2009 PLP 451 (YLR)

NADEEM AZHAR SIDDIQI, J.

By this application the defendant has prayed for rejection of plaint on the ground that the same is barred by limitation. Learned counsel for the defendant submits that agreement was executed in sometime November 1996 with specific dates of payments mentioned therein and finally the agreement has to be performed on or before 31-12-1997. He further submits that neither the payments were made in terms of clause 2 of the agreement nor agreement was performed by the plaintiff as mentioned in the agreement. He then submits that Article 113 of the Limitation Act provides that in case the date of performance is fixed in the agreement the limitation for filing of the suit starts from that date. He then submits that the time was the essence of the agreement and by not making payment as stipulated in the agreement the plaintiff has committed breach of the agreement and is not entitled to specific performance of agreement. He also submits that the plaintiff is taking shelter under the litigation between the Directors of the defendant company and filed a statement to show that all litigations were disposed of before the date of performance fixed in the agreement. He further submits that the plaintiff claims that after the date of performance fixed in the agreement certain amounts were paid on account of defendant is not correct. He also submits that the defendants only admits payments mentioned at Sr. Nos. 1 to 3 in Annexure-B/1 to the plaint and all these payments were made before expiry of the date mentioned in the agreement. He finally submits that the time for filling of this suit starts from 31-12-1997 the date of performance fixed in the agreement and this suit has been filed on 7-1-2003 and is hopelessly barred by limitation. Learned counsel for the plaintiffs has relied upon following reported cases: (1) Haji Muhammad Yaqoob v. Shahnawaz 1998 CLC 1, (2) Messrs Imperial Builders v. Lines (Pvt.) Limited PLD 2006 Karachi 593, (3) Ali Muhammad Aslam v. Bilquees Begum PLD 2008 Lahore 42, (4) Muzaffer Javed v. Haji Noor Bukhsh 2002 MLD 1474, (5) Province of Punjab v. Muhammad Hussain PLD 1993 SC 14, (6) S. M. Shafi Ahmed Zaidi v. Moulvi Hasan Ali Khan 2002 SCMR 338, (7) Mst. Parveen Akhter v. Consulate General of USA 2006 MLD 1657, (8) M/s. Farm and Foods International v. Hamid Mehmood 2006 CLC 492, (9) Moulana Nur-ul-Haq v. Ibrahim Khalil 2000 SCMR 130 and (10) Muhammad Akram alias Akan v. Mst. Pathani 2001 MLD 1037. On the other hand, learned counsel for the plaintiff submits that the plaint can only be rejected if from any statement in the plaint the same found to be barred by law. He then submits that the plaint can only be rejected if the same has not been filed within three years from the date on which the plaintiff has noticed that performance has been refused. He then submits that the time would not be deemed to be essence of contract of sale of immovable property merely because the date was fixed in the agreement. Learned counsel refers to paras.8 and 10 of the plaint and submits that the cause of action accrued in September 2002 and then in December 2002 when the plaintiff has noticed that performance has been refused and the defendant is trying to dispose of the property and the last meeting held between the parties. He also refers to clause 10 of the Agreement and submits that in view of clause 10 of the Agreement the time was never the essence of the contract and in case of any breach by the vendee/plaintiff the same has to be invoked and the vendor/defendant is entitled to markup if any breach has been committed by the plaintiff/vendee. He then submits that on the date of performance mentioned in the agreement the defendant was not in a position to pass clear title and in view of clause 10 of the agreement the defendant has no right to cancel/terminate the agreement. Learned counsel has relied upon the following reported cases. (1) Muhammad Yaqoob v. Hakim Ali 2004 SCMR 584, (2) Mst. Gul Shahnaz v. Abdul Qayoom Soomro PLD 2002 Kar. 333, (3) Javed Iqbal v. PASSCO 2004 CLC 478, (4) Zaheer Ahmed v. Abdul Aziz 1983 SCMR 559, (5) Messrs Galaxy Construction Limited v. Province of Sindh through Secretary Highway Division of Communication and Works Department 1994 MLD 754 (6) Mst. Amina Bibi vs Mudassar Aziz PLD 2003 SC 430, (7) Syed Muhammad Saleem v. Ashfaq Ahmad Khan 1989 CLC 1883, (8) Mst. Batul and ' others v. Mst. Razia Fazal and others 2005 SCMR 544, (9) Ghulam Hussain Pakseema v. Ebrahim Saley Mayat PLD 1964 (W.P.) Karachi 388 (10) Haji Sattar Haji Mohamed v. Allah Rakhya Dhanji PLD 1963 W.P Karachi 786, (11) Inam Naqshband v. Haji Shaikh Ijaz. Ahmad PLD 1995 SC 314 and (12) M. Hannan v. Dr. Anwarul Hassan 2000 SCMR

361. In rebuttal learned counsel for the defendant submits that once the limitation is expired the same cannot be extended and that the litigation is known to the plaintiff and the same was not related to the title of the land in question. He then submits that the plaintiff cannot take shelter under the litigation as the same was either finished before the last date of payment mentioned in the agreement or starts after the date of performance fixed in the agreement. He then submits that clause 10 will come into play in case of default in payment of installments during the continuance of the agreement and not after the final date fixed in the agreement. He then submits that before September 2002 the plaintiff has not asked the defendant to perform the agreement. He relied upon the following reported cases:

(1) Haji Muhammad Yaqoob v. Shah Nawaz 1998 CLC 12 and (2) Province of the Punjab v. Muhammad Hussain PLD 1993 SC

147. I have heard the learned counsel for the parties. The execution of the agreement, agreed sale consideration of Rs.13,59,00,000 and payment of earnest money of Rs.54,00,000 are not disputed. Clause 2 of the Agreement provides schedule of payment with the condition that the balance be paid by the vendees to the vendor on or before 31-12-1997 against the execution and registration of the conveyance deed free from each and every encumbrance. The question in this matter is the starting point of limitation. The contention of the plaintiff is that the starting point of limitation is the day when the plaintiff learnt that the defendant is trying to dispose of the property in September 2002 and the contention of the defendant is that the same starts running from the date of performance mentioned in the agreement. The plaint can only be rejected if comes within the mischief of Order VII, Rule 11, C.P.C. while considering an application under Order VII, Rule 11, C.P.C. only the contents of the plaint and other material available on record which on its own strengthen is legally sufficient to completely refute the claim of the plaintiff can be looked into and the defence of the defendant cannot be considered. While considering an application under Order VII, Rule 11, C.P.C. the contents of the plaint is to be treated as true on its face value and the paint can only be rejected if from any statement in the plaint the same found to be barred by any law. It is the case of the plaintiff that the time is not the essence of the agreement in view of clause 10 of the agreement and that plaintiff noticed refusal on the part of the defendant not to perform agreement on the basis of Notice dated 11-9-2002 (Annexure-A/1 to the plaint) and notice dated 13-9-2002 published in Daily Dawn Karachi (Annexure-A/2 of the plaint), Irrespective of the fact that whether the time was the essence of the contract or not? The question remains which part of the Article 113 of Limitation Act will apply. It is not disputed that the last date for payment of balance sale consideration and registration of documents was fixed in the agreement as 31-12-1997. From the perusal of clause 2(e) of the Agreement it appears that on that i.e. 31-12-1997 the plaintiff has to make payment and the defendant is required to execute documents. Before proceeding further, it will be appropriate to reproduce Article 113 of First schedule of Limitation Act:

Description of suit Period of limitation Time from which period begins to run

113. For specific performance of a contract [Three years] The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. From perusal of the above provision it appears that it caters two situations i.e. one when time of performance is fixed in the agreement and the other when the time is not fixed in the agreement. In the first situation, the starting point of limitation is three years from the date fixed for the performance in the agreement and in the later situation the time starts running from the date when performance is refused. In the reported DB Judgment of Mst. Kulsoom v. Mst. Marium 1988 CLC Karachi 870 Justice Ajmal Main (as his lordship then was) held as under:

"We are also inclined to hold that it is a well-settled position in relation to Article 113 of the First Schedule to the Limitation Act that if the date for performance of a sale agreement of an immovable property is specified therein, the period of three years shall commence from the specified date, but where no date for performance is mentioned in the sale agreement, the three years period will commence from the date of refusal to perform." In another reported case of Haji Muhammad Yaqoob v. Shah Nawaz 1998 CLC Karachi 21 Justice Sabihuddin Ahmed (as his lordship then was) relying upon the above reported case has held as under:

"Evidently, the expression "time being essence of the contract" has been used in the Contract Act not as a term of art but for connoting situation relating to remedies available to the non breaching parties. The limitation Act was enacted in 1908 i.e. long after the Contract Act, 1872 had been enforced and the legislature is presumed to know the existing state of law. Nevertheless, the legislature in its own wisdom did not provide that limitation in the first part of Article 113 would apply only when time of the essence of the contract and stipulated that whenever a contract was required to be performed on a specified date limitation had to be reckoned from that date. I therefore find no force in the submissions that the first part would be attracted only when time was of the essence of the agreement and not otherwise." In other reported case of Province of the Punjab through Member Board of Revenue, (Residual Properties) Lahore v. Muhammad Hussain through Legal Heirs PLD 1993 SC 147 Justice Shafiur Rahman (as his lordship then was) has held as under: "There is no principle known to law where under on expiry of full available period of limitation revival of cause of action afresh and running of the limitation period over again could take place either from the date of Knowledge or the attornment of the tenants or on obtaining of possession." From the above it is clear that the agreement annexed with the plaint contained specific date of performance and the time for filing of the suit starts from that date irrespective of the fact that time was the essence of the agreement or not. The limitation in this case starts running from 31-12-1997 and three years were completed on 30-12-2000. The suit was filed on 7-1-2003 which is clearly filed beyond the period of limitation mentioned in Article

113. Now the question is whether the plaint can be rejected if barred by limitation. The Hon'ble Supreme Court of Pakistan in the case of Maulana Nur-ul-Haq v. Ibrahim Kahail 2000 SCMR 1305 has held as under:-- "The bar of limitation is traceable to the Limitation Act, therefore, it goes without saying that the expression 'barred by any law' includes the law of limitation. However, there is no need to discuss this point any further as it stands resolved by the judgment of this Court reported as Mumtaz Khan v. Nawab Khan and 5 others 2000 SCMR 53, wherein it has been held that clause (d) of Order VII, rule 11, C.P.C. is applicable where the suit is time-barred and Hakim Muhammad Buta and another v. Habib Ahmed and others (PLD 1985 SC 153) wherein it has been observed that if from the statement in the plaint the suit appears to be barred by limitation the plaint shall have to be rejected under Order VII, Rule 11 C.P.C". The plaint can be rejected under clause (d) of Order VII, Rule 11, C.P.C. where the suit appears to be prima facie barred by any law from the perusal of the statement in the plaint and no inquiry is needed. The question of limitation is all ways not a mixed question of law and facts and where the question of limitation is apparent on the face of the record the Court can proceed further without any further inquiry. The matters relating to the limitation of filing of the suit cannot be left on the pleadings of the parties, but a duty is cast upon the Court to notice the point of limitation, irrespective of the fact whether the same was pleaded or not. In the instant case, it is an admitted position that the date of performance is fixed in the agreement and the learned counsel for plaintiff has failed to show that how after expiry of three years from the date fixed in the agreement the limitation was extended as there is no acknowledg ment in writing after 30-12-2000 when the limitation for filing of this suit was expired. In the reported case of Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153 it has been held as under:

"(6) It follows that where a question of limitation is not a mixed question of law and fact or where limitation is apparent on the face of the record, a waiver by the parties would not relieve the Court itself of its duty under section 3 of the Limitation Act and a waiver by the Court of the question of limitation is not contemplated. This Court had in Ahsan Ali v. District Judge clearly laid down that it was duty of the Court to notice the point of limitation whether the plea of limitation was raised or not and that waiver of the question of limitation is not permissible even where the period of limitation is prescribed by special or local law." Learned counsel for the plaintiff has cited several case laws in support of his contentions. The facts of the cases cited by the learned counsel for plaintiff are distinguishable and the cases are not related to the interpretation of Article 113 of the Limitation Act as most of the cases were filed within three years from the date fixed in the agreement. In the case cited by the learned counsel for plaintiff reported as Muhammad Yaqoob v. Hakim Ali 2004 SCMR 584 the question before the Court is not the limitation of filing of the suit but whether the time was the essence of the contract or not. Same is the position in other reported case of Mst. Gul Shah Naz v. Abdul Qayoom Soomro PLD 2002 Kar.

333. From the perusal of the reported case of Inam Naqshband v. Haji Shaikh Ijaz Ahmed PLD 1995 SC 314 it reveals that no specific date was fixed in the agreement for performance and the father of the vendor has filed suit and obtained stay order. In other reported cases of Zaheer Ahmad v. Abdul Aziz 1983 SCMR 559 and Mst. Amina Bibi v. Mudassar Aziz PLD 2003 SC 430 the facts were that the cases were filed within three years from the date fixed in the agreement. In another reported case of Mst. Batul and others v. Mst. Razia Fazal and others 2005 SCMR 544 the suit was filed within one year from the cancellation of agreement. In view of the above discussion, it is established that the agreement is to be performed on 31-12-1997 and the time of filing of this suit starts from that date and suit can be filed within three years in terms, of Article 113 of the Limitation Act. The suit filed on 7-1-2003 is beyond the limitation provided under Article 113 of the Limitation Act and is apparently barred by time. The plaint is, therefore, rejected under clause (d) of Order VII, Rule 11, C.P.C. with no order as to cost along with listed applications, if any. M.H./A-155/K Plaint rejected.