' SYED HAMID ALI SHAH, J.---Respondent No,1 through an agreement to sell, dated 15-12-1987 (Exh.P.1.) sold 79 kanal 6 marla of land in Mauza Gopalpur Tehsil Kehror Pacca District Lodhran against a sale consideration of Rs,7,93,000 and out of the said amount, Rs,2,93,000 was paid as earnest money. Remaining sale consideration was agreed to be paid up. To 25-2-1988. The possession was delivered to the vendee (appellant herein). Rana Muhammad Ibrahim, brother of the appellant filed a suit for specific performance against respondent No,1 (Exh.P.3) asserting therein that deceased father of respondent No,1, sold the property measuring 37 kanal 6 marla out of the suit property, to him through an agreement to sell, dated 21-1-1985. The plaintiff Rana Muhammad Ibrahim moved an application for temporary injunction which was dismissed vide order, dated 25-1-1989 (Exh.P.7). The interim relief of injunction was granted to him by the appellate Court. The appellate Court stayed the alienation of land. The injunctive order remained operative for a period from 1988 till 13-10-1992, when the appeal of Rana Muhammad Ibrahim was dismissed.
2. The appellant after vacation of stay, instituted a suit for specific performance of contract (Exh.P.1.). The respondents contested the suit, filed written statement and controverted the assertions of the plaint. Learned trial Court on conclusion of the trial, decreed the assertions of the plaint. Learned trial Court on conclusion of the trial, decreed the suit and granted 45 days' time to the appellant to make the payment of the balance amount of sale consideration i,e, Rs,500,000.
Learned trial Court while deciding. Issue No, 2, observed that the appellant has failed to prove payment of Rs,300,000 on 1-1-1991. Both the parties (Plaintiff as well as defendants) assailed the judgment and decree of learned trial Court in appeal. The appeal of the appellant wherein the finding of learned trial Court on. Issue No,2, was assailed, was dismissed. The appeal of respondent No,1 was allowed vide judgment and decree, dated 22-7-2003 and suit of the appellant was dismissed, hence this appeal.
3. Learned counsel for the appellant contended that learned appellate Court dismissed the suit of the appellant on the question of limitation. Learned Court observed in the impugned judgment that time consumed during the currency of injunctive order, can be excluded only when there is a decree. It was observed that in the absence of decree or stay of execution proceedings, the provisions of section 15 of the Limitation Act were not attracted. Learned Court dismissed the suit being barred by limitation. It is contended that the Court has misinterpreted, the provisions of section 15 of the Limitation Act. He added that language of section 15 is general in character and applicable to the suits as well as decrees. The object of section 15 is to prevent injury to a person who is interdicted by an injunction or order from exercising his right of filing a suit or initiating the execution of decree. While referring to the case of "Inam Naqshban v. Haji Shaikh Ijaz Ahmad" (PLD 1995 SC 314), learned counsel contended that the cause of action to sue for specific performance of the contract, arises only when the vendor is in position to perform his part of the contract effectively. The vendor/respondent Not was not in a position to perform the agreement to sell in it's entirety due to injunctive order, therefore, period of limitation started from the day when the appeal was dismissed and injunctive or restraining the alienation of the suit land was vacated. Learned counsel has referred to the case of "Iqbal Hussain v. Qaimkhani Welfare Society through President"
(2006 M LD 1798) and contended that rights of a person as to a property, cannot be extinguished on technical grounds.
4. Learned counsel for the respondents, on the other hand, has stood behind the impugned judgment and decree and contended that the injunctive relief was obtained by the appellant's brother through filing a frivolous suit. The suit was dismissed with costs and on the basis of frivolous litigation, time cannot be extended specially when the appellant was not a party in that suit. The period fixed for completion of the sale was 25-2-1988 and the suit as per Article 113 of the Limitation Act, 1908 can be brought on or before 24-2-1991, the appellant instituted the suit on 1-11-1992, beyond the prescribed period. The suit is barred by limitation.
5. Heard learned counsel for the parties and record perused.
6. The parties are not at variance with regard to material terms and conditions of the contract i,e, agreement to sell dated 15-12-1987 (Exh.P.1.). Sale consideration of Rs,7,93,000, payment of Rs,2,93,000 as earnest money and the period for completion of till 25-2-1988 are admitted facts.
Exh.P.3 to Exh.P.9 are the documents pertaining to suit which Rana Muhammad Ibrahim instituted, wherein the restraint on the transfer of the part of suit land, through an injunctive order remained operative from 1988 till 13-11-1992. The appellant despite an injunctive order, remained present before Sub-Registrar Kehror Pacca on 25-2-1988 but the vendor/respondents was not in attendance to get the sale completed and sale deed registered. Sub-Registrar marked the presence of the appellant/plaintiff and affirmed the absence of vendor on 25-2-1988. The appellant awaited for termination of lis between the vendor/respondent and Rana Muhammad Ibrahim. Instant suit was filed by the appellant on 10-1-1993 i,e, within three months from the dismissal of appeal of Rana Muhammad Ibrahim. The plaintiff attributed the delay in institution of the suit to the litigation while defendants accuse the laintiff/appellant responsible for frivolous litigation which according to them was collusive and at the behest of the plaintiff to delay completion of sale. Learned First Appellate Court observed in the impugned judgment and decree, that pendency of parallel suit of Rana Muhammad Ibrahim was of no help to appellant so far as the question of limitation is concerned. It was observed in the impugned judgment that the time of continuance of the injunction can be extended from computation of period of limitation, within the contemplation of section 15 of the Limitation Act, when a decree has been passed and its execution has been stayed. Learned Court went further and found that there was no bar on the plaintiff to institute the suit thus the provisions of section 15 of Act, 1908 are not attracted. I am not inclined to the view of First Appellate Court that provisions of section 15 (ibid) presuppose a decree and stay of its execution. Perusal of the provision reflect that term "suit" and "application of the execution of the decree" are consciously employed and then "or" has been used in between the two terms.
Thereafter the words "institution" and "execution" have been employed. The term "institution" has reference to a suit while execution has reference to a decree. The exclusion of period of the continuance of injunction, from computation of prescribed period of limitation, as envisaged in section 15 of the Act, 1908, therefore, cannot be confined to the stay of execution of decree only. It will be equally applicable in A the cases when the suit has been stayed. The period of continuance of stay will be excluded if suit or a decree is stayed. It is immaterial that the stay order was operative between the parties to the suit or between once of the party and a stranger. The reference in this regard can be made to the case of "Syed Ghulam Shah v. Mst. Hawa Bai and 5 others" (1984 CLC 190). It is not necessary that injunctive order is valid one or that it should be proper. As authority for this proposition the cases of "Sitaram Nanasa and others v. Chunnilalsa Bhachandsa Kalal" (AIR 1944 Nagpur 155) and "Krishnachandra Sahani v. Anem Peda Sive Paravatamma" (AIR 1953 Orissa 13) can be referred.
7. The appellant was non-suited on the ground that he has not instituted the suit within three (3) years from the date fixed for the performance of the agreement. It is reflected from the terms of agreement to sell (Exh.P.1) that possession of the property was delivered to the vendee on the execution of the agreement. The possession remained with the vendee/appellant throughout as is evident from order, dated 17-2-1994 (Exh.P.17), passed by learned District Judge, whereby the order for maintenance of status quo was passed. He had paid considerable amount to the vendor as earnest money as far back as in 1987 and balance sale consideration had also been deposited by him li within 45 days from the judgment and decree of the learned trial Court. The plea of part performance of the agreement is available to the appellant. The doctrine of part performance has been developed in the equity Courts in England. By means of enacting section 53-A of Act IV of 1882, the doctrine had become applicable to whole of sub-continent and it has been given statutory recognition. The principle is based upon golden rules of fairness and righteous dealing between the parties. The doctrine of part performance, its scope and applicability came up for consideration before this Court in the case of "Sh. Abdur Rashid v. Mubarik Ali and others" (1994 CLC 1617). His Lordship Mr. Justice Mian Allah Nawaz (as His Lordship then was) examined the enunciation in the cases of "Pucha Lal v. Kunj Behari Lal" (18 CWN 445-1913), "Mehmmod Musa v.
Aghore Kumar Ganguli" (LR 42 1.A ISC = ILR 42 Calcutta 801), "Potler v. Potter" (1 Ves Sen 437, 441 (1750), "Khagenera Nath Chatterji and others v. Sonatan Guha and others" (1.0 Vol. XXXI (1915), 987), Garu and another v. T. Multruramareddi and other" (AIR 1924 Madras 27), wherein it was laid down that the principles of part performance is applied without any reference to the limitation; and that the contract if admitted and carried in parts, its execution will be binding on the parties. Following the dictum laid down in the case of "Mst. Akhtar Begum v. Mian Aziz and others" (1985 SCM R 1617) it was held:--
(i) The doctrine of part performance as developed by equity Courts in England was given statutory recognition by means of enacting section 53-A of the Act by Amending Act, 1929. The doctrine thereon became applicable to whole of sub-continent.
(ii) The Principle of part performance being based upon the golden rules of fairness, justness and righteous dealing between the parties is applicable to even those areas of Punjab where the Transfer of Property Act has not been enforced, on the principle of equity, justness 'and conscience.
(iii)
(a)
(b)
(c)
(d)
(iv) The plea of part performance is available to the plaintiff as well as defendant as a shield to protect and maintain possession gainst the transferor or any person claiming under him.
(v) That the doctrine of part performance as embodied in section 53-A of the Act is neither subject to the limitation as prescribed under Article 113 of Limitation Act, nor is circumscribed by section 54 of the Act or by section 49 of the Registration Act."
8. Applying these principles to the case in hand, it is evident that the appellant obtained possession of- suit property on execution of contract and on payment of earnest money, he appeared before sub-Registrar for registration of sale deed on the given date, he had paid the balance amount of sale consideration. The rights of the appellant are protected under the doctrine of part performance which is not subject to limitation as prescribed under Article 113 of the Limitation Act, 1908. Learned first appellate Court has wrongly non-suited the appellant on the question of Limitation. The findings of the lower appellate Court on the issue of limitation are erroneous, therefore, they are not sustainable and are set aside.
9. For the foregoing, the appeal is hereby accepted. The judgment and decree of learned first appellate Court (impugned herein) is set aside. The judgment and decree of the learned trial Court is affirmed and upheld. Parties are left to bear their own costs.