2005 PLP 738 (SCMR)

MUNIR A. SHEIKH, J.

By this common judgment, we propose to decide both these petitions involving identical questions of law and facts.

2. The respondent on 8-8-1988 filed suit for specific performance of agreement of sale dated 13-12-1976 allegedly executed by the petitioner in his favour regarding sale of land for an amount of Rs.50,000 out of which an amount of Rs.44,000 was shown to have been allegedly paid as earnest money at the time of alleged execution thereof. It was contested by the petitioner on merits and on the ground of limitation as well. The petitioner filed counter-suit for recovery of possession of the land in dispute which was consolidated with the said suit filed by the respondent for specific performance of agreement.

3. Before filing the suit, the respondent on 31-1-1977 filed an application for making an award rule of the Court which was obtained by him from an Arbitrator allegedly appointed to resolve the dispute of sale of land in dispute. It was contested by the petitioner on the ground that apart from the fact that there was no arbitration agreement, the agreement of sale dated 13-12-1976 in relation to which the said award was obtained, was also forged document. This plea was accepted by the Court and the said application was dismissed through order, dated 21-6-1981 against which appeal filed by him was dismissed on 22-3-1984. The respondent approached the High Court by filing revision petition which was also dismissed on 24-4-1984 against which he filed civil petition for leave to appeal before this Court which was dismissed through judgment, dated 10-7-1988 with the observation that as regards finding that agreement of sale was a forged document should not have been recorded in these proceedings, therefore, the respondent may if so wanted seek remedy on the basis of the said agreement of sale. It was in these circumstances that on 8-8-1988, he filed suit for specific performance of the said agreement of sale.

4. Both the suits were consolidated by the trial Court and consolidated issues were framed on 11-5-1992. Initially, issue No.3 pertaining to limitation was ordered to be tried as preliminary issue but subsequently the trial Court decided to record evidence on the other issues also and thereafter to decide the case as a whole. The evidence of the respondent-plaintiff was concluded on 18-10-1993. After availing two/three opportunities, the petitioner did not produce evidence, therefore, his evidence was closed on 19-1-1994 and the suit of the respondent of specific performance was decreed by the trial Court on 27-1-1994 whereas the counter-suit filed by the petitioner for possession of land was dismissed. Two appeals filed by the petitioner were dismissed by the First Appellate Court through judgment, dated 5-12-1998 against which he filed regular second appeal in the suit of specific performance and a revision petition in the suit filed by him for possession of the land. Both of them have been dismissed through the consolidated impugned judgment, dated 6-11-2002 against which leave is sought.

5. Learned counsel for the petitioner, inter alia, contended:-- (a) That issue of limitation has not been correctly decided in accordance with law, for all the Courts below had mechanically proceeded on the assumption as if the observation made by this Court in the judgment, dated 10-7-1988 that the petitioner could seek remedy of specific performance of agreement did constitute an expression of opinion or a decision about condonation of delay in filing the suit whereas the question of limitation should have been decided independently keeping in view the facts and circumstances of the case. (b) That section 14 of the Limitation Act has not been properly construed and applied in its true perspective and terms and on relevant consideration inasmuch as the previous proceedings initiated by the respondent under the garb of an arbitration agreement suffered from mala fides and was an attempt to indirectly by under hand means to get a decision could not be held by any stretch of imagination or law to be proceedings prosecuted in good faith. (c) That even if the evidence of the petitioner had been closed but the certified copies of the proceedings in the previous arbitration matter were produced in evidence as Exh.D.1 to Exh.D.4 in which a finding had been recorded that there was no arbitration agreement but the Courts below did not apply their mind to this aspect of the case that the respondent was not prosecuting the said case bonafidely in good faith.

6. The points raised by the learned counsel for the petitioner, inter alia, deserve examination, therefore, we grant leave in both these petitions to consider the same.

7. Till the disposal of the petitions, the respondent is hereby restrained from getting the mutation sanctioned in the Revenue Record on the basis of the decree of specific performance of agreement of sale passed by the Courts below and execution proceedings in pursuance thereof are hereby stayed. S.A.K./M-98/S Leave granted.