2025 PLP 1284 (MLD)

Rasaal Hasan Syed, J.

Petitioners in this revision petition have challenged the judgment dated 06.6.2011 of learned Addl. District Judge, Pindi Bhattian, District Hafizabad whereby appeal of respondents/plaintiffs was accepted and judgment and decree passed by trial court for rejecting the plaint was set aside and the case was remanded for decision in accordance with law.

2. Plaintiffs/respondents instituted a suit for declaration along with specific performance of agreement of sale dated 04.7.1984 claiming that in terms of agreement the petitioners/defendants had agreed to sell the suit property for consideration of Rs.30,000/-, received a sum of Rs.20,000/- as earnest money in the presence of witnesses and possession was delivered to the respondents/plaintiffs who had raised valuable construction in the form of shops, etc. The agreement was executed by Lal son of Ali Muhammad (defendant No.1) on behalf of Mst. Bashiran Bibi (defendant No.2 now deceased and represented by her legal heirs i.e. petitioners herein) and that they had committed to execute the registered sale deed within six months from the agreement. It was asserted that later the execution of sale deed was postponed on the pretext that due to some clerical mistake in the revenue record regarding parentage of Mst. Bashiran Bibi the sale deed could not be executed. The petitioners/defendants later claimed that Mst. Bashiran Bibi had filed an application before the Collector for settlement of dispute with Allah Yar, etc. and it was assured that after the settlement of dispute, she would execute a sale deed. It was claimed that the defendants kept on apprising the plaintiffs/respondents that the dispute on the Revenue side was not settled as yet and thus on this pretext obligation to execute the sale deed was postponed and that two days before the filing of suit they refused to perform their part under the sale agreement, in result, the suit for specific performance was being filed.

3. Mst. Bashiran Bibi filed an application under Order VII, Rule 11, C.P.C. for rejection of plaint on the ground that suit for declaration to enforce the agreement of sale was not maintainable, it was barred by time as it was filed after 11 years, and that the plaintiffs/respondents had no cause of action to file the suit. The application after reply was accepted by the learned Civil Judge and consequently the plaint was rejected with the observation that it was barred by time and that the plaintiffs/respondents had no cause of action or locus standi to file the suit and that the suit is not maintainable. Appeal filed thereagainst was accepted by learned Addl. District Judge, in result, the order of trial court dated 23.1.2010 rejecting the plaint was set aside, the suit was restored and the learned Civil Judge was directed to decide it after recording evidence of parties in accordance with law. Against this order the instant revision petition has been filed.

4. Heard.

5. The points raised by learned counsel for the petitioners have been considered in the light of material documents filed with the petition. Perusal thereof reveals that suit was instituted to enforce the sale agreement dated 04.7.1984. The claim of plaintiffs was that the transaction was settled in the presence of defendant and the witnesses and that the agreement was executed by Lal son of Ali Muhammad and that a sum of Rs. 30,000/- was paid at the time of execution of agreement, the sale transaction was to be completed within a period of six months and that the plaintiffs/respondents remained ready and willing to perform their part but the matter was postponed by the other side on the pretext that there was some confusion qua the name of Mst. Bashiran Bibi's father in the revenue record which would need necessary correction before the sale deed could be executed. Later, on the pretext of a dispute with Allah Yar, etc pending on Revenue side, the sale deed was postponed with the assurance that the needful would be done after settlement of such dispute. It was claimed that the possession was delivered to the plaintiffs/respondents who were in possession and had invested huge amount on the construction of shops, etc. The agreement shows that the period for execution of sale deed was fixed as six months and no specific date or year was mentioned therein. Plea of the petitioners was that the suit should have been filed within three years from the time fixed in the agreement i.e. six months from the date of agreement.

6. This plea found favour with the learned Civil Judge who assumed that the suit was barred by time; while the learned Addl. District Judge took a contra view that no time and date was given in the agreement, as such, a period of limitation would be three years from the notice of refusal to perform and in the plaint it was asserted that two days before the filing of suit the petitioners/defendants had refused to perform their part of agreement or to enforce the agreement and that while dealing with the application under Order VII, Rule 11, C.P.C. the facts given in the plaint had to be taken as such and, therefore, the suit was within time.

7. The view taken by the learned Addl. District Judge is in accordance with law. Under Order VII, Rule 11, C.P.C. the plaint could be rejected only if from the statement in plaint, it does not disclose any cause of action or is barred by law or is incorrectly valued for the purpose of court fee or insufficiently stamped and on being required to make up the deficiency within time allowed to the plaintiff to make up the deficiency, if plaintiff fails to do the needful within the time allowed, then plaint could be rejected, which was not the case here. In the instant case perusal of plaint shows that the same disclosed a cause of action. The plaintiffs/respondents alleged the execution of sale agreement, payment of earnest money, delivery of possession and the execution of document by Lal son of Ali Muhammad on behalf of Mst. Bashiran Bibi and that their readiness and willingness to perform their part. For all intents and purposes the plaint did disclose a cause of action.

8. As to the argument of limitation the objection being mixed question of law and fact the same could not be decided without evidence. Perusal of agreement shows that there is no specific date fixed for the performance of agreement for the purpose of registration of sale deed rather a period of six months was given. Article 113 of Limitation Act, 1908 contemplates the period of three years for the specific performance of contract from the date fixed in the agreement for performance or if no such date is fixed, when the plaintiff has the notice that the performance is refused. In the instant case the agreement does not mention any specific date for the performance of obligation thereunder rather a period of six months was mentioned in the agreement which does not mean any specific date. Being so, the period of limitation in this case prima facie falls in second part of Article 113 of Limitation Act, 1908 which provides for three years from the date when the vendee had the notice of refusal to perform by the vendor. In this case the plaintiffs/respondents claimed that two days before the filing of suit the petitioners/defendant refused to perform the agreement and this being so exfacie the plaint could not be rejected on the plea of limitation. It needs to be proved by evidence as to when plaintiffs/respondents had notice of refusal to perform the agreement by petitioners/defendants. In Irshad Ali v. Sajjad Ali and 4 orders (PLD 1995 SC 629) it was observed to the effect that question of limitation being mixed question of law and fact the evidence should have been recorded thereon and, thereafter, it should have been decided. Reference can also be made to Muhmmad Anwar and 8 others v. Bahan and another (2000 YLR 378), Mst. Kulsoom and 6 others v. Mrs. Marium and 6 others (1988 CLC 870), Mst. Bibi Khatoon and 7 others v. Abdul Jalil (PLD 1978 SC 213), Mst. Nazar Rauf and 3 others v. Dr. Riaz Ahmad and another (1988 PLD Lah. 390) that if specific date is not given in the agreement to perform the same, the case will fall in second part of Article 113 of Limitation Act, 1908 which provides for three years from the date of notice of refusal to perform.

9. The learned Addl. District Judge correctly observed that the issue of limitation should be decided after recording of evidence. The other objection raised by the petitioners before the court of first instance was that the agreement to sell does not convey any title, therefore, the suit for declaration is not maintainable and that Lal son of Ali Muhammad was neither a special nor general attorney of Mst. Bashiran Bibi while she herself had not signed the document, therefore, the plaintiffs/respondents had no cause of action or right to sue. In this context, suffice it to observe that the case of plaintiffs/respondents was that Lal son of Ali Muhammad had executed the agreement on behalf of Mst. Bashiran Bibi and, therefore, if petitioners denied such stance this could only be resolved by framing of issue and recording evidence and the objection could not sustain outrightly without evidence. The respondents were entitled to prove that the document was executed on the basis of some authority from Mst. Bashiran Bibi, particularly, when they alleged that the transaction was settled in the presence of Mst. Bashiran Bibi and the witnesses. Such disputed question of fact could only be resolved after evidence was allowed to be produced by the parties and plaint could not be rejected on mere allegations or assertion of denial. The learned Addl. District Judge rightly set aside the order of trial court and remanded the case for decision on merits after recording evidence of parties and in doing so no error of law or irregularity has been committed so as to warrant interference.

10. Resultantly, the revision petition being without any substance is dismissed. UN/M-76/L Revision dismissed.