2006 PLP 2622 (YLR)

JAWWAD S. KHAWAJA, J.

The petitioner/plaintiff impugns the concurrent decrees of the learned trial Court dated 31-1-1998 and of the learned Appellate Court dated 28-9-1995, whereby a suit filed by him seeking specific performance of agreement (Exh.P.1) dated 31-3-1975 has been dismissed.

2. Both Courts below have held that the suit, which was filed on 6-10-1980, was time-barred. According to them, the suit had to be filed within three years from the date of the agreement i.e. 31-3-1975. While reaching this conclusion, the Courts below have held that the case fell within the first part of Article 113 of the Schedule to the Limitation Act and not under the second part.

3. In order to appreciate the reasoning of the learned Courts below, it is necessary to reproduce the relevant clause of the agreement and Article 113 of the Schedule to the Limitation Act. It is stipulated in the agreement Exh.P.1. As under: -- The above stipulation was made after a recital that there were two suits pending adjudication between the respondent/vendor and a third party.

4. Article 113 of the Schedule to the Limitation Act provides as under:-- 1????????? 2????????? 3 113 For specific Three The?????? date Performance years. fixed for the of a contract. Performance, or if no such date is fixed, when the plaintiff has ?Notice that performance is refused.

5. By now, it is well-settled that wording of the nature adopted by the parties, as reproduced above, puts an agreement squarely within the second part of Article 113 and, therefore, the period of limitation starts running only after refusal of a vendor to perform his part of the agreement. This is the ratio of the case titled Mst. Bibi Khatoon and 7 others v. A Abdul Jalil PLD 1978 SC 213 and the case titled Inam Naqshband v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314.

6. In the above circumstances, I am not left in any doubt that the learned Courts below fell in error in interpreting the provisions of Item 113 of the Schedule to the Limitation Act. The impugned decrees are, therefore, not sustainable and are consequently set aside.

7. Both Courts below have concurrently held that the agreement (Exh.P.1) was, in fact, executed by the vendor Saith Muhammad Sharif. Furthermore, there is no impediment in the execution of a sale-deed in favour of the petitioner because two sales have already been affected by the vendor, out of the land described in Exh.P.1. These sales have been made in favour of Nazir Ahmad (predecessor-in-interest of respondents Nos. II to II -F) and Chiragh Din (respondent No.12). The suit of the petitioner is, therefore, decreed as prayed B for in the plaint, subject to deposit of the balance amount of Rs.39,000 in the trial Court within sixty days of the date hereof. If the balance amount is not deposited within the said period of sixty days, the suit shall stand dismissed forthwith.

8. The petitioner shall also be entitled to his costs throughout. H.B.T./A-16/L Revision allowed.