AMIN-UD-DIN KHAN, J. --- Through this appeal the appellants have challenged the judgment and decree dated 8.6.2006 passed by- the learned , Additional. District Judge, Sargodha whereby the appeal filed by the appellants was dismissed against the order dated 29.9.2005 passed -by the learned Civil Judge, Sargodha, whereby plaint of the suit for specific performance filed by the appellants-plaintiffs was rejected under Order VII, Rule 11, CPC with the findings that the suit is hopelessly time-barred. ,
2. Brief facts of the case are that on the basis of an agreement to sell dated 24.2.1988, the plaintiffs- appellants filed a suit on 8.5.2002 for specific Performance of agreement to sell with regard to, the, property, mentioned in the agreement. The defendants filed written statement on 21.3.2003.
Alongwith written statement an application for rejection of plaint under Order VII, Rule 11, CPC was also filed, on the ground, that the suit is barred by law of limitation. The learned Trial Court vide order dated 29.9.2005 accepted the application and rejected the plaint. An appeal was preferred which was dismissed vide judgment and decree dated 8.6.2006, hence this regular second appeal.
3. Learned counsel for the appellants argues that the agreement is admitted between the parties.
The possession has been delivered under the agreement. Learned counsel relying on case titled Muhammad Altaf and others v. Abdur Rehman Khan and others (2011 SCMR 953) contends that for application of Order VII, Rule 11, CPC the pleadings and contents of the plaint are presumed to be true. Argues that the suit was filed on 'the basis of a contingent contract. It was not a plain contract, whereby the last date for performance is fixed 30.8.1988. There are three four conditions which are mentioned in the contract. It is also one of the conditions that if any litigation starts, the date for execution will be automatically extended. He states that the plaintiffs have mentioned in the plaint that the litigation started and even the ownership of the defendants-vendors remained under question during the . . intervening period of last date of agreement and filing of the suit. Further states that even in the plaint, the plaintiffs have pleaded that they have paid the whole consideration amount, rather the excess amount has been paid to the defendants, therefore except formal registration of sale-deed no part performance was left on behalf of the plaintiffs. Learned counsel relying upon case titled Saleem Malik v. Pakistan Cricket Board and 2 others (PLD 2008 SC 650) argues that material provided by the defendants or defence plea taken by them cannot be considered at the time of considering the application under Order VII, Rule 11, CPC. Further relying on Abdul Waheed v. Mst.
Ramzanu and others (2006 SCM R 489) argues that Court has to see real controversy between the parties while deciding application under Order VII, Rule 11, CPC. Further by relying on Tariq Mahmood Chaudhary, Kamboh v. Najant-ud-Din (1999 SCM R 2396) states that question of limitation is mixed question of law and fact, therefore, said issue could only be resolved after recording of evidence touching controversy .
4. On the other hand, learned counsel for the respondents- defendants, argues that there was a specific date given in the agreement, therefore, first part of Article 113 of Limitation Act is applicable. The plaintiffs-appellants were bound to file suit within three years after the date for performance of contract which was 30.8.1988 but the suit was filed a long after prescribed period of limitation, therefore, the learned Trial Court has rightly rejected the plaint and the learned first Appellate Court also upheld the order of the learned Trial Court. He has relied upon case titled Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.)
Limited (PLD 2012 SC 247). Learned counsel has even referred head note A, B and C and also referred the various parts of this judgment of the august Supreme Court of Pakistan and prayed for dismissal of the appeal. Learned counsel further relying upon case titled Maulana Nur-ul-Haq v.
Ibrahim Khalil (2000 SCM R 1305) argues, that the plaint can be rejected under Order VII, Rule 11(d), CPC, if the suit is time-barred. Further relying upon Raja A.I Shan v. Messrs Essem Hotel Limited and others (2007 SCM R 741), the Court is bound to reject the plaint, if it is barred by law.-Even no application is required to be filed by the parties. While relying on Siraj Din and others v. Mst.
Khurshid Begum and others (2007 SCM R 1792) learned counsel argues that exemption from such ,bar could not be sought in absence of .a case falling within any of the exception contained in Sections 4 to 25 of Limitation Act, 1908 and while relying upon case titled Muhammad Khan v.
Muhammad Amin through LRs. And others.(2008 SCM R 913) argues that the Court was not bound to frame any issue in this regard. '
5. I have heard the arguments of the learned counsel for the parties at length and perused the record with their able assistance.
6. I have noticed that the photo-copy of the agreement is on the file, as yet the plaintiffs have not produced the original agreement on the file as the plaint was rejected before starting of evidence.
It is not a simple and plain contract rather it is contingent contact wherein at least four conditions are mentioned and terms of the contract are variable. Even it is written as under:- {{URDU TEXT}} It is clearly mentioned that if any litigation or problem arises, the limitation will extend. In the plaint, the plaintiffs have categorically pleaded the litigation and problem with regard to the suit property.
It is written in the agreement to sell as well as in the plaint that the possession of the property has been handed over to the purchaser and the plaintiffs have pleaded that they are in possession of the suit property and they have raised huge construction over the suit property, therefore, the learned Trial Court, first Appellate Court as well as this. Court are bound under the law to presume it to be correct. The law cited (supra) by the learned counsel for the appellants is fully applicable to the facts and circumstances of the case and there is no cavil to these rules.
7. So far as the case-law relied and arguments of the learned counsel for the respondents are concerned that the grounds of exemption from limitation law be pleaded. I have noticed that same have been pleaded. Further if the averments made in the plaint are presumed to be correct then it becomes a case of second part of Article 113 of Limitation Act, 1908. As I have specifically noted that the language of the contract clearly depicts that it was contingent contract wherein in case of any litigation the limitation would automatically extend. As regards the case-law cited by the learned counsel for the respondents reported as PLD 2012 SC 24 (supra), I humbly and with utmost respect see that it is not applicable to the facts of this case. .I have noticed that learned both the Courts below have discussed the documents and facts which were not admitted between the parties, therefore, placing foundation of orders/judgments of the Courts below upon the above-laid documents and facts are against the law.
8. In this view of the matter, the impugned order/judgment and decree passed by both the Courts below wherein the plaint was rejected and the appeal has been dismissed are contrary to law.
R.S.A. Allowed.