Stereo. H C J D A-38.

JUDGMENT SHEET
IN THE LAHORE HIGH COURT AT LAHORE
JUDICIAL DEPARTMENT

C.R.No.2769 of 2009
Javaid Iqbal Ghani etc.
Vs.
Malik Abdul Shafique etc.
JUDGMENT
Date of hearing 30.04.2014
Petitioners by Syed Muhammad Tayyab,
Advocate
Respondents by Mr. Khalid Ahmed Ansari,
Advocate

CH. MUHAMMD MASOOD JAHANGIR, J.- This

judgment intends to decide C.R.Nos. 2769, 2770 and 2771 of 2009

filed by the petitioners/plaintiffs jointly as the same have arisen out

of the consolidated judgment and decrees dated 08.2.2007 passed

by the learned trial court whereby the suit for Specific Performance

of the Agreements filed by the plaintiffs/petitioners was dismissed

whereas the other two suits filed by the defendants-respondents

were decreed as well as the judgment and decrees dated 30.6.2009

passed by the learned lower appellate court, whereby the appeals

filed by the petitioners-plaintiffs were dismissed.

2. The facts necessitated for the disposal of the instant

litigation are that plaintiffs filed a suit for possession through

specific performance on the basis of agreements to sell dated

5.7.1984 (Exh.P1) and 21.10.1984 (Exh.P3) regarding the disputed

property bearing No.151-A measuring 11 Marals, 28 sq.ft. situated

C.R.No.2769 of 2009 2

in Ghulam Muhammad Abad, Faisalabad before the learned trial

court against the respondents with the assertions that Malik Abdul

Shafique (defendant) was the owner of the disputed house and the

plaintiffs/petitioners purchased the said disputed house vide

agreements to sell Exh.P1 & P2, that the entire sale consideration

was paid to the said vendor and possession was obtained, that

Muhammad Rafique defendant intended to purchase the disputed

property from the said Malik Abdul Shafique vendor i.e. Malik

Abdul Shafique, who was asked time and again to transfer the

disputed property in favour of the plaintiffs and restrained from

interfering into their possession over the disputed house, but he,

finally declined to honour the agreement just two days prior to the

institution of the suit, hence the plaintiffs were constrained to file

the instant suit. On the other hand, Muhammad Rafique defendant

got transferred the disputed property during the pendency of the

suit and he filed two declaratory suits before the learned trial court

through which he sought declaration against order No.1418 dated

12.10.2004 and letters Nos.182 & 994 dated 6.9.2004 being illegal

and unlawful. Malik Abdul Shafique the vendor by filing his

independent written statement resisted the suit filed by the plaintiffs

with the assertion that the disputed agreements to sell being fake

and forged were inoperative upon his rights; and that the suit for

specific performance filed by the present petitioners/plaintiffs was

barred by time. Muhammad Rafique the defendant also resisted the

said suit on the same line by filing his written statement and further

asserted that he had already purchased the disputed property from

C.R.No.2769 of 2009 3

the vendor Malik Abdul Shafique and the same was transferred in

his name.

3. The learned trial court consolidated both the

declaratory suits filed by Muhammad Rafique defendant with the

suit for specific performance filed by the plaintiff/petitioner and

framed the following consolidated issues out of divergent pleadings

of the parties:-

1. Whether Malik Abdul Shafiq and Malik

Naseer Ahmad with connivance of
respondent No.1/Sh. Nisar, Deputy
Director has dis-obeyed the orders of the
court, hence, they are liable to be
punished under Sec.39(3) of CPC?OPA

2. Whether order No.1418 dated

12.10.2004 is illegal, void and having no
effects on letter No.994 dated
06.09.2004?OPD3

3. Whether defendant No.3 namely

Muhammad Rafique is the owner and
possessor of the suit property vide letter
No.182 dated 06.09.2004 and vide letter
No.994 dated 06.09.2004 issued by the
Deputy Director Housing and he is
entitled to retain possession?OPD3

4. Whether plaintiffs have purchased the

suit property vide agreement dated
05.07.1984 and in view of his agreement
was owner and possessor of the suit
property?OPP

5. Whether plaintiffs are entitled to get the

decree for possession?OPP

6. Whether suit is not maintainable in its

present form?OPDs

7. Whether suit is time barred? OPDs

8. Whether plaintiffs have filed this suit with

connivance of defendant No.2 and to
harass the defendants and defendants are
entitled to special costs U/S 35-A of
CPC?OPDs

9. Whether agreements are false and

frivolous and no signatures and thumb
impressions have been made by the
defendants?OPDs
C.R.No.2769 of 2009 4

10. Relief.

4. Both the parties produced their evidence in pros and

cons and ultimately the learned trial court after appreciating the

evidence available on record dismissed the suit for specific

performance of agreements to sell filed by the plaintiffs/petitioners

and decreed the declaratory suits filed by the defendant/respondent

Muhammad Rafique vide consolidated judgment and decrees dated

08.2.2007. The said judgment and decrees were assailed by the

petitioners/plaintiffs by filing three separate appeals before the

learned lower appellate court. The petitioners/plaintiffs in the said

appeals questioned the findings of the learned trial court rendered

on issues No.4, 5 & 7. The learned lower appellate court reversed

the findings on issue No.4 while maintaining the finding on rest of

the issues particularly on issues No.5 & 7 and dismissed the said

appeals with the observation that though the execution of

agreements to sell Ehx.P1 & P3 was proved but the

petitioner/plaintiff failed to file suit for specific performance within

time vide impugned judgment and decree.

5. The learned counsel for the petitioners has argued that

the impugned judgments and decrees passed by both the courts

below on issues No.5 & 7 are patently bad in law and result of

misreading and non-reading of evidence, that the suit filed by the

petitioners/plaintiffs for specific performance of agreements to sell

was quite within time, but the learned lower appellate court has

misinterpreted the provisions of Article 113 of Limitation Act while

dismissing the appeals, that the said Article provides two situations
C.R.No.2769 of 2009 5

for the starting point of limitation i.e. when time of performance is

fixed in the agreement and the other when time is not fixed in the

agreement, that the suit of the petitioners/plaintiffs falls in second

part of the said Article and the limitation starts from the date of

notice when performance of contract has been refused, that the

findings rendered by the learned lower appellate court for declaring

the suit filed by the petitioners/plaintiffs as time barred is not

sustainable in the eye of law. He lastly prayed for the acceptance of

the civil revisions, setting aside of the impugned judgments and

decrees passed by both the courts below, decreeing the suit filed by

them and dismissal of the declaratory suits filed by Muhammad

Rafique defendant.

6. Conversely the learned counsel for the

respondents/defendant Muhammad Rafique has argued that the

disputed agreement to sell Ehx.P1 had been arrived at between the

parties on 5.7.1984 and a target date was fixed as 31.12.1984 by the

parties for the performance of the agreement, that a penal clause

was also inbuilt of the said agreement that in case of failure to pay

the balance amount within the stipulated period, the said agreement

would be rescinded and the target date was fixed by the parties with

their free consent in the agreement Exh.P1 therefore the case of the

petitioners/plaintiffs falls within part-1 of Article 113 of Limitation

Act 1908, that after elapse of 19 years from the execution of

Exh.P1 the suit for specific performance filed by the

petitioners/plaintiffs on 13.5.2003 before the learned trial court was

hopelessly barred by time. He lastly added that the impugned

C.R.No.2769 of 2009 6

judgment and decree passed by the learned lower appellate court

being comprehensive and well reasoned requires no interference by

this Court and prayed for the dismissal of these civil revisions.

7. Arguments heard record perused.

8. Admittedly, no cross-objections were filed on behalf

of the respondents-defendants and the only controversy involved

between the parties as borne out from the perusal of the impugned

judgment and decrees passed by the learned lower appellate

court/District Judge is restricted to the issue that whether the suit

for specific performance filed by the petitioner/plaintiff was within

time or beyond limitation. The learned counsel for the parties have

also adduced their arguments only to the extent of finding on issue

No.7.

9. The recent development on this issue has made it clear

that object and intention behind law of limitation is to govern codes

and manners for providing relief where substantive rights are

pressed in shape of litigation, the barrier of time limit is result and

outcome of public policy which restrict the time for bringing a

claim before the court of law as adopted in the legal system

provided by statute. It is also in the mind of this Court that time and

again the Superior Courts of the State held that litigation should be

decided on merits and technicalities be avoided in dispensation of

justice, but limitation has also been declared as command of law

prescribing time limit within which a right can be exercised or

enforced. The said embargo cannot be ignored.

C.R.No.2769 of 2009 7

10. The suit for specific performance of contract is

governed by Article 113 of Limitation Act 1908, which is

reproduced hereunder:

1113. For specific Three years The date fixed for

performance the performance,
of a or if no such date
contract. is fixed, when the
plaintiff has notice
that performance
is refused.

and the bare perusal thereof caters two situations i.e. when time of

performance is fixed in the agreement and the other where time is

not fixed in the agreement. In the first part starting point of

limitation is three years from the date fixed for performance and in

the second part time runs from the date when performance is

refused. The contention of the learned counsel for the

petitioners/plaintiffs that in view of averments made in para 4 of the

plaint, the case of the petitioners/plaintiffs fell within second part of

the above referred article is misconceived as the same could not be

proved by production of any evidence. For ready reference para-4

of the plaint in verbatim is reproduced as under:-

11. The plaintiff Javed Iqbal Ghani himself appeared as

PW1 and produced the other witnesses PW2 to PW7. The learned

counsel for the petitioners/plaintiffs has read out the entire

depositions of PW1 to PW7, but he remained unable to point out

that any one of these PWs including the plaintiffs/petitioners ever

C.R.No.2769 of 2009 8

stated about the alleged refusal of the defendant/vendor from

performance of agreement to sell. In the fag end of his arguments

he has mooted that in para-4 of the plaint it was averred that the

defendant/vendor had refused to perform his part of the agreement

two days prior to the institution of the suit, therefore in the light of

such assertions the suit filed by the petitioners was to be considered

well within time from the notice of refusal of performance of

agreement. It is settled principle of law that mere pleadings cannot

be taken into consideration, unless the same are corroborated by

producing evidence of unimpeachable character besides the

opposite party is afforded opportunity to cross-examination on the

said PWs and then to produce evidence in its defence.

12. Conversely the leaned counsel for the respondents has

eminently argued that as Exh.P1 provided an inbuilt target date for

the performance of the agreement to sell alongwith a penalty

clause, therefore, the suit filed by the petitioners/plaintiffs for

specific performance fell within the first part of Article 113 of

Limitation Act. He has further argued that the plaintiff (PW1)

himself asserted that after the execution of the agreement he had

proceeded to Saudi Arabia, who returned in 1990 and even after his

arrival he did not institute the suit within a period of three years

rather he filed it after a delay of almost 19 years. No doubt after the

execution of Exh.P1, another agreement Ehx.P3 was also executed

between the parties on 21.10.1984, but the said agreement Ehx.P3

was a continuation of Exh.P1 as has been vivid that it was also got

executed on 21.10.1984 even before the said target date i.e.

C.R.No.2769 of 2009 9

31.12.1984 which was an inbuilt of agreement (Ex:P1) for its

performance. So the contention of the learned counsel for the

defendants/respondents has substance that Exh.P3 was a

continuation of Exh.P1 and although Exh.P3 did not disclose any

target date, but since it was executed before the target date provided

in Exh.P1, therefore, the said target date remained unchanged.

13. For the sake of arguments if it is assumed that no

specific date for performance of the agreement was provided in

Exh.P1 and Exh.P3 and the case of the petitioners/plaintiffs fell

within the second part of Article 113 of Limitation Act, even then

the petitioners/plaintiffs failed to prove that when the defendant had

refused to perform his part as mentioned in the agreement. As the

agreement Exh.P1 alleged to have been settled between the parties

provided a clear cut date for its performance and prior to

completion thereof the other agreement (Ehx.P3) was executed

between the parties so the case of the petitioners/plaintiffs clearly

fell within the first part of above referred article. If the intention of

the parties was to extend the target date of performance of the said

agreement, then in Exh.P3 a specific clause should have been

incorporated by the parties. As the parties themselves had fixed the

target date in Exh.P1, the stance of the learned counsel for the

respondents-defendants that Exh.P3 was a continuation of Exh.P1

finds force and substance. The case of the plaintiffs clearly falls

within the ambit of first part of Article 113 of Limitation Act 1908,

which provides a limitation of three years, but there is no material

available on the record to departure therefrom and the limitation

C.R.No.2769 of 2009 10

period has rightly been calculated from the target date 31.12.1984

fixed by the parties in Exh.P1. The attitude or conduct of the parties

loses its relevancy in the context of the limitation of a suit covered

in first part of Article 113 of Limitation Act.

14. So far as the other contention of the learned counsel

for the petitioners that as the case related to immovable property

and time could not be considered an essence of the contract, but the

period of limitation should have been calculated as per para-4 of the

plaint is concerned, suffice it to say that the said question has

authoritatively been clinched by the august Supreme Court of

Pakistan in the judgment reported as (PLD 2012 SC 247,) and for

ready reference relevant para-7 of the said judgment is reproduced

hereunder:-

“7. Before proceeding further in the

matter and being still on the subject of
limitation (Article 113 ibid), we would also
like to dilate upon another submission of the
learned counsel for the petitioners that in
view of the general principle and on account
of the peculiar circumstances of this case
the time was not the essence of the contract,
therefore, the period of limitation shall be
covered as per paragraph No.18 of the
plaint attracting second part of the Article.
In this regard, in our candid view the noted
rule has nothing to do wit the proposition of
limitation of the specific performance cases.
The said rule is not an enunciation of any
statutory instrument, but has emerged as the
principle of equity for the exercise of
discretion by the Courts in specific
performance cases. It only touches on the
right to enforce the contract and has
relevance and nexus in respect of the
judicial consideration, whether the
agreement/contract should be enforced or
not by the court in the set of facts of a given
case, by resorting to the said rule and
 C.R.No.2769 of 2009 11

nothing more. Whereas, the limitation is a

command of law, prescribing the statutory
period within which the right has to be
exercised and enforced. The courts thus
shall have no lawful authority to ignore the
date/period stipulated in the contract, which
as a legal consequence is meant to regulate
the period of limitation in terms of first part
of Article 113 ibid, and on the touchstone of
the equitable, discretionary principle, and to
hold against the vivid and clear provisions
of law, by extending, enlarging or exempting
the said period in violation thereof.”

15. The learned lower appellate court has rightly observed

that the suit filed by the petitioner/plaintiff is time barred as the
prescribed period of limitation was three years, but it was filed after
the elapse of almost 19 years. I am in agreement with the findings
of the learned lower appellate court on issues No.5 & 7. As the
learned counsel for the petitioners/plaintiffs has failed to point out
any illegality, perversity or jurisdictional defect in the impugned
judgment and decrees, which are also not tainted with any
misreading or non-reading of the evidence available on the record
calling for any interference by this court in the exercise of
revisional jurisdiction the scope whereof is narrower and restricted
only to the extent of correcting errors of law and facts, if are found
to have been committed by the subordinate courts in the discharge
of its judicial functions. Resultantly, all these revisions petitions
having no merits are dismissed with costs.

(CH. MUHAMMAD MASOOD JAHANGIR)

Judge
Approved for reporting.

Judge

Amjad