1986 PLP 1333 (MLD)

A I R 1931 P C 79 distinguished. (c) Civil Procedure Code (V of 1908) ‑‑‑O.VII, R.11‑‑Rejection of plaint on ground of limitation‑‑Plaint could not be rejected on ground of limitation when such question of limitation could only be decided after evidence of parties. The plaintiff has filed a suit for specific performance of the, agreement and in the alternative for compensation. The defendant's predecessor Muhammad Amin Mirza was an allottee of plot bearing No. 160/E, Block No.3, Old Survey Sheet No.35/P/1 P.E.C.H. Society, Karachi. Under an agreement, dated 18‑6‑1965 the deceased agreed to allow the plaintiff to raise the building on the said plot on terms and conditions mentioned therein. In pursuance of the agreement possession of the plot was handed over to the plaintiff and the plaintiff by way of security for due performance of the contract deposited with the deceased a sum of Rs.78,

000. The cost of construction of the building was agreed at Rs. one lac. Clauses 5 and 6 of the agreement read as follows: ‑ (5) That in case of the failure of the party of the first part to pay the party of the second part or to his nominee or nominees the said amount of Rs.1,78,000 (Rupees one lac seventy‑eight thousand only) within seven days from the receipt of the said intimation of completion of the said building, the party of the second part shall automatically become the full and absolute owner of the said plot of land with buildings thereon. The time factor shall be the essence of the terms of this contract. (6) That on the party of the Second part becoming the owner of the said property as aforesaid, it will be the duty of the party of the First part to do all and everything to get the allotment and the lease of the said plot of land without or with buildings thereon transferred, conveyed and registered in the name of the party of the Second part or his nominee or nominees and also to execute for more fully and perfectly securing the aforesaid rights of the party of the Second part. The party of the Second part shall, however, bear all expenses in this regard." The plaintiff alleged that the building was constructed on the plot according to the approved plan, and this fact was intimated to the deceased and he was called upon to pay Rs.1,78,000 within seven days. This notice, dated 1‑4‑1967 was served by registered post but the deceased failed to reply or pay the money even on expiry of seven days. Thereafter, it seems that the plaintiff took steps to get the property transferred in his name and after complying with the formalities date of registration was fixed with the consent of the deceased on 6‑1‑1974, but thereafter, he did not turn up to get the sale‑deed registered. Thereafter, offer was made on 12‑6‑1978 in which certain terms and conditions were given to the plaintiff. Unable to get the conveyance deed registered plaintiff filed this suit on 25‑3‑1978. The defendants who are the legal heirs of the deceased have filed their written statement and this application under Order VII, rule 11, C.P.C. The first contention of the learned counsel for the defendant that the agreement is for construction and not for sale of the property, therefore, it cannot be specifically performed, and the plaintiff is not entitled to any relief. It is well‑settled that for the purpose of Order VII, rule 11, C.P.C. one has to take the averments made in the plaint as briefly stated above, the agreement was not for construction only.' From clauses 5 and 6 of the agreement as reproduced above, it is clew that on failure to pay Rs.1,78,000 the plaintiff was to become the owner of the property and the defendant was to execute conveyance deed in his favour. The contention has no merits. The second contention 9f the learned counsel is that as the agreement was not registered, it confers no right on the plaintiff to get it specifically performed. In this regard the learned counsel has referred to P L D 1967 Kar. 372, but in my view, this judgment is of no helps to the plaintiff because it was also held there that under section 53‑A of the Transfer of Property Act transferee's right of possession is protected against the transferor or persons claiming through him. In the present case it has been pleaded that the plaintiff has' been put in possession in part performance of the agreement, and therefore, even if the agreement was not registered, his right cannot be challenged. Reference can also be made to another judgment in the same book, P L D 1967 Kar. 508 which has taken into consideration the amendment made in the Registration Act in the year 1962. The learned counsel also referred to A I R 1931 P C 79, but on facts this authority is completely distinguishable. The learned counsel lastly contended that the suit is barred b time. In the plaint the plaintiff has stated that merely by not attending the proceedings before the Registrar there was no refusal and ultimately the final refusal came on 16‑1‑1977. The question for determination would be whether the defendant's absence on 6‑1‑1974 would amount to a refusal to register the sale deed or it came on 16‑1‑1977 which should be taken as the final date of refusal. This can only be decided after evidence has been led by the parties. On the pleading as i stands, it is not possible to reject the plaint on the ground that the suit is barred by time. The application is therefore, dismissed.

2. By consent granted. A. A. Application dismissed.