' MUNIB AHMAD KHAN, J.---This judgment is being dictated in presence of the learned counsel for the parties in open Court.
1. The contention of the learned counsel for the appellants is that he is assailing the judgment of learned Single Judge dated 24-6-2006 on the ground that there were two agreements one dated 24-5-1995 in respect to plot No, SB-17, Wasim Bagh, Block 13/D-2, Gulshan-eIqbal, Karachi, and the other dated 5-12-1995 in respect to Plots Nos.SB-1 to 16. Learned counsel submits that the remained adhered to both these agreements and since these agreements could not be performed as certain conditions being not fulfilled, therefore, he remained waiting for their terms and conditions to be complied with.
2. Mr. Khalid Anwar, learned counsel for the appellants, pointed out that performance of the agreement dated 5-12-1995 was linked with agreement dated 24-5-1995 and that latter agreement is in respect to Plot No, SB-17 and that was agreed between the parties that final performance of both the agreements are depended on the handing over of vacant and peaceful possession of Plot No, SB-17. He has further submitted that from perusal of Nazir's report dated 3-2- 2003 as well as Order of this Court dated 6-3-2003, it is evident that the plot No, SB-17, has remained in encroachment and that it is not a finding of any other body but that of K.B.C.A itself, in such factual position that plot was not available as it was under the occupation of encroachers. He has further pointed out that Nazir's report and High Court Order specifically speak that not only there was encroachment but RCC construction in double storey shape also existed there. He has further argued that since both the agreements were linked and agreement dated 24-5-1995 was never performed, therefore, performance of agreement dated 5-12-1995 is to be taken side by side and for both these agreements, suit has been filed. He further submits that said Suit bearing No, 1751/1999 was filed on 3-12-1999 by the defendant while the instant suit No,1040/2002 was filed on 14-10-2002 by the plaintiff/appellant which is after three years of the former suit. Learned counsel argued that the respondents cannot be given benefit in respect to the breach, which has been caused by itself. He has cited some authorities on that point i.e, 1983 SCM R 559, PLD 2003 SC 430, 2005 SCM R 544, PLD 1995 SC 314. He has further submitted that the finding of the Honourable Single Judge is contrary to its earlier order dated 6-3-2003 as well as Nazir's report dated 3-2-2003 and that the factual position that was created and came-up on the record of the Court could be solved only after necessary evidence, which was to be recorded by the learned Single Judge of this Court, however, the plaint has been rejected U/O VII, Rule 11, C.P.C. On the ground of limitation. Learned counsel has further relied upon 1995 SCM R 459, 1994 SCM R 826, PLD 1984 SC 289, PLD 2005 SC 511, 2004 CLC 1029. He has submitted that these authorities totally support the instant appeal, as the performance on the part of the respondents was never completed although burden was on the respondent as he has to get vacant possession of plot No, SB-17 and thereafter the transaction was to start by further processing and payment. He submits that huge amount has been paid in both the agreements amounting to Rs,3,48,44,000.
3. On the other hand, Mr. Asim Mansoor Khan, learned counsel for respondent No,1, firstly contended that agreement dated 24-5-1995 was not an agreement between the parties as it has not been signed by the appellants as well as witnesses and same issue was raised before the learned Single Judge but no heed was paid. Secondly, he submitted that even if said agreement is taken into consideration then there is specifically mentioned in its clause-9 that the possession of the plot i.e, SB-17 has been handed over to appellant No,2. He has further submitted that even otherwise both these agreements are independent and cannot be taken together, while the appellants are liable to perform their part of contract in terms of agreement dated 5-12-1995, which is in respect of Plots Nos. SB-1 to 16. Learned counsel has further pointed out the correspondence between the parties in the shape of letters dated 6-12-1996, 12-12-1996, 17-12-1996 and 8-11-1997 and submits that the wording of these letters shows that the appellants were not inclined to perform their part of contract while there was no binding on the respondent No,1 to do any thing in furtherance to the agreement dated 5-12-1995. He has further pointed out that according to the agreement dated 5- 12-1995 first cheque towards balance amount was to be paid on 5-12-1996, second on 5-6-1996 and third on 5-1-1998 but no payment had been made as cheque was bounced. He has further submitted that limitation for filing suit by appellant is to be counted from first bouncing of cheque or at the most when the third cheque was bounced that is from January, 1998 while suit was filed in the year 2002, hence same is specifically time barred. He has further submitted that limitation cannot be counted from the date of institution of Suit No,1751/1999, which was filed for mesne profit by the respondent and not for specific performance of contract or cancellation of documents.
' He has referred Article 113 of the Limitation Act and pointed out that same is in two parts and either of the part bar the suit of the appellants. He has relied upon PLD 2006 Kar. 593, 2000 SCM R 1305, 2001 M LD 1815, 2002 SCM R 338, PLD 2006 Kar. 621, 1985 SCM R 554, 2002 SCM R 361, 2002 M LD 1474, PLD 1966 SC 505. Learned counsel further submitted that without prejudice to his arguments on the above point even if the contract is considered in its present form, it has been frustrated and is not enforceable. On this point he has cited 1994 CLC 733, 1989 CLC 2070, 1988 CLC 299. He has further cited other authorities on the point that from the contract the intention and conduct of the parties is also to be seen and that each and every suit is to be filed within a reasonable time, while the appellants have filed suit after much delay. On this point, he has relied upon AIR 1997 SC 772, AIR 2003 SC 1391 and PLD 2003 SC 518.
4. After hearing the learned counsel, we have perused all the record available and have noted that the agreement dated 5-12-1995 for Plots Nos. SB-1 to 16 has been signed by both the parties while agreement dated 24-5-1995 has only been signed by the Chairman of respondent No,1 namely Waseemuddin on their behalf but it has not been signed on behalf of the purchaser/ appellant. The said contract shows that an amount of Rs,48,44,000 has been paid, which means that the Vendor has acknowledged the sum towards the payment regarding the same plot, while acknowledgement of the possession is in clause-9 of Agreement dated 24-5-1995, which has been disputed and since the agreement has not been signed by the vendee, therefore, learned Single Judge rightly proceeded to inquire about the factual position in respect to the possession by ordering report from the K.B.C.A and appointing Nazir for inspection. We have gone through the Nazir's report as well as order of the learned Single Judge dated 6-3-2003 by which it is crystal clear that the possession did remain with the encroachers, therefore, it can rightly be presumed that there is no probability of handing over of the possession to the Vendee and in such a situation clause-9 of the agreement could not be relied upon. Although the learned counsel for respondent No,1 has denied firstly the execution of the agreement dated 24-5-1995 but the correspondence and Para 6 of the written statement show that an evasive reply was given rather admission on their part that the said agreement was executed but it does not contain the signature of the Vendee.
The appellant is asserting that both these agreements are connected and performance of one depends on the other because possession of plot No,-SB-17 was to be taken first. This factual position has not been given proper weight while strong refusal has come through filing of Suit No,1715/1999 by the respondent, which was countered within three years by the appellant by filing suit, the subject matter of appeal. Although as a rule time is not essence of the contract when it is in respect to immovable property until there are undoubted specification in respect to timings. We have seen that in the contract in hand dated 24-5-1995 there is no mention in respect to forfeiture of amount or of its return at any date notwithstanding the fact that huge amount has been paid.
This fact, too, creates some doubt in respect to certainty in timing, requiring thereby assistance through evidence.
5. The factual position in respect to plot No, SB-17 shows that apparently breach was on the side of the respondent, hence, he cannot be given credit of his 9wn mischief as the party at fault should not be allowed to reap at the cost of others. To controvert this apparent factual position assistance of evidence is required so it is to be seen as to whether both the agreements are dependent upon each other or not, whereas the learned Single Judge has already observed that cause of both the agreements can be tried together with extra Court fee.
6. In such a situation, we find force in this appeal, same is allowed and order dated 24-6-2006 passed by learned Single Judge of this Court is hereby recalled with the direction that the issue of limitation is very much mixed on law and facts. Keeping in view the circumstances narrated above.
It is to be decided after recording of evidence along with other contention of the parties. It is pointed out that we have restrained ourselves from scrutinizing further factual position as it would result in prejudice to either party and in suit. The material suffice for determination of appeal has only been discussed. The authorities cited by the learned counsel for the appellants found relevant while citations of learned counsel for respondent could not pursue us as same were not exactly on the issue involved. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.