1. ' These two connected revisions originated from a dispute involving agricultural land bearing Survey No, 271 etc. In Ward No, I at Jacobabad belonging to the two respondents in these two revisions namely, Ghulam Hussain and Habibullah in equal shares. It is the case of the applicant in both these applications/petitions that he was occupying this land since 1940 or thereabout, but without any title. Sometimes in 1958 he came to know that this land belonged to Ghulam Hussain and Habibullah, the respondents in these two revision petitions. He approached them and an agreement of purchase was concluded between the applicant and the two respondents Ghulam Hussain a d Habibullah. It is alleged that agreement between the applicant and Ghutam Hussain was in writing. It is Exh. 29, while agreement between the applicant: and Habibullah, though concluded on the same date, was oral. The applicant was already in possession and by virtue of these two agreements his possession henceforth became authorised. The two respondents agreed to execute proper sale-deeds after obtaining the Income-tax Certificate and complying with other usual formalities. It is important to note here that no time or date was fixed for execution of the sale-deeds and no time limit was prescribed for compliance of the requirements by the respondents as stated above.
2. The sale-deeds were never registered. On the other hand the two respondents filed rent Case No, 82/1965 before the Rent Controller, Jacobabad praying for ejectment of the applicant from the land. This application was dismissed by the learned Rent Controller on 24-3-1966. The concluding paragraph of this order may be reproduced which runs as follows : "It appears to me that after the agreement of sale the opponent began to enjoy a status different than that of a tenant and the facts that no rent was paid after year 1958, confirms it that the opponent was no longer the tenant of the applicants."
2. ' First Appeal No, 12/1966 was filed against this order. But the parties compromised. Under this compromise Habibullah also agreed to sell his share to the applicant and by an order dated 1-7- 1966 the appeals of the respondents were disposed of in terms of the compromise. Respondent Ghulam Hussain filed second appeal being and Appeal No, 654/1966 in the High Court at Karachi.
3. By a judgment dated 3-4-1968 the second appeal was also dismissed by Noorul Atha, J. This concluded the first round of litigations between the parties. Now it was the appellant's turn to initiate fresh litigations and secure his title by obtaining registration. It is alleged that he did so by first approaching the respondents to execute the sale-deed in his favour and get it registered. It is claimed that this effort was made on 5-4-1970. But the defendant refused to comply. On their refusal Suits Nos. 20/1970 and 21/1970 came to be filed by the applicant against Ghulam Hussain and Habibullah for specific performance of the contract of sale by them in favour of the applicant.
4. Neither the request for specific performance alleged to have been made by the applicant in 1970 nor the refusal have been proved to the satisfaction of the Court below and I would proceed on the premises that no such request was made and no such refusal ever came about. I would, therefore proceed on the premises that the two suits for specific performance of the contract were filed without any refusal at all in 1970 as alleged and not proved by the applicant.
5. ' The two Suits Nos. 20 of 1970 and 21 of 1970 for the specific performance of the contract were filed in the Court of the learned Civil Judge, Jacobabad. Both these suits were decreed by the learned Judge on 31-10-1974. I must observe that the question of litigation was treated a side issue in the trial Court. Though this question was touched upon by the learned Judge, while disposing of Issue No, 1 in his judgment it never drew a proper attention. The concluding lines in the judgment on this issue will show how this question was evaluated by the trial Court at the stage of the suit. The extract from the judgment is produced below "So far as Article 113 of Limitation Act is concerned the period of 3 years will start from the date of performance of contract if such date is mentioned there but in case if no such date for performance is mentioned there then the time will start from the date when plaintiff takes notice that the performance is refused by defendant. According to plaintiff's case the performance was refused by defendant on 5-4-1970 and the rent application was finally decided in 'Ind appeal by the West Pakistan High Court Karachi Bench Karachi on 3-4-1968. Thus, the suit of plaintiff is within 3 years of the limitation period as prescribed by Article 113 of Limitation Act."
6. ' Two 1st appeals being Civil Appeals Nos. 2/1974 and 3/1974 were filed against this judgment and decree of the trial Court and the learned 1st Additional District Judge, Jacobabad has allowed both these appeals. As these appeals have been allowed on the sole consideration that the suits for specific performance were barred by time as stipulated by Article 113 of the Limitation Act. This becomes the focal point in this revision now. The judgment of the first appellate Court has not disposed of other issues because the suit was held to be time barred and was dismissed by the appellate judgment on the question of limitation. As the period of limitation must have a starting point, it is always necessary to determine what that. Starting point is. In other words this starting point would be the cause of action for filing the suit.
7. ' In the present case it is admitted position that Article 113 of Limitation Act would be applicable which prescribes a period of three years for filing a suit for specific performance. The suits were filed on 5-5-1970. The trial Court has held that suits were filed in time. But the 1st appellate Court has a different view. According to the first appellate Court, the starting point in this case should be the date of the filing of the rent application which is 30-10-1965. As such suit ought to have been filed by or before 31st October, 1968. The suits having been ;lied on 5-5-1970 clearly run out of limitation by more than a year and a half (I 1) of the prescribed period. They have been held to be time barred. It would be pertinent to quote few wines from the judgment to highlight the thinking of the learned District Judge, Jacobabad in his judgment and to show bow he has approached this question :- "Admittedly the appellant and Habibullah had filed Rent Application No, 82/1965 on 30-10-1965 therefore in my humble conclusion this would amount to sufficient notice to the respondent if it is assumed that no other notice was given by the appellant to the respondent, for refusal to execute the regular sale-deed. However, learned counsel for the respondent submitted that the respondent had been fighting for his rights upto the High Courts when his 'Ind Appeal No, 456/68 was decided by the High Court on 3-4-1968, therefore according to the learned counsel for the respondent the delay in suing creates a bar only when it prejudices the defendant and leads him to believe that , he has waived his rights for that period of limitation. There is no force in this submission. Under Article 113 of the Limitation Act the respondent ought to have filed his suit for specific performance within 3 years from the filing of the rent appl cation i,e, upto 30-10-1968 but the suit was filed by him on 5-5-1970 after a lapse of about 4i years. Moreover the respondent has also failed to prove that the appellant had avoided the execution of the sale-deed on 5-4-1970 (vide para. 16 of the plaint).
8. Therefore the suit of the respondent is hopelessly time barred and section 53-A of the Transfer of Property Act is of no help to the respondent as it only protects his possession of the disputed property but he certainly cannot claim title over the-said property in the absence of a registered sale-deed."
9. ' Learned counsel for the applicant feels aggrieved against this finding. The two learned counsel have vehemently argued their cases on this short question and the short point that falls for determination in this revision is whether the provisions of Article 113 of the Limitation Act have been properly and correctly interpreted by the learned first appellate Court. Both the learned counsel representing the parties have catego rically stated that they have made a search for any precedent on the point but their efforts have yielded no result and they have not been able to lay their hands upon any case interpreting this section and, therefore, it is necessary to analyse the text of the section now and examine the relevant portion of this Article with some care. The Article is reproduced for ready reference : {{DATA MISS ARANGE}} "For specific Three The date fixed for the performance, performance of years. Or, if no such date is fixed, when a contract. The plaintiff has notice that performance is refused."
10. The Article visualises two situations ; one when the date for performance is fixed in the contract itself and the other when no such date is fixed. In the former case the starting point would be a fixed date. But in the later the limitation would remain suspended and the period would start to run only when the promiser defendant refuses to perform his part and such refusal is notified to the promisee/plaintiff. Admittedly the first part of the Article is not attracted in the present case. It is only the second part which would govern the case and we have to make a search whether there is a refusal in this case, if so, what is the date of such a refusal. The learned counsel for the appellant has laid emphasis on the expression 'refused' used in the section and according to him, this refusal must be deliberate, intentional, unambiguous, candid and categorical. This refusal may nevertheless be inferred by conduct or by circumstances in certain cases. For instance, the defendant may have concluded or may be found negotiating another sale. On coming to know about it the plaintiff should immediately proceed because this impliedly amounts to refusal. In other cases the defendant may choose to remain silent and indifferent to the request made to him for performance and the plaintiff may on this assumption launch an action. But can assumption which is an event uncertain and may vary from temperament C to temperament of an individual form the basis for laying down a rule. A prudent man may choose to pursue the remedy sooner than latter and a less enthusiastic person may hopefully wait trusting the good sense and finer elements in a man. Would the latter be penalised and the remedy to enforce his right be denied to him although it was merely an error of judgment that he misread the situation. Now the filing of the rent application. Is merely an isolated incident, and such an incident cannot necessarily be interpreted as a refusal to perform the contract. Instances are not wanting when agreements of sales remain held up. Applications for recovery of arrears of rent accompanied with a relief of ejectment of a tenant/transferee are filed. Each party blaming the other for delay but none accepting frustration of the contract. Learned counsel has referred to the rent application and pointed out that not even casual mention of the agreement of sale dated 24-Y-1958 had been made in this application what to say of revocation of the same. The learned counsel further contended that in the present case neither there is a mention of any frustrating event in the rent application nor a suit for rescission of the agreement has been filed nor any notice for revoking the agreement was ever issued. As such no refusal can be spelled out in clear terms which is the requirement of the Article. It would be conjectural and presumptive to attribute such a conduct to the respondent in the circumstances of the case and there is no justification to D do the same, as it would cause great prejudice to the applicant, who has all along remained active in defending his position and the rights secured by him under the contract. I have given anxious consideration to the case and feel hesitant to subscribe to the view expressed by the learned first appellate Court.
11. Limitation does not confer a right. It is only a regulatory statute and merely regulates the rights which are inherent in the parties. It only seeks to prescribe time limit for invoking remedies in order to curtail period of suspense and uncertainty and ensure peace of mind to the parties. But vested rights cannot be extinguished and remedies cannot be cut down by a regulatory statute unless all the conditions prescribed for such curtailment are fully complied with in letter and spirit. The benefit of doubt, if any, should be given to the party who has acquired valuable rights for good consideration and not to the one who is trying to back out from his commitment pocketing all the advantages and trying to shield himself behind the regulatory provisions of the statute and seeking to deprive the other from the rights acquired. In the present case the respondent has been paid the consideration of his land. The appellant has been occupying the land since 1958. He has raised constructions and made improvements on the land, never for a moment he has been negligent.
12. The main question involved in the rent proceedings was whether there was relationship of landlord and tenant between the parties. The respondent did not even mention about the agreement. The appellant in his written statement pleaded the agreement of sale in his defence. The question arose whether mere agreement would absolve the appellant from the liability of paying rents? In this connection rights acquired by the appellant under section 53 of Transfer of Property Act also came to be discussed. But the respondent never expressly indicated that he would be rescinding the contract nor any refusal in categorical terms not to honour his commitment was forthcoming from him. It would be harsh and inequitable to deprive the plaintiff/applicant from the right acquired under the agreement of sale in such a situation and it would be too much to infer that mere filing of the rent proceedings would amount to a refusal within the meaning of Article 113 of the Limitation Act, and further to attribute to the appellant that he had notice of such an intention because the requirements of law are "that the plaintiff has notice that performance is refused".
13. ' The result is that view taken by the learned Additional District Judge cannot be upheld and the suit cannot be dismissed as time barred.
14. The learned Additional District Judge in the last para. Of his judgment has adverted to other issues as well. It is regretted that without assigning any reasons he has chosen to reverse the findings of the trial Court, on all the other issues. This is most objectionable method of deciding a case. These conclusions and findings of the learned Judge have no merits and no sanction in law. They are in total disregard to the provisions of Order XLI, rule 31, C. P. C. Which is reproduced for ready reference :- "31. Contents, date and signature of judgment.-The judgment of the appellate Court shall be in writing and shall state :
(a) the points for determination ;
(b) the decision thereon ;
(c) the reasons for the decision ; and
(d) where the decree appealed from is reversed or varied, the relief to which the appellant is entitled ; ' and shall at the time that it is pronounced be signed and dated by the Judge or by the Judges concurring therein".
15. ' How the learned 1st Additional District Judge has ignored these guidelines which he was bound to follow is evident from the concluding part of his judgment which is reproduced below : - "The upshot of the above discussion, therefore, is that the suit of the respondents for the specific, performance of contract was time barred therefore the suit deserves to be dismissed on this point alone. 1 have also examined the timings of the learned Lower Court on the other issues but it would be futile to discuss them in detail since I have already held under Issue No, 1 that the suit of the respondent itself was not maintainable but suffice is to observe that even on merits also the respondent his failed to make out his case for the specific performance of contract. Therefore, the appeal is allowed and the suit of the respondent is dismissed with costs."
16. In this view of the matter I was inclined to send back the case for, rehearing but there is one difficulty in doing so. Had the learned Judge left other issues undisposed of and dismissed the suit on the point of limitation alone, I would have remanded the case for determination of the remaining issues after hearing the parties. But here the learned Judge claims to have "examined the findings of the learned Lower Court on the issues" and hastens to hold "suffice it to observe that even on merits also the respondent has failed to make out his case for the specific performance of contract".
17. ' Such a finding would naturally fail to inspire confidence at the appellate stage where it may come to be appraised and scrutinized. It cannot be sustained and approved by me without reasons in support thereof.
18. ' I would, therefore, set aside this part of the judgment as well and restore the judgment and decree of the learned trial Court.
19. ' This revision is allowed, the judgment of the learned 1st Additional District Judge, Jacobabad dated 30-4-1976 is set aside, the judgment and decree of the learned Civil Judge, Jacobabad dated 31-10-1976 is restored. The suit for specific performance stands decreed with costs throughout.