P L D 2004 Supreme Court 62 (PLP)

QAZI MUHAMMAD FAROOQ, J.

This appeal, by leave of the Court, is directed against the judgment dated 12-6-1994 of a learned Judge in Chambers of the Lahore High Court, Bahawalpur Bench whereby Civil Revision No.141-D of 1984 preferred by the respondent Khandu, now dead and represented by Allah Bakhsh, was allowed with the following observations: "In view of the aforementioned discussion, I hold that the amendment relates back to date of the suit. The suit was, therefore, within time. No other issue was urged before me. I, therefore, accept the appeal and set aside the impugned judgment of the learned Additional District Judge. Resultantly the suit of the petitioner stands decreed. The respondent shall get the transaction registered within two months of today, failing which the same, shall be got done through the learned trial Court/Executing Court."

2. The facts to be highlighted are that the respondent had purchased the suit-land from the appellant for a sum of Rs.6,600 on the strength of an agreement to sell-dated 3-12-1961. The entire sale consideration was paid by the respondent and the possession of the suit-land was delivered to him. The respondent filed a suit on 8-12-1972 seeking declaration of ownership on the basis of the said agreement to sell. The appellant contested the suit and one of the pleas raised by him pertained to the form of the suit but before its resolution the respondent made an application for amendment of the plaint which was allowed on 10-7-1976 and the alternative relief of specific performance of contract was added in the plaint. The suit was ultimately decreed by the learned trial Court on 18-5-1980 to the extent of the specific performance of contract. The learned Appellate Court, vide judgment dated 8-3-1984, allowed the appeal and dismissed the suit by holding that the suit was barred by time vis-a-vis the relief of specific performance of contract. The revision petition filed by the respondent was, however, allowed by the High Court, as stated above.

3. Leave was granted to consider the following contention raised by the learned counsel for the appellant:-- "

3. It was contended by the learned counsel for the petitioner that there being no period for execution of the sale-deed fixed in the agreement in question the period of the limitation would be 3 years from the date of execution of the deed and not from the date of denial which allegedly was made after more than 11 years of such execution."

4. The learned counsel for the appellant reiterated the contention incorporated in the leave granting order and also submitted that the prayer for specific performance of contract had become time-barred on account of belated amendment of the plaint. The learned counsel for the respondent maintained that the alternative relief of specific performance of contract was governed by Article 113 of the Limitation Act and the period of three years was to be reckoned from the week preceding the filing of the suit when the, appellant had refused to take steps for registration of the deed or attestation of a mutation on the basis thereof.

5. As many as three Courts have held concurrently that the agreement to sell dated 3-12-1961 was validly executed, the entire sale consideration was paid at the time of execution of the deed and possession of the suit-land was delivered to the respondent. In the face of these concurrent findings of fact the appellant is obliged to complete the formality of registration or attestation of mutation but instead of doing the needful he is attempting to get the respondent non-suited on the technical ground of limitation. The proposed amendment was allowed by the learned trial Court on payment of Rs.250 as costs vide order dates 10-7-1976. The appellant received the costs and did not challenge the said order. The cumulative effect of the acceptance of the respondent's application for amendment of the plaint and the acquiescence of the appellant is that no right has accrued to the appellant by efflux of time. The suit for specific performance of contract is governed by Article 113 of the Limitation Act which provides that the period of limitation is three years from the date fixed for specific performance of a contract or, if no such date is fixed when the plaintiff has notice that performance is refused. The agreement to sell in the present case does not contain any period for specific performance of contract, therefore, the period of limitation is to be reckoned from the date when performance was refuses by the appellant, namely, a week before the institution of the suit which has not been controverted. The amendment-related contention raised' by I the learned counsel for the appellant travels beyond the leave granting order. Be that as it may, the respondent is in possession of the suit-land since 1961 and addition of the alternative relief has not substituted the cause of action, therefore, the amendment will relate back to the date of institution of the suit and as such the alternative relief is not barred by limitation. For the reasons stated above, the appeal is dismissed. Parties to bear their own costs. M.B.A./G-199/S Appeal dismissed.