' SALAHUDDIN PANHWAR, J.---Through this IInd Civil appeal, the appellant has assailed judgment and decree dated 10th July 2010, passed by 1st Additional District Judge, Badin in Civil Appeal No,12/2008 "Re-Muhammad Ramzan v. Muhammad Ali and others", whereby maintaining order dated 19.5.2008 of learned Senior Civil Judge, Math I through which application under Order VII, Rule 11, C.P.C. Was allowed, consequently plaint of the first class suit filed by appellant was rejected as barred by Limitation Act.
2. Succinctly, but relevant facts, as pleaded in civil suit, are that the respondents Nos.1 to 11 are owners of shop bearing CS No,348 area 41.5 Sq. Yards Ward-B Math; they entered into a sale agreement dated 23.7.2003 for total sale consideration of Rs,725,000/- out of which respondent No,1 received Rs,325,000/- and remaining consideration was agreed to be paid at the time of registration of sale deed upto 15.3.2004, after foti-khata of deceased owner Abdul Majeed in record of rights. The suit property was on rent with appellant at rate of Rs,600/- per month and legal possession was handed over to appellant in part performance of contract. It was agreed that if seller violates terms and conditions and refused to execute they will be liable to return Rs,325,000 and would also pay damages of Rs,650,000/- to appellant and if appellant fails to perform his part of contract then advance money i.e, Rs,325,000/- would be forfeited. On 15.3.2004, appellant approached respondent Nos.1 to 11 through respondent No,1 and offered Rs,400,000/- with request for execution of register sale deed but it was refused on ground that fotikhata has not been mutated in their favour.
3. It is further pleaded that appellant received two legal notice (s) from respondent No,1 wherein it was contended that appellant failed to pay consideration of Rs,400,000/- on 15.3.2004 hence violated terms and conditions of sale agreement; the appellant protested while claiming that the respondents failed' to obtain sale certificate upto 15.3.2004 and shown willingness for getting title by paying remaining sale consideration; he was kept on hopes for want of execution of power of attorney. On 23.11.2004 respondents filed R.A.No,02/2004 against appellant on ground of default before Senior Civil Judge, Math I which was allowed on 23.11.2004; appeal filed by appellant i.e, FRA No,06/2005 was, however, allowed by District Judge, Badin. Appellant denied to have violated but alleged that it were respondents who failed to get foti-khata upto 15.3.2004 and registered power of attorney hence the respondents are liable to pay damages.
4. In view of above background the plaintiff/appellant sought following relieves:-- a) This Honourable court may be pleased to direct the defendants Nos.1 to 11 to execute the sale deed to be registered before the Sub-Registrar Math by obtaining the sale certificate from the City Survey officer, Math on receiving the balance amount of sale consideration of Rs,400,000/- for the suit property i.e, a shop bearing city survey 'No,148 admeasuring 41.5 Sq. Yds situated in Ward-B Math Town OR IN ALTERNATIVE.
' The Nazir of this Honourable Court may be directed to execute the sale deed for the suit property on behalf of the defendants Nos.1 to 11 in favour of the plaintiff on receiving the balance of amount of sale consideration of Rs,400,000/-; b) To direct the defendants Nos.1 to 11 to.Pay an amount of Rs, 650,000/- as damages for the refusal of the execution of registered sale deed in favour of the plaintiff as per terms and conditions of the sale agreement dated 23.7.2003.
(c) To direct the defendants Nos.1 to 11 to pay the interest at rate of Rs,15 to the plaintiff on the amount of Rs, 650,000/- for damages since 15.3.2004 till the same is finally paid to the d) To grant permanent injunction whereby the defendants Nos.1 to 11 may personally be restrained from dispossessing the plaintiff from the suit property in any manner whatsoever directly or indirectly through themselves or through their agents, servants, assignees and representatives etc.
5. On presentation of plaint of the plaintiff / appellant, the learned trial court judge heard arguments and rejected the plaint of the plaintiff/ appellant through order dated 19.5.2008 finding the same to be hit by Article-113 of the Limitation Act. The appellant filed the Civil appeal No,12/2008 before District Judge, Badin which was also dismissed by learned 1st Additional District Judge, Badin by impugned judgment and decree.
6. Learned counsel for the appellant contended that both the courts below erred in appreciating that suit was not for Specific Performance of Contract only but relief (s) of damages. Mandatory and permanent injunction were also included hence suit was not barred by law of limitation; contents of plaint are to be taken as true and plaint could only be rejected if there is no chance of ultimate success. He concluded his arguments while placing reliance on case law reported as 2008 YLR 1287.
7. On other hand, the learned counsel for the respondents argued that appeal is not maintainable and that both the learned lower court (s) have rightly recorded the order/judgment as the contents of plaint themselves make the plaint barred by law of Limitation. He further added that the respondents challenged the order passed in FRA, filed by appellant, throngh CP No,S-118 of 2007 before this Honourable Court which was allowed vide judgment dated 22.5.2013. Copy of judgment was also placed during course of arguments by side of the respondents.
8. Since the issue, involved in the matter, revolves round the Article 113 of the Limitation Act, therefore, it would be proper to refer the same which reads as under:-- ' Article.
113. For specific performance of a contract. The date fixed for the performance, or if no such date is fixed when the plaintiff has notice that performance has been refused.
' The above Article is clear in its meaning that limitation shall start from the fixed date or if no date is so fixed then from the date of notice oil refusall.
9. As, the appellant has taken a plea that on date fixed the respondents/defendants had not got their title to execute the register sale deed hence 'fixed date' was wrongly weighed much by both the Courts below. I would like to examine this plea first by forming into shape of proposition as: "if a date for performance is fixed but the 'seller' has not completed his/her title perfect for execution of the deed then what be the consequences of such incapability?
' In search of answer of this, I would be conducive to refer the Section 54 of the Contract Act which reads as under:--
54. Effect of default as to that promises which should be first performed, in contract consisting of reciprocal promises. When a contract consists of reciprocal promises, such that one of them cannot be performed, or that its performance cannot be claimed till the other has been performed, and the promissor of the promise last mentioned fails to perform it, such promissor cannot claim the performance of the reciprocal promise, and must make compensation to the other party to the contact for any loss which such other party may sustain by the non-performance of the contract' .
10. From the reading of the above provision, it becomes quite clear that when things to be performed are dependant upon reciprocal promises then second promise cannot be insisted to be done nor failure thereof can be claimed for damages or as a ground to 'fail' the agreement unless it is established that the first promise was done. The proposition can well be answered that in such eventuality the seller shall have no advantage of his / her own failure to perform his / her part of reciprocal promises.
11. In the instant matter, the date was fixed for the performance in the sale agreement as 15th March, 2004 but it is evident that 'Fotikhata-badal in names of the defendants / respondents was effected on 19.6.2004 i.e, much after the agreed date hence within meaning of the Sections 51, 52 and 54 of the Contract Act the present appellant cannot be held to have been guilty of breaching his obligation (s) on the date so fixed for performance i.e, 15th March, 2004.
12. However, let me make it quite clear that this would be taken as a ground to make one 'defaulter or guilty of breach of term of contract' which would entitle a party (purchaser) to insist Specific Performance of Contract or damages etc. But this will not allow the purchaser to claim it as an extension of 'fixed date' which could only be through 'writing'. Thus, even if it is established that on 'fixed date', the seller had not completed his / her title perfect yet it will have no bearing on the 'fixed date if it is mentioned in the 'agreement'. Thus, suffice to state that this ground will not help the purchaser to claim an exception to specific meaning, purpose and object to Article 113 of the Limitation Act which provides a period of three (03) years to bring a lis for Specific Performance of Contract. Reference, if any, can be brought by the dictum of the honourable Supreme Court of Pakistan passed in the case of 'Abdul Karim v. Florida Builders (Pvt.) Ltd. (PLD 2012 SC 247) wherein it is held as:-- 'E.--- From the above discussion, the scope of Article 113 of the Act having been elucidated, we find that the present case was / is not covered by second part of the said Article, rather the first part thereof, is squarely and exclusively attracted and the limitation period shall commence forthwith from the date fixed by the parties, notwithstanding the alleged failure, inabilities of the respondent to perform its part of the obligations, the alleged interaction between the parties, their conduct, which all shall have no relevance in the context of the limitation of those suits covered by first part of the Article'. (under lining and bolding is mine for emphasis)
13. In view of above, it becomes quite clear and obvious that plea of learned counsel to the effect of incapability of the defendants / respondents to execute register sale deed on 'fixed date' will not absolve the plaintiff / appellant to bring his lis within stipulated period i.e, upto 15th March, 2007 (as fixed date was 15th March 2004).
14. It is also well established principle of law that if the case is falling within first clause of the Article-113 of the Limitation Act then the second clause is not to be resorted to. At this juncture, it would be advantageous to refer another operative part of the above referred judgment of honourable Supreme Court (PLD 2012 SC 247) which reads as:-- ' In other words, as has been held in the judgments reported as Siraj Din and others v. Mst.
Khurshid Begum, and others (2007 SCMR 1792) and Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344) ' when the case falls within first clause the second clause is not to be resorted to'. However, the exemption, the exclusion and the enlargement from / of the period of limitation in the cases of first part is permissible, but it is restricted only if there is a change in the date fixed by the parties or such date is dispensed with by them, but through an express agreement; by resorting to the novation of the agreement or through an acknowledgment within the purview of section 19 of the Act. And/or if the exemption etc. Is provided and available under any other provision of the Act however, to claim such an exemption etc. Grounds have to be clearly set out in the plaint in terms of Order VII, Rule 6, C. P. C. "
15. Be as it may, the perusal of the record makes it quite obvious that the plaintiff/appellant acknowledged the receipt of notice (s) dated 22.9.2004, issued by the defendant/respondent Nos.1 to 11 whereby they had claimed that the plaintiff/appellant failed to pay consideration of Rs,400,000/- on fixed date i.e, 15.3.2004 hence they (defendants/ respondents) are not liable to execute the register sale deed. Receipt of such notice (s) through which the defendants/respondents had categorically refused their liability to perform their part was sufficient to give a right to the plaintiff/appellant to file the Suit for Specific Performance of Contract but even from such date of notice the suit, filed by the appellant/plaintiff, is not within stipulated period of three (03) years. Further, reference to Para-12 of the plaint of the appellant/ plaintiff shall make things about 'accrual of cause of action' clear and unambiguous which, being material, is reproduced hereunder:- '12 That the cause of action for filing the present suit accrued to the plaintiff firstly on 15.3.2004 secondly on 22.9.2004 when two notices were issued by the defendant No,1, thirdly on 23.11.2004 when the defendant No,1 to 11 filed the rent application No,02/2004 before the court of Rent Controller, Math and lastly on 28.02.2007 when the judgment of the court of District Judge, Badin in rent appeal No,06/2005 was passed and the same cause of action is recurring day to day till today'
16. From so far discussion, it stood clear that 'cause of action to file a suit for 'Specific Performance of Contract' accrues from the 'fixed date' or from date of notice of refusal if there is no 'fixed date'.
The plaintiff/appellant admittedly not filed the suit within stipulated G period with reference to 'fixed date' and even not filed the suit with reference to date of receipt of notice of respondents/defendants and even that of rent application. The rent proceedings or decision thereon have no nexus or relation with Article 113 of the Limitation Act, hence from all aspects the suit of the plaintiff / appellant was rightly found to be barred by Article 113.
17. So far as to the plea of learned counsel for the appellant/ plaintiff that since the plaintiff / appellant has also sought a relief of 'damages' therefore, plaint of the plaintiff / appellant was not liable to rejection. At this juncture, a reference to Section 19 of the Specific Relief Act shall make things rather clear which reads as under:-
19. Power to award compensation in certain cases.-Any person suing for the spetific performance of a contract may also ask for compensation for its breach, either in addition to, or in substitution for, such performance.
' If in any such suit the Court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant and that the plaintiff is entitled to compensation for that breach, it shall award him compensation accordingly.
' If in any such suit the Court decides that specific performance ought to be granted but that it is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.
18. The above provision makes it evident that even to claim 'compensation/damages' one can competently bring a suit for 'compensation' as in addition or in substitution to 'specific performance of contract', therefore, right to claim compensation to plaintiff for breach of contract accrues coincidently with the right to sue for specific performance of Contract hence limitation for such right shall be the same as for Specific Performance of Contract because such right of compensation is either 'in addition or in substitution'.
19. Thus, it would be conducive to refer the para-6 of the plaint of the plaintiff/appellant which reads as under:-- '6. That the plaintiff protested before the defendant No,1 and asked him that the defendants Nos.] to 11 have themselves not obtained the fotikhata badal mutation in their favour in the concerned revenue record and failed to obtain sale certificate there from upto 15.3.2004, therefore, the defendant Nos.1 to 11 have themselves violated the terms and conditions of the sale agreement and the plaintiff has not violated any terms and condition of the sale agreement. The plaintiff showed his willingness to pay the balance sale consideration of Rs,400,000/- and demanded the execution of the sale deed but the defendant No,1 again kept the plaintiff on hopes for want of the execution of the registered power of attorney from the defendants Nos.2 to 11 in his favour'.
20. The above para makes it clear that 'plea of breach of contract' was taken by appellant/plaintiff on part of the defendant yet not filed the suit. The plaintiff/appellant, even, did not file the suit within three years from date of filing of rent application i.e, 23.11.2004, therefore, I am not in agreement with the learned counsel for the appellant/plaintiff that I seeking relief of damages shall save the suit of plaintiff/appellant from application of law of limitation.
21. Let's examine the case of the appellant/plaintiff from another angle, which the counsel took up, during course of arguments that plaintiff/appellant had taken plea of 'ownership' in rent proceedings and even this Court while allowing C.P.No,S-118 of 2007 "Re-Muhammad Ali and 10 others v. District and Sessions Judge and others' observed that:-- "The respondent, however, would be at liberty to approach the competent Court having jurisdiction to agitate his case that the petitioners violated the terms and conditions of the agreement therefore exposing them to consequence of such violation" ' therefore, such observation can be taken to relax the limitation. I do not find any substance in such plea of the learned counsel for the appellant / plaintiff. It is not the observation of the Court or even the consent of the parties which starts 'limitation' but it is the 'law and procedure' alone which matters. It would suffice to say that tenant may take such plea but since the 'Rent Controller' is not a legal forum to grant relief of Specific Performance of Contract or even decide question relating to status of 'agreement' hence such stand, in no way, will help in extension of period of limitation to bringing a 'lis' for enforcement of right of Specific Performance of Contract within meaning of Section 19 of Specific Relief Act. I am strengthened in such view with the case of 'A.
Rasheed v. Maqbool Ahmed and others (2011 SCM R 320) wherein it was held by honourable Supreme court as:-- ' It is settled law that where in a case filed for eviction of the tenant by the landlord, the former takes up a position that he has purchased the property and hence is no more a tenant then he has to vacate the property and file a suit for specific performance of sale agreement where-after he would be given easy access to the premises in case he prevails'
' In another case, reported as '1996 SCM R 877' the honourable Supreme Court held as:-- "Thus the learned Rent Controller decided all questions relating to execution of agreement to sell half of the property for which he had no jurisdiction'
22. The Honourable Supreme Court of Pakistan in a judgment passed in the case of 'Abdul Karim v.
Florida Builders (Pvt.) Ltd. (PLD 2012 SC 247), clearly held that:-- 'F'--- Whereas, the limitation is a command of law, prescribing the statutory period within which the right has to be exercised and enforced. The Courts thus shall have no lawful authority to ignore the date/period stipulated in the contract, which as a legal consequence is meant to regulate the period of limitation in terms of first part of Article 113 ibid, and on the touchstone of the equitable, discretionary principle, and to hold against the vivid and clear provisions of law, by extending, enlarging or exempting the said period in violation thereof (underlining and bolding is mine to emphasis).
23. It is settled principle of law that if a petition or a suit is filed beyond limitation each day's delay has to be explained and if from statement in plaint suit appears to be barred by limitation, court is obliged to reject plaint under R. 11, Order VII, C.P.C. Reliance, if any case be made to Hakim Muhammad Buta and another v. Habib Ahmed and others (PLD 1985 SC 153), wherein it is held that:- "Matter of limitation is not left to pleadings of parties.---It imposes a duty in this regard upon court itself----As such if from statement in plaint suit appears to be barred by limitation, court is obliged to reject plaint under R. 11, Order VII C.P.C.--- Similarly, limitation plea cannot be waived and even if waived it can be taken up by party waiving it and by Courts themselves---In exceptional cases, a defendant. Would, however, be debarred from rising plea of limitation.---This would be a general principle of estoppel arising from defendant's conduct and would be particularly so if plea belatedly taken involves an inquiry on facts".
' In case of Ahmed Khan v. -Kausar Perveen (2009 CLC 759 (Lahore), it is held that:- "This Court is conscious of the fact and it would not require detailed discussion to say that a suit filed or an appeal preferred after the limitation provided in law is without jurisdiction. It should be dismiised even if nobody has appointed out such lacuna in filing the petition or the appeal whatsoever. However, the facts of each case being separate this issue shall be decided after due appreciation of the facts of this case. "
' In case of La! Khan v. Muhammad Yousaf (PLD 2011 SC 657), it is held that:-- 'Aggrieved person has to pursue his legal remedies with diligence and if a petition or a suit etc. Is filed beyond limitation each day's delay has to be explained. Where vague explanation was given without even specifying the date of knowledge, nor any explanation tenable in law was provided to justify condonation, delay condoned was violative of law and, was not sustainable'
' In the case of 'Abdul Karim v. Florida Builders (Pvt.) Ltd. (PLD 2012 SC 247), it is held that:--
9. We have already noticed that the court is bound by the use of the mandatory word 'shall' to reject a plaint if it "appears" from the statements in the plaint to be barred by any law. What is the significance of the word "appears'? It may be noted that the legislative draftsman has gone out of his way not to use the more common phraseology. For example, in the normal course, one would have expected that the language used would have been "where it Is established from the statements in the plaint that the suit is barred by any law" or, alternatively, " where it is proved from the statement in the plaint that the suit is barred by any law". Neither of these alternatives was selected by the legislative draftsman and it must be assumed that this was a deliberate and conscious decision. An important inference can therefore be drawn from the fact that the word used is "appears". This word, of course, imports a certain degree of uncertainty and judicial discretion in contradistinction to the more precise words proved' or "established". In other words the legislative intent seems to have been that if prima facie the court considered that it "appears" from the statements in the plaint that the suit was barred then it should be terminated forthwith.
24. In view of above discussion, I am clear in my view that both the court(s) below have committed no illegality in finding the plaint of the plaintiff/appellant as barred by law of Limitation hence rightly rejected the plaint. Accordingly, the appeal of the appellant is hereby dismissed With no order as to costs.