Muhammad Ali (deceased) Versus Umar Farooq
Faisal Zaman Khan, J.--- Through this Civil Revision, judgments and decrees dated 18.03.2019 and 15.12.2020 passed by the learned Civil Judge, Chunian and the learned Additional District Judge, Chunian respectively have been assailed. By virtue of the former judgment, a suit for possession through specific performance filed by the respondent against the petitioners has been decreed and through the latter, the same has been upheld.
2. The facts giving rise to the present petition are that on the strength of an agreement to sell dated 10.10.1995 allegedly executed by Muhammad Ali (deceased), predecessor-in-interest of the petitioners in favour of the respondent, a suit for possession through specific performance was filed by the latter against the deceased, in which the deceased filed his written statement denying the agreement to sell. Out of the divergent pleadings of the parties, 06 issues were framed. Evidence pro and contra was led, thereafter through judgment and decree dated 18.03.2019 the suit was decreed. Feeling aggrieved, petitioners filed an appeal which was dismissed through judgment and decree dated 15.12.2020, therefore, this petition.
3. Learned counsel for the petitioners submits that respondent's suit was barred by time, however, both the courts below ignored this important fact, thus the impugned judgments and decrees cannot sustain and the same are liable to be set aside.
4. Replying to the above learned counsel for the respondent supports the impugned judgments and decrees.
5. Arguments heard. Record perused.
6. Perusal of the available record would show that the disputed agreement to sell, which was allegedly executed by the deceased in favour of the respondent was dated 10.10.1995, which was produced as Exh.PA whereas the suit for possession through specific performance was filed by the respondent on 21.11.2012. Since the agreement to sell was denied by the petitioners and they had also raised a preliminary objection with regard to the suit being barred by time, therefore, in this regard issue No.4 was framed by the trial court, which had been adjudicated upon by both the courts below against the petitioners.
7. For filing a suit for specific performance limitation is governed by Article 113 of the Limitation Act, 1908 ('Act'), which for ease of reference is reproduced hereunder:-
Article
Description of suit
Period of Limitation
Time from which period begins to run
113
For specific performance of a contra ct.
Three years
The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice performance refused.
8. The aforenoted provision clearly stipulates that where the time is essence of the contract, upon the expiry of the stipulated period the cause of action accrues to the parties to file a suit, however, where no date is fixed for performance of the same, it is for the plaintiff to file the suit when he has notice that the performance is refused. In both the eventualities the period of limitation shall be 03 years which shall be counted from the expiry of stipulated period or the notice of refusal (as the case may be). For reference reliance can be placed on Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others (2022 SCMR 933).
9. Placing the afore noted provision in juxta position with the facts of the present case, since the case of the respondent fall within the second category as no time was fixed in Exh.PA for performance of the agreement, therefore, it was for the respondent to have proved that when did he got the notice that deceased or the petitioners are refusing to perform the agreement.
10. In the above context, a perusal of the plaint would show that in paragraph No.4 it has been alleged by the respondent that he approached the deceased for performance of the agreement, however, the matter was delayed on the pretext that the deceased is unwell. Similarly, in paragraph No.5 it has been narrated that numerous times respondent approached the deceased for performance of the agreement, however, the deceased delayed the matter on one pretext or the other. It has been averred in paragraph No.6 that now the deceased has declined from performing the agreement. Continuing the above assertions in paragraph No.7 it is asserted that respondent numerous times himself and through others asked the deceased to perform the agreement but he has been delaying the matter and finally in paragraph No.8 (cause of action clause) it has been mentioned that a few days back deceased finally refused to perform the agreement.
11. Accumulative reading of the aforenoted paragraphs would show that it is the case of the respondent that he has time and again been approaching the deceased (himself and through others) for performance of the agreement, however, neither any dates have been mentioned in the afore-referred paragraphs nor the names of any witnesses have been mentioned wherefrom this would be culled out that when and in presence of whom respondent approached the deceased for performance of Exh.PA as the time lag between the execution of Exh.PA and the filing of rethe on suit is about 17 years and the limitation for filing the suit by the respondent would start from the date that he had notice of refusal by the vendor and in the present circumstances, since the respondent neither in his plaint nor in his evidence has been able to prove that when, at what time, in presence of whom, where and through whom (as in paragraph No.7 he allege that he has been approaching through others as well) approached the deceased for performance of the agreement, therefore, he has failed to prove that he remained ready and willing to perform his part of the contract and the delinquency was on the part of the deceased.
12. Another aspect which further weakens the stance of the respondent is that being a vendee, it was for him to prove that upon execution of Exh.PA he paid the complete sale consideration and got the possession of the property in dispute, why didn't he get the sale deed registered at the outset and if it was delayed (for 17 years) what was the logical explanation as he has failed to explain the delay.
13. In the afore-referred circumstances, since the respondent had approached the court for seeking performance of Exh.PA, therefore, being the beneficiary of the same the onus was upon him to prove that he was ready and willing to perform his part of the contract and the delinquency/refusal was on part of the deceased and since the contract was executed in the year 1995 and he filed the suit in the year 2012, therefore, it was also imperative for him to have explained the interregnum period so as to bring his case within the four corners of Article 113 of the Act, which he has miserably failed to prove.
14. The Supreme Court of Pakistan in judgments reported as Saqib Ali v. Government of Punjab and others (2023 PLC (C.S.) 310), Shahin Shah v. Government of Khyber Pakhtunkhwa through Secretary Irrigation Department, Peshawar and others (2022 SCMR 1810), Lal Khan through legal heirs v. Muhammad Yousaf through legal heirs (PLD 2011 SC 657), Qaiser Mushtar Ahmad v. Controller of Examination and others (PLD 2011 SC 174) and Muhammad Amjad v. Senior Superintendent of Police (Operations), Lahore and others (2010 PLC (C.S) 838) has held that each and every day consumed for approaching a court beyond the period of limitation has to be explained, which the respondent has miserably failed to do.
15. Even otherwise, relief of specific performance could not be granted, as under Section 22 of the Specific Relief Act, 1877 it has been provided that the jurisdiction to issue a decree of specific performance is discretionary in nature as it is an equitable relief and the court is not bound to grant such relief merely because it is lawful to do so. For reference reliance can be placed on judgments reported as Mrs. Zakia Hussain and another v. Syed Farooq Hussain (PLD 2020 SC 401), Muhammad Abdur Rehman Qureshi v. Sagheer Ahmad (2017 SCMR 1696), Liaqat Ali Khan and others v. Falak Sher and others (PLD 2014 SC 506), Shakeel Ahmed v. Mst. Shaheen Kousar (2010 SCMR 1507), Rab Nawaz and 13 others v. Mustaqeem Khan and 14 others (1999 SCMR 1362), Sirbaland v. Allah Loke and others (1996 SCMR 575) and Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCMR 2189).
16. For what has been discussed above, since both the courts below miserably failed to appreciate the true import of Article 113 of the Act and wrongly adjudicate upon issue No.4, therefore, the impugned judgments and decrees cannot sustain, hence, this civil revision is allowed, as a sequel to which the impugned judgments and decrees are set aside, resultantly, the suit filed by the respondent stands dismissed.
UN/M-62/L Revision allowed.