1. NADEEM AZHAR SIDDIQUI, J.---The plaintiffs have filed this suit for declaration, specific performance, injunction, mesne profit, damages and cancellation. The claim of the plaintiff No,1 is that they entered into an agreement of Sale dated 5-12-1995 with defendant No,1 in respect of sale of Commercial Plots bearing Nos. SB-1 to SB-16. Wasim Bagh, Block 13/D-2, Gulshan-e-Iqbal, Karachi measuring 10,255 square yards against total sale consideration of Rs,69,221,250, out of which a sum of Rs,3,00,00,000 has been paid and in lieu thereof the defendant No,1 executed Irrevocable General Power of Attorney dated 5-12-1995 and physical possession of the entire plots were handed over to the plaintiff No, 1.
2. The plaintiff No,2's claim is that he entered into an Agreement of Sale dated 24-5-1995 with the defendant No,1 in respect of Plot No,SB-17, Wasim Bagh, Block 13/D-2, Gulshan-e-Iqbal, Karachi measuring 2,336 square yards against total sale consideration of Rs,93,44,000, out of which an amount of Rs,48,44,000 was paid by the plaintiff No,2 to the defendant No,1 and the defendant No,1 also executed Irrevocable General Power of Attorney dated 24-5-1995 in favour of the plaintiff No,2.
3. The plaintiffs in the plaint pleaded that the defendant No, 1 's vide letter dated 6-12-1996 threatened the plaintiffs for cancellation of sale Agreement as well as Irrevocable General Power of Attorney, both dated 15-12-1995, which was replied by the plaintiffs vide letter dated 12-12-1996. It was also pleaded in the plaint that the son of late Wasimuddin, namely, Babar Wasim claiming to be Attorney of the defendant No,1 filed a suit bearing No,1751 of 1999 on 3-12-1999 for declaration, injunction, mesne profit in this Court for cancellation for Sale Agreement dated 5-12-1995 with further prayer of vacation the suit premises bearing Plots No,SB-1 to SB-16. In the plaint it was also pleaded that the plaintiffs since inception of the agreement are willing to perform their part of contract, but the defendants failed to adhere their commitments and legal obligations for vacating Commercial Plot No,SB-17 from the encroachers. The plaintiffs further pleaded that the cause of action in this suit arose to the plaintiffs on 24-5-1995 and 5-12-1995 when the agreements were executed and the defendant No,1 received the part payment towards sale consideration and when the correspondences were exchanged between the plaintiffs and the defendants on several dates and thirdly on 9-2-2002 when the defendant No, I admitted in their application under order XII, Rule 6, C.P.C. Filed in Suit No,1751/1999, fourthly when the defendants failed to handover physical possession of the Commercial Plot No,SB-17 and finally on 28-9-2002 when the defendant No,1 despite approaches by the plaintiffs failed, avoided and neglected to perform their part of performance.
4. After service the defendant No,1 filed its written statement and have taken legal objection with regard to maintainability of the suit as under:--
(a) that the suit is liable to be dismissed on the grounds that the person who has signed the present plaint, is not properly authorized, the plaint has been filed by the unauthorized person and that there is no resolution Jor filing of the present suit;
(b) that the suit does not disclose the actual cause of action, as such; the plaint is liable to be dismissed;
(c) that the suit in the present form is not maintainable under the law and as such, it is liable to be dismissed;
(d) that the suit is time barred, therefore, liable to be rejected;
(e) that the suit is bad for mis-joinder of causes of actions, which mis-joinder is fatal for survival of the suit; (0 that the plaintiffs have not come to the Court with clean hands as they had ulterior motives and mala fide intentions to harass the defendants;
(g) that the suit is barred under Order II, rule 2, C.P.C.;
(h) that the plaint is liable to be rejected under Order VII, Rule 11, C.P.C.
5. It was further pleaded in the written statement that an agreement dated 5-12-1995 was executed, but on committing default and breach of the agreements by the plaintiff No,1 the General Power of Attorney was revoked on 3-11-1997 and agreement was cancelled and the matter is pending decision in Suit No,1751/1999 filed by the defendant No,
1. The defendant No,1 has not denied the receipt of Rs,3 crore. It is submitted in the written statement that the balance was not paid and the cheques, which were given by the plaintiff No,1, were bounced. The execution of the second agreement dated 5-12-1995 has not been denied. It is submitted that the two agreements are separate and distinct and contains its own terms and conditions and that physical possession of the plot was handed over to the plaintiff No,2 as provided in para. 9 of the Agreement.
6. The defendant No,2 filed written statement and submitted that dispute in respect of plot is between plaintiffs and defendant No,1 and K.D.A./C.D.G.K. Has nothing to do in the matter.
7. The defendant No,3 K.B.C.A. Has also filed written statement and submitted that plot No,SB-17 is under encroachment since long and no approval of construction was obtained.
8. The defendant No,4 in its written statement submitted that the defendant No,1 has no clear title of the suit land and any agreement between plaintiffs and defendant No,1 is not a valid agreement and cannot be enforced and be specifically performed. The defendant No,4 claimed connivance between the plaintiffs and the defendant No,1 to deprive the defendant No,4 from its land.
9. The defendant No, 1 has also filed an application under Order VII, Rule 11, C.P.C. On the following grounds:-- A. That the suit is liable to be dismissed on the grounds that the person who has signed the present plaint, is not properly authorized, the plaint has been filed by the unauthorized person and that there is no resolution for filing of the present suit; B. That the suit does not disclose the actual cause of action, as such, the plaint is liable to be dismissed; C. That the suit in the present form is not maintainable under the law and as such, it is liable to be dismissed; D. That the suit is time barred, therefore, liable to be rejected; E. That the suit is bad for mis-joinder of causes of actions, which mis-joinder is fatal for survival of the suit; F. That the plaintiffs have not come to the Court with clean hands as they had ulterior motives and mala fide intentions to harass the defendants; G. That the suit is barred under Order II, Rule 2, C.P.C.; H. That the agreement was not properly stamped/executed in accordance with law; I. That the aforesaid agreement is void as the same is not signed by Mr. Muhammad Hussain so also no Resolution was submitted by the plaintiff passed by the Board of Directors of the defendant No,1 in this respect, hence the suit is liable to be dismissed.
10. Mr. Asim Mansoor Khan, learned counsel for the defendant No,1, at the very outset, has submitted that he is only pressing grounds C, D, E and G of his application under Order VII, Rule 11, C.P.C. The plaintiffs have not filed any counter-affidavit or objections to this application.
11. With regard to Grounds C, E and G, he submits that the suit has been filed for specific performance of two distinct and separate agreements of sale and since the causes of action of both the agreements are distinct and separate, they cannot be joined in one suit and the suit is bad for mis- joinder of causes of action.
12. On the other hand, Mr. Khawaja Shams-ul-Islam, learned counsel for the plaintiffs has submitted that the defendants (vendee) in both the agreements are common and that the relief claimed is also common, therefore, one suit can be filed combining several causes of action.
13. I have considered the submissions of the learned counsel.
14. Order II Rule 2 does not bar filing of a suit on joinder of two causes of action. Order II Rule 2 deals with the splitting up of the claim and relief and provides that if the plaintiff omits to sue for all the claims and reliefs to which he is entitled in respect of a cause of action, he will be precluded in a second suit from suing in respect of the portions so omitted.
15. From the pleadings in the plaint, it is apparent that the plaintiffs have filed this suit for specific performance of two independent agreements in respect of separate properties. It is also apparent that the causes of action for filing of the suit for specific performance of the agreements are distinct causes of action, but the same have been combined.
16. Order II Rule 3 provides for joinder of causes of action and it is permissible to join together several causes of action in one suit. The first part permits the joinder by one plaintiff of several causes of action against the same defendants jointly, whereas the second part permits the joinder by several plaintiffs jointly of several causes of action in which they are jointly interested against the same defendants. For invoking this rule it is necessary that the plaintiffs are jointly interested in the causes of action and the right to relief claimed by the two plaintiffs must be in respect of or arising out of the same act or transaction and they are not independently liable to defendant(s) and there must be some common link connecting the plaintiffs in the causes of action. In this case the two agreements cannot be said to be arising out of the same act and transaction. Both the plaintiffs have no link with each other in the transaction except that the plaintiff No,1 executed General Power of Attorney in favour of plaintiff No,2, but the suit was filed and plaint has been signed and verified by the plaintiff No,
1. I , therefore, hold that the reliefs claimed in the suit are based on two distinct and separate causes of action. Where the plaintiffs combine two or several causes of action in one suit the value for the purposes of court-fee is to be determined by valuing each subject matter separately under section 17 of the Court-Fees Act.
17. Order II Rule 6 provides that the Court is empowered to order separate trials. Rule 6 gives discretion to the Court to order separate trial when it appears that such causes of action cannot be conveniently tried or disposed of together. Mr. Khawaja Shams-ul-Islam relied upon reported case of Alam Khan and 3 others v. Pir Ghulam Nabi Shah & Company (1992 SCM R 2375) in support of his plea that even if two distinct causes of action have been combined plaint cannot be rejected.
18. The only defect in the plaint is that the plaintiffs have filed a suit combining two distinct and separate causes of action based on two distinct subjects, but have paid the court-fees payable on one suit of specific performance of one agreement. The plaint on this account cannot be rejected, but separate trial can be ordered.
19. Where the plaintiffs combined two or more distinct subjects or causes of action, then each claim on the basis of cause of action is to be valued separately and requisite court-fee is to be paid on it.
20. Section 17 of the Court-Fees Act provides payment of Court-Fees on multifarious suits, the same reads as under:-- "17. Multifarious suits.---Where a suit embraces two or more distinct subjects, the plaint or memorandum of appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memorandum of appeal in suits embracing separately each of such subjects would be liable under this Act.
21. Nothing in the former part of this section shall be deemed to affect the power conferred by the [Code of Civil Procedure, 1908 (Act V of 1908)] section 9."
22. Provisions of section 17 apply to suits which embraces two or more distinct subjects and when a suit is filed combining multifarious causes of action, then each claim on the basis of causes of action is to be valued separately and requisite court-fees is to be paid on it. The plaint contains two independent reliefs in respect of two independent agreement in respect of separate land on which court-fees is payable separately. Since this is not done the plaint as a whole deemed to have been written and filed upon paper insufficiently stamped. However, keeping in view the provisions of sub-rule (c) of Rule 11 of Order VII CPC the plaint cannot be straightaway rejected unless the plaintiffs on being required by the Court to supply the requisite stamp paper within a time to be fixed by the Court, fails to do so. Since the plaintiffs have filed the suit based on two distinct subjects having two independent reliefs on different causes of action Court-Fees is payable separately. I, therefore, direct the plaintiffs to further deposit Court-Fees amounting to Rs,15,000 within 15 days from the date of this order.
23. The other grounds urged by Mr. Asim Mansoor Khan, learned counsel for defendant No,1 is that the suit is time barred, therefore, liable to be rejected. He submits that first agreement was executed on 24-5-1995 and the date of performance of the agreement was fixed in clause (2) of the said agreement as 24-3-1996. He further submits that in terms of clause (9) of the Agreement, physical possession of the said property was handed over to the plaintiff No,2 and a General Power of Attorney with all powers was also executed in favour of plaintiff No,2. He, therefore, submits that according to Article 113 of Schedule I of the Limitation Act, the suit for specific performance can only be instituted within three years from the date fixed in the agreement for the performance. He submits that in the instant case, the balance payment was to be paid on 24-3-1996 which was the date fixed in the agreement for performance and admittedly, the plaintiffs have failed to pay this amount.
24. On the other hand, Mr. Khawaja Shams-ul-Islam, learned counsel for the plaintiffs has submitted that since the defendants failed to get the said property vacated from the encroachers, the plaintiffs were not liable to perform their part of agreement and to pay the balance sale consideration as provided in the agreement.
25. With regard to other agreement, Mr. Asim Mansoor Khan, learned counsel for defendant No, 1 has submitted that the same was executed on 5th day of December, 1995 and the date of performance was also fixed in clause (12) of the said agreement, which provides that the balance sale consideration of Rs,39,221,250 will be payable as under:-- (a)Within a period of 12 months of this AgreementRs.5,000,000 (b)Within a period of 18 months of the AgreementRs.20,000,000 (c)Within a period of 25 months of this AgreementRs.14,221,250 Rs.39,221,250 He submits that the agreement fixed the date and amount to be paid by the plaintiff No,1 to the defendant No,1 and in terms of Agreement the plaintiff No,1 issued three cheques as under:--
(i) Cheque No.089503/14095 dated 5-12- 1996 forRs.5,000,000 (ii)Cheque No.089504/14095 dated 5-6- 1997 forRs.20,000,000 (iii)Cheque No.089505/14095 dated 5-1- 1998 forRs.14,221,250 Mr. Asim Mansoor Khan further submits that admittedly the plaintiff No,1 has instructed its bank to stop the payment and admittedly committed the breach of the agreement. He then submitted that the defendant No,1 by its letter dated 6-12-1996 has cancelled the said Agreement and General Power of Attorney and has also served a legal notice upon the plaintiffs dated 30-10-1997 and has also published a Public Notice in the Daily Dawn dated 11-11-1997. He submits that in view of Article 113 of Schedule-I of the Limitation Act the suit for specific performance can be filed within three years from the date fixed for the performance or if no such date is fixed when the plaintiffs have noticed that the performance is refused. He submits that in terms of Agreement, the last date fixed for performance was 5-1-1998 and that the agreement was cancelled on 30-10-1997, whereas the suit was filed on 14-10-2002 beyond the period prescribed by Article 113. He further submits that according to clause 13 of the Agreement the time was the essence of the agreement.
26. On the other hand, Mr. Khawaja Shams-ul-Islam, learned counsel for the plaintiffs has submitted that both the agreements are inter-linked with each other. He submits that since the defendant No,1 failed to remove the encroachers from Plot No,SB-17 cheques were stopped and final payments were not made. He further submits that the time was not the essence of agreements and no date for performance has been fixed in the agreement and merely mentioning the date of final payment in the agreement do not make the time essence of the agreement. He submits that the cause of action for filing of this suit accrued to the plaintiffs on 28-9-2002, when a notice was served upon the defendant No,1 for specific performance of the agreement.
27. In rebuttal Mr. Asim Mansoor Khan, submits that the plaintiffs since inception were not willing to perform their part of contract and even in the said notice the plaintiffs have demanded return of the amount paid by them to the defendant No,1 in respect of Plots Nos.SB-1 to SB- 17 .
28. I have heard the learned counsel for the parties and perused the record.
29. The execution of the Agreements and payment of consideration in part performance as well as handing over the possession of the properties to the plaintiffs by the defendant No,1 have not been denied or disputed. Although the plaintiff No,2 pleaded that Plot No,SB-17 is under encroachment, but in clause (9) of the Agreement dated 24-5-1995, it was clearly mentioned that the vendor (Defendant No,1) has handed over physical possession of the said property to the vendee (Plaintiff No,2) along with rights of booking, construction and publicity etc. A General Power of Attorney was also executed in favour of the plaintiff No,2. By executing the General Power of Attorney in respect of all the properties being Plots No,SB-1 to SB-16 in favour of Haji Abdul Rahim, who is one of the partners of the plaintiff No,1 and General Power of Attorney in respect of Plot No,SB-17 in favour of plaintiff No,2 the defendant No,1 performed its part of contractual obligations and now it is on the plaintiffs to pay the balance sale consideration as provided in the Sale Agreement.
30. From perusing the correspondences exchanged between the parties, it is clear that the plaintiffs deliberately failed to make the payments to the defendant No, 1 . In its letter dated 22-12-1996 the plaintiff No,1 has stated as under:-- "You are worried about your payment, it is stated that not only payment of Rs,5,000,000 but all payments have been stopped."
31. In another letter dated 8-11-1997 the plaintiff No,1 has submitted as under:-- "You have been harassing us with the threat to cancel the said agreement as well as Power of Attorney in respect of above purchase. Why don't you cancel the same?"
32. Thereafter, the defendant No,1 served cancellation notice dated 30-10-1997. If the contentions of Mr. Khawaja Shams-ul-Islam is taken to be correct that no date for performance has been fixed then the limitation for filing the suit starts from the date when the plaintiffs notice that the performance is refused. The defendant No,1 in its letter dated 6-12-1996 has stated as under:-- "Consequent upon this breach on your part the whole Sale Agreement above said as well as our General Power of Attorney dated 5-12-1995 in your favour have become, ipso facto, infructuous and you are no more entitled to any right under the above said Agreement and General Power of Attorney.
33. Also, any rights already availed of by you in terms of the said Agreement and General Power of Attorney since execution thereof by us on 5-12-1995 are of no legal value or authority and not binding on us."
34. From the above it appears that through above letter the defendant No, 1 refused to perform its part of contractual obligation in respect of agreement dated 5-12-1995 and finally on 30-10-1997 when the legal notice of cancellation of agreement was served upon the plaintiff No,1, who replied the same through its letter dated 8-11-1997. Mr. Khawaja Shams-ul-Islam, learned counsel for the plaintiffs states that for rejection of plaint under Order VII, Rule 11, C.P.C. Only contents of the plaint have to be seen and not the defence and that plaint cannot be rejected in parts. He further submits that legal notice dated 30-10-1997 is not part of the plaint and cannot be considered.
35. Mr. Asim Manzoor Khan, learned counsel for the defendant No,1 has pointed out Annexure D/4 of the plaint, which is reply of legal notice dated 30-10-1997 and submits that the documents annexed with the plaint and other material available on record can also be considered. He further submits that in this case two distinct causes of action have been combined, therefore, if claim in respect of one agreement is time-barred the plaint can be rejected partly. He further submits that two distinct causes of action were deliberately combined with mala fide intentions and ulterior motives.
36. From the perusal of Agreement dated 24-5-1995 it appears that it was required to be performed by the plaintiff No,2 on 24-3-1996 by making payment of the balance sale consideration. The plaintiff No,2 has not mentioned in the plaint that he has ever made or tried to make payment to the defendant No,1 on or before the date mentioned in the agreement. From the perusal of other agreement dated 5-12-1995 it appears that the same was finally required to be performed by the plaintiff No,1 on 5-1-1998 by making balance sale consideration. This Agreement also contains clause 13, which reads as under:-- "That the payment of the balance instalments to the Vendors by the Vendees within the agreed time is the very essence of this agreement and on receipt of the amount of this balance the Vendors shall sign all necessary papers for Sub-Lease of the property in favour of the Vendees or their nominees and for L registration of Deeds in this respect in the records of the Registrar concerned."
37. From perusing above clause, it appears that further action on the part of defendant No,1 is subject to receipt of balance amount. From the correspondence annexed with the plaint, it is evident that plaintiff No,1 has specifically refused to perform its part of agreement dated 5-12-1995 by stopping the payment. It is not the case of the plaintiffs that they have tendered the amount on the dates fixed in the agreement and the defendant No,1 has refused the same. The learned counsel for the defendant contended that the suit is barred by Article 113 of the Limitation Act, which reads as under:-- "113.For specific performance of a contractThree yearsThe date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused."
38. Reading of the above Article shows that it caters two situations i,e, one when time of performance is fixed in the agreement and the other when the time is not fixed in the agreement. In the first case the starting point of limitation is three years from the date fixed for the performance in the agreement and in the later case the period starts running from the date when the plaintiff has noticed that specific performance is refused by the defendant in the reported case of Mst. Kulsoom and 6 others v. Mrs. Marium and 6 others 1988 CLC Karachi 870 it was held as under:-- "We are also inclined to hold that it is a well-settled position in relation to Article 113 of the First Schedule to the Limitation Act that if the date for performance of a sale agreement of an immovable property is specified therein, the period of three years shall commence from the specified date, but where no date for performance is mentioned in the sale agreement, the three years period will commence from the date of refusal to perform."
39. The date of payment of balance sale consideration was fixed in both agreements and that is the date of performance of agreements by the plaintiffs. It is not the case of the plaintiffs that on that dates they have tried to make payment to defendant No,
1. From the perusal of the agreement it also appears that after executing General Power of Attorneys by defendant No,1 nothing was left to perform on its part and the only part left is to be performed by the plaintiffs by making payment to defendant No,1 on the date fixed in the agreement. The plaintiffs cannot be allowed to take benefit of their own negligence and breach of contract. The contention of Mr. Khawaja Shams-ul-Islam that since the time was not the essence of agreement the time start running from the date of refusal to perform if taken to be correct even then it is the plaintiffs, who have refused to perform the agreement by not paying the balance sale consideration on the specified dates and in terms of section 55 of Contract Act the defendant No,1 has acquired the right to avoid the contract. In any case whether the time is the essence of agreement or not the time started running from the date of performance mentioned in the agreements. In the reported case of Haji Muhammad Yakub v.
40. Shahnawaz 1998 CLC 21 a learned Single Bench of this. Court has held as under:-- "Evidently the expression 'time being essence of the contracthas been used, in the Contract Act not as a term of art but for connoting situation relating to remedies available to the non-breaching parties. The Limitation Act was enacted in 1908 i,e, long after the Contract Act, 1872 had been enforced and the legislature is presumed to know the existing state of law. Nevertheless the legislature in its own wisdom did not provide that limitation in the first part of Article 113 would apply only when time was of the essence of the contract and stipulated that whenever a contract was required to be performed on a specified date, limitation had to be reckoned from the date. I, therefore, find no force in the submissions that the first part would be attracted only when time was of the essence of the agreement and not otherwise."
41. Mr. Khawaja Shams-ul-Islam submits that finally limitation starts from the day the plaintiffs served Legal Notice dated 28-9-2002 upon the defendant No,
1. I find no force in this submission. Once the full period of limitation is expired there will be no revival of cause of action afresh from the date of notice. The Hon'ble Supreme Court in the case of Province of Punjab v. Muhammad Hussain PLD 1993 SC 147 has held as under:-- "There is no principle known to law whereunder on expiry of full available period of limitation revival of cause of action afresh and running of the limitation period over again could take place either from the date of knowledge or the attornment of the tenants or on obtaining of possession."
42. The upshot of the above discussion is that the relief claimed by the plaintiffs in relation to agreement dated 5-12-1995 is barred by both the situations mentioned in Article 113 of Limitation Act as neither the suit was filed within three years from the date mentioned in the agreement, nor within three years when the defendant No,1 cancelled the agreement. The relief claimed in relation to Agreement dated 24-5-1995is barred by 1st situation of Article 113 of the Limitation Act.
43. I also found force in the contention of Mr. Asim Mansoor Khan that if the suit was filed combining two causes of action the plaint can be rejected partly for the relief, which comes within four corners of Order VII, Rule 11, C.P.C. The plaint cannot be partly rejected if the suit is based on one cause of action and reliefs claimed are arising from one cause of action. The other factor is Order II, rule 6, C.P.C. Which gives discretion to Court to order separate trials or make such other order as may be expedient if the same cannot be conveniently tried together, the rule is applicable only to those cases where the joinder is in accordance with law and not to the cases of mis-joinder of cause of action or causes of action are essentially of a different character. In this case if the Court find that one claim arising out of one cause of action is barred by any law and the relief claimed on the basis of other cause of action is maintainable, the Court can order separate trial and while ordering separate trial can reject the plaint to the extent of relief/case based on cause of action barred by law and proceed with the case/relief found on a cause of action not barred by law.
44. In view of the above, I hold that the suit is barred by Article 113 of the Limitation Act, 1908 and the plaint is, therefore, rejected under Order VII, Rule 11, C.P.C. With costs.