' SYED SAJJAD HASSAN SHAH J.--- The instant petition calls in question the judgment and decree dated 7-2-2012 passed by learned Additional District Judge-V, D.1. Khan whereby the appeal filed against the judgment and decree dated 19-1-2012 of learned Civil Judge-IV, D.I. Khan has been dismissed.
2. Briefly stated the facts of the instant case are that the petitioners-plaintiffs filed a suit against the respondents-defendants for specific performance of oral agreement materialized between the predecessors of the parties in the year 1989 whereby the suit property measuring 1000 kanal was alienated by the father of the petitioners-plaintiffs in favour of Allah Nawaz, father of the respondents-defendants; and in turn, he, his brothers and sisters had to alienate their land through sale consideration of Rs,5000/- per kanal in favour of father of the petitioners-plaintiffs, thus the father of respondents-defendants Allah Nawaz was legally bound to implement the terms and conditions of offal agreement in letter in spirit by transferring 109 kanals, 2 marlas land, at the rate of Rs .5000/-.
' In the plaint, the petitioners-plaintiffs averred that Allah Nawaz deceased delivered the possession of the property known as Rag Kateha (Jheel) in favour of Allah Jan, Haji Shad Muhammad, Amir Muhammad etc. On 22-4-1989 as the said area was sold by Allah Nawaz Khan in their favour. In the light of terms and conditions of oral agreement, Ghazi Sarbaz, brother of Allah Nawaz Khan, sold his share of land measuring 108 kanals, 13 marlas to the petitioners-plaintiffs through his attorney on 3-11-1998 at the rate of Rs,5000/-. The relative of Allah Navvaz Khan further alienated the suit property in favour of his brother and sisters by executing attorney deeds, however, 109 kanals 02 marlas land, the ownership of Allah Nawaz Khan, had to be transferred in favour of father of the petitioners- plaintiffs at the rate of Rs,5000/- per kanal, but in his life time, Allah Nawaz Khan, on one pretext or the other, could not transfer the said share in favour of father of the petitioners- plaintiffs and passed away in the year 1990. On 14-1-2002 Qayum Nawaz father of the petitioners- plaintiffs had also expired. In the year 1990 on the eve of the marriage of Gohar Nawaz Khan son of deceased Allah Nawaz Khan had taken a sum of Rs,70,000/- from Qayum Nawaz Khan as advance money for the sale of the suit property and received the same in the presence of witnesses mentioned in Paragraph 8 of the plaint. In the month of January, 2011 the respondents-defendants flatly refused to transfer the property in accordance with the agreement.
3. The respondents-defendants appeared before the learned trial court and submitted application under order VII, rule 11 of the C.P.C. For the rejection of the plaint on the ground that, the allegations levelled against their predecessor by the present petitioners-plaintiffs are false and no such agreement was arrived at between the predecessors of the parties. The petitioners-plaintiffs contested the application by filing their written replication. The learned trial Court after hearing the arguments of the learned counsel for the parties, rejected the plaint on the ground that the suit of the petitioners-plaintiffs is hopelessly time-barred and neither they have any cause of action nor the suit is maintainable and the court has no jurisdiction to enforce the oral agreement as sought by them.
4. Petitioners-plaintiffs feeling aggrieved, impugned the judgment, and decree dated 19-1-2012 passed by learned trial Court before the learned appellate Court. The learned appellate Court after hearing arguments of learned counsel for the parties, dismissed the appeal of the petitioners- plaintiffs, hence the instant revision petition.
5. Arguments heard and record perused.
6. While rejecting the plaint the Court has only to see the averments in the plaint and if on admitting all the grounds mentioned therein as correct, petitioners-plaintiffs are not found to be entitled for the decree in their favour, the plaint is liable to he rejected but if the grounds pleaded in the plaint require leading of evidence in support thereof, the plaint cannot be rejected. Secondly; the cause of action is also taken into consideration while rejecting the plaint, but without specifying in the impugned order that how the petitioners-plaintiffs have no cause of action to file the instant suit, the plaint has been rejected. Apparently oral agreement is stated to have been entered.
Between the predecessor of the parties and certain payments have also been made. Mores?, the terms and conditions of the oral agreement have also been specified by the petitioners-plaintiffs.
These are the essentials constituting the cause of action. As such the petitioners-plaintiffs have a cause of action and the suit of the petitioners-plaintiffs is maintainable. On cursory assessment, the suit of the petitioners-plaintiffs seems to be maintainable and likewise it appears from the plaint that they have cause of action to file the instant suit.
7. As far as limitation is concerned, it is averred in paragraph 11 of the plaint that the respondents- defendants denied to accept the claim of the petitioners-plaintiffs in January, 2011. The filing of suit for specific. Performance is controlled by Article 113 of the Limitation Act which provides that where no time for completing the sale transaction was fixed under the above. Article, the time was to run when the plaintiff had noticed that the performance was being refused. In the instant case no time for performance of agreement has been fixed, therefore, time will be computed for the filing of instant suit from the date of the refusal to perform the agreement by the respondents-defendants.
In this respect, reliance is placed on cases titled Mrs. Mussarat Shaukat Ali v. Mrs. Safia Khatoon and others (1994 SCM R 2189) and Hail Abdul Ghafoor through legal heirs v. Muhammad Hayat through legal heirs (2007 YLR 875).
8. In view of the above discussion, the instant revision petition is accepted, the judgments and decrees passed by the learned Courts below are set aside and the case is remanded to the learned trial Court with the direction to proceed with the case in accordance with law and decide the same on its own merits without being influenced by any observations made hereinabove. The parties are left to bear their own cost.