1. MUHAMMAD NOOR MESKANZAI, J. - The learned Counsel for petitioner submitted that the judgment passed by the lower forums suffers from material irregularity. It was further maintained that the evidence available on record were mis-constructed, misread and facts have been mis- appreciated. The learned Trial Court considered Ex.D/l, D/2 and D/3 in violation of Article 79 of Qanun-e-Shahadat Order, 1984. Petitioner has paid remaining Rs. 35,000/-(Rupees thirty-five thousand) to Yawar A.I at the instance of respondent and thus the lower forums have not dealt with the matter properly. 11 was prayed that petition may be accepted and both the judgments may be set aside. The suit filed by the petitioner may be decreed in the terms of plaint.
2. On the other hand, the learned counsel for the respondents vehemently opposed the contentions so advanced and submitted that both the Courts below after proper appraisal of material available on record have rightly disbelieved the plaintiffs version. The petitioner/plaintiff failed to produce tangible evidence in support of his claim, besides the suit was hopelessly barred by time.
3. I have considered the respective contentions of the learned counsel for parties and gone through the record. The perusal of the record reflects that the petitioner filed the suit for specific performance and permanent injunction. Both the parties admit the execution of document dated 30th July, 1984 whereby the property bearing Khasra No. 1129/1 Mutation No. 361, measuring 1292 Sq.Ft. Situated at Ward No. 45 Tappa Urban, Tehsil and District, Quetta was sold against consideration of Rs. 95,000/- out of which Rs. 25,000/- was paid whereas Rs. 70,000/- remained as outstanding. The outstanding amount was required to be paid within nine months from the date of execution of sale-deed and by 1st May, 1985 petitioner will be entitled for mutation of the property in question. Plaintiff claims to have made the payment and in support of his contention he produced two P.Ws., besides producing Ex.P/1-A whereby Rs. 35,000/- were paid to one A.I Yawar son of Haji Akbar who was the mortgagee of the property by that time. In rebuttal respondent produced five D. Ws. Besides examining attorney and also filed an affidavit by the then mortgagor that he has received the amount from defendant/respondent. The Trial Court after recording the evidence of parties and hearing the arguments dismissed the suit vide Judgment/decree dated 29th December, 2006. Petitioner being aggrieved assailed the judgment and decree passed by the Trial Court through Civil Appeal No. 08/2007 which too met with the same fate. A meaningful perusal of the record reflects that the petitioner failed to prove its case through tangible and confidence inspiring evidence. It is surprising that petitioner seek the specific performance of agreement dated 30th July, 1984 yet he did not bother to produce agreement and get it exhibited.
4. The said documents was produced by defendant as Ex.D/1 two P.Ws. Produced by plaintiff utterly failed to prove the case because the statement of P.W.2 is of no avail as he stated that he does not know how much amount was paid. In such circumstances the Trial Court as well as Appellate Court did not commit any irregularity nor for that is matter there any misreading or non-reading of evidence. It is quite astonishing that the plaintiff/petitioner neither filed suit for performance of contract yet failed to produce the document nor exhibited the same. The document was produced as Ex.D/1, the perusal of the document reflects that remaining amount was to be paid within stipulated period of 9 months and the mutation to be carried out by 1st May, 1985 which also provided for a penal clause as well. For ready reference relevant contents are hereby reproduced:- -- {{URDU TEXT}} (y:r.v.Itr,u; The clear contents of undisputed agreement leave no room for doubt that suit for specific performance could have been filed within three years from May, 1985 i.e. May, 1988 and thereafter the suit would be barred by time. Though the Trial Court failed to frame specific issue in this respect nor the Trial Court dealt upon the point of limitation yet the Appellate Court rightly observed that the suit after eight years is bared by time. In written statement specific objection regarding limitation was raised and even otherwise by now it is the settled law that the point of limitation is not left on the pleadings of parties rather Court is under legal obligation to be vigilant regarding point of limitation i.e. As to whether the proceeding brought before it are within time? This duty has been cast upon the Court by the provisions of Section 3 of Limitation Act. If an authority is needed, reference can be made to PLD /985 SC page 153 and 2007 SCMR page-621. Besides above, there are concurrent finding of fact recorded by two Courts below which cannot be disturbed/set aside by this Court unless there is glaring irregularity in the proceedings, or misreading and non-reading of evidence available on record.
5. Civil revision .