2007 PLP 863 (SCMR)

CH. IJAZ AHMED, J.

Brief facts out of which the present petition arises are that petitioner filed suit for specific performance of an agreement to sell dated 12-8-1979 against respondents in the Court of Civil Judge, Chiniot on 28-1-1996. The contents of the plaint reveal that property in question was purchased by respondent No.3 measuring 5 Marlas vide registered sale-deed dated 24-5-1975 as Benami in the name of his real sons Muhammad Iqbal, Muhammad Raiz respondents Nos.l and

2. The agreement to sell was executed by respondents Nos.1 and 2 through their father/respondent No.3 with the petitioner for a consideration of' Rs.4,500 on 12-8-1979. The possession of the property in question was also handed over to the petitioner as part performance and it was agreed that since the respondents Nos.1 and 2 are minors therefore, execution of sale-deed was postponed till attaining their age of majority. Respondents filed written statement stated, controverted the allegations levelled in the plaint. Out of the pleadings of the parties, the trial Court framed 6 issues and after recording the evidence of the parties, decreed the suit vide judgment and decree, dated 12-9-2000. Respondents being aggrieved filed appeal in the Court of Additional District Judge, Chiniot on 28-9-2000 who dismissed the same vide its judgment and decree, dated 6-11-2000. Respondents being aggrieved filed civil revision in the Lahore High Court which was accepted vide impugned judgment, dated 18-11-2003 and set aside the judgments of the Courts below, consequently, dismissed the suit of the petitioner. Hence, the present petition.

2. The learned counsel for the petitioner submits that learned High Court has erred in law to disturb the concurrent findings of the Court below while exercising power under section 115, C.P.C. He further urges that learned High Court had not suited the petitioner without adverting to the Article 113 of Limitation Act as case of the petitioner does fall in second part of the said Article. He further urges that time is not essence of the contract, therefore, learned High Court erred in law to non-suit the petitioner on the ground of limitation.

3. We have considered the submissions and perused the record. It is better and appropriate to reproduce the operative part of the agreement to sell and operative part of the impugned judgment to resolve the controversy between the parties:-- Operative part of the agreement to sell Operative part of the impugned judgment "The agreement to sell Exh.P.1 shows that the minors entered into a contract with the respondent through their father. The agreement specifically recites that the sale-deed was to be registered on attaining majority by the minors. The agreement also shows that the father of the minors did not sell the land being natural or legal guardian of the minors. The minors themselves entered into a contract with the respondent through their father. It was conditional that the sale would be completed/registered after attaining majority by the minors. Admittedly the minors attained majority in 1981 and 1984. The respondent did not file the suit for specific performance of the contract within three years under Article 113 of the Limitation Act, 1908. In my view the suit filed by the respondent after more than 11 years is clearly barred by the time" ."The cases relied upon by the learned counsel for the respondent do not hold him rather support the case of the petitioners. Both the Courts below also erred in law in coming to the conclusion that the cause of 'action arose from the date of the denial of the performance. The agreement to sell dated 12-8-1979, Exh.P.1. clearly shows that the sale-deed was to be registered in favour of defendants on attaining majority by the minors. In my view the cause of action would arise to' the defendants from the date of majority attained by the minors."

4. In case the operative parts of the agreement to sell and impugned judgment are put in juxtaposition, then it is crystal clear that agreement to sell clearly envisages that petitioner is at liberty to compel the respondents for execution of sale-deed after attaining the majority by the respondents Nos. 1 and

2. It is pertinent to mention here that respondents Nos. 1 and 2 have attained the age of majority admittedly in 1981 and 1984. Petitioner has kept silent for eleven years and had filed the suit for specific performance on 28-1-1996. Even if the case of the petitioner falls in the second part of Article 113 of Limitation Act, the petitioner has to approach the Court within reasonable time. Eleven years is not reasonable time in any canon of justice. The learned High Court has wide power to rectify the mistake or error committed by the Courts below while exercising power under section 115, C.P.C. The learned High Court has taken a lot of pain to reappraise the evidence on record and the case-law on the subject along with various books and thereafter the learned High Court had disturbed the concurrent findings of fact which were neither in consonance with the material on record nor in consonance with the evidence on record and in violation of mandatory provisions of law such as Article 113 of Limitation Act. The learned High Court had disturbed concurrent findings of fact after reappraisal of evidence on record. This Court does not generally substitute its own finding in place of the finding of the Court below while exercising power under Article 185(3) of the Constitution. It is pertinent to mention here that specific date is mentioned in the agreement to sell for execution of sale-deed at the time of attaining the majority by respondents Nos.1 and 2 and contention of learned counsel for the petitioner that case of the petitioner falls in category 2 of Article 113 of Limitation Act has no force. Even otherwise substantial justice has been done by the learned High Court, therefore, we are not inclined to exercise our discretion in favour of the petitioner. The petition has no merit and the same is dismissed. Leave refused. S.A.K./M-27/SC Leave refused.