Haji Ghulam Rasool and another vs Shah Nawaz and others
This civil petition for leave to appeal challenged the judgment of the Lahore High Court regarding a suit for specific performance of an agreement to sell. The core legal question concerned whether the suit, filed on 11.11.2007 based on an agreement dated 24.05.2003, was barred by limitation under Article 113 of the Schedule to the Limitation Act, 1908. The petitioners argued that since no specific date for performance was fixed in the agreement, the limitation period commenced only upon the respondents' refusal to perform. The Supreme Court observed that while Article 113 provides a three-year limitation period—commencing from the date fixed for performance or, if none is fixed, from the date the plaintiff has notice of refusal—the burden of proof lay on the petitioners to establish the date of such refusal. Finding that the petitioners failed to lead credible evidence to prove the date of refusal, the Court held that the suit was time-barred. Consequently, the Court dismissed the petitions, affirming the lower courts' findings on the limitation issue.
- When does the limitation period for a suit for specific performance commence if no date for performance is fixed in the agreement?
- Does the burden of proving the date of refusal to perform a contract lie on the plaintiff in a suit for specific performance?
- Is a suit for specific performance maintainable if the plaintiff fails to prove the date of refusal to perform within the statutory limitation period?
- Article 113, The Limitation Act 1908
ORDER
Yahya Afridi, J. The petitioners have not only assailed the judgment dated 09.09.2022 passed by the Lahore High Court, Lahore (the High Court) in RSA No. 229135 of 2018 but also the order dated 05.10.2022 passed in Review Application No. 55751 of 2022.
2. At the very outset, we confronted the learned counsel for the petitioners to explain the delay in filing the suit on 11.11.2007 for specific performance of an agreement to sell dated 24.05.2003 (the Agreement), where the limitation of three years is provided under Article 113 of the Schedule to The Limitation Act, 1908 (the Act).
3. In response, the learned counsel contended that as no time was determined under the said agreement between the parties, the period of limitation would commence from the date of refusal to perform the terms of the said agreement by the respondents. He further drew our attention to para 5 of the plaint, wherein it was asserted that the refusal to perform the agreement was intimated to him by a property agent, and finally, the respondents herein categorical intimated their refusal to perform their part of the obligation under the Agreement.
4. Article 113 of the Act provides as under: "Description of suit.Period of Limitation Time from which period begins to run.
113. For specific performance of a contract Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused."
5. We have gone through the terms of the Agreement, and note that, no date is fixed for performance, and thus, in such eventuality, the time would commence when the plaintiff has notice that the performance is refused by the opposing contracting party. Though an assertion was made in the pleadings regarding the date, when the cause of action accrued to the petitioners/plaintiffs, and thus the onus was on the petitioners/plaintiffs to prove such refusal of the respondents/defendants to perform. We have reviewed the record and note that the petitioner did not lead credible evidence in a proper manner to prove the date of refusal of the respondents/defendants to perform their obligations under the Agreement. Accordingly, the petitioners were unable to prove that their suit for specific performance of the Agreement was within the prescribed period of three years as provided under Article 113 of the Schedule to the Act.
6. Furthermore, we have noted that the Courts below have correctly adjudged this factual determination and refused the relief to the petitioners on the point of limitation. We have gone through the impugned judgment and find that the same are based on correct appreciation of law and fact and warrant no interference by this Court. These petitions are, therefore, dismissed, and leave refused.