1. M. R. KHAN, J.--This appeal, by special leave, at the instanceof the plaintiff, arises out of a suit for specific performance of a contract of sale. The facts of the case are that the plaintiff-appellant entered into an agreement with the Lahore Improvement Trust, the first respondent (hereinafter called the Improvement Trust) to purchase plots Nos, 49 and 50 in Block B, Gulberg Extension, Lahore for Rs, 8,217-12-0. He paid Rs, 1,000 as earnest money, and the balance purchase price was payable in four equal instalments. The plaintiff paid the first three instalments as they became due and got possession of the plots after the payment of the first instalment. Before the fourth instalment fell due on the 30th July 1953, the Improvement Trust, by its letter, dated the 26th May 1953, asked the plaintiff to report within one week for completion of registration of the agreement for sale. In pursuance of this direction, the plaintiff attended the office of the Sub-Registrar for more than seven days in succession but none appeared there on behalf of the Improvement Trust. His further efforts to get the agreement registered failed. Subsequently, he came to learn upon enquiry that the Improve-ment Trust, in order to make the plots in question available for allotment to the respondent No, 2, Assistant Secretary, N. W. Railway, had cancelled his allotment and allotted those plots to that respondent. Accordingly, the plaintiff served a statutory notice on the Improvement Trust under section 98(1) of the Punjab Town Improvement Act, 1922 (hereinafter called the Act) and thereafter brought a suit on the 24th May 1954 for specific performance of the contract of sale, coupled with a prayer for possession. In the suit, an alternative prayer was made for the refund of money.
2. The suit was contested by both the defendants-respondents by filing separate written statements.
3. On the pleadings, a number of issues were framed in the suit. The defendants not having pleaded limitation in their written statements, no issue was framed with regard to limitation. It was only in course of the argument before the trial Court that it was mooted that the suit, in view of section 98(3) of the Act, was barred by limitation, the same not having been brought within the period of six months as prescribed in that section.
4. The trial Court held that suit was barred by limitation and accordingly rejected the plaint without deciding the suit on merits. Disagreeing with the trial Court, the first appellate Court held that the suit had been brought within time and accordingly remanded the suit to the trial Court for its disposal on merits. On second appeal, a learned Single Judge of the then High Court of West Pakistan, Lahore, set aside the decision of the first appellate Court on the view that the suit was barred by limitation under section 98(3) of the Act and dismissed the suit.
5. Leave was granted in this case as it requires the Interpretation of section 98(3) of the Act and determination of the nature of the suit.
6. Subsections (1) and (3) of section 98 of the Act on which reliance was placed by the Courts below run thus : "98. Notice of suit against Trust etc.--(1) No suit shalt be instituted against the Trust or any trustee or any person associated with the Trust under section 13 or any member of a Committee appointed under section 14 or any officer or servant of the Trust, or any person acting under the direction of the Trust or of the Chairman or any officer or servant of the Trust, in respect of an act purporting to be done under this Act, until the expiration of two months next after notice in writing has been, in the case of a Trust, left at its office and in any other case delivered to or left at the office or place of abode of the person to be sued, explicitly stating the cause of action, the nature of the relief sought, the amount of compensation claimed and the name and place of abode of the intending plaintiff and the plaint shalt contain a statement that such notice has been so delivered or left.
(2) ..........................................
7. (3)No action such as is described in subsection (1) shall. unless it is an action for the recovery of immovable property or for a declaration of the title thereto, be commenced otherwise than within six months next after the accrual of the cause of action."
8. It is clear from these provisions that a suit in respect of an act purporting to be done under the Act, other than a suit for the recovery of immovable property or for a declaration of the title thereto, is required to be instituted within six months next after the accrual of the cause of action. The trial Court took the view that although a prayer for possession was inserted in the plaint, in addition to the prayer for specific performance, the suit was not one for the recovery of immovable property. In its opinion, the cause of action for the suit arose after the elapse of one week from 26-5-53. As the suit was instituted on 24-5-54, the same was held by the trial Court to be barred by limitation. The first appellate Court, however, was of the opinion that the plaint having contained also a prayer for possession, the suit is one for the recovery of immovable property and, in that view, held that the suit having been instituted within three years of the accrual of the cause of action was within time.
9. The learned Single Judge of the High Court, on the other hand, took the view that the plaintiff having admitted in the plaint that he was in possession of the suit plots, the prayer for the possession of those plots was inserted with a view to saving the suit from the bar of limitation under section 98(3) of the Act. In this view of the matter, the learned Judge accepted the second appeal, set aside the order of the first appellate Court and dismissed the suit as barred by time.
10. I have looked into the plaint and all other material, documents included in the paper-book. I have also gone through the judgments of all the three Courts below. It appears that while the judgment of the first appellate Court is silent as to the date of accrual of cause of action for the suit, both the trial Court and the learned Single Judge had misconception about the date when the cause of action arose. Moreover, they ignored the effect of section 15(2) of the Limitation Act on the question of limitation in this case. The trial Court took that the cause of action accrued 'after a week from 26-5-1953 i,e, some time in the first week of June 1953'. The Improvement Trust, by its letter, dated the 26th May 1953 (Exh. P-3), asked the plaintiff to report within one week for effecting registration of the agreement for sale. It the plaintiff's case in the plaint that in compliance with the said letter, he attended the office of the Sub-Registrar for more than seven days in succession but none appeared on behalf of the Improvement Trust to get the agreement registered. On the basis of this averment in the plaint, the trial Court took that the cause of action arose in the first week of June 1953. But that Court did not realise that this was only a part of the cause of action and ignored the further averment in the plaint that the Improvement Trust, by its letter No, PJ-49/50-B/3598, dated 28-10-53 (Exh. P-15), finally refused to perform the contract of sale. The plaintiff stated in the plaint that he had received that letter on 29-10-53 and that the cause of action for the suit accrued on that date. It appears from Exh. P-15 that this is a letter sent by the Improvement Trust in reply to the notice, dated 13-7-53 given on behalf of the plaintiff by his lawyer. In this reply, the Improvement Trust informed the plaintiff's lawyer as follows : "You are hereby informed that you have no case whatsoever as your client failed to comply with the terms of the agreement executed by him on 17-6-1953."
11. The reply, dated 28-10-53 as quoted above, according to the averment in para. 10 of the plaint, was the final and written refusal' by the Improvement Trust to perform the contract of sale, and it was received by the plaintiff the next day, i,e, on 29-10-53. Accordingly, it was stated in the said para. of the plaint that the cause of action accrued on 29-10-53. In view of these facts, the trial Court was not correct in saying that the cause of action for the suit finally accrued in the first week of June 1953, that is, after the plaintiff's attendance to the office of the Sub-Registrar for more than seven days for effecting registration of the agreement for sale became fruitless on account of non- appearance of any one on behalf of the Improvement Trust. In the first week of June 1953, the plaintiff was not at all informed by the Improvement Trust that agreement for sale had been rescinded and would not, therefore, be performed. It was only on receipt of the Improvement Trust's reply, dated 28-10-53 (Exh. P-15) that the plaintiff came to know definitely for the first time on 29- 10-53 that the contract of sale was refused to be performed. Accordingly, the cause of action for the suit really accrued on 29-10-53 as stated in the plaint. In this connection, it may be pointed out that the plaintiff wrongly stated in para. 10 of the plaint that the Improvement Trust sent him the letter, dated 28-10-53 (Exh. P-15) in reply to his notice under section 98(1) of the Act. This was an obvious mistake of fact inasmuch as the notice under the said section (Exh. P-4) was issued on 3- 11-53 and the letter itself (Exh P-15) recites that it was sent in reply to the plaintiff's lawyer's notice, dated 13-7-53. Be that as it may, when the said letter refusing performance of the contract was received by the plaintiff on 29-10-53, the cause of action accrued on that date.
12. The learned Single Judge of the High Court proceeded on the footing that the cause of action arose on 10-6-53 on which date the contract of sale was said to have heen cancelled by the Improvement Trust. In its written statement the Improve-ment Trust stated that the contract of sale had been revoked, but did not give the date of such revocation. However, the Improvement Trust produced in the trial Court its office note (Exh. D-13) to show that the contract was cancelled on 10- 6-53. This office note showing the cancellation of the contract on 10-6-53 was the private document of the Improvement Trust, and there is nothing to show if any copy of the office note or its contents were ever sent or communicated to the plaintiff. The plaintiff, no doubt, stated in the plaint that he had come to know about the cancellation of the contract on enquiry, but did not say that he derived his knowledge on the very date of the cancellation. On the contrary, it was averred in para. 10 of the plaint that the plaintiff's cause of action arose on 29-10-53 on the receipt of a letter from the Improvement Trust in reply to his lawyer's notice. It has been already noticed that this averment is supported by the Improvement Trust's letter (Exh. P-15). The learned Single Judge was not therefore, right in taking that the cause of action arose on the very date of cancellation of the contract on 10-6-53.
13. The cause of action for the suit, as has been found earlier, accrued on 29-10-53 on which date the letter of the Improvement Trust refusing performance of the contract was received by the plaintiff.
14. The suit was instituted on 24-5-54. The period between 29-10-53 to 24-5-54 is 6 months and 27 days. The plaintiff brought the suit after serving a notice (Exh. P-4) under section 98(1) of the Act, the service of such notice being a condition precedent to the institution of the suit. The period of this statutory notice is two months. The plaintiff is entitled under section 15(2) of the Limitation Act to the exclusion of the notice period of two months. The said section 15(2) runs thus : "15(2). In computing the period of limitation prescribed for any suit of which notice has been given in accordance with the requirements of any enactment for the time being in force, the period of such notice shall be excluded."
15. If the period of the statutory notice issued in this case is deducted from the aforesaid total period of 6 months and 27 days in accordance with the provision of section 15(2) of the Limitation Act, the suit was clearly within time, the same having been filed within the period of six months prescribed in section 98(3) of the Act. Thus the learned Single Judge's view that the suit was barred by time, is not correct. It seems that the same conclusion will follow even without the application of section 15(2) of the Limitation Act. In the plaint the plaintiff asked for a direction on the Improvement Trust to specifically perform the contract of sale and to do all acts necessary to put him in full possession of the plots in suit. On the face of the plaint, this was not only a suit for specific performance but also a suit for the recovery of possession of the suit plots on the basis of title flowing from the performance of the contract of sale. Section 98(3) of the Act prescribing the period of limitation for a suit in respect of an C act purporting to be done thereunder, does not apply to an action for the recovery of immovable property. That being so, the present suit being one also for the recovery of possession of immovable property, is excepted from the operation of section 98(3) and is governed by the general law of limitation whereunder the period of limitation for such a suit is three years from the accrual of the cause of action. In this view of the matter as well, the suit was not barred by time. The learned Single Judge did not say that the present suit was not also a suit for the recovery of immovable property. What he said is that the plaintiff having admitted to have got possession of the suit plots, the insertion of the prayer in the plaint with regard to possession was a device to save the suit from the bar of special limitation of six months under section 98(3). This was apparently an assumption of the learned Judge which, on scrutiny, does not appear to be well-founded. It is true that there is an averment in the plaint that upon payment of the first instalment the possession of the plots was given to the plaintiff. But a further averment is there in para. 6 of the plaint that the plaintiff asked also for confirmation of his possession, but it was refused on behalf of the Improvement Trust. This refusal to confirm the plaintiff's possession was not denied or disputed in the written statement of the Improvement Trust; rather it was stated in that written statement that the plaintiff was never given possession of the plots in question and that the possession thereof was given to the respondent No,
2. In the context of these facts, the prayer for possession in the plaint cannot be assumed to have been made as a device to get rid of the bar of limitation under section 98(3) of the Act. In this connection, it may be incidentally mentioned that while the plaintiff did not adduce any evidence as regards his alleged possession, the defence led evidence to substantiate that the possession of the plots was not ever given to the plaintiff and that the possession thereof rests with the defendant No, 2.
16. There is yet another aspect of this matter. The plaintiff'. possession as asserted in the plaint was attributed to the contract of sale, but the relief as regards possession was claimed in the plaint not under the contract of sale but on the basis of title that would be derived by him on the performance of that contract.
17. It is pertinent to note that the plaintiff's alleged possession under the contract could only be for the period prior to the conveyance and that on the completion of the conveyance be would be entitled to possession not under the contract but on the basis of his title. That being the position, it is hardly correct to say that the relief as regards possession claimed in the plaint was motivated. The prayer for possession was also a legitimate relief in the facts of this case. Accordingly, the suit was not to be governed by the special period of limitation prescribed in section 98(3) of the Act. Thus, the suit, in any view of the matter, was within time.
18. In the result, I would allow the appeal, set aside the decision of the High Court and restore that of the first appellate Court. The trial Court shall now dispose of the suit on merits according to law.
19. Having regard to the point of law involved, I would leave the parties to bear their own costs.
20. The suit was instituted as early as 24-5-54 i,e, about 17 years ago It appears that there was delay at every stage. The trial Court itself took more than five years to dispose of the suit only on the preliminary point as regards limitation, but did not decide it on merits in spite of completion of the evidence on both sides. The inordinate delay that has occurred in this case is unfortunate. The suit should now be disposed of on merits by the trial Court without the least delay.
21. WAHEEDUDDIN AHMED, J.--I agree. SALAHUDDIN AHMED, J.--I agree