MOHAMMAD SHERAZ KAYANI, J.-- The supra titled appeal has been directed against the judgment and decree passed by the learned District Judge Mirpur dated 14.04.2008 whereby the appeal of appellant, herein, was dismissed being weightless while upholding the judgment and decree passed by the learned Senior Civil Judge Mirpur dated 15.11.2006.
2. Shortly stated facts of the captioned appeal are that plaintiff/ appellant, herein, filed a suit for specific performance of the contract dated 17.03.84 against the defendants/respondents, herein, and after obtaining written statement and framing issues the learned trial Court heard the arguments advanced by the counsel for the respective parties on legal issues Nos.3 and 4.
3. Issues Nos.3 and 4 are relating to jurisdiction of the Court as the Civil Court has jurisdiction or not and whether the suit was filed within time. The learned trial Court came to the conclusion that as the agreement to sell was executed in year 1984 and the suit was filed on 30.04.2005, so, the same declared as time barred. On issue No.3, it was held that as the suit land is situated in Village Mathelo District Sukkhur and thus Civil Court of Mirpur has no jurisdiction, hence rejected the plaint.
Feeling aggrieved, the plaintiff/appellant, herein, filed an appeal before the learned District Judge Mirpur which was dismissed vide judgment and decree dated 14.04.2008, hence, the above titled 2nd appeal.
4. Ch. Mohammad Riaz Alam, the Learned counsel for appellant, submitted that cause of action for a suit for specific performance is started from date of refusal of defendant to execute the deed and in this respect he referred para No.6 of the plaint. In support of his version, he also referred the case law 1999 CLC 954. With regard to jurisdiction of the Court the learned counsel while referring section 20 of the Civil Procedure Code, submitted that under the said section the Court in whose limit the cause of action arises has jurisdiction to entertain such suit.
5. Nobody has turned up on behalf of respondents, therefore, they are proceeded ex parte.
6. I have heard the ex parte arguments and gone through the record of the case.
7. I am agreed with the version of the learned counsel for the appellant with regard to issue No.4 regarding limitation that it is a mixed question of law and facts and could be decided only after recording evidence. Keeping in view Article 113 of the Limitation Act, whereby limitation for suit for specific performance of contract is started from the date of refusal of defendant, when defendant refused to act upon the terms of relevant contract, so, to this extent the learned Courts below, Trial Court as well as 1st appellate Court fell in error.
8. With regard to the jurisdiction of the Court, both the Courts below held as the suit land is situated in Village Mathelo District Sukkhur, Sindh and due to that reason the Court of learned Senior Civil Judge Mirpur has no territorial jurisdiction to try the case. Under section 16 of the Code of Civil Procedure Code, 1908, a general principle has been laid down that the suits in respect of immoveable property shall be filed in the Court within the local limits of area whose jurisdiction the property is situated but an exception has been given that if the suit is filed for foreclosure sale or redemption regarding immovable property that can also be filed on the place where the cause of action as whole or partly arises. For proper perception of law section 16 of Civil Procedure Code, is reproduced herein below: Sec.16---Suits to be instituted where subject matter situate.---Subject to the pecuniary or other limitations prescribed by any law, suits:
(a) For the recovery of immovable property with or without rent or profits;
(b) For the partition of immovable property;
(c) For foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property;
(d) For the determination of any other right to or interest in immovable property;
(e) For compensation for wrong to immovable property;
(f) For the recovery of movable property actually under distraint or attachments; Shall be instituted in the Court within the local limits of whose jurisdiction the property is situated or in the case of suits referred to in clause (c), at the place where the cause of action has wholly or partly arisen. (under lining is mine)
9. In the present case, agreement to sell was executed at Mirpur as it is shown that the agreement to sell dated 17.03.1984 was also registered by the Sub-Registrar Mirpur on 17.03.1984 and according to version of the learned counsel refusal of its execution was also made at Mirpur. Therefore, in my opinion, in view of above provision of law, the suit for specific performance of the. agreement dated 17.03.1984 , could have been filed in the Court of learned Senior Civil Judge Mirpur. In the referred case of Sardar Mohammad Sarwar Khan, (1999 CLC 954) the apex Court of Azad Jammu and Kashmir held as under:- "A Court has jurisdiction to hear a case where a part of the cause of action arises within the local limits of its jurisdiction. If the creation of the right and the infringement thereof both happen at a particular place, the whole cause of action will be said to arise there. But if they take place at different places, parts of the cause of action arise in those different places. Where the infringement itself is in respect of several items, parts of the cause of action arise in the several places of infringement in respect of those items. It must be remembered that even a fraction of the cause of action is a part of the cause of action and therefore, if even a fraction of the cause of action accrues within the local limits of the jurisdiction of a Court, that Court has the jurisdiction to entertain the suit. Clause (c) of section 20 is based on broad principle to avoid multiplicity of proceedings and inconvenience to the parties."
10. The reasons given by the trial Court that as the property is situated in the province of Sindh and if the plaintiff succeeded to obtain the requisite decree it would not be executable in the said area due to being a foreign judgment, is not a good reason because the suit is not for the recovery of the land rather a prayer has been made that the defendants may be ordered to execute the sale- deed on the basis of agreement to sell dated 17.03.1984 , in favour of plaintiff and needless to say that if the decree is passed there would be no legal bar for the defendants to execute the sale deed in respect of the suit land even at Mirpur and in case of non-compliance of the Court decree such sale-deed can be executed by the Court even through any officer of the Court, so, there would be no legal complication in this regard.
In the light of what has been stated above, by accepting the instant appeal, the judgment and decree passed by the learned District Judge Mirpur, dated 14.04.2008, and that of learned Senior Civil Judge Mirpur dated 15.11.2006, are hereby set-aside and the case is remanded to the trial Court with the direction to decide it afresh on merits in accordance with law.