1. ' MUHAMMAD ALI MAZHAR, J.---This suit is for specific performance of contract, mesne profit and recovery of damages with the following prayers:--
(a) Pass judgment and decree in favour of plaintiffs and against the defendants directing them to hand over the peaceful, vacant possession of office bearing No,B/2, second floor, Clifton Broadway project situated on plot No,13 Ft-4 Main Clifton Road/Bath Island Road, Karachi immediately to the plaintiffs.
(b) Grant the damages of Rs,40,00,000 on account of mental stress, blocking of his funds since 1997 which is sustained by the plaintiffs due to the delay in handing over the office in question by the defendants.
(c) Restraint, prohibit and stop the defendant, his agents representatives, attorneys or anyone else claiming or acting for him and or in his behalf from handing over the possession to anyone else and/or to creating any third party interest or in any way transferring, to any other person the suit property.
(d) To direct the Registrar to register the above property/office in question in the names of the plaintiffs.
(e) Cost of the suit may please be granted.
(f) Any other relief(s) that this Hon'ble Court may deem fit and proper under the circumstances of the case.
2. ' During the pendency of suit the plaintiffs have filed an application under section 151 CPC (CMA No,8171/09) in which it has been prayed that the defendant be directed to hand over the possession of office bearing No,B/2, IInd Floor, constructed at plot No,13, FT-4, Main Clifton Road, Bath Island, Karachi with restraining order against defendant not to attempt any interference of access. In the same application it has been further stated that the plaintiffs are willing to deposit the alleged outstanding amount which may be invested in a profit bearing scheme by the Nazir till the disposal of the suit. Along with the application, the plaintiffs have also attached a receipt dated 26-4-1995 amounting to Rs,38,000 and a certificate issued by Saleem Rajput and Sons Private Ltd., Builders and Developers dated 20-3-1995 in which the Builder has confirmed that Mrs. Tahira Sultana has been allotted office B-2 in the project namely "Clifton Broadway" with a sale price of Rs,1,047,30 and she has paid Rs,10,09,000.
3. ' Notice was issued to the defendant, thereafter, Secretary of the defendant No,2 filed a counter affidavit in which claim of the plaintiffs was denied and plea of limitation was also taken.
4. Heard the learned counsel for the parities. Learned counsel for the plaintiffs in support of his application has argued that this is a suit for specific performance, therefore, during the pendency of the suit and even before recording the evidence this Court has ample jurisdiction to pass mandatory injunction with the direction to defendant to hand over the possession of the subject office without waiting the final outcome of the suit. However, he has failed to satisfy this Court under which provision A of law before recording evidence and decision of the plaintiff's claim it is possible for this Court to this Court to pass mandatory injunction in the form of final relief. If in the suit for Specific Performance such relief is granted before final decision, it will amount to a final decision at interlocutory stage and nothing will be left to decide by this Court after recording evidence and trial. Learned counsel for the defendant has also opposed the application on similar lines. An order of mandatory injunction in the ad interim form is very rarely issued by the Court and the same is only done when there is imminent great danger to life or property can only for the purpose of restoring or maintaining a status quo. Such an order is hardly issued B for creating a new state of things unlike those that were prevalent at the time of institution of the suit. Section 55 of the Specific Relief Act provides discretionary powers to the Court for granting injunction which should the Court is capable of enforcing in .Order to prevent breach of obligation and when it is necessary to compel the performance of certain acts. The obligation mentioned under section 55 of the Specific Relief Act refers to legal obligation and not a moral obligation. Although the power of Court to pass a mandatory injunction in appropriate cases cannot be doubted but such orders are rare and granted to restore the status quo and not to create a new situation which may irretrievable or to establish a new state of things different from those which was existed at the time when relief was sought. Where the breach of obligation by the defendant is so patent that it floats on the B surface of the record causing immediate, pressing and irreparable injury to the plaintiffs, the Court may while exercising its powers under section 94. Read with section 151, C.P.C. Grant status quo ante. In case of breach of contract which agreement is not enforceable under the law, the Court cannot and should not exercise its judicial discretion to create a situation which is ceased to exist when the lis is commenced. The leading principle which ought to be guide of Court and to limit its discretion in granting injunctions is that only such restrain should be imposed as may suffice to keep things in status quo during the pendency of the litigation, therefore, at this stage, the allowance of this application will amount to decree the suit without evidence and trial which is not C possible, the application is not maintainable and dismissed according.
5. During the course of arguments, the defendant's counsel also took a plea that the suit is time barred. In order to verify this plea I have examined the contents of the plaint. In Para (14) of the plaint, the plaintiffs have stated that cause of action arose to them on 9-5-1993, when the defendant agreed to sell the office and when all the payments were made to the defendant and finally on October 18, 1997 when the defendant through their advocate refused to hand over the possession of the office to the plaintiffs. It is clear from the gist a cause of action mentioned by the plaintiffs themselves that the performance of alleged contract was refused in the month of October, 1997, therefore, this was D the actual date of accrual of cause of action while the suit was filed in the year 2004. According to Article 113 of the Limitation Act, it is clear that for the purpose of the specific performance of the contract three years limitation is provided from the date fixed for the performance or, if no such date is fixed, when the plaintiffs has noticed that the performance is refused. Section 3 of the Limitation Act provides that every suit instituted, appeal preferred and application made after a period of limitation prescribed thereof shall be dismissed although limitation has not been set up as defence. It appears to proceed on the assumption that it is in the public interest that actions must be brought within the statutory time limit and the words "although limitation has not been set up as defence" provides a clear indication of the legislative intent that it has not left to the parties to take or not take the objections E that the suit is outside the time limit fixed by law. If from the statement in the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected under Order VII rule 11 CPC or dismissed under section 3 of the Limitation Act. The law, therefore, does not leave the matter of limitation to the pleadings of the party. It imposes a duty in this regard upon the Court itself, The Court is obliged to independently advert to the question of limitation and determine the same and to take cognizance of delay without limitation having been set up as defence by any party. There seems to be unanimity of the views among the superior Courts that because of mandatory nature of section 3 of the E Limitation Act, the Court before which a suit is instituted is obliged to dismiss the same. There also seems to be consensus if action, omission and negligence is not filing/legal proceeding within the prescribed limitation period creates a right in favour of the opposite party. So in the present situation, the suit can be dismissed under section 3 of the Limitation Act and may also be rejected under Order VII, F rule 11, C.P.C. Since only the aforesaid CMA was fixed in the Court, therefore, it is in the interest of justice that learned counsel for the plaintiffs may be given an ample and fair opportunity of hearing so that he may satisfy the Court whether the suit was filed within time or it is barred by limitation. Besides, prayer of specific performance and possession the plaintiffs have also claimed damages in the suit. If G separate relief's are claimed, each relief is to be governed by its own period prescribed under the Limitation Act. According to the judgment reported in PLD 1985 SC 153 (Hakim Muhammad Buta and another v. Habib Muhammad and others). It has been held that:-- "Order VII rule 11 section 3 mandatory in nature. Suit instituted after period of limitation subject to provisions of sections 4 and 25, Limitation Act, 1908, to be dismissed although limitation had not been set up as a defence. Statement in plaint showing suit to be barred by limitation. Suit liable to be rejected also under Order VII rule 11, C.P.C. Matter of limitation not left to pleadings of parties but a duty was imposed on Court itself in this regard. Limitation being a matter of statute and provisions being mandatory, same could not be waived and even if waived could be taken up by party waiving it and by Court itself. Defendant, however, in exceptional cases, was debarred from arising plea of limitation on general principle of estoppel arising from his conduct particularly if plea belatedly taken involved an inquiry on facts."
6. ' In another judgment, reported in 1999 SCM R 1060 (Haji Rehmadil v. The Province of Balouchistan and another). It has been held that:- "The Civil Court, in passing the decree it did, bypassed the question of limitation illegally and erroneously, thus, travelling beyond jurisdiction. It is not for the defendant in a suit, as wrongly held, to show that the suit is barred by time but for the plaintiff to establish that he is in time, not to mention the obligation of the Court to independently advert to limitation, as enjoined by section 3 of the Limitation Act, 1908."
7. In order to provide the learned counsel an opportunity to satisfy the Court, it is expedient and appropriate to frame preliminary issues, Order (XIV) rule (1) CPC speaks about two kinds of issues:
(a) Issue of facts, ' Rule (2) further provides that where issues both for law and facts arise in the same suit, and the Court is of the opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and for that purpose may, if it thinks fit, postpone the settlements of the issues of fact only after the issues of law have been determined. Issue of law going to the root I H of the case should be decided in the first instance specially when no evidence is needed for decision of such issue. If a suit can be decided on the decision of legal issues, then the trial of legal issues would be segregated from the trial of issues on merits and such decision in no manner will amount to piecemeal decision. For the foregoing reason it is appropriate that following issues may be framed as issues of law:
(1) Whether the suit is barred by Article 113 of the Limitation Act?
(2) Whether the relief of damages claimed in the suit is also time barred?
(3) What should be the order?
8. ' Since I have partly heard the learned counsel for the plaintiffs and defendant on the point of limitation also, office is directed to fix this matter for arguments on 18-5-2010 at 12:30 with intimation notice to both the learned counsel for the parties. Both the learned counsel are directed to address the Court on the issues of law for further decision in the matter.