MUHAMMAD ASHRAF and another vs JAFAR and 4 others

AMIN-UD-DIN KHAN, J.---Through this civil revision, petitioners have challenged the judgment and decree dated 01.11.2007 passed by the learned Additional District Judge, Sheikhupora, whereby an appeal filed by the respondents/defendants was accepted and judgment and decree dated 26.01,2007 passed by the learned Civil Judge 1st Class, Sheikhupura, decreeing the suit for specific performance filed by the petitioners was reversed and suit was dismissed.

2. Brief facts of the case are that plaintiff/petitioner on 29.08.1994 filed a suit for specific performance on the basis of agreement to sell dated 9.01.1989. Separate written statements were filed by defendant No,1 and other by defendants Nos.2 and 3. In their written statement filed by respondent No,1,. It is stated that only he was owner of the superstructure and the land under the house was Shamlat Deh and defendants Nos.2 and 3 were joint owner of Shamlat Defendants Nos.

2 and 3 in their written statement contested the suit on the ground that previous to filing of suit, application under Sections 14 and 17 of the Limitation Act was filed which was dismissed on 18.07.1994, therefore, the suit is not maintainable and further that suit is barred by law. The learned trial Court framed the issues, invited the parties to adduce their evidence. Both the parties produced their oral as well as documentary evidence. Learned trial Court dismissed the suit vide judgment and decree dated 26.01.2007. An appeal was preferred which was accepted vide judgment and decree dated 01.11.2007, hence this civil revision.

3. Learned counsel for the petitioners argues that the findings recorded by learned trial Court are well reasoned and in accordance with law, the agreement has successfully been proved but the learned first appellate Court while ignoring the law on the subject has, reversed the well-reasoned findings and held that the suit was barred by time. Argues that the benefit of Section 14 of the Limitation Act should have been granted to the petitioners/plaintiffs and prays for acceptance of this civil revision and setting aside of the judgment and decree dated 01.11.2007 passed by the learned first appellate Court.

4. On the other hand, the learned counsel for the respondent argues that admittedly the respondents are in possession of suit property which has been admitted by the witnesses of the plaintiff. Further that in the judgment passed by the Civil Judge in the arbitration proceedings which has been produced as Exh.P.2, learned Civil Judge held that Muhammad Ali never appointed the Arbitrator, therefore, learned trial Court refused to make the alleged Award Rule of the Court.

5. Learned counsel states that findings of the learned first appellate Court are absolutely in accordance with law and there is no defect in the same. States that for taking benefit of Section 14 of the Limitation Act it was incumbent upon the petitioners/plaintiffs to show that the proceedings were initiated bona fide before the Civil Court under Arbitration Act and further that the Court was having no jurisdiction. Learned counsel for the respondents has relied upon "2010 SCMR 36 Muhammad Khan v. Salehun alias Saleh Muhammad), PLD 2009 Lahore 52 (Pakistan Industrial and Commercial Leasing Ltd through Authorized Manager Recovery v. Hag Knitwear Pvt. Ltd through Chief Executive and 2 others), 2009 CLC 759 (Ahmad Khan v. Kausar Parveen and another), 2008 CLC 412 (Zulqarnain and 7 others v. Custodian Evacuee Property, AJ&K Muzaffarahad and 73 others), PLD 2006 Karachi 593 (Messers Imperial Builders through Managing Partner and another v.

Lines Pvt. Limited through Chief Executive and 3 others) and 2012 SCMR 377 (Dr. Syed Sibtain Raza Naqvi v. Hydrocarbon Development and others).

6. I have heard the learned counsel for the parties and gone through the record. The agreement is dated 09.01.1989 between plaintiffs and defendant No,1 which is Exh.P.1 and the suit has been filed on 29.08.1994. Limitation for filing a suit for specific performance is provided under Article 113 of the 'Limitation Act, 1908 for three years from the date fixed for performance and in agreement to sell Exh.P.1 the date fixed for performance was 20.01.1994 and filing of suit on 20.08.1994 was certainly barred by limitation. In the light of the case law referred by the learned counsel for the petitioners benefit of Section 14 of the Limitation Act cannot be given to the petitioners/ plaintiffs.

' A person claiming benefit of section 14 of the Limitation Act; 1908 is required to prove that he initiated the proceedings in good faith in the wrong Court and after coming to know that he has started proceedings the wrong Court comes to the Court where actually the suit was to be filed then only he can take the benefit of section 14 ibid. In the case in hand, previous proceedings initiated by the plaintiffs/petitioners were under Arbitration Act on the basis of some Award for making the same Rule of the Court when the learned Court refused to make the Award Rule of the Court the suit in hand for specific performance on the basis of agreement to sell has been filed. In this way both the proceedings i.e, the Arbitration proceedings and the instant suit are absolutely independent proceedings and further on the basis of separate cause of action. Therefore, plaintiffs/petitioners cannot claim the benefit of Section 14 of the Limitation Act. The suit was certainly barred by limitation and learned lower appellate Court has rightly accepted the appeal and dismissed the suit.

7. For invoking jurisdiction of this Court under Section 115 of C.P.C. The petitioners are required to prove that the judgment passed by the Court below is contrary to the law or there is some procedural defect prejudicial to the rights of the petitioners. No such defect I have found in the judgment passed by the learned first appellate Court nor the learned counsel could show any such defect in the findings of the learned Court below.

8. In this view of the matter, no case for interference by this Court while exercising jurisdiction under Section 115 of the C.P.C. Has been made out, hence this revisit petition stands dismissed.