ABID HUSSAIN CHA TTHA, J.----The titled constitutional Petition is directe d against the impugned Orders dated 13.01.2016 and 21.09.2017 passed by Civil Judge, Sialkot and Additional District, Sialkot, whereby , the application of the Petitioner under Order VII, Rule 11 of the Code of Civil Procedure, 1908 (the "C.P.C.") was concurrently dismissed.
2. The brief facts of the case are that the Respondents Nos. 1 and 2 on 04.02.2009 instituted a suit for possession and specific performance of the contract against the Petitioner and others alleging therein that on 21.12.1998, the Petitioner (Munir Ahmad) and others entered into an agreement to sell with respect suit property owned by them located in Hamza Ghaus, Sialkot. It was also pleaded that total sale consideration was Rs.875,000/- which was received but sale deed was not got executed.
3. The learned counsel for the Petitioner submitted that the suit was hopelessly barred by limitation. The petitioner on 22.03.2010 filed an application under Order VII, Rule 11(d) of the C.P.C. for rejection of the Plaint, however , instead of deciding the said application, the suit was prolonged and on 11.11.2013, issues were framed and in the absence of the Petitioner , statements of six witnesses (PW-1 to PW-6) were recorded which are yet to be cross- examined. He submitted that the agreement to sell was executed on 21.12.1998, whereas, the suit was instituted on 04.02.2009, hence was bared by time under Article 113 of the Limitation Act, 1908. The limitation for filing of a suit for specific performance of the contract is three years from the target date fixed in the agreement or within three years from the date of the execution of the contract. The agreement which does not contain the completion date is ambiguous and cannot be specifically enforced. He placed reliance on case titled, Inayatullah Khan and others v. Shabir Ahmad Khan 2021 SCMR 686; and case titled Haji Saindino Khan and another v. Mst.
Zaibunnissa through Legal Heirs and another 1991 SCMR 972. Accordingly , under the circumstances, the application under Order VII, Rule 11 of the C.P.C. ought to have been accepted and the Plaint was liable to be rejected being bared by limitation.
The learned counsel for the Petitioners submitted that the application under Order VII, Rule 11, C.P.C. was submitted on 22.03.2009 but decided on 13.01.2016 after more than six years. This act of the Court has prejudiced his cause. Further , Order XIII, Rule 2 of the C.P.C. requires that when issues had been framed, the legal issues ought to be decided first as preliminary issues. Although the Trial Court had specifically framed issue No. 6 as to whether the suit in hand is time barred , yet neither issue No. 6 was decided as a preliminary issue nor his application under Order VII, Rule 11 of the C.P.C. was decided promptly as required by law. He placed reliance on case titled, Jan Muhammad Abbasi v. Mukhtiarkar Estate, Larkana (Barrage Mukhtiarkar) and others 2007 CLC 1790 , case titled, Muhammad Ali v. Province of Punjab and others 2005 SCMR 1302 ; case titled, Hakim Khan v. Aurangzeb and another 1979 SCMR 625; and case titled, Sardar Muhammad and others v.
Muhammad Afzal and others 1985 SCMR 1221 .
4. Learned counsel for the Respondents contends that in the application under Order VII, Rule 11 of the C.P.C., the petitioner in addition to limitation also raised several factual issues including the genuineness of the agreement to sell. The trial Court not only decided the application of the Petitioner but has also framed specific issue with respect to limitation which in this case is a mixed question of law and facts which could not be decided without recording of evidence. Evidence of four witnesses have already been recorded and sever al documents have also been exhibited. The Petitioner himself did not press the application to be decided earlier but when it was so pressed, it was decided accordingly . The act of the Court cannot prejudice anyone. He, supported the impugned Orders passed by the learned courts blow and submitted that when the application itself alleged that agreement to sell is based on fraud and fabrication, the application was not maintainable. He placed reliance on case titled, Aamer Shahzad Dhody v. Adamjee Insurance Co. and others case titled, 2020 CLD 1329 ; case titled, Nadeem Ahmad v. Saif-ur-Rehman and 8 others 2021 MLD 354 and case titled, Syed Amjad Mahboob v. Raja Mumtaz Hussain Arif and 3 others 2014 MLD 1607 .
5. Arguments heard and record perused.
6. It is a matter of record that in the application under Order VII Rule 11 of the C.P.C., the Petitioner has himself disputed the agreement to sell alleging that it is the outcome of fraud. The Petition er has also candidly stated that no target date for execution of the agreement is fixed and the agreement is vague and ambiguous in terms of its culmination. The specific issue regarding limitation has already been framed. Much evidence has already been recorded. The trial is at its final stages. The question of limitation in instant case is a mixed question of law and facts requiring evidence. The Petitioner is not prejudiced from the passing of the impugned orders. The Petitioner can still produce evidence to prove the issue of limitation. For this reason, the trial Court has rightly not tried this issue as a preliminary issue. The cases relied upon by the Petitioner are not applicable to the facts and circumstances of this case.
7. In the case of Aamir Shahzad Dhody (supra), it was held that once a question qua limitation has been framed and the court has initiated the process of recording the evidence, then the preferred course is to take the case to its logical end. The observations were made by following the case of Irshad Ali v. Sajjad Ali and 4 others, PLD 1995 SC 629; and the case titled, Haji Abdul Sattar and others v. Farooq Maya: and others , 2013 SCMR 1493 .
Similarly , in the case of Shahzad Khan Khakwani v. BeRum Shamim M.K. Khakwani through Muhammad Younus Durrani and another , 2017 YLR 1005 , it was held that where an agreement to sell reveals no fixed date for specific performance of the contract, then second part of Article 113 of the First Schedule of the Limitation Act, 1908 is attracted and limitation of three years is computed from the date of refusal to specifically perform the agreement. The mere fact that the suit was filed with a delay of more than seven years by itself would not be sufficient to reject the Plaint unless and until material was available on record to suggest the date of refusal. In the case titled, Al-Meezan Investment Management Company v. Wanda First Skuk Company , PLD 2017 SC 01, it was observed with respect to the scope of Order VII, Rule 11 of the C.P.C. that whether the suit is maintainable or not is moot with respect to whether or not a plaint is to be rejected .being barred by law since both are different species altogether and it may well be that a plaint is not rejected under Order VII, Rule 11 of the C.P.C. but the suit is dismissed being not maintainable for a possible host of reasons.
8. In view of the above discussion, the titled Petition is without merits and the same is dismissed .