S.M. ATTIQUE SHAH, J.- Through this constitutional petition filed under Article 199 of the Constitution of Islamic Republic of Pakistan, 1973, the petitioners have prayed for setting aside the judgment dated 29.3.2019, rendered by learned District Judge, D.I.Khan, whereby the revision petition filed by respondent No.1 against the order dated 07.11.2018, passed by learned Civil Judge-XII, D.I.Khan was allowed, resultantly, suit of the petitioners was dismissed under Order VII, Rule 11 C.P.C.
2. Brief facts of the case are that the petitioners brought a suit against the respondents seeking declaration, perpetual prohibitory and mandatory injunction in respect of the property fully detailed in the heading of the plaint.
In alternate, the petitioners also sought decree for specific performance of oral agreement dated 01.01.1998. When summoned by the trial Court, the respondent No.1 put his appearance and submitted an application for directing the petitioners to affix Court fee of Rs.3,50,000/-, failing which the suit be dismissed having no cause of action. The petitioners submitted their written reply and the learned trial Court, after hearing arguments of both the sides, dismissed the application vide order dated 07.11.2018, which was assailed by the respondent No.1 before the revisional Court by filing the revision petition. The learned District Judge, D.I.Khan vide impugned judgment dated 29.3.2019, accepted the revision petition, set aside the order of learned trial Court and rejected the plaint under Order VII, Rule 1 1 C.P .C. being barred by law , hence the instant writ petition.
3. I have heard arguments of learned counsel for the parties and gone through the record of the case with their valuable assistance.
4. Perusal of the record reveals that the petitioners, through their suit, sought declaration, perpetual prohibitory and mandatory injunction or in alternate specific performance of the oral agreement to sell dated 01.01.1998. Perusal of contents of the plaint reveals that it was agreed upon between the parties that after return of petitioner No.1 from abroad, proper documentation of the bargain will be made, however , after his return from abroad, the petitioners tried their best to contact him, but in vain, however, he met with the petitioners in the year 2013 and the petitioners demanded him to transfer the property through mutation, but he used lame excuses and finally the matter went to the arbitration through Good Taliban Jirga and the Jirga in its decision dated 10.11.2013 supported the version of the petitioners and directed the respondent No.1 for transfer of the suit property in their favour, who once again went into hiding. The petitioners urged that since the respondent No.1 handed over the possession of the property in question to them on 01.01.1998, after receiving entire sale consideration, therefore, he has no concern whatsoever with the same.
5. The petitioners have filed the suit for declaration and based their claim upon an oral agreement to sell dated 01.01.1998 or in alternate suit for specific performance of the agreement regarding the suit property against the respondent on 05.06.2018. Here a questio n arises that whether the alleged oral agreement to sell creates any title, right or interest in favour of the petitione rs/plaintif fs and they could file a declaratory suit on the strength of the same? The answer to the ibid question is in negative, as of now, it is well settled that mere agreement to sell could neither creates any title nor any right or interest in the suit property , as such, declaratory suit filed under section 42 of the Specific Relief Act, 1877 was not maintainable under the law on the strength of the alleged oral agreement to sell.
6. Now coming to the prayer of the petitioners for specific performance of agreement to sell, the present case revolves around an oral agreement to sell, which was arrived at between the partie s on 01.01.1998 and as per the stance of the petitioners/plaintif fs the entire sale consideration was paid to the respondent and it was settled between the parties that after the return of the petitioner No.1 proper mutation would be attested, meaning thereby that no specific date was fixed for the performance of the said agreement, which surely means that the case of the petitioners is covered by the second part of Article 113 of the Limitation Act, 1908 and it would be appropriate to refer to the provisions of Article 113 of the Limitation Act, 1908, which provide three years period for filing a suit for specific performance of a contract from the date fixed for the performance, or, when no such date is fixed, when the plaintiff has notice that the performance is refused. The ibid provisions clearly provide that the period of limitation would start to run from the date fixed for the performance, or, when no date is fixed, when the plaintif f has notice that the performance is refused. In the case in hand, the petitioners/plaintif fs had noticed the refusal of the performance of the contract by the respondent/defendant in the year 2013 and thus, the refusal would be reckoned from the year 2013, when the respondent refused to attest the mutation in favour of the petitioners, as the petitioners themselves clearly mentioned in Para-2 of their plaint, "However , defendant No.1 met with plaintiffs in the year 2013 and plaintiffs demanded the transfer of property through mutation; but defendant No.1 used lame excuses and finally the matter went to the arbitration through Good Taliban Jirga; and the Jirga in its decision dated 10.11.2013 also supported the version of plaintiffs and directed the defendant No.1 to transfer the property in favour of plaintiffs ". In view of the above, if this Court considers the refusal from the year 2013, even then the suit of the petitioners was hopelessly barred by time, as the same was instituted on 05.6.2018. Granted that limitation is a mixed question of law and facts, which could be resolved after recording of the evidence of the parties, however , the ibid principle is not absolute and it depends upon the peculiar nature and circumstances of each case. This Court, in light of the above discussion, is of the view that the said principle does not attract to the case of the petitioners, as the alleged oral agreement to sell was arrived at between the parties in the year 1998, whereas, the suit was filed by them in the year 2018 after long twenty years, which was clearly barred by time. Reliance is placed on case reported in Muhammad Khan. Vs. Muhammad Amin through LRs and others (2008 SCMR 913) and Abdul Hamid and another . V. Dilawar Hussain alias Bhali and others (2007 SCMR 945). It is also settled that the Courts must put an end to a fruitless litigation at the very initial stage, particularly , where the suit, on the face of it, is hopelessly barred by limitation and, recording of the evidence and pendency of the proceedings before the Court would be a futile exercise and wastage of time. The learned revisional Court rightly rejected the plaint through the impugned judgment which is not open to interference by this Court in exercise of its extraordinary constitutional jurisdiction.
7. For the reasons mentioned herein-above, this petition having no merit and substance is hereby dismissed.