' This Constitutional petition seeks judgment/order dated 15-1-2004 passed by the learned Additional District Judge, Gojra (respondent No.1), whereby plaint of the petitioner was rejected under Order, VII, rule 11, C.P.C., to be declared as illegal, void and of no legal consequence.
2. Precisely, relevant facts are that the petitioners filed a suit for possession through specific performance of an agreement to sell dated 29-12-1966 averring that Ali Ahmed son of Wazir-ud- Din, predecessorin-interest of the respondents entered into an agreement to sell his land measuring 3 Kanals for an amount of Rs.2,000 out of which he received an amount of Rs.1,600 as earnest money vide written agreement dated 29-12-1966 and it was settled that the sale- deed/mutation of the land in dispute shall be executed/sanctioned in favour of the petitioners before 28-411967. The remaining sale price was to be paid at the time of execution of sale- deed/sanction of mutation.
3. Respondents filed an application under Order VII, rule 11, C.P.C. Asserting that the agreement to sell is fake/fictitious and the suit being hopelessly barred by time, is liable to rejection. They further pleaded that according to the alleged agreement itself last date for execution of sale- deed/mutation was fixed as 28-4-1967, whereas the suit in hand has been filed in the year 2002, after lapse of more than three decades. Learned trial Judge, who was seized of the matter, after hearing the parties, dismissed the application of the respondents under Order VII, rule 11, C.P.C., vide order dated 18-6-2003.
4. Respondents aggrieved of the order dated 18-6-2003, whereby their application under Order VII, rule 11, C.P.C. Was dismissed, filed a revision petition before the learned Additional District Judge, where they succeeded, as the revision petition and the application under Order VII, rule 11, C.P.C.
Were accepted and plaint of the petitioners was rejected, vide judgment/order dated 15-1-2004.
Petitioners have now filed instant Constitutional petition for the relief noted above.
5. Learned counsel for the petitioner submitted that while invoking provisions of Order VII, rule 11, C.P.C. The Court was only required to look into the averments of the plaint and no other document could be considered. According to his submissions, if the plaint is read it does makes out a cause of action and the same is not barred by any law, thus plaint should not have been rejected. He further submitted that time fixed in the agreement for performance as 28-4-1967 was verbally extended by the parties and cause of action to the petitioner accrued only 10/15 days earlier to the institution of the suit when they came to know that the respondents have exchanged the land in question through a mutation. It is contended that from the date of knowledge, suit of the petitioners was within time, as according to Article 113 of the Limitation Act, 1908 cause of action for filing suit for specific performance accrues on the date of denial to perform defendants' part of agreement.
6. I have anxiously considered the arguments of the learned counsel for the petitioners and have examined the record appended herewith. From a bare perusal of the plaint it reveals that agreement to sell dated 31-12-1966 was to be performed before 28-4-1967. According to averments in para. 3 of the plaint a part of the land agreed to be sold was transferred in favour of petitioner No.2 on 30-12-1972. It is not explained as to why on this date the entire land was not got transferred, if at all, the agreement was executed and admitted by predecessor of the respondents. Even from the date of Mutation No.221 dated 30-12-1972 the suit cannot be said to be within period of limitation which after denial of the owner was to be filed within three years, but the suit was filed after about 30 years. Section 3 of the Limitation Act, 1908, makes it obligatory for the Court to look into the point of limitation without there being any objection by any of the parties.
Trial Court did not discharge its statutory obligations and thus the order passed by it was A tainted with material irregularity which has rightly been corrected by the revisional Court. A suit which was filed after such a long time, cannot be said to be not barred by any law. I am clear in my mind that suit having been filed after 36 years on the basis of an agreement to sell which in spite of fixing time for execution of the sale-deed gave a specific date for this purpose, cannot be said to disclose a cause of action within the meaning of Order VII, rule 11, C.P.C.
7. Execution of the agreement sought to be enforced after about 36 years, though was specifically denied by the respondents yet it envisaged/gave a specific date for its performance i.e. 28-4-1967.
This agreement, as it stands, shows that time was essence of the contract, as mandated by the Honourable Supreme Court of Pakistan in the cases of Seth Essabhoy v. Saboor Ahmad (PLD 1973 SC 39), Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344) and Naseem Ahrnad Chaudhry v. Chairman, Punjab Labour Appellate Tribunal, Lahore and 4 others (1995 SCM R 1431). Petitioners attempted to assert that time fixed in the agreement was verbally extended but this stance is not proved on the file and at the same time, such evidence will not be admissible under Articles 102 and 103 of the Qanun-e-Shahadat Order, 1984, whereunder, if terms of contract have been reduced to a document, no oral evidence will be given in proof of the terms of such contract between the parties, for the purposes of varying or adding anything to its terms. In similar circumstances the Honourable Supreme Court while dealing with the case of Mrs. Irene Wahab v. Lahore Diocesan Trust Association (2002 SCM R 326) graciously held that a party to the contract cannot be permitted to adduce oral evidence of some oral agreement or statement to contradict or vary the terms of a written agreement. I respectfully following the view of the Honourable Supreme Court, hold that whatever oral evidence petitioners may produce, in this behalf, that cannot be used to vary terms of the said agreement and time being its essence, it stood lapsed on 28-4-1967 on account of its nonperformance. Transfer, if any, on 30-12-1972 is not shown to be in performance of the agreement dated 29-12-1966 and thus, it, if really was made, must have been under some independent agreement because it was made to the exclusion of other petitioners who also claim rights under the agreement in this suit.
8. For what has been discussed above, it is obvious that revisional Court acted within the ambit of law and thus judgment/order, sought to be declared void from this Court was passed within the competence and jurisdiction conferred on the Court of law, thus the same cannot be adjudged in Constitutional jurisdiction of this Court. This writ petition has no merit in it and is accordingly dismissed, in limine.