2016 PLP 56 (CLCN)

SHAHID BILAL HASSAN, J.

The present appellant instituted a suit for specific performance of agreement to sell in respect of a house measuring 4-162/272 Marlas by maintaining that Bashir Ahmad, predecessor in interest of the respondents was owner of the disputed house who entered into an agreement to sell the same to the appellant in consideration of Rs.425,000/-, received Rs.100,000/- as earnest money and executed the agreement to sell dated 14.04.2003; according to said agreement the remaining sale price was to be paid uptill 14.10.2003 and thereafter execution of agreement to sell was to be made. It is further contended that a dispute arose between Bashir Ahmad and his brothers regarding the suit property and litigation started; the appellant further made payment of Rs.235,000/- at different times, in this way he paid Rs.335,000/- in total; that the dispute arose between Bashir Ahmad and his brothers came to an end on 11.07.2006 and on decision of the same, Bashir Ahmad had to execute the sale deed after receiving remaining sale price i.e. Rs.90,000/-, but he (Bashir Ahmad) did not inform the appellant and on 17.01.2007, he passed away, upon which the appellant approached the respondents to execute the sale deed in favour of the appellant after receiving the remaining sale price, who allegedly acknowledged the demand of the appellant, but ultimately refused; hence, the suit. The said suit was contested by the respondents/ defendants on the ground that the appellant was in possession of the disputed house on rent and he was paying Rs.3000/- per month as rent; that the alleged agreement to sell is forged and fictitious. The learned trial Court, out of the divergent pleadings, framed the following issues:-

1. Whether predecessor of defendants namely Bashir Ahmad underwent agreement to sell dated 14.04.2003 in favour of plaintiffs with respect to suit property for consideration in the sum of Rs.425,000/ - and received sum of Rs.335,000/ - up to 11.07.2006? OPP

2. Whether there was litigation regarding suit property and the same caused delay in execution of registered sale deed in favour of plaintiff? OPP

3. Whether defendants too had undertaken to comply the agreement undergone by their predecessor after decision of the pending suit? OPP

4. Whether instant suit is false and frivolous as plaintiff is in possession over the suit property as tenant? OPD

5. Whether plaintiff is entitled to decree for specific performance of agreement to sell as prayed for? OPP

6. Relief. After recording evidence of both the parties and hearing arguments, the learned trial Court vide judgment and decree dated 30.09.2010, decreed the suit in favour of the present appellant; against which an appeal was preferred by the respondents, which was allowed vide impugned judgment and decree dated 29.06.2012 and suit of the appellant was dismissed.

2. Learned counsel for the appellant has argued that the impugned judgment and decree is against law and facts; that the learned first appellate Court has erred in law to disturb the well reasoned judgment and decree of learned trial Court; that the impugned judgment and decree is result of misreading and non-reading of evidence, rather same is based on surmises and conjectures; that no plea of limitation was raised by the respondents in their written statement as well as at the time of filing appeal, but even then the learned first Appellate Court dismissed the suit of the appellant by holding the same as barred by time, which is not warranted under the law; that learned first appellate Court has wrongly held that sale in question is invalid and has failed to consider the admitted facts; that subsequent happening resulted in non-completion of registered deed, but this fact has not been kept in view by learned first Appellate Court; therefore, the impugned judgment and decree is not sustainable in the eyes of law and liable to be set aside; resultantly, the judgment and decree rendered by learned trial Court is liable to be restored.

3. On the contrary, learned counsel appearing on behalf of the respondents by favouring the impugned judgment and decree has prayed for dismissal of the appeal in hand by contending that it is the Duty of the Court to determine question of limitation irrespective of the fact whether such plea was raised or not by the opposite party; therefore, the learned first Appellate Court has rightly dismissed the suit of the appellant; even otherwise, the appellant has failed to prove the transaction in question allegedly entered into by Bashir Ahmed, predecessor in interest of the respondents, with him.

4. Heard.

5. While entertaining a suit, for the first time, it is the duty of the Court to take into account whether the plaint discloses any cause of action and whether the suit is not barred by limitation and if at that time the question of limitation could not be considered and the opposite party does not raise any such objection, even then the Courts are duty bound to determine the question of limitation at trial and appellate stage. In this regard section 3 of the Limitation Act, 1908 is very much clear, which is reproduced infra:- Dismissal of suit, etc. instituted, etc. after period of limitation.

Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made after the period of limitation prescribed therefor by the First Schedule shall be dismissed although limitation has not been set up as a defence. In this regard safer reliance can be placed on Muhammad Sami v. Additional District Judge, Sargodha, etc. 2007 SCMR 621, wherein it has been held that, "S.3

Limitation

Question of

Duty of Court

Scope --Court is bound to notice question of limitation, irrespective of the fact, whether it was agitated or not." Even in Government of N.W.F.P. v. Akbar Shah 2010 SCMR 1408, said view has been re-affirmed while holding that, "S.3

Duty of Court to look into point of limitation without there being objection of any party in terms of S.3 of Limitation Act, 1908." This view has also been followed by this Court in Jam Muhammad Ismail's case 2012 MLD 1545, wherein it has been observed that, "S.3

Suit

Limitation

Duty of Court

Scope

Primary Duty of Trial Court would be to see that whether plaintiffs claim was within limitation even in absence of any objection of opposite party." Therefore, the learned first Appellate Court has rightly taken up the issue of limitation and has rightly reached the conclusion that the suit is hit by limitation because according to agreement to sell Ex.P1 the target date was 14.10.2003 and suit was to be filed uptill 14.10.2006 in case of any refusal in performance of part of agreement on behalf of Bashir Ahmad, whereas the appellant instituted the suit on 12.07.2007, which is hopelessly barred by limitation and such suit was not proceedable on this score, because Article 113 of the Limitation Act, 1908 provides three years limitation for filing suit for specific performance from the date fixed or where no such date is fixed, then, from the date when the plaintiff has noticed that performance has been refused. The objection of the appellant that Bashir Ahmed did not inform him about ending of the litigation between him (Bashir Ahmed) and his brothers is of no help to the appellant because the law favours the vigilant and not the indolent, even otherwise from perusal of the agreement to sell Ex.P1 no such term finds place in it, meaning thereby same has been asserted afterwards in order to accrue cause of action; but the appellant has failed to prove the same through trustworthy and reliable independent evidence.

6. Regarding payment of earnest money and amounts afterwards, the learned first appellate Court has rightly observed that each and every transaction must have been endorsed and proved by producing witnesses, mere production of one witness of making of payment is not the mandate of law, rather to prove the contents of a document or any act, it is necessary to produce two truthful witnesses as required under Article 17 of the Qanun-e-Shahadat Order, 1984. Moreover, depositions of the marginal witnesses are also contradictory to each other germane to place of making of payment of earnest money, even their presence at the relevant time i.e. at the time of transaction in question is highly doubtful and evidence of both the P.Ws. i.e. P.W.2 and P.W.4 has rightly been discarded by learned first Appellate Court. Even the appellant has failed to produce any document showing the ownership of Bashir Ahmed, predecessor in interest of the respondents, because a person seeking a decree for specific performance of agreement to sell/ contract has to prove that the person with whom he entered into agreement enjoys the title of such property and if he fails no decree can be passed in his favour, because if such a decree is passed, the same cannot be satisfied or implemented.

7. In view of the above said discussion, when the appellant/plaintiff has failed to establish any illegality, irregularity or infirmity in the findings of learned first Appellate Court rendered in the impugned judgment and decree, it can be safely observed that the same are result of appraising the evidence in true perspective, applying of judicial mind, rightly interpreting the law and upto the dexterity, therefore, same does not call for any interference by this Court. Resultantly, by placing reliance on the judgments supra, this appeal is dismissed, leaving the parties to bear their own costs. ZC/N-41/L Appeal dismissed.