1. MUSHIR ALAM, J.--- Appellant has impugned the order, dated 22-9-2004 whereby, learned Single Judge Chamber on application under Order VII, rule 11, C.P.C., rejected the plaint in Suit No, Nil of 2004 (Mrs. Shabeena Farhat v. Messrs Highway Housing Project and 2 others), for specific performance and damages.
2. It appears that the case of appellant was that they booked a plot in a scheme announced by defendant No,1 headed by defendant No,2 against the receipt dated 9-11-1978. Appellant set up a case that, on persistent demand of defendant No,1 full and final payment was made on 1-3-1982. It is further the case of appellant that, she waited the execution of the conveyance deed in said project. Whenever she approached the office of the defendant, it was informed that, on account of dispute between owner of the project with Revenue Authority lease could not be executed as the development of the project has been stopped. It is a case of appellant that, after waiting considerable time appellant enquired about present status of the project and demanded execution of lease vide letter, dated 3-3-2004 personally delivered followed by letter, dated 4-3- 2004 through U.M.S. No response was received. It is further case of appellant that when, new project was announced by the defendant, she through another legal notice dated 26-6-2004 called upon the defendants to execute the lease but to no avail. Further allegations were made that the defendant without completing the previous project announced another scheme by using the funds of previous incomplete scheme, therefore, the present suit is one of public importance. In this background apparent suit was filed for specific performance of contract, permanent and mandatory injunction and damages.
3. It seems that the objections were raised as to limitation by office. The learned Single Judge at the preliminary stage, on examining pleading rejected the plaint being time-barred.
4. It was contended by learned counsel for the appellant that the Court had erroneously arrived at a conclusion that, the suit is barred by time. It was argued that, time would only run when plaintiff becomes aware of the refusal by defendant. In the instance case, it was urged that, there was nothing on record to show that, defendant refused to perform the contract, therefore, time would not run. According to the learned counsel, the case of appellant does not stand covered under second part of Column No,3 of Article 113 of the Limitation Act. In support of his contention he has placed his reliance Habibullah Khan v. Muhammad Ishaq PLD 1966 SC 505.
5. Mr. Muhammad Sharif, learned counsel for the respondents supported the impugned order.
6. According to him, the agreement was not produced and there was no contract between the appellant/plaintiff and respondent/defendants. It was next argued that, the receipt does not constitute agreement. It was next argued that, even otherwise, receipt was not executed by defendants Nos,2 and 3 the suit on the face of it, cannot be sustained at least against the respondent/defendants Nos,2 and 3. He, however, submits that perhaps the appellant may have a claim against respondent/defendant No,
1. He further contends that since the plaintiff suppressed the agreement, which may have provided for time for performance and since brochures of the project has not been produced, therefore; order impugned is unexceptionable.
7. Heard arguments of learned counsel for the parties and perused the record.
8. We do not subscribe to the reasoning that prevailed upon the learned Single Judge that "the brochure of the project or other terms and condition which are usually agreed between the parties at the time of entering into a contract with builder have not been placed on record. As such the Court is unable to form a view whether the time was not of the essence of the contract". A plaintiff in a suit for specific performance cannot be non-suited just because brochure of a project was not filed or for that matter purported agreement was not placed on record. Instant suit was dismissed on office objection, plaintiff had specifically pleaded that the agreement of sale is evidenced by receipt of payment of installment against specified plot of land and acknowledgement of the defendant to have received full and final payment. Even otherwise all such matter are to be thrashed out at the time of evidence and not at the stage of office objection.
9. Limitation governing specific performance of contract is regulated under Article 113 of the Limitation Act. Limitation to seek specific performance begins to run from the "date fixed for performance or where no such date is fixed, when the plaintiff has notice that performance is refused". It is not a suit, based on conventional written agreement to sell. It is not always necessary that contract is in conventional written form, to constitute a valid agreement enforceable under law, what is necessary, is that there must be an offer and acceptance by and between persons competent to enter into contract, even oral contract, if proved, could be enforced. A receipt, containing an offer and acceptance is as good a contract as any other Form of written contract. Case of the appellant/plaintiff is based on the receipts and acknowledgement executed on behalf of the defendants.
10. Mr. Sharif learned counsel for the defendants fairly conceded that, receipt of instalment and acknowledgement in given circumstances may constitute a contract, provided, it, qualifies, all, the ingredients of a valid contract. We have examined the receipts and acknowledgement in the instant case available at pages 67, 71, 77 and 79 respectively of the file, it appears to have been executed on behalf of the respondents and reads as follows:-- No,015 dated 9-11-1978 Received with thanks from Mrs. Shabeena Nazim wife of Mr. Nazimuddin Siddiqui the sum of Rupees seven thousand two hundred only by cheque drawn on U.B.L. on account of 1st instalment for booking Plot No,CA-15.
11. (Sd.) for Highway Housing Project.
12. Receipt is followed by notice of demand for second instalment dated 10-12-1979, receipt for 2nd instalment and demand of final installment dated 24-2-1982 and receipt and acknowledgement of final payment dated 1-3-1982. All the receipts are in the same wordings as reproduced above. The receipts and acknowledgements contain detail of the property offered, payment made and amount received against the property offered. We are clear in our mind that the receipts and acknowledgement filed in suit prima facie do contain all the necessary ingredients that constitute agreement to sell enforceable under law.
13. Admittedly and prima facie the plaintiff has performed her part of the obligation and had paid the entire sale consideration on 1-3-1982. There is no date mentioned in any of the receipts as to, on what date the respondents/defendants would perform their part of the contract. It is not very uncommon, more particularly in cities like Karachi, where housing and building projects are announced with fanfare, laudable and tall claims. Many people fall prey and become victim of alluring campaign and tempted to acquire plots, houses, flats and shops on easy installment. It is common experience that sponsors of such project seldom live up to tall claims and commitment as to quality of construction, delivery period and even price committed at the time of launch of project. Pendency of large number of cases against builders, developers and sponsors of various projects and scheme bespeak of their conduct, less said better it is, attitude of regulatory agency is equally pathetic and totally indifferent towards plight of public at large.
14. Limitation to seek specific performance of contract is governed under two eventualities are contemplated by Article 113 of the Limitation Act, that sets the limitation rolling in cases of specific performance of contract, one where time is essence of the contract and is fixed secondly where no time is fixed for the performance of the contract. There is no dispute as regard first part of Article 113 of Limitation Act is concerned limitation of three years would commence from the date fixed in the agreement. Instant case is covered by second part, where no date is specified, then limitation of three years would start rolling from the date when the plaintiff had notice of refusal by the vendor.
15. In cases of such nature, limitation is to be liberally construed without causing any injury to the intention of the Legislature, it must be in aid to advance cause of justice and to curb mischief. In present case there is nothing on record to show that appellant/plaintiff had any notice of refusal by the respondents and there seems to be no reasons for the refusal as entire sale consideration, was apparently' received. Case of the appellant is supported by judgment reported as Habibullah Khan v. Muhammad Ishaq PLD 1966 SC 505, 507 and 509 and case of Subanullah v. Maryam 1988 CLC 890.
16. As regards, next objection of Mr. Sharif, that suit as against respondents Nos,2 and 3 is not maintainable, suffice to say that there are specific allegations against defendants Nos,2 and 3 in the plaint. To what extent such liability extend could only be tried and decided after evidence is led.
17. In view of the foregoing discussion, impugned order is set aside appeal is allowed.