' SYED ZAHID HUSSAIN, J.---Suit for specific performance instituted by Fakhar-ud-Din deceased, the predecessor-in-interest of the respondents, was decreed by the learned trial Court on 29-6-1980 where against the appeal preferred by the appellant was dismissed by the learned Additional District Judge, Lahore on 24-9-2001. This is second appeal qua the same.
2. Property known as Loha Market, Landa Bazar Lahore was owned by. Maharaja of Jammu and Kashmir, which was taken over by the Government of Pakistan, the appellant herein. Shops Nos.229 and 230 were in occupation of late Fakhar-ud-Din. Pursuant to a decision by the appellant to sell the shops in the said market, the same were offered to the occupants at the rate of Rs,9,000 per Marla. The total consideration thus payable by late Fakhar-ud-Din was Rs,50,600 which he was called upon to pay as per terms and conditions conveyed to him through letter dated 1-9-1967 (Exh.P.4) and agreement was to be signed by 7-9-1967. No such agreement is said to have been executed between the parties. Fakhar-ud-Din deceased long afterwards i,e. On 2-9-1974 instituted a suit for specific performance of agreement (without specifying particulars as to date of any alleged agreement). The suit was contested by filing written statement denying any such subsisting agreement or accrual of cause of action in favour of the plaintiff.
3. The learned trial Court framed the under mentioned issues.
ISSUES:
(1) Whether the plaint is liable to be rejected under Order VII, rule 11, C.P.C.? OPD
(2) Whether the suit property viz. Shops Nos.229 and 230 Landa Bazar Lahore was taken on lease by the plaintiff from the defendant about 27 years ago? OPP
(3) Whether the defendant is bound to transfer and sell the property in favour of the plaintiff in accordance with the agreement? OPP
(4) Whether the plaintiff has all along been and is still ready to perform his part of the agreement?
OPP
(5) Whether the plaintiff is entitled to the decree of Specific Performance of sale of this property?
OPP
(6) Relief.
' After that the case was ripe, two applications, one for amendment in the written statement and the other for framing of additional issues, were filed by the appellant/defendant. Both these applications were dismissed by the trial Court on 25-6-1980 observing that the application had been made in order to cause delay in deciding the suit and that the question of limitation will be duly adverted to at the time of decision of the suit. The suit was eventually decreed on 29-6-1980, which judgment was maintained by the first appellant Court.
4. The learned counsel for the appellant has strenuously contended that the suit brought in the year 1974 was time barred and it was duty of the Court itself under section 3 of the Limitation Act, 1908 to have taken notice of the same. It is contended that although no such plea was taken in the written statement yet through application for amendment in the written statement this aspect was highlighted by the appellant but the said application was dismissed on erroneous view of the matter. According to him there was no specific assertion made in paragraph No,7 of the plaint as to the accrual of cause of action from which the period of limitation could be reckoned. He has made reference to Dilmir v. Ghulam Muhammad PLD 2002 SC 403, Province of the Punjab through Member Board of Revenue, (Residual Properties), Lahore and others v. Muhammad Hessian through Legal Heirs and others PLD 1993 SC 147, Fazal-ur-Rehman v Ahmed Saeed Mughal and others 2004 SCMR 436, Muhammad Akram alias Akan v Mst. Pathani through Legal Heirs and 5 others 2001 MLD 1037 and Mst. Ghulam Bibi and others v. Sarsa. Khan and others PLD 1985 SC 345.
On the other hand the learned counsel for the respondents has endeavoured to support the concurrent judgments of the Courts below and contends that since the question of limitation was not raised in the written statement, it had neither any relevance nor it could be re-agitated by the appellant and that non-framing of issue had no effect whatsoever. He has made reference to Miran alias Mir Muhammad v. Ghulam Hussain PLD 1985 Karachi 674, Eada Khan v. Mst. Ghanwar and others 2004 SCMR 1524 and Bashir Ahmed and others v. Akbar Ali and others 2005 MLD 283.
5. On consideration of the respective contentions of the learned counsel for the parties, it may be observed that it is undoubtedly the duty of the Court to advert to the question of limitation as has repeatedly been laid down by the superior Courts. Reference in this context may be made to Province of the Punjab through Member Board of Revenue (Residual Properties), Lahore and others v. Muhammad Hussain through Legal Heirs and others (supra) and Dilmir v. Ghulam Muhammad (supra). In the later precedent their lordships had remanded the case by accepting the appeal for decision of question of limitation. In view of such settled position of law as to the duty of the Court in regard to the question of limitation it was incumbent upon the learned trial Court in this case to have framed an issue particularly when an application was moved before it for seeking amendment in the written statement to this effect. Mere observation that the matter will be considered at the time of decision of the suit was not enough to meet the ends of justice. Such an amendment in the written statement was fully justified in order to effectually determine the controversy between the parties and delay itself in making the application could not stand in the way of the Court to permit such amendment. The Court could compensate the other side by awarding, reasonable costs, as was the course adopted by the Hon'ble Supreme Court of Pakistan in Mst. Ghulam Bibi and others v. Sarsa Khan and others (supra). It may be observed that such an amendment would have enabled the Court to settle the real controversy particularly when the nature and character of the suit would have remained unaltered. It may be observed that though order dated 25-6-1980 whereby amendment in the written statement was declined by the trial Court was not assailed any further through revision etc, being not appealable order yet the appellate Court is not bereft of power to examine the correctness of the same while hearing appeal against final judgment/decree. In Mst. Khurshid Begum and others v. Ahmad Bakhsh and others PLD 1985 SC 405, though the correctness of the finding on a preliminary issue was not challenged in appeal or revision, it was observed that "when an appeal is filed against the ultimate decision the whole case including all the interim orders passed in the case get reopened and can be challenged before the Court of appeal hearing the appeal filed against the final decision whereby the suit was ultimately disposed of." Another precedent on the point is Ch. Abdul Rashid v.
Ch. Muhammad Tufail and others PLD 1992 SC 180, which was a matter regarding amendment in the written statement. In that case an application had been dismissed by the trial Court during the pendency of the suit. When ultimately the matter came before the Supreme Court against the final judgment and decree it was held that "what is peculiar to the case is that the two factual issues which the appellant wanted to raise by getting the written statement amended have nevertheless been decided by both the Courts without framing any issue, without inviting evidence and without going to the material facts of the case. If at all, a decision had to be given on the controverted questions of fact, then the evidence should have been invited and considered as if these were not legal issues. They had to be proved or disproved in accordance with law. The mere fact that he had moved 12 years after the institution of the suit for amendment is in itself no ground for rejecting the amendment." Considering that a "great prejudice" had been done by refusing the amendment and by not framing an issue, the appeal was accepted by their Lordships and the case was remanded to the trial Court permitting amendment of the written statement for re-decision of the suit in accordance with law.
In such context when the amendment in the written statement was declined on erroneous premises and issue of limitation was not framed by the trial Court, general observations made by the two Courts below in their judgments are hardly of any legal efficacy. The judgments are thus unsustainable in law. By setting aside the same I would permit the appellant/defendant to carry out amendment in the written statement and allow his prayer subject to costs of Rs,3,000. The case is remanded to the trial Court with the direction that after amendment in the written statement proper issues will be frame and both parties will be afforded reasonable and fair opportunity of producing evidence, whereafter the suit will be decided in accordance with law. The costs mentioned above will be paid by the appellant before the learned District Judge, Lahore on 12-2- 2007 when the parties will cause representation before the learned District Judge, Lahore who will entrust the suit file to the trial Court for further proceedings in the matter. Office to ensure that the record is sent back before the above mentioned date.
The appeal is accepted in the above terms with no order as to costs.