar Ghulam Dastgir (PLD 1978 SC 220) wherein was held that a time-barred debt within the meaning of section 25(3) of Contract Act shall not only be pleaded specifically but should have been established leading evidence on this score. Similarly the counsel for the appellant had relied upon 1986 MLD 2514 wherein it was held that when no time was fixed for registration of sale-deed, time shall not be essence of circumstances. Learned counsel for the appellant then drew my attention to clauses (3), (4), (5) & (6) of the agreement dated 7-11-1967, which read as follows:-- "(3) That the first party has taken a loan from the House Building Finance Corporation on this house and a balance of Rs.4,339 is still due to be paid to the Corporation by instalments and this amount shall be paid by the second party (purchaser). (4) That the balance of Rs.5,000 (Rupees five thousand only) payable to the Ist party by the 2nd party shall be paid within a period of three months from the date of this agreement to the Ist party by the 2nd party, and sale-deed will be completed and got registered. (5) That the 2nd party has paid the advance money of Rs.3,161 (Rupees three thousand one hundred sixty-one only) as mentioned in para. 2 above has been paid in cash by the 2nd party to the Ist party who admits to have received the same and has given a separate receipt for this amount in presence of two respectable persons residing in the street, and the house which is already in possession and occupation of the 2nd party who had been living in the same as tenant has been handed over according to the agreement. (6) That in case the second party fails to pay the balance of Rs.5,000 to the Ist party shall be liable to deduct the amount of rent at Rs.100 per month from the last date it falls due i.e. for the last period the rent is due for 9 months and thereafter, the 2nd party agrees to pay this rent and receive the advance money after its deduction and vacate the house without any hitch and hindrance, and hand over the vacant possession to the last party." The appellant's Advocate frankly conceded that the appellant did not pay the said balance amount of Rs.5,000 within three months but since the respondent failed to furnish necessary details with regard to instalments, etc., of House Building loan of Rs.3,161 the appellant was within his rights to withhold payment thereof. Further according to him, under clause (4) of the agreement although balance of Rs.5,000 was payable to the respondent within three months but there is nothing in the said clause or other clauses that time shall be the' essence of the contract or on the failure of the appellant to pay the said balance consideration, the agreement for sale shall-automatically stand cancelled. Learned counsel for the respondent urged before me that a bare reading of clauses (3) to (6) of the agreement will make it clear that time was the essence of contract and the intention of the parties decidedly was that in case of failure on the part of the appellant to make payment of balance Rs. 5,000 to the respondent, the relationship between the parties as landlord and tenant shall revive and the appellant shall start making payment of rent at Rs.100 P.M. to the respondent. In order to substantiate his contentions learned counsel for respondent referred to appellant's cross-examination as under:- "That agreement (Exh-72) was read over to me and Majid Shah. It was also read over to the (illegible). We had signed the document after fully understanding its contents. I was paying Rs.100 as rent in the capacity of tenant before agreement. There was no date for payment of Rs.5,000 but it was agreed that it would be paid within three months from the date of the execution of the agreement at the time of registration. Rs.5,000 will be payable at the time of registration. According to the terms of the agreement I had to pay the amount of Rs.5,000 by 29-2-1968 but the defendant had not accepted the same from me. I do not know the exact date when I had offered the amount of Rs.5,000 to the defendant. I had to pay the amount after three months of the agreement. I had to pay the amount prior to the notice dated 22-3-1968.1 had not mentioned in notice dated 22-3-1968 that I offered Rs.5,000 but the defendant refused to accept the same. I have heard the contents and the same are correct. I had offered the amount of Rs.5,000 about five thousand times but at no time any person was present. I had not given any notice mentioning there that I was offering the amount but the defendant was not accepting." "I had not sent any money-order or draft of Rs.5,000 after receipt of notice Exh.81." 1n view of the interpretation of the clauses of agreement given by the. appellant himself, it leaves no doubt in my mind that the appellant fully understood that failure to make payment of balance Rs.5,000 by him will result into cancellation of agreement. Learned counsel for respondent has also referred to me Exh. 138, which is a copy of notice dated 19-2-1968 sent to the appellant; Exh. 139 which is the postal envelope; and Exh. 140 which is the acknowledgement card. All these three documents bear the address of the appellant as given in the plaint. Exh. 139 was returned to the respondent with endorsement "No clues". In view of clear admission, made by the appellant, none of the cases cited by Mr. Jhamat Jethanand has any relevance to the facts and circumstances of the present case. I accordingly hold that as per agreement dated 7-11-1967 read depositions of the parties, time was essence of contract and time started running from 7-2-1968, when three months` time for payment of balance sale consideration had expired and hence the suit filed by the appellant was clearly time-barred in view of Article 113 of Limitation Act. I will, therefore, not examine other issues and dismiss the appeal with cost. H.B.T/H-16/K Appeal dismissed.