Mian Inam Elahi etc. vs Naseem Akhtar etc.

Stereo. H C J D A 38

JUDGMENT SHEET

IN THE LAHORE HIGH COURT, LAHORE.

JUDICIAL DEPARTMENT

RSA No. 122 of 2016

Mian Inam Elahi and 2 others vs. Naseem Akhtar and 6 others.

JUDGMENT

Date of hearing: 08.09.2026 Appellants by: Messrs. Imran Muhammad Sarwar and Rana Muhammad Ansar, Advocates for petitioners.

Respondents by: Messrs. Ch. Muhammad Sarwar and Muhammad Usama Zubair Advocates for the respondents.

In attendance: Mr. Qamar Zaman Qureshi, Additional A.G. Punjab. Mr. Qamar Hanif Ramay, Assistant Attorney General for Pakistan.

MUZAMIL AKHTAR SHABIR, J. Being aggrieved of dismissal of their suit for specific performance of agreement to sell dated 27.07.1987 through concurrent judgments and decrees dated 23.04.2012 and 27.02.2016 (‘Impugned judgments and decrees’) respectively passed by the Civil Court (‘Trial Court’) and Appellate Court in the District Courts at Lahore, the appellants, Mian Inam Elahi, etc., have filed this Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (‘CPC’), wherein while arguing the matter it has been claimed by their learned counsel that the impugned judgments and decrees are against the facts of the case and law on the subject, hence not sustainable and prays that the same be set aside and the suit filed by the appellants-plaintiffs be decreed as prayed for, whereas on the other hand the learned counsel for the respondents-defendants has controverted the said arguments and seeks dismissal of the instant appeal by stating that the impugned decisions concurrently passed by both courts are in accordance with law.

2.The claim of the appellants for seeking decree for specific performance of agreement to sell as relief in the present appeal is based on facts that an agreement to sell regarding land measuring 199 Kanals 9 Marlas, situated in Mauza Thethar Baidian road, Tehsil Lahore Cantt., described in detail in the caption of the plaint was executed on 27.07.1987 in favour of appellants by Malik Muhammad Ashraf

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(the predecessor in interest of respondent Nos.1 to 7) and one Haji Nizam Din, who were owners of the suit property and respectively were defendant No.1 and defendant No.2 in the suit for specific performance filed by the appellants, for a consideration of Rs.10,00,000/- (Rupees ten lac only), out of which Rs.100,000/- (rupees one lac only) was paid to defendant No.1 on his own behalf and on behalf of defendant No.2 by the plaintiffs/appellants and defendant No. l undertook to get the agreement signed by defendant No.2, who despite repeated requests did not sign the same and on one pretext or the other postponed the matter. It is claimed that the defendants under the said agreement had further assured the plaintiffs that due to some legal flaw mutation with regard to Khasra Nos. 2506, 2508, 2502 had not been sanctioned in their favour and that they will remove the flaw within specified period and get the sale deed completed. The plaintiffs/appellants on 12.09.1987 got three sale deeds written and sent them to the defendants/respondents for completion but the defendants did not return the same despite various requests. The plaintiffs/appellants have always been willing to perform their part of contract but the defendants/respondents kept on delaying the performance of their part of the contract, whereafter the plaintiffs/appellants sent a legal notice through counsel asking them to execute the sale deed but the mail came back with the collusiveness of postman resulting in filing of suit for specific performance of agreement to sell. The said suit was contested by the both defendants on merits, who also filed an application under Order 7 Rule 11 CPC, resulting in dismissal of the suit on the grounds of being barred by limitation, lack of cause of action and parties not being privy to contract, through the order dated 29.01.2003 passed by the trial court and appeal against the same filed by the appellants was dismissed on 08.07.2003, which orders were challenged by the Appellants before this Court through RSA 81 of 2003, which was partially allowed on 10.06.2009 with the result that the same was dismissed to the extent of defendant No.2 by maintaining the findings of lack of privity of contract between appellants and defendant No. 2 and non-existence of cause of action against him, however the said appeal was partially allowed to the extent of defendant No. 1, now represented by respondents No. 1 to 7, with the result that the matter was remanded to the learned trial court to frame preliminary issue regarding limitation and decide the same afresh after recording evidence of both parties.

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3.In post remand proceedings, the defendant No. 2, in whose favour findings of dismissal of suit had been maintained, was not impleaded as a party and only Malik Muhammad Ashraf, Defendant No.1 (now represented by Respondents) was made a defendant and the learned trial court framed preliminary issues relating to limitation on which parties got recorded their respective evidence. For ready reference the said issues are reproduced below for clarity: ‘1. Whether the suit of the plaintiff to the extent of defendant No. 1 is within limitation? OPP

2.Relief.’

4.The learned trial court after hearing the arguments of the parties decided the issue of limitation against the appellants and dismissed their suit vide judgment and decree dated 07.10.2013 with observation that suit was barred by limitation. The appeal filed by the appellants against the same was dismissed on 27.02.2016. Through this second appeal, the legality of both the said impugned judgments and decrees has been called in question on the ground that as no specific date was provided for completion of contract and only timeframe of three months from the date of contract was provided for the said purpose, therefore, the question of limitation was not correctly decided. The operative portion of the agreement is reproduced below:

) اندر میعاد مقررہ امروز تا تین ماہ اذاں مشتریان رو برو جناب سب900000/-( یہ کہ بقایا رقم مبلغ نو الکھ روپے رجسٹرار الہور کینٹ وصول پا کر بنام مشتریان رجسٹری بیع نامہ یا بیعناجات کرنے کے پابند و ذمہ دار ہوں گے۔

5.The date of agreement to sell is 27.07.1987, in terms of which the appellants were required to make payment of remaining consideration of Rs.9,00,000/- within three months to get the property transferred to them whereas suit for specific performance of said agreement was filed on 10.12.1997, which is after more than 10 years of its execution. In order to determine whether said suit was filed within prescribed limitation or was barred by time, reference may be made to relevant provisions of the Limitation Act, 1908 (“Act”). The Article 113 of Schedule I of the Act provides limitation for filing a suit for specific performance of an agreement in the following terms:

Description of Period of Time from which period begins to run. suit. limitation.

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

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6.The perusal of Article 113 of the Act shows that the period provided for filing a suit for specific performance of contract is three years whereas the time from which period of limitation begins to run is mentioned in its column no. 3, which provides for two different situations and corresponding starting points of period of limitation. Under first part starting point of three years limitation for filing of suit for specific performance is the date fixed for performance of agreement/contract given in agreement itself, whereas under its second part that suit for specific performance can be filed within three years from the date when plaintiff obtained notice that performance has been refused. Perusal of agreement to sell Exh.P2, shows that in the agreement of sale executed on 27.07.1987 no date was fixed for performance of agreement, rather a timeframe of three months was provided for performance of same commencing from the date of agreement, hence first portion of the Article 113 of the Act providing for starting point of limitation from the date fixed for performance of contract would not be applicable whereas, the second part of the said Article providing for commencement of limitation from the date of refusal would be applicable. Reliance in this behalf may be placed on Khudadad versus Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others (2022 SCMR 933), wherein it has been held that the starting point of limitation under Article 113 of the Act for institution of legal proceedings enunciates two limbs and scenarios. In the first segment, the right to sue accrues within three years if the date is specifically fixed for performance in the agreement itself whereas in its next fragment, the suit for specific performance may be instituted within a period of three years from the date when plaintiff has noticed that performance has been refused by the vendor. Obviously, the first part refers to the exactitudes of its application when time is of the essence of the contract, which means an exact timeline was fixed for the performance arising out of contract/agreement, hence in this particular situation, the limitation period or starting point of limitation will be reckoned from that date and not from date of refusal, however, if no specific date was fixed for performance of agreement and time was not of the essence, then the right to sue will accrue from the date of knowledge about refusal by the executant. While dealing with the question of limitation provided under Article 113 of the Act, in Haji Abdul Karim and others versus Messrs Florida Builders (Pvt.) Limited (PLD 2012 SC 247) it has been held that in cases falling in Second Part of

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Article 113, wherein date of performance was not fixed or certain, date of refusal of performance would be only basis for computing limitation period.

7.Now the question arises that when was the performance of contract refused and whether from the date of refusal the suit was filed by the appellants within prescribed limitation. The agreement to sell Exh.P2 and receipt of earnest money Exh.P3 were executed on 27.07.1987 between the appellants and respondent No. 1 and three months’ time for its performance was provided in the agreement failing which the earnest money would stand forfeited and the agreement would stand cancelled, however it is important to mention here that possession of the land still remains with the respondents and was never handed over to the appellants. Aftab Ghani, attorney of the plaintiffs-appellants appeared on their behalf in the witness box as PW1 and produced special power of attorney executed in his favour as Exh.P1 and admitted that prior to 09.12.1997 no suit was filed by the appellants. He admitted that he was not a witness of Exh.P2 or Exh.P3. He also deposed that appellants issued legal notice Exh.P4 dated 26.11.1997 to the respondents against postal receipts Exh.P5 to Exh.P7 seeking performance of the agreement resulting in filing of suit for specific performance. He admitted that no legal notice was issued prior to the same and also admitted that the possession of property was still with the respondents.

Moreover, as the possession of the property was never handed over to the appellants in terms of the agreement, they were precluded to raise the plea of part performance of the agreement by the respondents. Reliance for the said conclusion may again be placed on case of Khudadad (supra), wherein it has been observed that the plea of part performance could not be established by the appellant in the trial court by leading evidence that the possession was handed over in terms of alleged agreement to sell.

8.The most important aspect of the matter is that during the proceedings of the case Aftab Ghani PW1 was re-summoned and re-examined and also was again cross-examined by the counsel for the respondents wherein he deposed that for execution of sale deed in favour of the appellants stamp papers Exh.D3 to Exh.D5 were purchased by appellants and sent to Malik Muhammad Ashraf, predecessor in interest of the respondents for signature, who on 15.09.1987 had refused to execute the same. The relevant portion of statement is reproduced below for clarity:

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کے متعلق جو تحریر ہے15-09-87 میں مسودہ جات4 یہ بات بالکل درست ہے کہ عرضی دعوی کے پیراگراف نمبر وہی مسودہ جات ہیں جن کا ذکر کیا گیا ہے۔ مسودہ جاتEX-D5 تاEX-D3 وہ بالکل درست ہے۔ تین عدد مسودہ جات کو ملک اشرف کو مسودہ جات دیۓ تھے۔ انھوں نے اس وقت15-09-87 کے تحریر کردہ ہیں درست ہیں۔87-09-15 انکار کر دیا تھا۔

9.Whether or not a notice in writing conveying refusal to perform agreement is issued, issuance of which is not mandatory, unless the parties mutually agree otherwise or from the conduct of the parties different intention is apparent or evidence is led to establish the contrary and subject to certain exceptions, which are not available in the instant case, even a single act of the other side, such as an act of refusal to sign the final draft of sale deed is ordinarily sufficient notice to the plaintiffs-appellants that the defendant had refused to perform his part of the agreement. In this regard reference may be made to principles laid down in Syeda Dabeer Fatima and others versus Mst. Balqees Akhtar and others (2016 CLC 1268 Islamabad), wherein it has been held that any action on the part of defendants which was adverse to the rights granted to the plaintiffs through the impugned agreement to sell would tantamount to notice with regard to refusal to transfer of suit property and period of limitation would start therefrom. In the said case the filing of execution application; taking of the possession of the property in question from the tenant and receipt of rent in violation of terms of agreement to sell were treated as the actions on the part of respondent as acts adverse to the rights granted to the appellants under the alleged agreement to sell.

10.Furthermore, in Javaid Iqbal and others versus Mohammad Shabbir and others (2022 MLD 1540 AJK) and Muhammad Shafi versus Muhammad Sarwar and others (1997 CLC 1321 Lahore) refusal on the part of principal to execute the sale deed in pursuance of the agreement was treated as act of refusal to perform agreement and the starting point of limitation. In Haji Abdul Karim and 4 others versus Messrs. Florida Builders (Pvt.) Ltd. (PLD 2010 Karachi 17) it was observed that if at all defendants did not deliver possession, nor executed general power of attorney in their favour, it could be taken as first refusal on the part of defendant to perform the agreement and time under second part of Article 113 of the Act would begin to run. In Asifa Khanum through L.Rs. versus Sheikh Abdul Ghafoor through L.Rs (2009 CLC 1089 Lahore) execution of subsequent agreement by the defendant in favour of son of the plaintiff was held sufficient notice of the plaintiff that defendant has refused to perform agreement previously executed in plaintiff’s

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favour. In Muhammad Ashiq and others versus Tauqir Shahid and others (PLD 1988 Lahore 444) selling land to third party was treated as refusal to perform agreement.

11.In terms of the principles laid down in the case law referred to above and in view of the aforementioned statement got recorded by Aftab Ghani, PW1, as attorney of the appellants it is clear that Malik Muhammad Ashraf, predecessor in interest of the respondents by declining to sign sale deed had refused to perform the agreement on 15.09.1987 and no contrary evidence has been led by the appellants to show that the said refusal was not final and parties had agreed to further negotiate the terms of the draft or the case fell within some other exception. It has also not been pointed out that whether on 15.09.1987 the appellants had offered to may payment of remaining sale consideration on the said date or some date in near future on or before the completion of three months from the execution of agreement and in these circumstances the said date according to the second part or column no. 3 of Article 113 of the Act was the date of commencement of period of limitation for filing suit for specific performance, which would come to an end on 15.09.1990, but the suit was filed for specific performance of contract on 11.12.1997, after lapse of more than ten years of execution of agreement and more than 07 years of afore-mentioned act of refusal, which suit was beyond the period of limitation of three years prescribed by Article 113 of the Act and the appellants/plaintiffs have miserably failed to explain through evidence as to why they had not filed the suit within three years from the date of commencement of limitation.

12.The plea of the appellants/plaintiffs that they had served a notice to the respondents on 26.11.1997 to perform the agreement which they refused would not provide a fresh cause of action to them to file the suit for the reason that in terms of Section 9 of the Act, once limitation commences, the same does not stop due to subsequent disability or inability to sue by happening of any subsequent event, which even otherwise does not accrue a fresh cause of action to appellants for maintaining the suit for specific performance of contract after a lapse of ten years of the agreement. Reliance may be placed on Syed Athar Hussain Shah versus Haji Muhammad Riaz and another (2022 SCMR 778) wherein it is provided as under:- “10. The petitioner’s conduct in filing the first suit, not paying requisite court fee, which resulted in the rejection of the plaint, filing the second suit,

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withdrawing it, and then filing the third suit is inexplicable. However, what requires determination is whether the third suit was filed within the prescribed period of limitation. It needs consideration whether once the period of limitation commences it can be stopped or be avoided by introducing another cause of action or relief in the suit or by reformulating them. The answer is provided by section 9 of the Limitation Act, 1908, reproduced hereunder:

‘9. Continuous running of time: Where once time has begun to run, no subsequent disability or inability to sue stops it.’

The rejection of plaint in the first suit and the withdrawal of the second suit would not help avoid the period of limitation as is made clear from Rule 2 of Order XXIII of the Code, reproduced here:

2.Limitation law not affected by first suit. In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.”

13.Another important aspect of the matter is that the silence of the appellants in approaching the court for filing the suit after such a long time also gives rise to the presumption that they were either not in a position to perform their part of contract or they despite being in the said position were not ready or willing to perform the same, whereas specific performance could only be sought by a vendee or vendor who had performed and was ready and willing to perform his part of the reciprocal promise. Reliance is placed on Mst. Jaiwanti Bai versus Messrs Amir Corporation and others (PLD 2021 SC 434).

14.In view of the foregoing discussion the appellants have failed to make out a case for specific performance of agreement to sell in their favour and against the respondents. The learned counsel for the appellants despite hectic efforts has not been able to point out any illegality or jurisdictional defect in the impugned judgments and decrees passed by the courts below whereby the suit filed by the appellants has concurrently been dismissed as being barred by limitation hence, there is no ground for this Court to warrant interference in the said findings of fact concurrently recorded by the said courts and the impugned judgments are, therefore, upheld.

15.In view of what has been discussed above, the titled appeal being devoid of any merit is dismissed. No order as to costs.

(MUZAMIL AKHTAR SHABIR)

JUDGE

Naveed *

APPROVED FOR REPORTING