2008 PLP 751 (CLC)

HAFIZ TARIQ NASIM, J.

This civil revision has been filed against the judgment and decree, dated 12-7-2007 passed by the learned Additional District Judge, Ferozewala, whereby, he confirmed the judgment of learned Civil Judge, Ferozewala, dated 8-4-2006.

2. Learned counsel for the petitioners submits that the suit of the respondent before the learned Civil Judge was hopelessly time-barred and as such the finding on issue No.4 is erroneous.

3. He further submits that learned Additional-District Judge did not examine the record and confirmed the findings on Issue No.4 without application of independent mind. He submits that the main ground for attack in the civil revision is only to the extent of limitation because if the suit is dismissed on the point of limitation then his grievance shall be redressed.

4. On the other hand, learned counsel for the respondent submits that in view of the concurrent findings of both the Courts below the instant revision petition is not competent and if the findings on all issues by the learned Civil Judge as well as learned Additional District Judge are based on the record available with both the Courts and the evidence adduced by both the parties.

5. Arguments heard. Available record perused.

6. As far the petitioner's contention that the present controversy revolves only around Issue No.4, hence, the findings on Issue No.4 by the learned Civil Judge are produced as under:-- "The onus to prove this issue was on the defendant. The plaintiff filed this suit on 29-10-2001 wherein it is claimed that the agreement to sell was made on 14-11-1992. In the first suit for declaration regarding the same house filed by the plaintiff against the defendant, the plaint was rejected under Order VII, rule 11, C.P.C. On 18-10-2001 with the observation that proper mode for redressal of the grievance of the plaintiff would be suit for specific performance of agreement and suit in hand for specific performance of agreement was filed just 11 days after rejection of plaint in the first suit. The first suit as filed on 19-2-1998 wherein it was clearly mentioned that the defendants finally refused to get the registry in favour of the plaintiff seven days ago. The passage of time in this case is very well explained. The certified copies of record of first suit are available on record. Therefore, suit in hand is within time. Hence, this issue is decided against the defendant and in favour of the plaintiff."

7. In appeal before the learned Additional District Judge, after hearing both the parties and perusal the learned Additional District Judge endorsed the findings of the learned Civil Judge on this particular issue in the following words:-- "The cause of action to file the suit for specific performance of that contract thus, was to accrue to the plaintiff when defendant No.1 would make a flat refusal to transfer the suit property to him by way of instrument. This flat refusal of defendant No.1 for the first time came forward when the defendant transferred the suit property to his wife through gift mutation, dated 16-6-1992 Exh.D.1 and the same came into the knowledge of the plaintiff. It is evident from Exh.D.2 that on 19-2-1998 with respect to the same cause of action the plaintiff filed a declaratory suit against the present defendants. This suit was dismissed by the Civil Court on 18-10-2001 Exh.D.5 on the technical ground that the plaintiff's suit for declaration of title on the basis of oral agreement was not maintainable but he could file only a suit for specific performance of contract. Almost immediately after the dismissal of his suit he filed the present suit on 29-10-2001. All these facts clearly establish that after the refusal of defendant No.1 to transfer the suit property in his favour he had been prosecuting for his claim with due diligence and in good faith. That being so, the period so consumed in his earlier suit shall be excluded and thus, his suit shall appear within the time limitation i.e. 3 years. In this view of the matter the learned Civil Judge while holding the suit to be within time has committed no illegality."

8. After hearing both the parties and perusal of judgments of both the Courts below I am of the view that interference in concurrent findings shall not be justified in any manner and as such, the revision petition is dismissed with no order as to costs. H.B.T./A-259/L Petition dismissed.