2025 PLP 1662 (YLR)
Muhammad Ali (deceased) through Legal Heirs and others — Petitioners Versus Umar Farooq — Respondent
| Citation | 2025 PLP 1662 (YLR) |
| Forum / Court | Lahore |
| Bench Members | N/A |
| Parties | Muhammad Ali (deceased) through Legal Heirs and others — Petitioners Versus Umar Farooq — Respondent |
| Primary Law | Specific Relief Act (I of 1877) |
Q1: What are the key laws and sections cited in 2025 PLP 1662 (YLR)?
This judgment primarily cites: Specific Relief Act (I of 1877) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2025 PLP 1662 (YLR)?
The case was heard and decided by the Lahore bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2025 PLP 1662 (YLR) (Muhammad Ali (deceased) through Legal Heirs and others — Petitioners Versus Umar Farooq — Respondent). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Muhammad Shoaib Bhatti for Petitioners.
- Shahid Rafique Mayo for Respondent.
Headnotes / Summary
Ss.12 & 22
Limitation Act (IX of 1908), First Sched. Art.113
Suit for specific performance of agreement to sell immoveable property
Limitation period for filing such suit stated
Time not the essence of contract, principle of
Scope
Where time is not of the essence, vendee must prove date of refusal and efforts to seek performance
Three-year limitation starts from date fixed for performance or from notice of refusal
Delay of each and every day in approaching the court has to be explained
Discretionary nature of specific performance, explained
Court is not bound to grant decree even if contract is otherwise enforceable
The facts in brevity were that the present civil revision had arisen out of judgments and decrees passed by the Trial Court and the District court, respectively, whereby the respondent's (vendee) suit for possession through specific performance was decreed and upheld on appeal
The suit was based on an agreement to sell dated 10.10.1995, allegedly executed by the deceased vendor, the predecessor-in-interest of the petitioners, in favour of the respondent (vendee)
The deceased vendor, in his lifetime, filed written statement denying the execution of the agreement
Six issues were framed, including one on the point of limitation (Issue No.4)
After recording evidence, the Trial Court decreed the suit, and the appellate court upheld the judgment
The pivotal question demanding consideration before the High Court was as to "whether a suit for specific performance, filed (17) years after an agreement without a fixed date for performance, was maintainable without specific evidence by the vendee proving as to when the notice of the vendor's refusal to perform the agreement was received and that he had duly and continuously demanded performance during the intervening period of (17) years"
Held: Since no date was fixed for performance of the agreement to sell, therefore, it was for the respondent to have proved that when did he get the notice that deceased or the petitioners were refusing to perform the agreement
It was the case of the respondent (vendee) that he had time and again approached the deceased (vendor) for performance of the agreement, however, neither any dates were mentioned in the plaint nor the names of any witnesses were mentioned wherefrom this could be culled out as to when and in presence of whom respondent (vendee) approached the deceased for performance of the agreement to sell as the time lag between the execution of the same and the filing of the suit was about seventeen years
Limitation for filing the suit by the respondent would start from the date when he had notice of refusal by the vendor and in the present case, since the respondent (vendee) neither in his plaint nor in his evidence was able to prove that when, at what time, in presence of whom, where and through whom he had approached the deceased (vendor) for performance of the agreement, therefore, he had failed to prove that he remained ready and willing to perform his part of the contract
Art. 113 of the Limitation Act, 1908 clearly stipulated that where the time was essence of the contract, upon the expiry of the stipulated period the cause of action would accrue to the parties to file a suit, however, where no date was fixed for performance of the same, it would accrue for the plaintiff to file the suit when he had notice that the performance had been refused and in both the eventualities the period of limitation would be three years which would be counted from the expiry of stipulated period or the notice of refusal, as the case may be
Another aspect which further weakened the stance of the respondent (vendee) was that it was for him to prove that upon execution of the agreement he had paid the complete sale consideration and got the possession of the property in dispute
Question was why he did not get the sale deed registered at the outset and if it was delayed (for seventeen years) what was the logical explanation as he had failed to explain the delay -- In such circumstances, since the respondent (vendee) had approached the court for seeking performance of the agreement to sell, therefore, being the beneficiary of the same the onus was upon him to prove that he was ready and willing to perform his part of the contract and the delinquency/refusal was on part of the deceased and since the contract was executed in the year 1995 and he filed the suit in the year 2012, therefore, it was also imperative for him to have explained the interregnum period so as to bring his case within the four corners of Article 113 of the Limitation Act 1908, which he had failed to prove
Each and every day consumed for approaching a court beyond the period of limitation has to be explained, which the respondent had failed to do
Even otherwise, relief of specific performance could not be granted, as under S.22 of the Specific Relief Act, 1877 it has been provided that the jurisdiction to issue a decree of specific performance is discretionary in nature as it is an equitable relief and the court is not bound to grant such relief merely because it is lawful to do so
Since both the courts below failed to appreciate the true import of Art.113 of the Limitation Act, 1908, therefore, the impugned judgments and decrees could not be sustained
Present civil revision was allowed, the impugned judgments and decrees were set aside, and resultantly the suit filed by the respondent (vendee) stood dismissed.
Judgment & Decree
Faisal Zaman Khan, J.
Through this Civil Revision, judgments and decrees dated 18.03.2019 and 15.12.2020 passed by the learned Civil Judge, Chunian and the learned Additional District Judge, Chunian respectively have been assailed. By virtue of the former judgment, a suit for possession through specific performance filed by the respondent against the petitioners has been decreed and through the latter, the same has been upheld.
2. The facts giving rise to the present petition are that on the strength of an agreement to sell dated 10.10.1995 allegedly executed by Muhammad Ali (deceased), predecessor-in-interest of the petitioners in favour of the respondent, a suit for possession through specific performance was filed by the latter against the deceased, in which the deceased filed his written statement denying the agreement to sell. Out of the divergent pleadings of the parties, 06 issues were framed. Evidence pro and contra was led, thereafter through judgment and decree dated 18.03.2019 the suit was decreed. Feeling aggrieved, petitioners filed an appeal which was dismissed through judgment and decree dated 15.12.2020, therefore, this petition.
3. Learned counsel for the petitioners submits that respondent's suit was barred by time, however, both the courts below ignored this important fact, thus the impugned judgments and decrees cannot sustain and the same are liable to be set aside.
4. Replying to the above learned counsel for the respondent supports the impugned judgments and decrees.
5. Arguments heard. Record perused.
6. Perusal of the available record would show that the disputed agreement to sell, which was allegedly executed by the deceased in favour of the respondent was dated 10.10.1995, which was produced as Exh.PA whereas the suit for possession through specific performance was filed by the respondent on 21.11.2012. Since the agreement to sell was denied by the petitioners and they had also raised a preliminary objection with regard to the suit being barred by time, therefore, in this regard issue No.4 was framed by the trial court, which had been adjudicated upon by both the courts below against the petitioners.
7. For filing a suit for specific performance limitation is governed by Article 113 of the Limitation Act, 1908 ('Act'), which for ease of reference is reproduced hereunder:- Article Description of suit Period of Limitation Time from which period begins to run 113 For specific performance of a contra ct. Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice performance refused.
8. The aforenoted provision clearly stipulates that where the time is essence of the contract, upon the expiry of the stipulated period the cause of action accrues to the parties to file a suit, however, where no date is fixed for performance of the same, it is for the plaintiff to file the suit when he has notice that the performance is refused. In both the eventualities the period of limitation shall be 03 years which shall be counted from the expiry of stipulated period or the notice of refusal (as the case may be). For reference reliance can be placed on Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others (2022 SCMR 933).
9. Placing the afore noted provision in juxta position with the facts of the present case, since the case of the respondent fall within the second category as no time was fixed in Exh.PA for performance of the agreement, therefore, it was for the respondent to have proved that when did he got the notice that deceased or the petitioners are refusing to perform the agreement.
10. In the above context, a perusal of the plaint would show that in paragraph No.4 it has been alleged by the respondent that he approached the deceased for performance of the agreement, however, the matter was delayed on the pretext that the deceased is unwell. Similarly, in paragraph No.5 it has been narrated that numerous times respondent approached the deceased for performance of the agreement, however, the deceased delayed the matter on one pretext or the other. It has been averred in paragraph No.6 that now the deceased has declined from performing the agreement. Continuing the above assertions in paragraph No.7 it is asserted that respondent numerous times himself and through others asked the deceased to perform the agreement but he has been delaying the matter and finally in paragraph No.8 (cause of action clause) it has been mentioned that a few days back deceased finally refused to perform the agreement.
11. Accumulative reading of the aforenoted paragraphs would show that it is the case of the respondent that he has time and again been approaching the deceased (himself and through others) for performance of the agreement, however, neither any dates have been mentioned in the afore-referred paragraphs nor the names of any witnesses have been mentioned wherefrom this would be culled out that when and in presence of whom respondent approached the deceased for performance of Exh.PA as the time lag between the execution of Exh.PA and the filing of rethe on suit is about 17 years and the limitation for filing the suit by the respondent would start from the date that he had notice of refusal by the vendor and in the present circumstances, since the respondent neither in his plaint nor in his evidence has been able to prove that when, at what time, in presence of whom, where and through whom (as in paragraph No.7 he allege that he has been approaching through others as well) approached the deceased for performance of the agreement, therefore, he has failed to prove that he remained ready and willing to perform his part of the contract and the delinquency was on the part of the deceased.
12. Another aspect which further weakens the stance of the respondent is that being a vendee, it was for him to prove that upon execution of Exh.PA he paid the complete sale consideration and got the possession of the property in dispute, why didn't he get the sale deed registered at the outset and if it was delayed (for 17 years) what was the logical explanation as he has failed to explain the delay.
13. In the afore-referred circumstances, since the respondent had approached the court for seeking performance of Exh.PA, therefore, being the beneficiary of the same the onus was upon him to prove that he was ready and willing to perform his part of the contract and the delinquency/refusal was on part of the deceased and since the contract was executed in the year 1995 and he filed the suit in the year 2012, therefore, it was also imperative for him to have explained the interregnum period so as to bring his case within the four corners of Article 113 of the Act, which he has miserably failed to prove.
14. The Supreme Court of Pakistan in judgments reported as Saqib Ali v. Government of Punjab and others (2023 PLC (C.S.) 310), Shahin Shah v. Government of Khyber Pakhtunkhwa through Secretary Irrigation Department, Peshawar and others (2022 SCMR 1810), Lal Khan through legal heirs v. Muhammad Yousaf through legal heirs (PLD 2011 SC 657), Qaiser Mushtar Ahmad v. Controller of Examination and others (PLD 2011 SC 174) and Muhammad Amjad v. Senior Superintendent of Police (Operations), Lahore and others (2010 PLC (C.S) 838) has held that each and every day consumed for approaching a court beyond the period of limitation has to be explained, which the respondent has miserably failed to do.
15. Even otherwise, relief of specific performance could not be granted, as under Section 22 of the Specific Relief Act, 1877 it has been provided that the jurisdiction to issue a decree of specific performance is discretionary in nature as it is an equitable relief and the court is not bound to grant such relief merely because it is lawful to do so. For reference reliance can be placed on judgments reported as Mrs. Zakia Hussain and another v. Syed Farooq Hussain (PLD 2020 SC 401), Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad (2017 SCMR 1696), Liaqat Ali Khan and others v. Falak Sher and others (PLD 2014 SC 506), Shakeel Ahmed v. Mst. Shaheen Kousar (2010 SCMR 1507), Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others (1999 SCMR 1362), Sirbaland v. Allah Loke and others (1996 SCMR 575) and Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCMR 2189).
16. For what has been discussed above, since both the courts below miserably failed to appreciate the true import of Article 113 of the Act and wrongly adjudicate upon issue No.4, therefore, the impugned judgments and decrees cannot sustain, hence, this civil revision is allowed, as a sequel to which the impugned judgments and decrees are set aside, resultantly, the suit filed by the respondent stands dismissed. UN/M-62/L Revision allowed.