1. NADEEM AZHAR SIDDIQI, J.---This suit was filed for specific performance of agreement dated 1st August, 1994 executed between the parties. According to the agreement the plaintiff agreed to purchase portion of industrial Plot No,LA/6, Block 22, Federal 'BIndustrial Area, Karachi, measuring 3000 Sq. Yds. Against a total sale consideration of Rs,72,00,000 out of which a sum of Rs,7,20,000 has been paid. The agreement further provides that at the time of execution of sale-deed not later than 60 days from signing, of the agreement the vendee shall pay the balance sale consideration of Rs,64,80,000 and the vendor shall hand over the possession of the said portion of land measuring 3000 Sq. Yds. In Clause 5 of the agreement it was provided that in case the plaintiff fails to pay the balance amount on due date then the down payment will be forfeited and the agreement shall stand terminated forthwith. In Clause 8 of the agreement it was provided that the entire plot is mortgaged with Habib Bank Limited and the sale agreement was, therefore, subject to consent and approval of the Habib Bank Limited.
2. In the plaint it was pleaded that agreement was entered into and part payment of Rs,7,20,000 had been made and the balance was payable within 60 days at the time of execution of sale-deed. The defendant applied for bifurcation of the plot and approval from the bank for NOC and by letter dated 15-12-1994 the defendant informed the plaintiff that it is actively pursuing the matter with Habib Bank Limited for permission to proceed for registration of the sale-deed. It was further pleaded in the plaint that Habib Bank Limited initiated recovery proceedings against the defendant and in the month of September 2003 the plaintiff came to know that defendant has finally reached a settlement with Habib Bank Limited. It was further pleaded that in the second week of January 2004 the plaintiff came to know that defendant has applied for bifurcation of the said property for a much larger area than the one agreed to be sold to the plaintiff which created doubt and the plaintiff apprehended that the defendant has turned greedy and does not intend to fulfil the performance of the agreement. The plaintiff has pleaded that cause of action was accrued on 1-8-1994, 15-12-1994, in the year 2003 and finally in September, 2004.
3. The defendant has filed its written-statement and taken the legal objections with regard to the maintainability of the suit as (1) suit is barred under Article 113 of the Limitation Act, (2) suit is not maintainable under Clause 8 of the agreement, (3) the plaintiff has no cause of action and (4) suit has been filed by an incompetent person. The execution of the agreement, consideration of sale and receipt of down payment of Rs,7,20,000 have not been denied by the defendant. It was submitted in the written- statement that as per Clause 2 of the agreement the plaintiff was required to pay remaining balance sale consideration not later than 60 days from the date of signing of the agreement and according to Clause 5 of the agreement, in case of failure of the plaintiff to pay the balance amount on due date, the down payment was to be forfeited and the agreement was to be terminated forthwith. It was further stated in the written-statement that the defendant has applied for NOC of the sale for a portion of plot measuring 3000 sq. Yds. But the bank refused to provide the required NOC and the defendant vide letter dated 7-5-1995 intimated the plaintiff about the refusal of bank and through the said letter the defendant without any ambiguity stated that the agreement to sell may be considered cancelled which letter was duly received by the plaintiff and replied through his Advocate on 20-8-1998 and the defendant has also replied the said notice through its Advocate vide letter dated 7-9-1995. It was further stated that the plaintiff with mala fide intention and for ulterior motives has concealed and suppressed the material facts and above three letters from the Court and that the plaintiff has not come to the Court with clean hands. It was further pleaded that the sale was subject to consent of Habib Bank Limited and the movement the said bank refused to give required NOC, the sale stood cancelled automatically and the sale agreement is not enforceable under the law, as such the plaintiff has no cause of action to file the suit after more than eight years on the ground that now the property has been released from the charge.
4. The defendant has also filed an application (C.M.A. No,7465 of 2004) under Order VII, rule 11, C.P.C., along with its supporting affidavit, on the following grounds:--
(1) That no cause of action accrued to the plaintiff to file the above suit against the defendant.
(2) That the suit is barred by time under Article 113 of the Limitation Act.
(3) That the plaintiff has concealed the true facts and has come before this Honourable Court with unclean hands.
5. The plaintiff has not filed any objection reply to the above application.
6. Mr. Muhammad Amin Lakhani, learned counsel for the defendant, at the very outset submits that he is only pressing Ground No,2 of the application, which relates to the limitation. He further submits that Article 113 of the Limitation Act provides a period of three years from the date fixed in the agreement or when the plaintiff has noticed that the performance has been refused. He further submits that the agreement was executed on 1st August, 1994 and according to Clause 2 of the agreement the balance was to be paid not later than 60 days from the date of signing of the agreement and that by letter dated.
7. 7-5-1995 the defendant has cancelled the agreement and refused to perform. He further submits that while considering the application under Order VII, rule 11, C.P.C. The documents which are available on record can also be considered to refute the claim of the plaintiff. He has relied upon the following cases:- -
(1) Province of the Punjab and others v. Muhammad Hussain and others PLD 1993 SC 147
(2) Haji Muhammad Ibrahim v. Ramzan Ali 1984 CLC 2364
(3) S.M. Shafi Ahmad Zaidi v. Malik Hassan Ali Khan 2002 SCM R 338 Mr. Umer Soomro, learned counsel for the plaintiff, has submitted that the, agreement was subject to issuance of NOC by the Habib Bank Limited and cause of action was accrued only when the charge was withdrawn by the bank. He further submits that the time was not the essence of the agreement and the payment was conditional subject to NOC. He further contended that for the purpose of deciding the application under Order VII, rule 11, C.P.C. Only contents of the plaint have to be seen. He further submits that unless the bank issues NOC the specific performance of the contract was not possible and, therefore, no purpose will be served by making balance payment to the defendant. In support of his contentions learned counsel for the defendant has relied upon the following cases:--
(1) Eidoo Khan v. Abdul Majeed and others 2001 YLR 2634
(2) Muhammad Bashir and others v. Hakim Ali and another 2000 YLR 368
(3) Muhammad Hussain and another v. Federation of Pakistan and another 2003 YLR 2793 I have heard the learned counsel for the parties and perused the case-law cited at the bar.
8. Article 113 of the Limitation Act reads as under:-- Description of suit Period of limitationTime from which period begins to run
113. For specific per- formance of contract.Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance Is refused.
9. From the perusal of the above provisions it appears that it caters two situations one when, the date of performance is fixed in the agreement and the other when plaintiff has noticed that performance is refused. In the agreement no specific date for performance was fixed and it was stipulated that the balance will be paid not later than 60 days from the date of signing of the agreement and that the sale was conditional subject to issuance of N.O.C. By the bank. On refusal of the bank to issue N.O.C. The defendant by letter dated 7-5-1995 informed the plaintiff and cancelled the agreement. This is the date on which the defendant has refused to perform his part of agreement due to non-issuance of N.O.C. By the bank. The plaintiff in the pleadings has suppressed the letter dated 7-5-1995 and subsequent notices. Mr. Umer Soomro has not specifically denied the said letters and only submits that the same cannot be considered for the purpose of deciding application under Order VII, rule 11, C.P.C.
10. Now reverting to the case law Haji Muhammad Ibrahim v. Ramzan Ali cited by Mr. Muhammad Amin Lakhani the plaint was rejected on the ground that the sale agreement was executed on 8th July, 1964 and sale deed was to be executed within three months and the plaintiff had notice of refusal by defendant to perform agreement in 1973 and the suit was filed in 1982. In the reported case of Province of Punjab v. Muhammad Hussain the Hon'ble Supreme Court has held that on expiry of period of limitation revival of cause of action afresh and running of the limitation period over again could not take place either from the date of knowledge or the attornment of the tenant or on obtaining of possession. In the reported case of S.M. Shafi Ahmad Zaidi v. Malik Hassan Ali Khan the Hon'ble Supreme Court has held that besides averments made in the plaint other material available on record which on its own strength was legally sufficient to completely refute the claim of the plaintiff, could also be looked into for the purpose of rejection of the plaint.
11. In the case cited by the learned counsel for the plaintiff reported as Eidoo Khan v. Abdul Majeed it was held that the limitation will start from the date of refusal in absence of any date fixed in the agreement and that the time is never considered to be essence of the contract in cases of immovable property. The suit was decreed on the consideration that the plaintiff was in possession of the suit property since 1963 and has also paid the entire sale price. In the other case of Muhammad Bashir v. Hakim Ali the suit was decreed and it was held that the date fixed in the agreement will be material under provision of Article 113 of Limitation Act, 1908, if the vendor is capable of performing the agreement or is vested with the complete title and where the vendor was not in a position to execute the sale-deed or had to fulfil certain preconditions for the complete transfer of title the case was not covered by the first part of Article 113 of Limitation Act and the vendee was entitled to file a suit within three years from the notice of refusal to perform the agreement or from the date when the title mature and the vendor was in position to perform the agreement. In the case of Muhammad Hussain v. Federation of Pakistan it was held that the vendee was not bound to pay balance price till vendor has put property in condition in which sale was to be conveyed to him.
12. From the reading of the averments made in the plaint it appears that the suit is based on agreement dated 1st, August, 1994 with the following conditibn:--
(1) Payment was to be made not later than 60 days from the date of signing of agreement.
(2) On failure of the plaintiff to pay balance amount on due date the down payment will be forfeited and agreement shall stand terminated forthwith.
(3) The sale was subject to consent and approval of Habib Bank Limited.
13. Since no specific date is fixed in the agreement this suit is covered by the second part of Article 113 of the Limitation Act which provides that the limitation will start running from the date when the plaintiff has noticed that performance is refused. In this case the performance was refused on 7-5-1995 and the suit should have been filed within three years from that date. As, such the last date for filing of the suit was 6th May, 1998. Since the suit became time barred in 1998 no cause of action was accrued to the plaintiff in 2003 or 2004 when he came to know that the property was released by the bank. The Hon'ble Supreme Court in the case of Province of the Punjab v. Muhammad Hussain has held as under:-- " There is no principle known to law where under 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."
14. In this case the time started running from the date 'of refusal i,e, 7-5-1995 and came to an end on 6-5- 1998 and there can be no revival of cause of action afresh after the expiry of limitation prescribed by Article 113 of Limitation Act.
15. As far as the contention of Mr. Umer Soomro that only contents of the plaint has to be seen and no other document can be considered for deciding the application under Order VII, Rule 11, C.P.C. Has no force. The plaintiff has suppressed the letter dated 7-5-1995 and subsequent correspondence and cannot claim benefit of its known wrong. Furthermore, the Hon'ble Supreme Court in the case of S.M. Shafi Ahmad Zaidi v. Malik Hassan Ali Khan has held as under:-- "14. Besides, averments made in the plaint other material available on record which on its own strength is legally sufficient to completely refute, the claim of the plaintiff, can also be looked into for the purpose of rejections of the plaint. It does not necessarily mean that the other material shall be taken as conclusive proof of the facts stated therein, but it actually moderates that other material on its own intrinsic value be considered along with the averments made in the plaint."
16. In another case reported as Mst. Mazhar Khanum v. Sheikh Saleem Ali and others 2004 CLC 799 a learned Division Bench of Lahore High Court has held as under:- " The instances can be multiplied where it is permissible for the Court to look beyond the contents of the plaint itself. It is the duty of the plaintiff to place before the Court absolutely clean cards and to disclose all relevant facts forming the background of the dispute as a whole, without in any manner, suppressing any material fact or aspect of the case. He should not deliberately conceal the earlier litigation, if any, with malicious and vexatious design. In a case where the suit of the plaintiff is conceived out of motives and unbecoming tactics and tricks designed to harassing the defendant, the latter has every right to seek indulgence of the Court to look beyond the contents of such a plaint. And, if the defendant brings to the notice of the Court facts which, though in existence at the time the suit was filed by the plaintiff who was supposed to plead the same, but were withheld for any reason whatsoever, the Court cannot shut its eyes, and to sit as a mute spectator or observer, rather it must take into consideration already existing relevant facts, brought to its notice through the written statement and the undisputed documents filed in support thereof, and treating those facts as an integral part of the plaint, it would be justified to determine whether the suit is ultimately to fail, and, if so, not to subject the defendant to the rigours of a protracted trial, inconvenience, waste of time and money, besides mental agony and torture. If on consideration of the overall facts and circumstances, the Court comes to a definite conclusion, without unduly leaning towards the defendant and at pains of unnecessarily stretching the facts in his favour, with obvious motive to shutting out altogether the plaintiff once for good, it can certainly put an end to the matter. Therefore, we are of the considered view that the Courts below were justified in looking beyond the contents of the plaint. The impugned decisions cannot, therefore, be set at naught on this hyper technical ground."
17. From the perusal of the above two judgments it is now permissible to look beyond the averments shade in the plaint and to E consider other documents available on record to completely refute the claim of the plaintiff.
18. The upshot of the above discussion is that the suit instituted on 6-5-2004 is hopelessly time barred and the claim of the plaintiff is, therefore, rejected under Order VII, Rule 11, C.P.C.
19. Plaint rejected.