1. MUHAMMAD ALI MAZHAR, J. --- This C.M.A. No. 3300/2008 has been filed by the defendant No. 2 under Order VII, Rule 11, C.P.C. In which the defendant No. 2 has stated that the subject property is situated in the Province of Punjab, therefore under Section 16, C.P.C., this Court has no territorial jurisdiction to try the suit. The plaint is liable to be rejected with cost as it has failed to disclose any cause of action and that no valid and concluded agreement/contract was ever executed or concluded between the plaintiff and defendant No. 1. The cause of action allegedly accrued to the plaintiff on 27.9.1981 as per annexure P-3, which contained stipulation that "in case of failure to pay the balance sale consideration of Rs. 22,50,000/- within a period of 4% months from the date of the said letter, the balance sale consideration shall be forfeited", thus cause of action started to run from 27.9.1981 while the suit was filed in the month of August 2005, which is barred by Article 113 of the Limitation Act. The period of limitation for filing suit for Specific Performance commenced from the month of September, 1981 and expired in the month of September, 1984 while the so-called legal disability suffered by plaintiff commenced from the month of November 1988, therefore after expiry of limitation period, plaintiff is not entitled for the benefit of the provisions of the Limitation Act. The so-called illness was never agitated in the plaint and even if it is assumed that the plaintiff was suffering from alleged illness, the same does not entitle her to claim legal disability as according to Section 6 of the Limitation Act, the alleged illness does not constitute "a legal disability". The plaintiff is not entitled for the relief of damages against the defendant No. 2 as no loss was ever occurred to the plaintiff for the acts and deeds of the defendant No. 2 and that nothing has been alleged in the entire plaint against the said defendant. The suit is also barred by Articles 27 and 36 of the Limitation Act. The plaintiff has also not approached this Court with clean hands and her bona fides are highly doubtful. She has concealed the material facts from this Court and has raised false and incorrect statement in the plaint to justify her false, baseless and time- barred claim. Finally it was prayed that the suit be dismissed .Which is also bad for multifariousness of cause of action. The plaintiff has sought such reliefs, which are mutually destructive and the main relief sought by the plaintiff is for the specific performance of an agreement, which is hopelessly time-barred.
2. Counter-affidavit to the above application was filed by the plaintiff wherein she stated that the application under Order VII, Rule 11, C.P.C. Is not maintainable and denied all the adverse averments made therein. The contents of the plaint disclose sufficient cause of action and the suit is very much competent and maintainable under the law. She paid/deposited an amount of Rs.2,25,000/- to the defendant No. 1 pursuant to an advertisement got published by the defendant No. 1 in Daily Dawn, Karachi for the sale of suit plot in the year 1981 but she was kept on waiting for the formal draft of the sale agreement and the same could not be executed as the property was not free from dispute for the reasons that the shareholders had got injunction order from the Court at Islamabad. It was further stated that the plaintiff had suffered from complete insanity since April 1982 and has regained sanity in the year in 2004, therefore her case squarely falls within the purview and ambit of Section 6 of the Limitation Act. The period of three years for filing the suit will start from 2004. Since the earnest money was paid at Karachi, hence this Court has territorial jurisdiction to proceed the matter. A sum of Rs. 2,25,000/- was paid by her in 1981 to the defendant No. 1 which is still lying with them as the same has been retained without signing any formal agreement, understanding, reason and/or any justification and the same is being utilized by the defendant No. 1. The suit is well within time therefore, at this stage' without recording evidence, the application under Order VII, Rule 11, C.P.C. Is incompetent, misleading and not maintainable which may be dismissed.
3. The plaintiff has filed the present Suit for specific performance, cancellation of documents, declaration, permanent injunction and damages with the following prayers:---
(a) Direct the defendant No. 1 to execute the sale deed in respect of an Industrial plot of land measuring nearly 42 Kanals, with frontage on Peshawar Road, close to Golra Chowk, next to WAPDA Grid Station near Milepost 8, on main, Rawalpindi, Peshawar Road, or in the alternative direct the Nazir of this Hobble Court to execute the aforesaid Sale Deed and pass a judgment and Decree to this effect.
(b) Declare that property, an Industrial plot of land, measuring nearly 42 Kanals, with frontage on Peshawar Road, close to GoIra Chowk., next to WAPDA Grid Station near Milepost 8, Rawalpindi is the exclusive property of the plaintiff who has purchased the same from the defendant No. 1 who has received Rs. 2,45,000/- as part payment of the sale consideration of the said property at Karachi in the year 1981, and also directed the plaintiff to deposit the balance sale consideration amounting to Rs. 22,50,000/- with the Nazir of this Hobble Court and pass judgment and decree to this effect.
(c) Award damages to the tune of Rs. 60,000,000/- to the plaintiff.
(d) Declare any instrument of transfer/sale deed executed by the defendant No. 1 in favour of defendant No. 2 in respect of Suit property as cancelled and delivered-up and direct the defendants to deliver up the same in Court.
(e) Grant permanent injunction restraining the defendants or anyone of them, or anyone working through or under them, from transferring the aforesaid property i.e. An Industrial plot of land measuring nearly 42 Kanals, with frontage on Peshawar Road, close to Golra Chowk., next to WAPDA Grid Station near Milepost 8, Rawalpindi in anyone's name and pass a judgment and decree to this effect.
(f) Pronounce judgment that the said property has been sold by the defendant No. 1 to the plaintiff and the plaintiff is the only person who is entitled to have the same transferred in his or her nominee's name, and pass judgment and decree to this effect.
(g) Award cost of the Suit.
4. The defendant No. 2 in his application has focused two grounds. The initial ground is related to the non-availability territorial jurisdiction to this Court and secondly the Suit 2 barred by Article 113 of the Limitation Act. So far as the first ground regarding the territorial jurisdiction of this Court is concerned, it has to be seen whether the present Suit is hit by Section 16, C.P.C. Or not, however the next ground of limitation in this particular case is a mixed question of law and facts as the plaintiff has claimed that immediately upon accrual of cause of action to her she was incapacitated and gone into insanity and after recovering from her ailment, she filed the Suit, therefore her Suit is within time and she is entitled to claim the benefit of Section 6 of the Limitation Act. The object of this Section is to make special concession in favour of minors and the persons labouring disability.
5. Section 6 of Limitation Act relates to period of limitation for filing Suits with respect to persons suffering under a legal disability. It is clear from this Section that minority or lunacy would not prevent limitation from running as against the minor or lunatic. It simply gives to the minor or lunatic an extended period for filing Suit or application. The burden of proving that the Suit is within time rests heavily upon the plaintiff which means that she must affirmatively prove that the cause of action arose within the prescribed period of limitation. Since in this present Suit, the plaintiff has clearly mentioned the ground of insanity, therefore for the purpose of rejection of plaint only the contents of plaint should be looked into. In paragraph 13, the plaintiff has clearly mentioned that she suffered serious attack of insanity and completely lost her balance of mind since April, 1982 and she further added in paragraph 14 that due to reason of suffering from legal disability, the plaintiff could not due the Suit for Specific Performance promptly and after regaining sanity upon receiving prolonged treatment in the year 2004, she filed the Suit for protection of her rights in respect of the Suit land. The plaintiff has relied upon her medical certificate dated 1.10.2004, which is attached as Annexure "M" to the plaint. This Certificate was issued by Dr. Abdul Samad in which he has certified that the plaintiff was under his treatment from October 1981 to. 2004 and she was brought to him in an insane condition. Unless specific issue is framed and evidence is recorded, this cannot be adjudicated at this stage whether the plaintiff was entitled to avail concession of Section 6 of the Limitation Act or not. So on the ground of limitation, I am not convinced to reject the plaint. However, the next point is crucial which is related to the territorial jurisdiction of this Court. From the contents of the plaint as well as its nomenclature, it is clear that the plaintiff has filed the Suit for Specific Performance with other ancillary and incidental reliefs. This is also an admitted fact that the property is situated at Rawalpindi. The only cause of action allegedly accrued to the plaintiff is an advertisement of sale which was published in Daily Dawn at Karachi and the plaintiff had paid token money at Karachi.
6. For the ready reference it would be expedient to reproduce Section 16, C.P.C. As under:-
16. Suit to be instituted where subject-matter situate .-- Subject to the pecuniary or other limitations prescribed by any law, suits:---
(a) for the recovery of immovable property with or without rent or profits,
(b) for the partition of immovable property,
(c) for foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,
(d) for the determination of any other right to or interest in immovable property,
(e) for compensation for wrong immovable property,