' JAWWAD S. KHAWAJA, J.---Muhammad Waryam petitioner/ defendant impugns the appellate judgment and decree, dated 16-12-2005, whereby the decree of the learned Trial Court, dated 4-4- 2003 was set aside and a suit filed by the respondent Rahmat Ali seeking specific performance of an oral agreement was decreed.
2. Learned counsel for the petitioner has, firstly, contended that in his plaint, the respondent/plaintiff did not set out any particulars as to when the oral agreement was entered into, for what consideration and in respect of which property. This material omission in the pleadings, according to learned counsel, has been brushed aside by the learned Appellate Court on the short ground that such particulars were not required to be pleaded. Learned counsel states that material facts, setting out details of an agreement required to be enforced specifically, are required by the provisions of Order 6, Rule 2, C.P.C. To be specifically set out in the plaint. On this score, it is argued, the appellate decree is not legally sustainable.
3. Learned counsel for the respondent Rehmat Ali was not in a A position to controvert the above submissions. Furthermore, I have gone through the plaint with the assistance of both learned counsel. Paragraph 3 thereof is relevant wherein it has been alleged that out of the property, owned by the petitioner/defendant, in Khata No,45 in Mauza Badh Rajbana Shamali, he had mutated a portion in favor of the respondent/plaintiff while he agreed to transfer 18 kanals sometime later. It is also averred that after sometime had passed the petitioner had conveyed 2 kanals to the respondent/plaintiff against payment of a sum of Rs,30,000 and delivered possession of 20 kanals to him along with structures thereon.
4. Learned counsel for the respondent could not give any satisfactory explanation as to why only 2 kanals were transferred and not the disputed 18 kanals. He stated that the suit property was not transferred because the land of Mauza Badh Rajbana Shamali had been split into two mauzas. This has also been deposed by the respondent when he appeared as P.W.1. There is, however, nothing on record to show that Mauza Badh Rajbana Shamali had been bifurcated. Moreover, this assertion does not find mention in the plaint either. The only reasonable conclusion, which can be drawn from these circumstances, is that the assertion made by the respondent is not true.
5. Secondly, it is argued that the learned Appellate Court placed reliance on Exh.P-1 to Exh.P-5, which are documents pertaining to some alleged arbitration between the parties. These documents indicate that the respondent had filed an application under sections 14 and 17 of the Arbitration Act for making an award rule of the Court. However, this application was withdrawn by the respondent. Additionally, it is pointed out that there is no arbitration agreement in writing, referred to in the plaint, or even asserted by the respondent and his witnesses when they appeared to testify in Court. The Arbitration Act requires any reference to arbitration to be made by means of an agreement in writing. On this basis, it does appear that the reliance of the learned Appellate Court on some award, which never became rule of the Court, is misconceived.
6. Learned counsel for the respondent/plaintiff was not in a position to refer to any arbitration agreement. It follows that reliance by the learned Appellate Court on the alleged arbitration proceedings, was misconceived. I have also gone through the documents (Exh.P-1 to Exh.P-5).
Exh.P-1 is the application which was filed by the respondent under sections 14 and 17 of the Arbitration Act, but was withdrawn on 14-10-1998, Exh.P-2 is an application which was filed by the respondent for cancellation of an alleged arbitration against a number of respondents named therein. It was disposed of on the basis of a compromise between the petitioner and two persons (other than the respondent). Therespondent and other persons were also arrayed as respondents in the said application, but their names were deleted by the Court. Exh.P-3 and Exh.P-5 are jamabandis while Exh. P-4 is the khasra girdawari from kharif 1999-2000. These documents are not relevant for the purpose of proving the oral agreement alleged by the respondent.
7. Thirdly, learned counsel for the petitioner argued that observations made by the learned Appellate Court to the effect that the petitioner/defendant had made an admission in relation to the award or that he could not deny that the dispute between him and the respondent was referred to one Muhammad Arif Khan, are a result of misreading of the testimony of the petitioner, who appeared as D.W.1. Learned counsel states that no such admission was made by the petitioner.
8. Learned counsel for the respondent has not been able to show any admission on the part of the petitioner/defendant. On the other hand, it is evident that Muhammad Arif Khan did not himself undertake any arbitration between the parties. It was one Allah Ditta who appears to have dealt with the matter. His decision, however, has no significance at all because neither party claims that he was agreed upon as an arbitrator. Faced with this situation, learned counsel for the respondent argued that he would not rely on the arbitration proceedings but would instead, base his case on the evidence on record to prove the oral agreement. This evidence has been considered by me. As noted above, the stance of the respondent/plaintiff as to the reasons why the disputed land was not transferred has not been proved. In fact, on the contrary, the circumstances, noted above, show that there was no valid basis to explain the absence of a mutation or sale-deed in favor of the respondent.
9. Lastly, I find that the suit of the respondent was time-barred.When the respondent himself appeared as P. W.1 he deposed that the oral agreement was entered into in 1994. Muhammad Nawaz (P.W.3), however stated that the bargain was struck in 1992. In either event, the agreement had to be enforced within three years. The suit for specific performance, however, was filed by the respondent on 28-10-1998. Learned counsel for the respondent relied on the order (Exh.P-1), dated 14-10-1998 passed by the learned Civil Court allowing the respondent to withdraw his application under sections 14 and 17 of the Arbitration Act. The said application was withdrawn on the basis of a statement made by the respondent to the effect that he would file a suit for specific performance.
The learned Civil Court allowed the withdrawal of the suit while permitting the respondent to file a suit for specific performance.
10. Learned counsel for the petitioner, firstly, pointed out that no statement of the petitioner or his counsel was recorded to showacceptance of the statement made by the respondent. Secondly, he rightly argued that the suit for specific performance had already become time-barred on 14-10- 1998.
11. Unfortunately, the learned Appellate Court has not taken the above circumstances into account while setting aside the decree of the learned Trial Court and decreeing the suit of the respondent/plaintiff. In the circumstances, the impugned appellate decree, dated 16-12-2005 is set aside as it is based on illegality and material irregularity in the exercise of the Court's jurisdiction. As a consequence, decree of the learned Trial Court, dated 4-4-2003 stands restored.