ZOHRA BAKBTE Versus SHAUKAT ALI KHAN

This is a suit for specific performance of contract.

2. Defendant No. 1 through his attorney defendant No. 2 entered into an agreement dated 30‑6‑1961 with the plaintiff to sell his house on Plot No. 147‑P, Block‑2, P.E.C.H.S., Karachi measuring 1,000 sq. yds. The plaintiff paid Rs.71,880.66 to the defendant No. 2 towards the sale consideration. The balance was to be paid at the time of registration of the sale‑deed. The possession of the house was handed over to the plaintiff, and continues to be with him upto now. The plaintiff further paid Rs.33,000 to the defendant No. 2 on various dates as detailed in para 5 of the plaint. Only a balance of Rs.5,119.34 is remaining to be paid. In spite of repeated demands the defendants have not completed the transaction and have not executed the sale‑deed, hence this suit.

3. The suit was initially filed in the Court of Civil Judge First Class, Karachi and was registered as Suit No. 218 of 1965. It was returned by the Court of the Civil Judge First Class vide its order dated 17‑2‑1969 for presentation to this Court under orders of this Court passed on a revision application against the order under Order VII, Rule 11, C.P.C. refusing to reject the plaint. The plaintiff presented the said plaint which was returned alongwith another newly‑drafted plaint in this Court on 19‑2‑1969 i.e. only two days after its return to him. Defendant No. 1 has chosen to remain absent. The suit has, therefore, proceeded ex parte against him. Defendant No. 2 filed a written statement in which a number of pleas were taken. I do not propose to reproduce those pleas because on 9‑5‑1974 the advocates for both the sides made the following joint statement under Order X, C.P.C.

"Statement of Mr. Akhtar Mahmood, for the plaintiff and Mr. S.M. Abbas, for the defendant, under Order x, C.P.C.

(1) Both the learned Advocates agree that Issue No. 2 is redundant, as the only question with regard to the mainainability or otherwise of the suit relates to limitation and this question is covered by Issue No. 1. Therefore, Issue No. 2 is dropped, by consent.

(2) Under Issue No. 3, both the learned Advocates state that the agreed price of the bungalow was Rs.1,10,000.00, out of which the plaintiff has paid to the defendant Rs.1,04,880.66, and that the balance of the price which remains to be paid to the defendant by the plaintiff is Rs.5,119.34. Both the learned Advocates agree that the possession of the disputed bungalow is with the plaintiff in pursuance of the agreement of sale. Both the learned Advocates agree that the plot on which the building is situated was originally allotted to defendant No. 1, who, by an irrevocable power of attorney dated 4‑2‑1960, registered on 5‑2‑1960, authorised the defendant No. 2 to make construction on the plot and sell, lease and exercise all powers as an owner with regard to this bungalow. It is agreed that, in effect this was a transaction of sale, as the open plot in the P . E. C . H Society could not be transferred to a person who was not in Government service except after construction. It is further agreed that the defendant No. 2 completed the construction, had a 99 years lease of the plot registered in favour of defendant No. 1 and then later entered into agreement of sale with the plaintiff.

May 9, 1974.

Sd/‑

JUDGE.

3. After hearing the Advocates for both the sides the suit was decreed by my learned brother Mr. Justice Noor‑ul‑Arfin on the same day and the plaintiff was directed to pay Rs.8,000 towards the balance of the sale price. Diary dated 29‑11‑1974 shows that this amount was deposited by the plaintiff in pursuance of the said order.

4. Against the said judgment and decree an appeal was filed by defendant No. 2 being H.C.A. No. 79/74. The said appeal was allowed and the judgment and decree passed by Noor‑ul‑Arfin, J. was set aside and the matter was remanded back for fresh decision after hearing the parties.

5. I have heard Mr. Z.U. Ahmed, Advocate for the plaintiff and Mr. A.Q. Malik, Advocate for the defendants. In view of the statement of the counsel for the parties made on 9‑5‑1974 the only issue that is to be decided by this Court is issue No. 1, which is as under:‑‑

(1) whether the suit is barred by limitation?

My finding on this issue is in the negative for the following reasons Article 113 of Limitation Act governs suit for specific performance of a contract, which reads as under:‑‑

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

According to this Article the time limit of 3 years which is prescribed for filing a suit for specific performance of a contract runs either from the date fixed for performance of contract or if no such date is fixed when the plaintiff has notice that performance is refused.

6. Mr. A.Q. Malik Advocate referred to para. 5 of the agreement dated 30‑6‑1961 Exh. 5/1, which reads as under:‑‑

"5. That the. Vendor and/or the consenting party shall make out a valid, marketable and subsisting title to the said property in favour of the Vendee or her nominee and shall execute and get registered a valid conveyance deed subject to the aforesaid mortgage within two months from the date hereof."

7: He submitted that this agreement shows that the registered sale‑deed was to be executed within two months from the date of the agreement. The period of 2 months expired on 3,0‑8‑1961. The suit was filed initially before First Class Civil Judge on .14‑6‑1965 and thereafter in this Court on 19‑2‑1969. Both these dates are beyond a period of three years and the suit therefore according to him was time‑barred.

8. I do not find myself in agreement with this contention of Mr. A.Q. Malik, Advocate. Para 5 of the agreement no doubt fixes the period of two months for execution of registered sale‑deed but the said period of two months is "subject to the aforesaid mortgage". It is clarified in the sale agreement that a loan was taken from House Building Finance Corporation which was outstanding on this house and the defendant No. 2 had agreed to get the said loan transferred against the plaintiff. The defendant No. 2 did not treat the agreement cancelled after expiry of two months and continued making efforts for transferring the mortgage against the plaintiff. It is clear from his application dated 7‑9‑1962 Exh. 6/4 as well as the reply of House Building Finance Corporation acceding to the said request by their letter Exh. 7/2 dated 16‑1‑1963. It is therefore clear that the period fixed in the agreement was not unconditional and was waived by the parties and particularly by defendant No. 2. Hence the contention of Mr. A . Q. Malik that the period of limitation was to start from 30‑6‑1961 is not correct.

8‑A,. Mr. A.Q. Malik next pointed out that according to para. 10 of the plaint the plaintiff has shown various dates on which cause of action had accrued to him for filing this suit. The last date shown by him is 20‑5‑196,5 when notice was sent by him to the defendants requesting them to convey the said property through a valid registered sale‑deed but the defendants failed to do the same. The suit before the First Class Civil Judge was filed, of course, within 3 years of the said date but the plaint in this Court ~ was presented after more than 3 years of this date. He, therefore, submitted that this suit was time‑barred. He relied upon the case of Haji Muhammad Ibrahim v. Ramzan Ali reported in 1984 C L C 2364 where it was held by Saeeduzzaman Siddiqui, J. that a suit for specific performance was to be filed within 3 years of date of performance mentioned in agreement of sale and in any case within 3 years from the date when plaintiff had notice of refusal to perform agreement. In the case under ruling which is distinguishable, the sale agreement was executed on 8th July, 1964 and the sale‑deed was to be executed within 3 months. The plaintiff had notice of refusal by defendant to perform agreement in 1973. The suit was filed in 1982 and was therefore held as time‑barred. This ruling cannot be made applicable to the present ease also because the period of 3 years has not expired in this case from the date when the defendant gave notice to the plaintiff of refusal of performance of contract by the time this suit was filed. He also relied upon the case of Farid Sons Ltd. v. Siemens and Halske A.G. Hoff reported in P L D 1961 (W.P.) Karachi 612 where it was held that in case of breach of contract cause of action arises on the day of breach and not from day to day with reference to accrual of damages for breach. It may be pointed out that the case under ruling was a claim of damages for breach of agreement and not a suit for specific performance. This ruling therefore cannot be made applicable to the present case.

9. I do not agree with this contention of Mr. A . Q. Malik, Advocate. No doubt in the cause of action the last date on which the cause of action accrued to him is 20th May, 1965 but the Court has to see for itself whether this date was a date from which the time of limitation will start running. It need not be pointed out that the law of limitation has to be liberally construed without giving violence to the intention of the Legislature and must be applied for the benefit of the plaintiff, Hence the date of refusal of the defendants to perform the contract which is the point from which the limitation starts, must be shown clearly unequivocally and unconditionally. The documents produced on record do not show that any such refusal was made by the defendants to perform the contract. There is only one notice which can be said to be communicating the cancellation of the contract or the threats for cancelling the same as Mr. A.Q. Malik has himself put it. It is the registered notice dated 26‑10‑1966 sent by Mr. Saeeduzzaman Advocate (now Mr. Justice Saeeduzzaman Siddiqui). In this notice for the first time it was stated by the defendant No.8 that in case the plaintiff does not pay the balance of sale consideraticn within a period of fortnight from the receipt thereof he will be at liberty to take over the possession of the property and sell it to another person. This notice was received by the plaintiff on 29‑10‑1966 as would appear from acknowledgement due Exh. 6/11/1. It is this notice and its reply which is dated 29‑10‑1966 that can be taken as the point of starting of the limitation. Since the suit before the First Class Civil Judge was filed on 16‑7‑1965 and the plaint was presented in this Court on 19‑2‑1969, therefore, it is quite clear that on both these dates the period of 3 years had not expired. The suit was therefore not time‑barred in either case.

10. It may also not be out of place to mention here that the plaint that was filed before the First Class Court was returned by the order of this Court to the plaintiff for presentation to proper Court under Order VII, Rule 10, C . P. C . The plaintiff presented that plaint alongwith another newly‑drafted plaint and the balance of court‑fee which he was required to pay in this Court only after two days of its return to him. The said presentation of the said plaint in these circumstances cannot be said to be filing of a new suit. It will have to be treated as a continuity of the previous suit. The time taken by the plaintiff in that Court will have to be excluded but even if the said time is not excluded it would not make any difference for the reasons already shown by me.

11. Under these circumstances 1 decree plaintiff's suit with costs He has already deposited balance of price. I direct the defendant No. 2 to execute the registered sale‑deed within a period of on month, failing which the plaintiff will be entitled to get the same executed by the Nazir of this Court.

M.B.A./Z‑38/K Suit decreed.