INAM NAQSHBAND Versus HAJI SHAIKH IJAZ AHMAD

MUHAMMAD MUNIR KHAN, J.---This petition for leave to appeal which is directed against the judgment of Lahore High Court arises from the facts that vide written agreement dated 24-7-1963, Inam Naqshband petitioner defendant agreed to sell 1/2 portion of his house situate in Chak No.207/RB, T,A1iabad, Tehsil and District Lyallpur (now Faisalabad) to Haji Ijaz Ahmed respondent for consideration of Rs.5,000. He received Rs.4,500 as earnest money and promised to get the sale-deed registered within one week. The sale deed was. drawn up signed by the parties on 25-7-1963 but the respondent failed to get it registered. The respondent approached the Sub-Registrar for compulsory registration of the sale-deed who declined to do so on 16-9-1963. The appeal filed by the respondent against this order before the Registrar was dismissed on 12-10-1965. It so happened that on 31-7-1963, Syed Abdul Haq, father of the petitioner filed a suit for declaration to' the effect that he was the owner of the house in dispute which was dismissed by the. Civil Judge on 28-9-1966. On 7-11-1966, the respondent filed suit for specific performance of contract against the petitioner in the Court of Civil Judge, Lyallpur (now Faisalabad). The suit was resisted. The plea of limitation was taken as preliminary objection and the averments in the plaint were denied.

The trial Court framed as many as seven issues. The parties led evidence in proof and disproof of the issue. The argument of the parties were heard. Instead of giving findings on all the issues, the trial Court finding issue of limitation i.e. "Whether the suit is within time", against the plaintiff/respondent, rejected the plaint under Order VII, Rule 11, C.P.C., leaving other issue undecided, vide judgment and decree dated 4-4-1969. The appeal of the respondent against this judgment and decree was dismissed on 11-11-1969 by the Additional District Judge, Lyallpur (now Faisalabad). Feeling still dissatisfied, the respondent filed Regular Second Appeal against the judgment and decree of the Additional District Judge in the Lahore High Court, Lahore, which on 2-10-1994 was allowed and the case was remanded to the Senior Civil Judge, Faisalabad for decision of the remaining issues by 30th November, 1994.

2. Assailing the impugned judgment, learned counsel for the petitioner has raised the following points:--

(i) That the plaint will show that agreement was to be performed within one week from 24-7-1963 i.e., by 31-7-1963. So, the limitation for filing the suit for specific performance expired on 30-7-1966 and the present suit filed on 7-11-1966 was barred by time;

(ii) that 'the respondent/plaintiff had approached the Sub-Registrar for the registration of the sale deed under section 36 read with section 75 of the Registration Act which was rejected on 16-9-1963 and the appeal against that order failed on 12-10-1965. Under section 77 of the Registration Act, the respondent could file the suit within thirty days thereafter i.e., up to 11-11-1965. Instead of filing the suit within thirty days of the order of the Registrar, the respondent/plaintiff filed the suit on 7-11-1966 i.e., after about one year which was hopelessly barred by time;

(iii) that the High Court has legally erred in reversing the concurrent findings of the Courts below on issue of limitation holding that no suit could be filed by the respondent/plaintiff on the basis of the agreement till 22-12-1967 when the title of the respondent in the property became clear.

3. Having given the attention to the arguments of the learned counsel for the petitioner in the light of the facts of the case, we feel declined to agree with him. We find that the High Court has elaborately discussed the above points and rejected the same. On our independent appreciation of the facts of the case and interpretation of Article 113 of the First Schedule of the Limitation Act, section 77 of the Registration Act and examination of the relevant paragraphs in the plaint and the Written Statement, we feel that the finding of High Court on issue of limitation is unexceptional. The relevant provisions of the law and relevant paragraphs of the plaint and Written Statement may conveniently be reproduced:--

"(1) Article 113 of the First Schedule of the Limitation Act .

Description Period of Time from which period of suits limitation begins to run

For specific Three years. The date fixed for the performance performance, or if no such of a contract. date is fixed, when the plaintiff has notice that performance is refused."

(2) Section 77 of the Registration Act:

"77: Suit in case of order of refusal by Registrar. --(1) Where the Registrar refuses to order the document to be registered, under section 72 or section 76, any person claiming under such document, or his representative, assign or agent, may, within thirty days after the making of the order of refusal, institute in the Civil Court, within the local limits of whose original jurisdiction is situate the office in which the document is sought to be registered a suit for a decree directing the document to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree. `

(21 The provisions contained in subsections (2) and (3) of section 75 shall mutatis mutandis, apply to all documents presented for registration in accordance with any such decree, and, notwithstanding anything contained in this Act, the document shall be receivable in evidence in such suit:

Provided that failure to file a suit or the dismissal of a suit filed under this section shall not disentitle a party to any other remedy to which he may be entitled, on the basis of the unregistered. document.'

(3) Paragraph 10 of the Plaint :

(4) Paragraph 10 of the Written Statement :

4. The trial Court was of the view that since it was agreed between the parties that the agreement shall be performed within one week from 24-7-1963 i.e., by 31-7-1963, the starting point of limitation was the last day of the week i.e., 31-7-1963 and as such the suit filed by the respondent/plaintiff on 7-11-1966 was barred by time. On the other hand, the High Court relied on Lakshminarayans Reddiar v. Singaravelu Najcker and another (AIR 1963 Madras 24) to hold that since a week after the agreement between the parties, the father of petitioner had filed a suit for declaration that he was the owner of the suit property, no suit could be brought on the basis of agreement till 22-12-1967 when the appeal filed by the father of the petitioner against the dismissal of his suit by the trial Court was dismissed and the title of the respondent in the property became clear. The High Court was of the view that the case did not fall under first clause. The words "date fixed' in the first clause of the third column of Article 113 of the Limitation Act are of great significance. The `date fixed' means a particular date fixed expressly by the parties for the performance of the agreement. In the instant case, no particular I date was expressly fixed by the parties. No doubt, the agreement was to be performed within one week from the date of agreement but this did not tantamount fixing a date for the performance of the agreement. So, it can safely be said that in the instant case no date was fixed for the performance of the contract within the meaning of . first clause of the third column of Article 113 of the Limitation Act. So, the case was not governed by first clause of the third column of this Article. Point at No. (i) raised by the learned counsel for the petitioner is answered accordingly.

5. Taking up point No. (ii), the plain reading of section 77 of the Registration Act will show that where the Registrar refuses to order the document to be registered under section 72 or 76, any person claiming under such document may, within thirty days after the refusal, institute in the Civil 8 Court, a suit for the decree directing the document to be registered in such office. The instant case is not for decree directing the Sub-Registrar/Registrar to register the document in his office. It is a suit for a decree for specific performance and possession against the petitioner/defendant. The point at No.(ii) raised by the learned counsel is without substance and devoid of force.

Furthermore, in paragraph 10 of the plaint it is stated that the cause of action had arisen firstly on 12-10-196.5 when the petitioner/defendant has refused to get the sale deed registered and lastly from 28-9-1.966 i.e., the date when the suit for declaration, filed by the father of the petitioner, for declaration to the effect that he was the owner in possession of the suit property, was dismissed by the trial Court. In paragraph 10 of the Written Statement the assertion of the plaintiff made in paragraph 10 of the plaint was not clearly and specifically denied. Instead, it was said that the plaintiff had no cause of action. An examination of rule 5 of Order VIII of C.P.C. will show c that the allegation of fact in the plaint, if not denied specifically or by necessary implication, or stated to be not admitted in the pleading of the defendant, shall be taken to be admitted except as against a person under disability.

6. Adverting to the point at No.(iii) raised by the learned counsel for the petitioner we find that question of limitation is not a pure question of fact. It is a mixed question of law and fact. So, the High Court was quite competent to reverse the concurrent findings of the two Courts below on this issue. In the peculiar circumstances of the case, that the property was sold for Rs.5,000 and the respondent/vendee paid Rs.4,500 as earnest money and only nominal amount of Rs.500 was to be paid by him within a week of the agreement; that the sale deed was actually drawn up on 25-7-1963 and signed by the parties but before it could be presented before the Registrar for registration, the petitioner/plaintiff slipped away; that before expiry of the one week's time for the performance of the contract, the father of the petitioner/defendant filed suit for declaration that he was the owner in possession of the suit property, we are of the view that the cause of action to file a suit for specific performance of agreement to sell relatable to the property which was subject matter of the suit between the father and the son/petitioner, the cause of action remains suspended till the decision of the suit against the father of the petitioner on 28-9-1966. We are convinced that it was on 28-9-1966 that the title of the petitioner over the suit property became clear. It is by now well E settled that the cause of action to sue for the specific performance of the contract arises only when the vendee is in a position to perform his part of contract effectively and till such date no cause of action arises for the other party to compel him to perform his part of the contract. In the instant case, a week after the agreement, the father of the petitioner filed a suit against petitioner seeking declaration to the effect that he was owner in possession of the suit property. He also obtained a stay order. So it can safely be held that E the cause of action was inchoate and incomplete and became complete on 28-9-1966 when the suit of the father was dismissed, or on 22-12-1967 when the appeal fled by the father of the petitioner against the judgment and decree dated 28-9-1966 was dismissed by the appellate Court. Before a defendant can successfully invoke the bar of limitation under second clause of third column of Article 113 of the Limitation Act, he has to prove affirmatively that more than three years before the filing of the suit he had unequivocally, unconditionally and clearly refused to perform his part of the contract. In the instant case he had not stated so.

7. For all these reasons we do not see any justification to interfere with the well-reasoned judgment of the High Court. Leave to appeal is, therefore, refused and the petition is dismissed.

M.BA./I-223/S Petition dismissed.