2011 SCMR 249 (PLP)

NASIR-UL-MULK, J.

This appeal as of right has been filed by Muhammad Ramzan, whose suit for specific performance of the agreement to sell dated 27-7-1986 against the vendor, Muhammad Qasim, respondent, was decreed by the trial Court, which decree was upheld by the appellate Court but reversed by the Lahore High Court through the impugned judgment passed in its revisional jurisdiction.

2. The agreement to sell dated 27-6-1986 has not been denied by the respondent, nor the receipt of Rs.10,000 as earnest money out of total sale consideration of Rs.1,00,

000. The High Court non-suited the appellant on the ground of time limitation. According to the agreement to sell, the sale was to be completed by January, 1988. The appellant had filed the suit for specific performance on 17-2-1991. The suit, according to the High Court, should have been filed by 31-1-1991, within three years under Article 113 of the Limitation Act 1908.

3. Apart from the question of limitation, the High Court did not take up any other issue. It may be noted that the appellant/plaintiff is also a tenant of the respondent in the suit house and before the appellant filed the present suit the respondent had moved an application for his ejectment before the Rent Controller, which was eventually dismissed.

4. Ch. Mushtaq Ahmad Khan, Senior Advocate Supreme Court appearing for the appellant maintained that by upsetting the concurrent findings of the two Courts on questions of fact the High Court had travelled beyond its revisional jurisdiction. That the agreement to sell as well as the receipt of the advance payment had been admitted by the respondent vendor and being a transaction of real property, time for performance was not essence of the contract. As to the question of limitation, the learned counsel referred to four legal notices sent on behalf of the appellant, the first on 19-12-1987 and the last 2-1-1989, calling upon the respondent to complete the transaction, expressing his own willingness to make payment of the balance sale consideration. The learned counsel read out the statement of the respondent in the present suit as well as in the ejectment petition before the Rent Controller and pointed out that by January, 1988, the respondent had not yet acquired transferable title to the suit property and that his title was completed in January, 1990 That time ran against the appellant from the day the respondent, in his statement before the Rent Controller, declined to perform his part of contract or the date on which the respondent acquired complete title to the suit property.

5. Mr. Gulzarin Kiyani, Senior Advocate Supreme Court, representing the respondent, took us to the legal notices, which the appellant claimed to have sent to the respondent, to contend that in none of them had the appellant referred to defect in the title of the respondent. On the other hand, the learned counsel pointed out that the appellant in his legal notice of 21-1-1989 admitted that a legal notice was issued on behalf of the respondent, calling upon the appellant to make payment of the balance sale consideration in order to complete the sale.

6. Upon our perusal of the four notices, apparently sent on behalf of the appellant to the respondent, we found that there was no mention of any defect in the title of the respondent to transfer the property to the appellant and accordingly, the respondent was never called upon to remove the defect. The appellant, thus, did not consider the respondent's title as an impediment in the completion of the transaction. The agreement to sell also does not refer to any defect in the respondent's title. For the purpose of time limitation, it is the position taken by the plaintiff that is relevant. Non-filing of the suit by the plaintiff within the limitation period was not .on account of want of completion of the respondent's ownership. Thus, whatever may have been the problem with the respondent's ownership of the suit house, the appellant could not take advantage of it for the purpose of overcoming the hurdle of limitation. In this background, the reliance of the learned counsel for the appellant on Inam Naqshband v. Haji Sheikh Ijaz Ahmad (PLD 1995 SC 314) is misplaced. There the parties to the agreement to sell stipulated that the sale would be completed within a week of the agreement. Within that week, however, the vendor's father filed a suit and obtained stay order. It was in those circumstances that the Court held that the vendee was prevented from performing his part of the bargain.

7. A suit for specific performance of contract, according to Article 113 of the Limitation Act, is to be brought within three years from "the date fixed for its performance, or if no such date is fixed, when the plaintiff has notice that the performance is refused". January, 1988 was the time fixed in the agreement between the parties for the completion of the sale transaction. The learned counsel for the respondent relying upon Ramzan v. Smt. Hussaini (AIR 1990 SC 529) and Chet Ram Vashist (Deceased through L.Rs. v. Ram Chander Goel (AIR 2000 Delhi 96) maintained that in case only the month and not the actual date is specified in the agreement for its performance, the date fixed for the purpose of Article 113 of the Limitation Act would be the last date of the calendar month.

8. Under Article 113 of the Limitation Act, a suit for specific performance of contract is to be brought within three years from "the date fixed for the performance, or, if no such date is fixed, when the plaintiff has noticed that performance is refused". The parties before us were to perform their respective parts of contract by January, 1988. The actual date of the calendar month for performance of the promise was not mentioned. However, when an agreement specifies the month and not the date of the month in, or by which, the promisor is to perform his part of the agreement, it can be performed on any day of the month. Thus, the final day for the performance of a contract would be the last date of the calendar month specified its performance. That would be the "date fixed" for the purpose of Article 113 of the Limitation Act from which the period of limitation of three years would run for filing a suit for specific performance. This must be so as the cause of action would arise to an aggrieved party only upon expiry of the period fixed for performance of the contract and thus no suit would lie before it. In the present case since the contract was to be performed by January, 1988, 31st day of that month was the last day for its performance. The appellant could bring his suit by 31-1-1991. The suit brought by him on 17-2-1991 was on the face of it barred by time. No application was filed for condoning its delay. The High Court had, thus, rightly dismissed the appellant's suit on this ground.

9. The, learned counsel for the appellant tried to bring his case within the second limb of the Article 113 of the Limitation Act by arguing that the limitation would run from the date when refusal by the respondent to perform his part of the contract came to the notice of the appellant. This argument has no merits as the second part of Article 113 of the Limitation Act becomes applicable only when the agreement does not provide a "fixed date" for its performance. As already held such date was fixed by the parties.

10. In view of foregoing discussion, we do not find that the High Court had erred in holding that the appellant's suit was barred by time. Resultantly, the appeal is dismissed with no order as to costs. M.H./M-98/SC Appeal dismissed.