1988 PLP 1065 (MLD)

MUHAMMAD ASADULLAH, J.‑‑The appellant filed a suit for specific performance of an oral agreement of sale made on 24‑11‑1977 by respondent No.1 in favour of the appellant for a total consideration of Rs.4 lacs in respect of bungalow No.216 known as Eesa Khel House, Fatima Jinnah Road, Sargodha. It was alleged in the plaint that respondent No.1 entered into an oral agreement of sale with the appellant on 24‑11‑1977 and received an earnest money amounting to Rs.l lac as a part ‑consideration and that thereafter a formal agreement of sale was scribed on 1‑12‑1977 but the same was not signed by respondent No.1. It was further alleged that originally the Bungalow in dispute was owned by Shahzadi Gohar Sultana, mother of respondent No.2 (as also of respondents Nos.3 and 4) and respondent No.2 was also her general attorney and although his power of attorney had been cancelled he (respondent No.2) sold the said Bungalow in favour of respondent No.1 as a benami transaction on 18‑9‑1974 of course without consideration. She herself died towards the end of 1974. It was alleged (although wrongly) that respondent No.2 alone inherited her property as a sole heir. It was further alleged that while respondent No.2 was the real owner respondent No.1 had been selling portions of land, other than the land covered by the Bungalow in dispute, to various persons but sale‑deeds were executed by respondent No.1 because the property stood in his name. It was also alleged that respondent No.2 filed a suit against respondent No.1 seeking a declaration that the sale made by him as attorney of Shahzadi Gohar Sultana was a benami transaction. In paras. 4 and 5 of the plaint he categorically stated that the oral agreement made on 24‑11‑1977 was made by respondent No.] in his favour and that it was respondent No.1 who received the earnest money amounting to Rs.1 lac and that it was respondent No.1, who got scribed agreement dated 1‑12‑1977 but later did not sign the same. He specifically alleged in para. 5 of the plaint that the ‑:um of Rs.1 lac was paid by him to respondent No.1 in the presence of respondent No.1 and Fiaz Ali Oureshi, a marginal witness. He alleged that the said respondent No.1 promised to get the sale‑deed completed after the litigation in regard to the said declaratory suit comes to an end and that he then refused to _ do so. He claimed specific performance of the said oral agreement dated 24‑11‑1977 and the written agreement dated 1‑12‑1977 and in the alternative he prayed for a decree for Rs.5 lacs. The said amount was claimed by him as refund of earnest money amounting to Rs.1 tae, Its.2 lacs as damages for breach of contract, Rs.1 lac for mental torture and loss of earnings on the amount paid as earnest money and Rs.l lac as expenses incurred on improvements made in the Bungalow in dispute. The case was vehementally resisted by respondents Nos.1 and 2 and was also contested by respondent No.4. Apart from contesting the same on merits they raised certain preliminary objections the most important being that the suit was barred by time and that the appellant had no locus standi and cause of action for riling the suit. The learned trial Court framed twelve issues including the issue of relief on merits as also on the basis of the preliminary objections. However, it was decided that issues Nos.1 to 4 will be decided first as preliminary issues. The said issues are as under:‑ (i) Whether plaintiff is estppped through his words and conduct from filing this suit? OPP. (2) Whether suit of plaintiff is hit by principle of res judicata? OPP. (3) Whether plaintiff has no cause of action and locus standi to file this suit? OPP. (4) Whether suit of plaintiff is within time? OPP. The learned Civil Judge 1st Class, Sargodha, decided issues Nos.1,3 and 4 against the appellant while issue No.2 was decided in his favour. As a consequence the suit was dismissed vide judgment and decree dated 22‑2‑198.1, leaving the parties to bear their own costs. The appellant has challenged the said judgment and decree through the present appeal. We have perused the record and have heard arguments.

2. The most important issue, is issue No.4 relating to the point of limitation. As pointed out above, it is alleged that the oral agreement was made on 24‑11‑1977. 1t is also alleged by the appellant himself and that too in the plaint itself that a written agreement was drawn on 1‑12‑1977, which was not signed by respondent No.1. As the agreement was not signed by respondent No.1 it would mean that even according to the appellant the said respondent No.1 refused to sign the same. In other words it would mean that on 1‑12‑1977 itself respondent No.1 refused to perform the oral contract allegedly made on 24‑11‑1977. It is agreed that Article 113 of the 1st Schedule to the Limitation Act, 1908 will apply to the case. The period of prescribed limitation of three years will start from the date of refusal to perform the alleged contract. The said date of refusal is clearly 1‑12‑1977. The suit was filed on 31‑1‑1983 and as such is hopelessly time barred. It may be added that the said agreement dated 1‑12‑1977 a copy of which was riled by the appellant Nzith the plant is a part of the plaint as mentioned in para. 5 thereof. In the said agreement the time for specific performance has been specifically given as 28‑2‑1978. Therefore, even if the limitation has to be reckoned from the time and date fixed for the specific performance the suit will be still time‑barred. The learned counsel for the appellant has argued that it had been agreed that the sale‑decd will be executed after the litigation relating to the said declaratory suit (regarding benami sale) comes to an end. The said litigation started in 1978 and ended on 28‑5‑1983 when the second appeal, later on converted into revision, was dismissed by this Court as withdrawn through order dated 28‑5‑1983. The present suit was filed on 31‑1‑1983 i.e. about four months before that litigation came to an end. Therefore, the averment that the specific performance had to be made after that litigation has no legs to stand upon because the present suit was filed before that litigation ended. This would meat, that the said allegation of the appellant is false. It may be pointed out that opportunity of producing evidence was provided to both the parties by the learned trial Court. However, the appellant produced no evidence and closed his evidence through statement dated 4‑10‑1983 of his learned counsel. Therefore, there is absolutely no evidence on record to show that there was any promise to execute the sale‑deed after the litigation relating to the declaratory suit had ended. Accordingly, the limitation would start from 1‑12‑1977 and in any case from 28‑2‑1978 and not from any other date. The suit as already said was filed beyond three years from the said dates and was, therefore, clearly time‑barred. It may be pointed out that the claim for recovery of Rs.5 lacs is likewise time‑barred for the like reasons. The finding of the learned trial Court on issue No.4 is confirmed.

3. The other important issue in the case is issue No.3 relating to the locus standi and cause of action of the appellant for the present suit. As pointed out in the above narration, the case of the appellant as disclosed in paras.4 and 5 is that it was respondent No.1, who entered into the said oral and then written agreements and that it was he who received the earnest money amounting to Rs.1 lac and that it was he who got the said agreements scribed yon 1‑12‑1977 and it was he; who did nut sign the said agreement. In para. 6 of the plaint as well it has been alleged that it was respondent No.1 who had refused to abide by or to perform the contract because of rise in prices of immovable property. On the" other hand, it has also been alleged in the plaint that respondent No.1 was a benamidar and the real owner was respondent No.2. When the real owner was respondent No.2 (may be alongwith respondents Nos.3 and 4) the appellant could not and should not have entered into any agreement with respondent No.1, as according to him respondent No.1 was not the real owner. The learned counsel for the appellant when confronted with this situation stated that the plaint had been misdrafted, conceding that two picas being contradictory to each other could not stand together. He prayed that the appellant may be allowed to amend the plaint so as to allege that the agreement to sell was made by respondent No.2 and was performable specifically as against him. The amendment if allowed will change the whole case of the appellant and, in fact, it will be a new case. The present suit is mainly directed against respondent No.1 while by the proposed amendment the suit will be mainly against respondent No.2. Apart from that the alleged written agreement was allegedly made between the appellant and respondent No.1 and not between the appellant and respondent No.2. The appellant may be able to amend the plaint but he cannot amend the said agreement. Again, his allegation is that he paid the earnest money to respondent No.1 and he will not be able to say that he paid the same to respondent No.2 especially when the adjustment of the same was allegedly made through the said agreement dated 1‑12‑1977. It is correct that an amendment of the plaint can be allowed even at the last stage and even up to the Hon'ble Supreme Court, but that can be done as an exception and not as a rule. It can be allowed only in cases where the whole case of a plaintiff is not changed. As pointed out earlier, the amendment if allowed will change the while case of the appellant and as a matter of fact even that change will be useless for him because he cannot change the plea that the agreements both oral and written were made with respondent No.1 Accordingly, the prayer for amendment of the plaint is refused.

4. As stated in the foregoing paragraph, the appellant has no case against respondent No.1 as according to him the said respondent No.1 had never become an owner of the Bungalow in dispute. The real owner was Shahzadi Gohar Sultana and after her death the real owners, according to the appellant, are respondents Nos.2 to

4. It is nowhere alleged that they or any one of them agreed to sell the property in dispute in favour of the appellant. In these circumstances, the appellant has no locus standi to file the suit against any of the respondents and has as a matter of fact no cause of action against any of them. The decision of the learned trial Court on issue No.3 is confirmed.

5. So far as the issue relating to estoppel is concerned the finding of the learned trial Court on the same suffers from no illegality. The appellant knew even according to him, that respondent No.2 (alongwith respondents Nos.3 and 4 was the owner of the property in dispute. He could not, therefore, enter into a contract with respondent No.1 whom he did not recognize as owner of the Bungalow in dispute. In these circumstances he is estopped from filing the suit to enforce the alleged contract made by him with respondent No.1. The finding of the learned trial Court on issue No.1 is also maintained. In these circumstances, the appeal is dismissed with costs throughout. S.O./M‑669/L Appeal dismissed.