1985 PLP 554 (SCMR)

SHAFIUR RAHMAN, J‑‑ The petitioners who are the unsuccessful defendants seek leave to appeal against the judgment of the Sind High Court, dated 31‑8‑1983 whereby the Letters Patent Appeal filed by the plaintiff‑respondents was accepted and their suit for specific performance of an agreement of sale was decreed against them. By a notice, dated 21‑11‑1964 the petitioners were required by an Advocate on behalf of Sardar Begum, the predecessor‑in‑interest of the plaintiff‑respondents, to execute the agreement of sale, dated 14‑5‑1954 allegedly executed by Mr. Burjorji Nowroji Gazdar, their predecessor‑in‑interest, in her favour on realization of price of Rs.9,000 reserving the mortgage charge of Rs.30,000 in token whereof an irrevocable power‑of‑attorney had been executed in favour of Fasihurzuman, the nominee of Mst. Sardar Begum by promissor for executing and completing the sale on obtaining a no‑objection certificate from Income‑tax Department and another from Custodian. The petitioners it appears, were reluctant to admit, recognize or honour any such agreement whereupon a suit was filed by the legal representatives of Mst. Sardar Begum as she, in the meantime, died. The case set out in the plaint was that the disputed property, that is, an open plot of land measuring 1,511 square yards bearing survey No.25/4 in Garden East Quarters, Karachi was purchased by the predecessor‑in‑interest of the petitioner on 8‑1‑1946 and an agreement of its sale was entered into on 14‑5‑1954. As the petitioners' predecessor‑in‑interest was to execute the sale‑deed in favour of Mst. Sardar Begum on obtaining an Income‑Tax clearance certificate and a no‑objection certificate from Custodian, the sale‑deed could not be executed as these were not obtained within reasonable time. In order to satisfy the vendee under the agreement from whom the entire price had been realized a power‑of- attorney was executed in favour of Fasihuzzaman, the nominee of the vendee authorizing him to complete the execution of the sale‑deed and also admitting therein the agreement of sale as also the realization of the price. The suit was resisted by the petitioners on various grounds and the following issues were framed:‑ "(1) Did Burjorji Nowroji Gazdar agree to sell the plot in suit to Sardar Begum on 14‑5‑1954 for Rs.39,000? If so, did he receive Rs.9,000 as part of the sale consideration? (2) Did Burjorji Nowroji Gazdar execute a genuine and valid power‑of‑attorney as alleged? (3) Is the suit for specific performance within time? (4) To what relief, if any, are the plaintiffs entitled?" The learned Single Judge after examining the evidence led by the parties held that though the agreement of sale was executed, "the plaintiffs have failed to prove both consideration for the sale and the person or persons to whom it was to be sold. The payment of Rs.9,000 was held proved but the plaintiffs were found not entitled to its refund as they had not in the alternative asked for it. The power‑of‑attorney was held proved on the admission of the petitioners. The suit was held not to be within time as the "plaintiffs had to give evidence to show that the agreement of sale did not contain any date fixing the time for the performance of the contract", and they had failed to prove so. Hence specific performance was refused. On appeal, the Letters Patent Bench of the High Court reverse' the findings of the trial Judge and granted a decree for specific performance of the contract holding the claim .to be not time‑barred. Hence this petition. The learned counsel for the petitioners contended that the agreement of sale and its specific terms were not proved and, in any case, the suit was not within time. It was stated that after getting an agreement of sale executed the plaintiffs‑respondents could not have waited for more than 10 years for claiming the specific performance of the same. We find that for reversing the finding of fact about the execution of agreement of sale the appeal Bench of the High Court referred to and relied upon the correspondence exchanged between the parties when such a dispute had not arisen and other documents reflecting their conduct in dealing with this property. The petitioners admitted these documents. In view of such material existing on record we did not consider that the finding of fact so recorded is open to exception or can be challenged on any legal ground. As regards the question of limitation the Appeal Bench on the basis of admitted documents held that no time for completing the sale transaction was fixed and under Article 118 of Limitation Act time was to run when plaintiff had notice that performance was being refused. The refusal came to their knowledge only when notice served on them remained unacknowledged. From that date the suit was within time. The learned counsel for the petitioners relied on Kashi Prasad v. Chhabi Lai A I R 1933 All. 410 for establishing the bar of limitation but that decision is of no help to the petitioners because what was held therein was that the date fixed for the performance of the contract should be the date fixed definitely by the contracting parties and not left to be gathered from surrounding circumstances. On this view the plaintiff respondents get the benefit in the matter of limitation rather than the petitioners. We find that this petition raises no question of law which may require further examination in this Court. Hence leave to appeal is refused. M.I. Leave refused.