ALI SAIN DINO METLO, J.--- By this revision the applicants have challenged the judgment, dated 28-5-1988 of the 1st Additional District Judge, Shikarpur, allowing respondents' appeal bearing Civil Appeal No,2 of 1987 re: Jan Muhammad v. Mst. Fatima daughter of Soofi Muhammad Tassadaq Hussain Khan against the judgment and decree, dated 24-12-1986 of the Joint Civil Judge, Shikarpur dismissing his (Jan Muhammad's) Suit bearing No,3 of 1982, renumbered as C.S. No,42 of 1985, re: Jan Muhammad v. Soofi Muhammad Tassadaq Hussain, for specific performance of contract and permanent injunction.
2. Briefly, the facts are that on 15-9-1971, Soofi Muhammad Tassadaq Hussain Khan(hereinafter referred to as "the seller") by a written agreement agreed to sell a piece of agricultural land, bearing Survey No,54, measuring eight acres and thirty-six Ghuntas, situated in Deh Karan, Taluka Shikarpur, to respondents' predecessor-in-interest Jan Muhammad Brohi (hereinafter referred to as "the purchaser") at the rate of Rs,900 per acre, total amounting to Rs,8,010, out of which Rs,3,500 were paid to him at the time of the execution of the agreement and Rs,500, by the end of the year as per the terms of the agreement. The balance, amounting to Rs,4,010, was agreed to be paid before the Sub-Registrar at the time of the registration of sale-deed. The agreement further stipulated that the seller would transfer clear title to the purchaser by 15-12-1972, after making arrangement for the sale of his remaining land in the Deh, inasmuch as, according to the Land Reforms Regulations, he could sell his entire land in the Deh, being less than the subsistence holding, at the time and not in piecemeals. The possession of the land was given to the purchaser.
3. In the month of March, 1982, the purchaser filed. the above mentioned suit for the specific performance of contract and permanent injunction alleging that the seller, after delaying the execution and registration of sale-deed, on the ground of his inability to make arrangement of sale of his remaining land, and keeping him on hopes and promises, finally refused, in February, 1982, to execute the sale-deed. However, in the meantime, he contended that, with a view to ensure payment of the balance consideration and execution and registration of the sale-deed, the balance amount of consideration was deposited with a middle man, namely, Haji Attaullah Khan Durrani a commission agent in the Vegetable Market, Shikarpur. According to him, the seller had taken away Rs,1,000 from Haji Attaullah Khan Durrani also.
4. In his written statement, the seller, while admitting to have executed the agreement, to have received the amount of Rs,3,500 at the time of its execution and Rs,500, subsequently, denied to have received Rs,1,000 from Haji Attaullah Khan Durrani, and pleaded for the dismissal of suit, mainly on the grounds that it was time-barred and that the balance consideration was not paid in time as per the- terms of the agreement.
5. On the pleading of the parties, following issues were framed by the trial Court:--
(1) Whether suit is not maintainable at law?
(2) Whether the suit is time-barred?
(3) Whether defendant has sold out the suit-land to the plaintiff by an agreement, dated 15-9-1971, if yes, whether the defendant paid sale consideration?
(4) Whether possession was delivered to plaintiff?
(5) Whether defendant has failed to perform the part of his contract?
(6) What should the decree be?
(7) Relief.
6. The purchaser examined himself and four other witnesses namely, Haji Attaullah Khan Durrani, Arbab, Gul Muhammad and Abdul Wahab; while from the side of the seller only one witness, namely, applicant No,2, Hameedullah, attorney of the seller's sister and the only legal representative, was examined. The trial Court, while holding that the seller had agreed to sell the land to the purchaser and had received the part payments total amounting to Rs,4,000 i,e, Rs,3,500 at the time of the execution of the agreement and Rs,500 subsequently, in the end of the year, and that the possession of the land was also with the purchaser under the agreement, dismissed the suit only on the ground that it was time-barred.
7. On appeal, filed by the purchaser, the first appellate Court i,e, the 1st Additional District Judge, Shikarpur, vide its judgment dated 28-5-1988, while confirming the findings of the trial Court regarding the execution of agreement, receipt of consideration of Rs,4,000 by the seller and purchaser's possession over the land, reversed its finding on the question of limitation and allowed the appeal by holding that the suit was not time-barred.
8. There is no cavil with the proposition of law, advanced by the learned counsel for the applicants and expounded in the decisions reported in PLD 2000 SC 839 and PLD 2001 SC 67, that in the cases of conflicting findings, the revisional Court can reappraise the evidence. Indeed, reappraisal of evidence can be undertaken even in the cases of concurrent findings, if the same are shown to have resulted from non-reading or misreading of evidence. However, in the present case, the learned counsel could not point out any instance of non-reading or misreading of evidence by the appellate Court or any other violation of any principle of appreciation of evidence by it. The concurrent findings of the two Courts regarding execution 'of the agreement receipt of consideration by the seller and possession of the land with the purchaser, are unexceptionable, inasmuch as, the seller, in his written statement, admitted the execution of agreement and receipt of Rs,4,000 and the applicant No,2, namely, Hameedullah, who is the only witness examined A from the side of the applicants, admitted in his examination-in-chief, that the purchaser was in possession of the land since 15-9-1971 i,e, from the date of the execution of the agreement. The finding of the appellate Court regarding the seller's receiving Rs,1,000 from Haji Attaullah Khan Durrani is also based upon credible evidence and is not open to any exception inasmuch as, depositions of the purchaser and his witness Haji Attaullah Khan Durrani in that regard have gone unchallenged. It might be that the seller could not enter the witness-box to rebut the evidence owing to his death, but at the same time it is important to note that their evidence on that point was not even challenged in their cross-examination by the seller's Advocate Haji Attaullah Khan Durrani was caste-fellow of the seller and there is nothing to show that he had any affiliation with the purchaser. There seems no reason for him to depose falsely against the seller and that too in respect of a small) amount.
9. According to Article 113 of the First Schedule of the Limitation Act, 1908, suit for specific performance of a contract can be filed within three years of 'the date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused'. No doubt, in the present case, the date for the performance was fixed as 15-12-1972 but it was conditional on the seller's making arrangement for the sale of his remaining land in the Deh. Admittedly, the seller could not alienate the land to the purchaser on the fixed date without making arrangement for the sale of his remaining land. It is not the case of the seller that he had made the arrangement. On the contrary, the contention of the purchaser that the seller had failed to make the arrangement stands admitted by the applicant No,2, who, in his cross-examination, recorded on 9-12-1986, stated that the other land of the seller was in dispute with one Qasim Bhayo which was settled only recently. Thus, it is clear that the seller was incapable to perform the contract. Therefore, the date fixed for its performance becomes irrelevant and cannot be treated as the starting point of the period of Limitation. In the cases, like the present one, where the contract is incapable of performance on the date fixed, the period of limitation will be governed by second and not first part of Article 113 and the period of limitation will start 'when the plaintiff has notice that performance is refused'. In the case of Muhammad Bashir v. Hakim Ali reported in 2000 YLR 368, the Lahore High Court has also taken the same view and I have taken benefit of it. The contention of the seller that he had notice of refusal of performance just before the filing of the suit has gone unrebutted. It is not the case of the seller that performance was refused at any earlier point of time.
As a matter of fact, no notice about the performance of contract or its refusal was given to the purchaser and the land was admittedly all along in his possession. In such circumstances, the finding of the appellate Court that the suit was not time-barred is quite correct in law as well as on facts and is, therefore, unexceptionable.
10. The argument of the 'learned counsel for the applicant that, owing to the time being the essence of the contract and the delay in filing the suit, the purchaser was not entitled to the discretionary relief of specific performance is also misconceived and his reliance on the precedents reported in 2004 SCMR 436 and PLD 1988 Lah. 717 is misplaced, because time was not the essence of the contract and the delay was due to the incapability of the seller to perform his part of the contract. Major part of the consideration had been paid to the seller and the land was in the possession of the purchaser, who was always ready to pay the balance and the date fixed for the performance of contract was not final in the sense that it was subject to the seller's ability to perform the contract on making arrangement for the sale of his remaining land, which he had not been able to make.
11. The argument of the' learned counsel that the appellate Court while allowing the appeal did not specify the relief granted by it and therefore, the judgment being, unspecific, was liable to be set aside, is also without any weight. The only logical inference which can be drawn from the order of allowing the appeal will be that the suit, which was dismissed by the trial Court, was decreed by the appellate Court. However, it may be observed here that the appellate Court ought to have D decreed it conditionally on payment of the balance consideration. Therefore, the judgment of the appellate Court is modified to the extent that the suit is decreed subject to respondents' depositing the balance consideration of Rs,3,010 in the trial Court within two months of the announcement of this judgment. In case the amount is not deposited within the aforesaid period, the suit shall stand dismissed. With such modification in the impugned judgment, the revision is dismissed.