MUHAMMAD SALEEM RAHI Versus AHSAN ULLAH

MASUD ABID NAQVI, J .---Concise facts of this civil revision are that the plaintiffs/petitioners filed a suit for Specific Performance along with Declaration with the averments that the plaintiffs/petitioners purchased the suit land for consideration of Rs.200,000/- through agreement to sell dated 27.09.2002 from defendant/predecessor in interest of respondents and paid an amount of Rs.75,000/- as earnest money and 05.01.2003 was fixed for the payment of remaining consideration amount as well as for registration of sale deed. On 16.04.2003, the respondent/defendant received another amount of Rs.100,000/- and agreed to receive the balance sale consideration of Rs.25000/- thereafter. The defendant himself filed contesting written statement and thereafter he died before the start of evidence. Out of divergent pleadings of the parties, issues were framed by the learned Trial Court. The parties produced their respective evidence and after recording the same, learned Trial Court decreed the suit of the plaintiffs/petitioners vide judgment and decree dated 09.04.2016. Feeling aggrieved, the defendant/predecessor in interest of respondents filed an appeal and the learned Additional District Judge, Pasrur vide judgment and decree dated 12.10.2017 accepted the appeal. Being dissatisfied, the plaintiffs/petitioners have filed the instant Revision Petition and challenged the validity of the judgment and decree dated 12.10.2017 passed by the learned Appellate Court.

2. I have heard the arguments of learned counsel for the parties and perused the available record as well as have minutely gone through the impugned judgment.

3. Perusal of record reveals that the petitioners/plaintiffs filed suit for specific performance of an alleged agreement to sell dated 27.09.2002 on 27.03.2012 while it is specifically written in the agreement to sell that both the plaintiff and defendant will complete the process of sale purchase on 05.01.2003, which was allegedly extended on 16.04.2003 by written note, hence, the learned counsel for the petitioners/plaintiffs argues that after the receipt of alleged payment of Rs.100,000/- on 16.04.2003, the petitioners/plaintiffs' suit should be adjudged or considered at touchstone of the second part/clause of Article 113 of the Limitation Act, 1908 and limitation for filing of the suit starts from the denial of the respondent/defendant to execute the sale deed and the petitioners/plaintiffs have filed the suit within three months from the date of the refusal of the respondent/defendant and is not barred by limitation but the arguments of the learned counsel for the petitioners/ plaintiffs regarding question of limitation and enforcement / implementation of Article 113 of the Limitation Act, 1908 is not convincing as there is no express agreement in writing was made between the parties resorting to novation of contract or acknowledgment in terms of Section 19 of Limitation Act 1908. In this regard, I am fortified by the judgment of Hon'ble Supreme Court of Pakistan reported as Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited (PLD 2012 Supreme Court 247), which holds as under:-

"In the first part, the date is certain, it is fixed by the parties, being conscious and aware of the mandate of law i.e. Article 113, with the intention that the time for the specific performance suit should run therefrom. And so the time shall run forthwith from that date, irrespective and notwithstanding there being a default, lapse or inability on part of either party to the contract to perform his/its obligation in relation thereto. The object and rationale of enforcing the first part is to exclude and eliminate the element of resolving the factual controversy which may arise in a case pertaining to the proof or otherwise of the notice of denial and the time thereof. In the second part, the date is not certain and so the date of refusal of the performance is the only basis for computation of time. These two parts of Article 113 are altogether independent and segregated in nature and are meant to cater two different sorts of specific performance claims, in relations to the limitation attracted to those. A case square falling within the ambit of the first part cannot be adjudged or considered on the touchstone of the second part notwithstanding any set of facts mentioned in the plaint to bring the case within the purview of the later part. In other words, as has been held in the judgements reported as Siraj Din and others v. Mst. Khurshid Begum, and others (2007 SCMR 1792) and Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344) "when the case falls within first clause, the second clause is not to be resorted to". However, the exemption the exclusion and the enlargement from/of the period of limitation in the cases of first part is permissible, but it is restricted only if there is a change in the date fixed by the parties or such date is dispensed with by them, but through an express agreement; by resorting to the novation of the agreement or through an acknowledgment within the purview of section 19 of the Act. And/or if the exemption etc is provided and available under any other provision of the Act, however, to claim such an exemption etc grounds have to be clearly set out in the plaint in terms of Order VII, Rule 6, C.P.C. We have examined the present case on the criteria laid down above, and find that according to the admitted agreement between the parties, 31.12.1997 was/is the date fixed between them for the performance of the agreement, which has not been shown or even averred in the plaint to have been changed or dispensed with by the parties vide any subsequent express agreement. In this behalf it may be pertinent to mention here that during the course of hearing Mr. Abdul Hafeez Pirzada, on a court query, has stated that there is no agreement in writing between the parties which would extend/ dispense the date fixed and that he also is not pressing into service the rule of novation of the contract. We have also noticed that the petitioners have neither alleged any acknowledgment in terms of Article 19 of the Act, which should necessarily be in writing, and made within the original period of limitation nor any such acknowledgment has been pleaded in the plaint or placed on the record."

Reference is also made to Umar Hayat v. Muslim Commercial Bank Ltd. (2020 CLC (Lahore) 581).

4. While discussing the nature, object, scope and applicability of the law of limitation, the Hon'ble Supreme Court in a case reported as Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 SC 212) has held as under:

"Such law of limitation is founded upon public policy and State interest. This law is vital for an orderly and organized society and the people at large, who believe in being governed by systemized law. The obvious object of the law of limitation is that if no time constraints and limits are prescribed for pursuing a cause of action and for seeking reliefs/remedies relating to such cause of action, and a person is allowed to sue for the redressal of his grievance within an infinite and unlimited time period, it shall adversely affect the disciplined and structured judicial process and mechanism of the State, which is sine qua non for any State to perform its functions within the parameters of the Constitution and the rule of law.

The object of the law of limitation and the law itself, prescribing time constrain for each cause or case or for seeking any relief or remedy has been examined by the courts in many a cases, and it has been held to be a valid piece of legislation, and law of the land. It is "THE LAW" which should be strictly construed and applied in its letter and spirit; and by no stretch of legal interpretation it can be held that such law (i.e. limitation law) is merely a technicality and that too of procedural in nature. Rather from the mandate of Section 3 of the Limitation Act, it is obligatory upon the court to dismiss a cause/lis which is barred by time even though limitation has not been set out as a defence. And this shows the imperative adherence to and the mandatory application of such law by the courts. The said law is considered prescriptive and preventive in nature and is held to mean and serve as a major deterrent against the factors and the elements which would affect peace, tranquility and due order of the State and society. The law of limitation requires that a person must approach the court and take recourse to legal remedies with due diligence, without dilatoriness and negligence and within the time provided by the law; as against choosing his own time for the purpose of bringing forth a legal action at his own whim and desire. Because if that is so permitted to happen, it shall not only result in the misuse of the judicial process of the State, but shall also cause exploitation of the legal system and the society as a whole. This is not permissible in a State which is governed by law and Constitution. And it may be relevant to mention here that the law providing for limitation for various causes/reliefs is not a matter of mere technicality but foundationality of "LAW" itself. In the above context, a judgment of this Court reported as Atta Muhammad v. Maula Bakhsh and others (2007 SCMR 1446) has thrown considerable light on the subject and has provided guidance, in the following words:-

"We may add that public interest require that there should be an end to litigation. The law of limitation provides an element of certainty in the conduct of human affair. Statutes of limitation and prescription are, thus, statutes of peace and repose. In order to avoid the difficulty and errors that necessarily result from lapse of time, the presumption of coincidence of fact and right is rightly accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so, within that period; otherwise his rights if any, will be forfeited as a penalty for his neglect. In other words the law of limitation is a law which is designed to impose quietus on legal dissensions and conflicts. It requires that persons must come to Court and take recourse to legal remedies with due diligence."

5. Even otherwise, while discussing in details, the pleadings, oral as well as documentary evidence adduced by the contesting parties, the learned Appellate Court has passed the impugned judgment and decree dated 12.10.2017 as the petitioners/plaintiffs have failed to prove the execution of agreement to sell and payments of amount(s) as the defendant/ predecessor in interest categorically denied the execution of agreement to sell/Exh. PI as well as receipt of amounts in two instalments i.e. Rs.75,000/- on 27.09.2002 and Rs.100,000/- on 16.04.2003 out of total sale consideration amount of Rs.200,000/-. Hence, the findings of learned Appellate Court are maintained/upheld.

6. With respect to interference in the findings of the Appellate Court, in case of inconsistency between the learned courts below, the Hon'ble Supreme Court of Pakistan in a case reported as Ajmal Ikram v. Mst. Asiya Kausar and 2 others (2015 SCMR 01) held that:-

"Even otherwise, in case of inconsistency between the learned trial Court and the Appellate Court, the findings of the latter must be given preference in the absence of any cogent reason to the contrary, as has been held by this Court in the Judgements' reported as Madan Gopal and 4 others v. Maran Bepari and 3 others (PLD 1969 SC 617) )and Mohammad Nawaz through LRs. v. Haji Muhammad Baran Khan through LRs. and others (2013 SCMR 1300)."

7. In the present case, learned counsel for petitioners/plaintiffs have failed to point any misreading of evidence, erroneous assumption of facts, non-consideration of material evidence and excess or abuse of jurisdiction by the learned Appellate Court requiring interference, therefore, this civil revision is hereby dismissed.

SA/M-87/L Revision dismissed.