MUHAMMAD JUNAID GHAFFAR, J.---Through instant petition the petitioner has impugned order dated 25.2.2014 passed by the learned Additional District Judge, Sukkur, in Civil Revision No, 64 of 2011, whereby the order dated 24.11.2011 passed by the 1st Civil Judge, Sukkur, in F.C. Suit No,90 of 2011 through which the application under Order VII Rule 11, C.P.C. filed by the petitioner was dismissed, has been upheld.
2. Briefly stated facts of the case are that the respondent had filed F.C. Suit No,90 of 2011 before the 1st Senior Civil Judge, Sukkur, seeking specific performance of agreement dated 16.2.1998, in which an application under Order VII Rule 11, C.P.C. was filed by the petitioner on the ground that the Suit was barred by limitation, however, such application was dismissed by the 1st Senior Civil Judge, Sukkur, vide order dated 24.11.2011, against which a Civil Revision bearing No,64 of 2011 was preferred before the Additional Sessions Judge, Sukkur, who has also dismissed the revision application vide impugned order dated 25.2.2014.
3. Learned Counsel for the petitioner has contended that the agreement of sale was admittedly executed between the parties on 16.2.1998, whereas, in Para 3 of the said agreement, time was essence of the agreement, wherein it was provided that the registration of proper sale deed will be completed on or before / within six months. Per learned Counsel under Article 113 of the Limitation Act, 1908, a period of three years has been provided for specific performance of agreement, wherein date for performing such agreement has been specifically mentioned, whereas the suit was filed by the respondent on 10.5.2011, which was hopelessly time barred, therefore, the Courts below have erred in passing the impugned orders. Learned Counsel further contended that the respondent had not even filed any application along with the plaint for condonation of delay in filing such proceedings. In support of his contention the learned Counsel has relied upon the case of Muhammad Ramzan v. Muhammad Qasim (2011 SCMR 249) and the case of Haji Abdul Kareem 'through Attorney v. Florida Builder (Pvt.) Limited Karachi (2009 YLR 451).
4. Conversely the learned Counsel for the respondent has contended that limitation is a mixed question of fact and law, whereas, a specific issue in this regard has been framed by the Trial Court, therefore, it would be in the fitness of things to allow the respondent to lead evidence in respect of the objection of limitation. Learned Counsel further contended that in view of Clause-7 of the agreement, the petitioner was required to be in possession of a clear title of the property in question before registration of proper sale deed and per learned Counsel since the petitioner was not in a position to execute the sale deed within the stipulated time period, therefore the limitation has been extended and is to be counted from the date when the petitioner was in a position to execute the sale deed. Per learned Counsel the petitioner for the first time issued legal notice on 13.5.2010, from which the limitation period started and the Suit filed by the respondent was within limitation. Learned Counsel further contended that admittedly the petitioner had some dispute with regard to the property in question with one Muhammad Ramzan and therefore, the petitioner had no clear title with him to execute the sale deed. In support of his contention the learned Counsel has relied upon the case of Muhammad Taj v. Arshad Mehmood and 3 others (2009 SCMR 114), Mst.Noor Bibi v. Mst.Mukarama Bibi (2014 YLR 1494), Muhammad Anwar Khan v. Ghulam Farid and others (2014 YLR 2244), Sultan v. Saifullah and others (2011 CLC 1946), Feroz Hussain and 2 others v. Executive Engineer, Mithrao Division, Mirpurkhas and 4 others (2009 CLC 529), Mst.Fatima through L.Rs, v. Jan Muhammad through L. Rs, (2006 CLC 1401), Ch. Muhammad Bashir v. Divisional Canal Officer and others (1994 CLC 2302), Mst.Musharaf Begum and another v. Abdul Wahab (1999 CLC 1820), Ch. Zia Illahi Advocate through Legal Heirs and 4 others v. Khushi Muhammad and 8 others (2000 YLR 1881) and Muhammad Ayyub Khan v. Ch.Muhammad Aslam and another (1984 CLC 2159).
5. I have heard both the learned Counsel, perused the record and the case law relied upon by the parties. By consent of both the learned Counsel, instant petition is being disposed of at katcha peshi stage.
6. Insofar as stated facts of the case are concerned, there appears to be no dispute between the parties that the respondent had filed F.C. Suit No, 90 of 2011 before the Senior Civil Judge, Sukkur, seeking specific performance of agreement dated 16.2.1998 on or about 10.5.2011, wherein, the petitioner had filed an application under Order VII Rule 11, C.P.C. on the ground that the Suit was hopelessly barred by limitation and such application was dismissed by the Senior Civil Judge, Sukkur, on 24.11.2011, against which a Civil Revision bearing No,64 of 2011 was filed by the petitioner, which was also dismissed vide impugned order dated 25.2.2014. The agreement in question dated 16.2.1998 has not been disputed by any of the parties before this Court, whereas clause 3 of the said agreement provides that the registration of proper sale deed will be completed on or before / within six months. Though, no specific date is mentioned in Clause 3 as referred to hereinabove, but counting six months from the date of execution of the agreement i.e. 16.2.1998, the period of six months ended on 15.8.1998 and the Suit was admittedly filed by the respondent on 10.05.2011. From perusal of the record and after going through the plaint filed in F.C. Suit No, 90 of 2011 by the respondent, it appears that the respondent has not mentioned or stated a specific date for accrual of cause of action. In the plaint, the respondent has stated that cause of action firstly accrued to the respondent when the agreement of sale dated 16.2.1998 was executed and continued thereafter. It would be advantageous to refer to Para 13 of the plaint in this regard which read as under:-- "13. That the cause of action firstly accrued to the plaintiff when the sale agreement dated 16.2.1998 was executed in respect of suit property between the plaintiff and defendant at Sukkur and subsequently when the defendant sent a false and baseless letter to the plaintiff and also denied falsely to complete the sale Deed and in reply to that letter the plaintiff showed his willingness to perform his obligation, but the defendant avoided to do so and lastly about fortnight back the plaintiff personally approached the defendant to execute proper registered sale Deed in respect of suit property but the defendant refused to do so, it is also continuing till today within the jurisdiction of this Hon'ble Court."
7. From perusal of the above contents of the plaint, it appears that the respondent has failed to show any continuity in the cause of action which according to the respondent had accrued on 16.2.1998. The respondent has not disclosed as to how and on which dates the cause of action continued till 10.5.2011, when the Suit was filed for the first time by the respondent. Though in the aforesaid Para, the respondent has stated that the cause of action continued when subsequently the petitioner allegedly sent a false and baseless letter to the respondent and also denied the completion of the sale deed, however, again no specific date has been mentioned by the respondent in the aforesaid Para with regard to the alleged baseless letter of the petitioner.
However, it appears that the respondent is referring to the legal notice dated 13.5.2010, which according to the learned Counsel for the respondent was the actual date from which the limitation was to be counted in terms of Article 113 of the Limitation Act, 1908, as the learned Counsel has contended that the limitation would start running from the date when the petitioner had refused to perform his part of the agreement. However, from perusal of the record it appears that the respondent in the pleadings, as well as the learned Counsel for the respondent while making submissions before this Court, have admitted that the agreement dated 16.2.1998 is not a disputed document, which provides a period/ date for execution of the same within six months and therefore the period of limitation is not to be counted from the date of refusal of specific performance of the agreement but from the date which has been provided in the agreement itself. To have a better understanding of the controversy in hand, it would be advantageous to refer to the provisions of Article 113 of the Limitation Act, 1908, which reads as under:-
113. For specific performance of a contract.Three yearsThe date fixed for the performance, or, if not such date is fixed, when the plaintiff has notice that performance is refused.
8. From perusal of the above article it is abundantly clear that insofar as specific performance of a contract is concerned, a limitation period of three years has been provided and any Suit seeking specific performance of a contract is to be filed from the date fixed for the performance in the agreement or if no such date is fixed, then the date D on which the plaintiff has noticed that performance has been refused. In the instant matter the first part of the aforesaid article in column No,3 is applicable, as admittedly the date/period for performance of the contract was fixed and agreed upon between the parties, therefore, insofar as the contention of the learned Counsel for the respondent with regard to the issuance of legal notice dated 13.5.2010 and counting of limitation from the date of refusal or knowledge of the respondent is concerned, the same is misconceived and not based on proper appreciation of law, hence repelled. Since the date/period for performance of the agreement was admittedly fixed between the parties, the period of limitation would be counted from the date/period provided in the agreement itself, which in the instant case was six months i.e. 15.8.1998, whereas, the Suit has been filed admittedly on 10.5.2011. As discussed earlier, the respondent has not been able to show through any document that as to whether any effort was made by the respondent, either to seek specific performance of the agreement or whether the respondent had made any effort to show that he was willing to perform his part of the agreement, nor the learned Counsel for the respondent has either placed on record nor referred to any communication or legal notice and or any letter, except the verbal assertions that the petitioner had kept on making promises for executing the sale deed. It has been further noticed that as per the averments in the plaint, the respondent had stated that subsequent to signing of the agreement in question a further payment of Rs, 200, 000/- was also made by the respondent to the petitioner. However, no substantial document or proof in the shape of any cheque, pay order, or even a cash receipt has been annexed or referred to in the plaint by the respondent so as to substantiate such assertion made by the respondent. It is also not the case of the respondent that the date or period mentioned in the agreement had been changed, altered or dispensed with by the parties through express or any implied manner, within the original period of limitation by resorting to novation of contract or an acknowledgement in terms of Section 19 of the Limitation Act, 1908. Therefore, I am of the view that the Suit was filed by the respondent at a very belated stage and beyond the period of limitation prescribed under Article 113 of the Limitation Act 1908, hence the same was time barred. Though no objection has been raised by the learned Counsel for the respondent to the effect that since no specific date has been stated in the agreement, and merely a period of six months has been mentioned, therefore the instant matter would not be covered by the first part of Article 113 of the Limitation Act, 1908, and would fall in the second or latter part of Article 113 ibid. However, when the agreement specifies a fixed period to perform the agreement, and from which the date can be easily determined or calculated, then the limitation shall run forthwith from that date, irrespective of the fact that whether any party to the agreement has defaulted or is unable to perform his / its part of the agreement in relation thereto.
In such an eventuality, the same would be covered by the first part of Article 113 of the Limitation Act, 1908 and not by the second part, as otherwise it would make the first part of Article 113 as redundant and would enlarge the limitation in all such cases, which cannot be the intention of the legislature. Reliance in this regard may be placed on the case of Muhammad Ramzan supra, wherein Hon'ble Supreme Court has been pleased to observe as under:-- "8. Under Article 113 of the Limitation Act, a suit for specific performance of contract is to be brought within three years from "the date fixed for the performance, or, if no such date is fixed, when plaintiff has noticed that performance is refused." The parties before us were to perform their respective parts of contract by January, 1988. The actual date of the calendar month for performance of the promise was not mentioned. However, when an agreement specifies the month and not the date of the month in, or by which, the promisor is to perform his part of the agreement, it can be performed on any day of the month. Thus, the final day for the performance of a contract would be the last date of the calendar month specified its performance. That would be the "date fixed" for the purpose of Article 113 of the Limitation Act from which the period of limitation of three years would run for filing a suit for specific performance. This must be so as the cause of action would arise to an aggrieved party only upon expiry of the period fixed for performance of the contract and thus no suit would lie before it. In the present case since the contract was to be performed by January, 1988, 31st day of that month was the last day for its performance. The appellant could bring his suit by 31-1-1991. The suit brought by him on 17-2-1991 was on the face of it barred by time. No application was filed for condoning its delay. The High Court had, thus, rightly dismissed the appellant's suit on this ground.
9. The learned Counsel for the appellant tried to bring his case within the second limb of the Article 113 of the Limitation Act by arguing that the limitation would run from the date when refusal by the respondent to perform his part of the contract came to the notice of the appellant. This argument has not merits as the second part of Article 113 of the Limitation Act becomes applicable only when the agreement does not provide a "fixed date" for its performance. As already held such date was fixed by the parties."
9. Now adverting to the issue raised by the learned Counsel for the respondent that since a specific issue has been framed by the Trial Court with regard to limitation, therefore the respondent must be allowed to lead evidence in this regard, it would suffice to observe that the Court is duty bound to see that whether the Suit which has been filed before it, is barred by any law or not. If a specific objection is taken through an application under Order VII, Rule 11, C.P.C., or otherwise, the Court is bound to examine the plaint and reject it forthwith, if it appears from the statement made therein, to be barred by any law. The Court is duty bound by the use of the mandatory word "Shall" to reject the plaint if it "appears" from the statement in the plaint to be barred by any law. The Hon'ble Supreme Court in the case of Haji Abdul Karim v. Messrs Florida Builders (Pvt) Limited (PLD 2012 SC 247), has upheld the order of rejection of plaint under Order VII Rule 11, C.P.C. passed by the Trial Court in a case of specific performance of an agreement. In that case the plaint of the petitioner in their Suit for specific performance of an agreement to sell an immoveable property, had been rejected by a learned Single Judge of this Court (Trial Court), holding the Suit to be barred by law i.e. limitation, against which an appeal was preferred which was also dismissed by a Division Bench of this Court. In that case the date for performance of the agreement was fixed as 31.12.1997, whereas, the Suit was filed on 7.1.2003, on the ground that the transaction could not be completed within the stipulated period due to failure and or the inabilities of the defendant to perform its part of the agreement. The Hon'ble Supreme Court after examining the provisions of Order VII Rule 11, C.P.C. and Article 113 of the Limitation Act, 1908, came to the conclusion that the order of rejection of plaint was correct and there could not be any exception to it. It would be advantageous to refer to the relevant observations of the Hon'ble Supreme Court in the aforesaid case specially Paras 9, 12 and 13, which are applicable and also relevant to the facts of the instant case, which reads as under:--
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.
This great advantage of this would be twofold".
12. After considering the ratio decidendi in the above cases, and bearing in mind the importance of Order VII, Rule 11, we think it may be helpful to formulate the guidelines for the interpretation thereof so as to facilitate the task of courts in construing the same.
Firstly, there can be little doubt that primacy, (but not necessarily exclusivity) is to be given to the contents of the plaint. However, this does not mean that the court is obligated to accept each and every averment contained therein as being true. Indeed, the language of Order VII, Rule 11 contains no such provision that the plaint must be deemed to contain the whole truth and nothing but the truth. On the contrary, it leaves the power of the court, which is inherent in every court of justice and equity to decide whether or not a suit is barred by any law for the time being in force completely intact. The only requirement is that the court must examine the statements in the plaint prior to taking a decision. Secondly, it is also equally clear, by necessary inference, that the contents of the written statement are not to be examined and put in juxtaposition with the plaint in order to determine whether the averments of the plaint are correct or incorrect. In other words the court is not to decide whether the plaint is right or the written statement is right. That is an exercise which can only be carried out if a suit is to proceed in the normal course and after the recording of evidence. In Order VII, Rule 11 cases the question is not the credibility of the plaintiff versus the defendant. It is something completely different, namely, does the plaint appear to be barred by law.
Thirdly, and it is important to stress this point, in carrying out an analysis of the averments contained in the plaint the court is not denuded of its normal judicial power. It is not obligated to accept as correct any manifestly self-contradictory or wholly absurd statements. The court has been given wide powers under the relevant provisions of the Qanun-e-Shahadat. It has a judicial discretion and it is also entitled to make the presumptions set out, for example in Article 129 which enable it to presume the existence of certain facts. It follows from the above, therefore, that if an averment contained in the plaint is to be rejected, perhaps on the basis of the documents appended to the plaint, or the admitted documents, or the position which is beyond any doubt, this exercise has to be carried out not on the basis of the denials contained in the written statement which are not relevant, but in exercise of the judicial power of appraisal of the plaint.
13. We have examined the plaint on the touchstone of the above criteria and find that from the admittedly executed agreement between the parties, which is the document sued upon and the entire case of the petitioners is structured thereupon, it postulates a 'date fixed' for the performance thereof and no case for the exemption, the enlargement and the exclusion of period of limitation has been set out, in the plaint as per Order VII, Rule 6, C.P.C. therefore, the suit undoubtedly appeared from the statement in the plaint to be barred by the limitation and has been rightly rejected by the Courts.
10. In view of hereinabove, facts and circumstances of the instant case, I am of the view that both the learned Courts below have erred in law in dismissing the application filed by the petitioner under Order VII Rule 11, C.P.C. as it is the primary duty of the Court to see and examine that whether the Suit appears from the statement in the plaint to be barred by any law, whereas in the instant matter the respondent has sought specific performance of agreement dated 16.2.1998 which is an admitted document, in which time has been specified for performance of the agreement and registration of Sale Deed for which no further evidence was required to be recorded in respect of the issue of limitation. Accordingly, the order dated 25.2.2014 passed by the Additional District Judge, Sukkur, in Civil Revision Application No,64 of 2011 and order dated 24.11.2011 passed by the Senior Civil Judge, Sukkur, dismissing the application(s) filed by the petitioner are hereby set aside and the application filed by the petitioner under Order VII Rule 11, C.P.C. is allowed and the plaint is hereby rejected being time barred in view of Article 113 of the Limitation Act, 1908.
11. Before parting with this judgment, there is another aspect of the matter, which needs to be attended. The plaint in the Suit filed by the respondent has been rejected by this judgment; however, it has come on record that the petitioner had received an amount of Rs 200,000/- (Two Hundred Thousand Only) as advance/earnest money in respect of the property in question, whereas, no proceedings have been initiated by the petitioner to seek cancellation of the agreement dated 16.2.1998, which has now become void and cannot be performed any more, therefore, in view of the provisions of Section 65 of the Contract Act, 1872, the petitioner has received the advantage under such agreement and is bound to restore it or to compensate for it to the person from whom he received it. Hence, this Court is not debarred while allowing rejection of plaint under Order VII Rule 11, C.P.C., in doing proper dispensation of justice, to direct the petitioner to refund the amount of Rs, 200,000/- (Two Hundred Thousand Only), to the respondent, so received as earnest money with mark up at the rate fixed by State Bank of Pakistan within 30 days from hereof. This however, shall be subject to settlement of rent due, if any, by the respondent in respect of the property as the respondent is in possession of the same as a tenant, in respect whereof some litigation is also pending between the parties. Reliance in this regard may be placed on the case of Haji Abdul Karim v. Florida Builders (Pvt.) Limited (PLD 2010 Karachi 17), Muhammad Aslam v. Bilqees Begun: (2008 CLD 38) and T. L. Muddukrishna and another v. Smt. Lalita Ramchandra Rao (AIR 1997 SC 772).
12. Petition stands allowed subject to the above terms as recorded in Para 11 hereinabove, however, with no order as to costs.