' The defendants' appeal against judgment and decree dated 17-12-1991 passed by the Additional District Judge, Lahore by which the appeal filed by them against judgment and decree dated 26- 6-1991 passed by trial Court through which suit filed by the respondent for specific performance of agreement of sale was decreed, has been dismissed.
2. Both the Courts below have recorded concurrent findings of fact against the appellants and in second appeal the same could legally be challenged only if the same had proceeded upon a misapprehension or were shown to be condemnable on any of the grounds mentioned in section 100, C.P.C. Since learned counsel for the appellants at preliminary hearing voiced their grievance that the lower appellate Court did not allow them to go through the evidence during hearing of the arguments therefore, in order to satisfy myself whether the evidence was misread, misconstrued or any material piece of evidence did not receive consideration, I permitted learned counsel to take me through the evidence. The entire evidence produced by both the parties both oral and documentary has been examined with the assistance of learned counsel for the parties.
3. Appellants 4 to 8 through agreement of sale (Exh. P.9) executed on 2-11-1980 agreed to sell their property known as Abdul Majid Hotel, Old Anarkali, Lahore to the respondent for a consideration of Rs,1,75,000 out of which an amount of Rs,25,000 was paid as earnest money. The time fixed in this agreement for completion of sale-deed and payment of the remaining price before the Sub- Registrar was up to 2-2-1981. The case of respondent/plaintiff had throughout been that from 2-11- 1980 appellants 4 to 8 were repeatedly asked to execute the sale-deed but they declined.
Subsequently, appellants 4 to 8 sold the said property to appellants 1 to 3 through five different sale-deeds all executed on 6-6-1981, and registered on 30-6-1981. The respondent filed suit on 7-9- 1983 for ppecific performance of agreement of sale against appellants 4 to 8. Subsequently, by order dated 29-9-1984 passed by the trial Court on the application of the respondent moved under Order 1, Rule 10, C.P.C. Appellants 1 and 2 were impleaded as defendants 6 and 7 in the suit. The appellants 1 and 2 filed written- statement on 8-12-1984. The trial Court reflected the controversies arising from the pleadings of the parties in the following issues framed on 13-12-1990:
(1) Whether the plaintiff was ready to perform his part of the contract on and before the stipulated period? O.P.P.
(2) Whether the sale executed by defendants Nos, 1 to 5 in favour of defendants Nos, 6 and 7 is ineffective upon the rights of the plaintiff because they are mala fide purchaser with notice of the agreement to sell in favour of the plaintiff? OPP.
(3) Whether the defendants 1 to 5 were in knowledge of the civil suit for permanent injunction, if so, its effect? O.P.P.
(4) Whether the plaintiff is entitled to decree for specific performance, if so, at what terms and conditions? O.P.D.
(5) Whether the plaintiff has not come to the Court with clean hands? O.P.D.
(6) Whether the suit is bad for laches and uncondonable delay? O.P.D.
(7) Whether the time was essence of the contract? O.P.D.
(8) Whether the plaintiff himself has committed breach of the contract and has failed to get the sale-deed executed in her favour within the stipulated period? O.P.D.
(9) Whether the defendants are entitled to forfeit the earnest money ? O.P.D.
(10) Whether the contract has now become ineffective in light of section 56 of the Contract Act, as the property has been further sold to the defendants 5 to 6? O.P.D.
(11) Whether the suit is barred by time? O.P.D. 6 and 7.
(12) Whether the defendants Nos, 6 and 7 are bona fide purchaser for consideration without notice?
O.P.D. 6 and 7.
(13) Whether the suit is barred under Order 2, Rule. 2, C.P.C.? O.P.D. 6 and 7.
(14) Whether the plaintiff is estopped by her own conduct to file the present suit? O.P.D. 6 and 7.
(15) Whether the suit is not properly valued for the purpose of court-fee and jurisdiction? If so, what is its correct valuation? O.P.D. 6 and 7.
(16) Whether the suit is not maintainable? O.P.D. 6 and 7.
(17) Relief.
4. On 22-1-1991 respondent filed another application under Order 1, Rule 10, C.P.C. For impleading appellant No, 3 Muhammad Afzaal as one of the defendants in the suit. The trial Court passed an order on 14-2-1991 for impleading him as one of the defendants. He was summoned who filed written-statement on 10-4-1991. Since the pleas raised by appellant No, 3 were similar to those already raised by the appellants 1 and 2 therefore, the trial Court on 4-5-1991 passed an order in the presence of the learned counsel for the parties that there was no necessity to frame any other issue because the issues already framed sufficiently covered all the controversies arising from the written-statement of newly-added defendant i,e, appellant No,
3. It appers that none of the learned counsel appearing for the parties requested for framing of any additional issue.
5. The respondent/plaintiff examined Ch. Muhammad Jamil, Advocate as P.W. 1, Muhammad Aslam as P.W. 2, Muhammad Usman as P.W. 3, Muhammad Shoaib as P.W. 4, Muhammad Akram Dar, as P.W. 5, Khalifa Ghulam Hassan as P.W. 6, Shaukat All as P.W. 7, Manzoor Ahmad as P.W. 8, and P.W.
9. The documentary evidence produced by the respondent in the case was as follows:-
(i) Exh. P.1 notice dated 5-2-1981 issued by Ch. Muhammad Jamil, Advocate P.W.1 to appellants 4 and 6 to 8.
Exh.P.2 a postal receipt dated 19-3-1981 addressed to Mr. Makhdoomi, Advocate counsel for appellants 4 to 8 for despatch of notice. Exh. P3 notice dated 28-2-1981 issued by Muhammad Jamil, Advocate P.W.1 addressed to Mr. Makhdoomi Advocate.
(iv) Exh. P.4 original application moved by respondent before the Sub-Registrar containing order of Sub-Registrar returning the same to the respondent.
(v) Exh. P.5 notice published in Newspaper Sayasat dated 13-6-1982 on behalf of respondent by S.M.
Baqar Girdezi, Advocate.
(vi) Exh.P.6 another notice published in Daily Mashriq on 3-4-1981 on behalf of respondent by Mr_Girdezi, Mr. Advocate.
(vii) Exh P 7 is a receipt evidencing payment of Rs,300 as expenses of publication of notice in Daily `Mashraq' (Ext. P.6).
(viii) Exh.P.8 special power of attorney executed by respondent/plaintiff in favour of Manzoor Ahmad her son-in-law (P.W. 8 and P.W. 9).
(ix) Exh.P.9 original agreement of sale dated 2-11-1980
(x) Exh.P.10 a copy of undated telegram addressed to Agha Jehangir Jang at 74-A, New Model Town, Lahore issued by the respondent.
(xi) Exh.P.11 a copy of telegram addressed to Agha Nadar Jang by respondent at 74-A, New Muslim Town, Lahore, and
(xii) Exh.P.12 copy of interim orders passed by the Civil Court in a suit filed by respondent for permanent injunction earlier to the institution of the present suit.
6. In rebuttal, the appellants examined Agha Safdar All as D.W.1, Haji Shair Muhammad as D.W.2, Munir Ahmad Butt as D.W.3, Muhammad Makki as D.W.
4.
7. The documentary evidence produced by the appellants was as given below: Exh.D.1 a notice dated 12-2-1981 issued on behalf of vendors/appellants 4 to 8 to respondent calling her to pay the remaining price within 14 days otherwise the agreement would stand forfeited.
Exh.D.2 a public notice published in Daily 'Imroze' on 1-4-1981 on behalf of appellants 4 to 6 that they were intending to sell the property.
(iii) Exh.D.3 special power of attorney dated 29-5-1981 executed by appellants 1 to 3 in favour of Sher Muhammad Makki.
(iv) Exh.D.4 judgment dated 22-5-1991 passed in Writ Petition No, 5055 of 1985.
8. The trial Court through judgment and decree dated 26-6-1991 decreed the suit. Issues 1, 8 and 9 were discussed and decided together in favour of repondent/plaintiff and against the appellants. It was held that the respondent was ready to perform her part of contract and had not committed the breach of the same. Issues 2 and 12 were answered in favour of the plaintiff. Issue No, 3 was answered in favour of the appellants. It was held that there was no convincing evidence produced by the plaintiff to prove that defendants 1 to 5 /appellants 4 to 8 were in the knowledge of the suit filed by the plaintiff for permanent injunction. Issue No, 5 was answered against the defendants and in favour of the respondent/plaintiff. It was held that the plaintiff did not approach the Court with unclean hands as alleged.
9. The trial Court under issue No, 7 held that in view of the extension of time given by appellants 4 to 8 through notice Exh Dl for execution of sale-deed the time could not be regarded as the essence of the contract therefore, issue No, 7 was answered in favour of the plaintiff. Issue No, 10 was answered against the appellants and it was held that merely because the property had been further sold by appellants 4 to 8 the contract had not become ineffective under section 56 of the Contract Act. Under issue No, 13 it was held that the suit was not barred under Order 2, Rule 2, C.P.C.
Issue No, 14 was answered in favour of the plaintiff after holding that there was no convincing evidence on record to prove that the plaintiff was estopped to file the suit. Under issue No, 15 it has been held that the suit was properly valued for the purpose of court-fee and jurisdiction. Issue No, 16 has been answered in favour of the plaintiff after holding that the same was maintainable. Consequently, the suit was decreed.
10. In appeal filed by the appellants before the lower appellate Court, the findings recorded by the trial Court were upheld and through judgment and decree dated 17-12-1991.
11. Learned counsel for the appellants argued that it is not correct that in every case of contract of sale of immovable property, time was not to be treated as essence of the contract and this question is to be decided on ascertainment of the intention of the parties to the contract with reference to the terms of the contract itself. He maintained that in the present case since it was provided in the contract that the sale-deed was to be executed on or before a specified date on payment of remaining sale price before the Sub-Registrar at the time of registration of the sale- deed failing which the agreement would stand cancelled and earnest money forfeited therefore, the intention of the parties was manifest that the time was intended to be the essence of the contract and the respondent having failed to get the sale-deed executed before the date fixed in the agreement on payment of balance transfer price therefore, according to the said term the agreement stood cancelled and was no longer enforceable.
12. The argument though appears to be ingenious but is not tenable in the facts and circumstances of this case and the close scrutiny of the evidence produced by the parties.
13. The correctness of the submission that in every case regarding contract of sale of immovable property it cannot be assumed that the time is never to be treated to be the essence of contract cannot be disputed as in each case the intention of the parties whether the time was essence of the contract was to be ascertained from the terms of the agreement itself and with reference to material brought on record in evidence in the suit. It may be mentioned here that merely because a particular date was given in the agreement of sale for completion of the sale-deed and payment of balance of transfer price failing which it was provided that the agreement would stand cancelled and earnest money forfeited would not be sufficient to hold that in a case of contract of sale in immovable property the time was intended to be the essence of the contract unless it was ascertainable from the agreement itself that the vendor was compelled to sell the property in order to accomplish such objects regarding which time factor was very material so far as he was concerned of which the vendee had due notice. For example if it had been mentioned in the agreement that the vendor was selling the property for raising money in order to pay off the loan obtained by him from the bank within the time schedule given by the bank and if not paid accordingly the vendor would be adjudged a defaulter or other such like compelling circumstances. Had there been anything disclosed in the agreement that the time which was being fixed in the agreement for completion of sale was relevant and material with I reference to those circumstances there could have been a valid basis for raising argument that it was intended to be the essence of contract of which the A vendee had due notice. In view of this in the present case it cannot be held that time was the essence of the contract and in such a case according to firmly settled law the performance of agreement from either party as regards his part could be made within reasonable time.
14. Even if for the sake of argument, it is accepted that time in this case should be treated the essence of the contract the legal effect of the same would be that a party to the contract had an option against the defaulting party to repudiate the contract which repudiation could be conveyed in writing to the defaulting party or expressed through conduct i,e, by taking no further steps regarding the said agreement, having no dealing with the defaulting 'party by maintaining complete silence and inaction from which it could be implied that the said party was not ready to treat the contract alive after the date fixed in the agreement relying upon self-executory clause regarding recission of agreement after the said date. In this case the appellants Nos, 4 to 8 the original vendors issued notice (Exh.D.1) on 12-2-1981 to respondent through which they called upon her to get the sale-deed completed and registered within fortnight therefrom and intimating that failing which the earnest money would stand forfeited from which it was clear that either the time was not intended to be the essence of the contract and even if that was so the right of repudiation was not exercised by not negotiating with the defaulting party any further but intention was expressed not to repudiate till further fifteen days from the receipt of the said notice by the respondent. This notice was sent through post. There is no evidence as to on which date it was despatched and even if it is assumed that the same was despatched on the same date i,e, 12-2- 1981 it would have normally taken at least 4/5 days to reach the addressee, therefore, it can safely be presumed that right of repudiation was not exercised and was not intended to be exercised till before 27-2-1981 in any case and the contract was kept alive at his option. From this it can also be concluded that the respondent if was ready and willing to perform her part of contract before the said date would be deemed to have discharged her obligations regarding readiness and willingness to perform her part of contract.
15. As I have already observed both the Courts below have recorded concurrent findings of facts on disputed questions of fact, therefore, in order to succeed in this second appeal the appellants are required to establish that the said findings had proceeded upon a misapprehension or were condemnable on any of the grounds mentioned is section 100, C.P.C. Which would obviously include misreading, misconstruction and non-reading of any material piece of evidence. In order to determine whether these findings do suffer from any such legal infirmity I proceed to discuss the evidence produced by the parties in this case. Exh.P.4 is the original application which the respondent moved before Sub-Registrar to record her present' in order to show that she intended to perform her part of contract which was returned to her by the Sub-Registrar that she should intimate the vendor before approaching him. The argument of learned counsel for the appellants that this unilateral act of respondent without intimation the appellants could not be treated as evidence against the appellants of her willingness to perform her part of agreement because there was no stipulation in the agreement Exh.P.9 that on a particular date the parties were to appear before the Sub-Registrar has force. Exh. P. 1 is a copy of notice dated 5-2-1981 which was issued by P.W.1 Ch. Muhammad Jamil, Advocate on behalf of the respondent to appellants 4 to 8 in which it was stated that the respondent requested many times verbally for the registration of sale-deed but the same was postponed on one or the other pretext and that she was ready and willing to complete the purchase and called upon them to complete the sale-deed before the Illaqa Magistrate within 15 days. Learned counsel for the appellants submitted that complete address of appellants 4 to 8 was not written in this notice as they were shown to be residents of new Muslim Town, Lahore and the number of house was not deliberately given because it was not in fact intended to reach the said appellants as respondent had no intention to get the sale-deed completed. The argument would have some force had appellants 4 to 8 provided to the respondent their addresses in the agreement of sale itself on which they could be contacted and the notices sent to them on the said addresses. In the agreement Exth.P.9 the addresses of appellants 4 to 8 have been given as under:-- "Residents of New Muslim Town, Lahore", therefore, if the notice was addressed to them on the said address and due to incomplete addresses the same had not reached them as alleged the fault lies with them for which the respondent cannot be blamed. In Exh. D1 which was admittedly issued on behalf of appellants 4 to 8 by the learned councel Mian Ayub Ahmad Makhdoomi, Advocate, they were shown to be residents of New Muslim Town, Lahore and no number of house or the Bungalow was given. It does not lie in the mouth of appellants 4 to 8 that they did not receive a number of correspondence from the respondent on account of incomplete address given by her."
16. As I have already observed that no evidence was produced as to on which date in fact notice dated 12-2-1981 (Exh. Dl) was delivered to respondent in order to determine the date on which the period of 14 days fixed in the said notice for completion of sale-deed was to be counted, I would presume that notice dated 28-2-1981 issued by the respondent in reply thereto was within the said period of 14 days. In cross-examination of Ch. Muhammad Jamil P.W.1, learned counsel for appellants 4 to 8 confronted him with a photostat copy of notice mark 'A' dated 19-3-1981 and it was suggested to him that the same bore his signatures who did not deny the presence of his signatures but stated that being photostat copy he was not in a position to give definite reply. This document having been produced by appellants 4 to 8 from their custody therefore can legitimately be used as evidence against them to which learned counsel for appellants 1 to 3 i,e, the subsequent vendees has taken strong exception. He argued that this document cannot be used in evidence unless the said vendees/appellants were given opportunity to cross-examine the author. He argued that such a document cannot be used against the subsequent vendees because the vendors and the respondent might have colluded to defeat their rights. I am afraid from the material on the record any such inference could have been even remotely raised that there was collusion between appellants 4 to 8 and the respondent. The present appeal has been filed jointly by the vendors and the subsequent vendees as appellants. There is no material on the record that at any stage of the proceedings either before the trial Court or in appeal appellants 4 to 8 expressly or impliedly showed any intention not to prosecute the case vigilantly on account of collusion. Even otherwise, the question regarding readiness and willingness to perform contract between the appellants 4 to 8 and respondent relates to the period long before appellants 1 to 3 came into picture by purchasing the property subsequently therefore, they could not raise any objection as to events taking place between the vendors and respondent No,
1. This document is dated 29-3-1981. A bare reading of this document shows that after the receipt of notice dated 5-2- 1981 the appellants 4 to 8 did not close the matter but issued another notice which has not been produced on the record. It was in reply to the said further notice issued on behalf of appellants 4 to 8 that this reply dated 19-3-1981 was written. It was reiterated on behalf of the respondent that the allegations of the said appellants regarding inaction on the part of the respondent to get the sale- deed registered or written was wrong and she was ready and willing to get the sale-deed registered.
17. Learned counsel for the appellants pointed out that postal receipt Exh.P.2 produced by the respondent cannot be relatable to notice Exh.P.1 dated 5-2-1981 as the said postal receipt is dated 19-3-1981. This postal receipt, it appears, relates to issuance of notice mark 'A' which is dated 19-3- 1981 therefore, nothing turns on this. Issuance of notice dated 5-2-1981 has been proved through the evidence of P.W.1 Ch. Muhammad Jamil, Advocate and there is no good reason to disbelieve him as his evidence could not be shaken in the cross-examination. The respondent made efforts to get the relevant record from the G.P.O. Lahore produced through P.W. 2 which was not produced because according to this witness such record after 18 months was destroyed. The same is the position with regard to the record of telegrams brought on record and record of 'Daily Newspaper Sayasat' as stated by P.W. 3 and P.W.4. This evidence read with evidence of Manzoor Ahmad P.W. 8 who appeared in affirmative evidence as attorney of respondent and thereafter as P.W.9 in rebuttal is sufficient to establish that the respondent was ready and willing to perform her part of agreement before the option of repudiation of contract was exercised therefore the findings of the two Courts below on this aspect of the case do not suffer from any illegality or misreading, misconstruction or non-reading of any material piece of evidence.
18. Learned counsel for the appellants argued that prior to the filing of the present suit the respondent filed a suit for permanent injunction to restrain appellants 4 to 8 from selling the property instead of filing the suit for specific performance of agreement which remedy was available to her, the intention was to avoid the specific performance of agreement which was sufficient to hold that she was not ready to perform her part of agreement. He also pointed out that the addresses of appellants 4 to 8 were not correctly given in the said suit with the mala fide intention that they might not be served. It has already been held that the respondent was ready and willing to perform her part of agreement within the time fixed by appellants 4 to 8 themselves for repudiation of contract through notice dated 12-2-1981 therefore, the respondent was within her right to file suit for specific performance of contract within the period of limitation prescribed under the law and before doing that if on account of wrong legal advice given to her she filed suit for permanent injunction the same did not detract from her bona fides, adversely affecting her right to seek specific performance of agreement within limitation. As regards the allegations of giving incorrect address of appellants 4 to 8 suffice it to say that as has been observed above, the fault lies with the said appellants in not providing full particulars of their addresses in the agreement of sale as also subsequent notice issued (Exh.D.1).
19. Learned counsel for appellants 1 to 3 argued that in the list of documents produced under Order 13, Rule 1 and Order 7, Rule 14, C.P.C. Most of the documents were not either produced at the time of first hearing of the suit or relied upon in the list of reliance therefore, the same could not have been produced in evidence unless order by the Court was expressly passed. Excepting document Exh. P.4 no objection was raised by the appellants against the late production of the other documents and their admission in evidence. I am not persuaded to allow the appellants to raise this objection at this stage which they should have raised at the relevant time i,e, when the documents were produced and admitted in evidence.
20. The next question which falls for consideration is whether appellants 1 to 3 had succeeded to prove that they had no notice of agreement of sale in favour of respondent as such were purchasers of the property for valuable consideration without notice. Learned counsel for the appellants submitted that mere statement on their behalf while appearing in evidence that they did not have notice of the said agreement of sale was sufficient to discharge the onus and the onus shifted to the other side to prove that they had notice of agreement of sale. Evidence was produced by appellants 1 to 3 but the same does not inspire confidence as D.W. 3 Munir Ahmad Butt who is the main witness on this point merely stated that he was the General Secretary of Rabta Awam Committee and President of Primary Unit Muslim League and had a shop in Old Anarkali where the shop in dispute was situated. He stated that he would always come to know whenever any incident in the Ilaqa would happen but did not come to know about the sale and purchase of this shop nor he did come to know about execution of any agreement of sale between appellants 4 to 8 and the respondent. The other evidence is of statement of D.W. 4 namely Muhammad Makki who is Special Attorney of appellants 1 to 3. Apart from making a bald statement that he did not come to know about the execution of agreement of sale between the vendor and the previous prospective vendee a subsequent purchaser was refused to satisfy the Court that he would not have come to know about the agreement had he made such inquiries which an ordinary prudent man would have made. Admittedly appellants 1 to 3 are running Hotel in a shop adjacent to the shop in dispute. The shop in dispute was occupied by the respondent as tenant. Had they just inquired from the respondent before striking bargain with appellants 4 to 8 they would have certainly come to know. This is apart from the fact that in the facts and circumstances of this case, I am not persuaded to accept that the appellants 1 to 3 did not have the knowledge or notice about the existence of agreement of sale in dispute as both the parties were running business adjacent to each other in the same Bazar. There are also notices issued by the respondent and published in the Daily newspaper `Mashriq' dated 3-4-1981. It appears that the respondent did not come to know that on 6-6-1982 after the publication of the said notice appellants 1 to 3 had purchased the property because another notice in the 'newspaper `Sayasar was got published on 13-64982 (Exh.P.5). This being so, it has rightly been held as a fact by the two Courts below that the appellants I to 3 are not purchasers without notice in good faith for valuable consideration. It may be observed here that it was admitted by learned counsel for both the sets of appellants that the amount of consideration mentioned in the sale-deeds executed in favour of appellants 1 to 3 was not correctly shown whereas in fact the amount of consideration was much in excess of what was mentioned therefore due to this conduct also they cannot claim to be bona fide purchasers for valuable consideration.
21. It remains to be decided whether the suit was barred by time. The agreement of sale was executed on 2-11-1980 and time for execution of sale-deed was originally fixed as 2-2-1981 which stood extended till expiry of the period given in the notice Exh.D.1 dated 12-2-1981. The period of limitation under Article 113 of the Limitation Act if held to have started running even from 2-2-1981 though the same has to be counted from the date of expiry of period given in the notice dated 12- 2-1981, it when filed on 7-9-1982 was within limitation i,e, three years prescribed under the said Article. The question which arises is as to whether the same could be held to be barred by time on the date when subsequent vendees i,e, appellants 1 and 2 were impleaded as party in the suit. It was not free from difficulty to answer this question, Appellants 1 and 2 were impleaded as defendants in the suit on the application of respondent filed on 7-7-1983 which was accepted through order dated 14-10-1984. Learned counsel for appellants 1 to 3 frankly conceded that they shall be deemed to have been impleaded as party on the date i,e, 7-7-1983 when the application was moved seeking their impleadment therefore, the suit against them shall be deemed to have been filed on the said date. No difficulty arises in answering this question as regards the said appellants because on the date when application to implead them as defendants was made on which they were ordered to be impleaded as defendants the period of limitation of three years prescribed for filing suit against the original vendors i,e, respondents 4 to 8 had not yet run out, therefore, learned counsel for the appellants 1 to 3 did not further press the argument that the suit could be held to be barred by time against the said appellants i,e, appellants 1 and 2.
22. The controversy regarding question of limitation has narrowed down to appellant No,
3. Learned counsel for appellants 1 to 3 further argued that it has come to the notice of the respondent through written statement filed on 6-11-1982 by appellants 4 to 8 the original defendants that the property had subsequently been sold to appellants 1 to 3 whose names were also given. He also pointed out that Manzoor Ahmad P.W. 8 attorney of respondent when appeared as witness admitted that on 3-1-1983 appellants 1 to 3 were impleaded as respondents in the ejectment petition filed by appellants 4 to 8 against the respondent on which date he had come to know that appellants 1 to 3 had purchased the property, but in spite of that no steps were taken by the respondent to implead appellant No, 3 in the suit till 22-1-1991 when an application was made to implead him as defendant and though order for his impleadment was passed on 14-2-1991, he shall be deemed to have been impleaded as party on 22-1-1991 as such the suit against him shall be deemed to have been filed on the said date by virtue of Order 1, Rule 10, C.P.C. Read with section 22 of the Limitation Act, as such, the same was barred by time and since partial specific performance of an agreement was not permissible therefore, it was liable to be dismissed as a whole.
23. Order 1, Rule 10(5), C.P.C. Merely provides that the proceedings against the newly-added defendant shall be deemed to have commenced only on the service of summons on him subject to section 22 of the Limitation Act, therefore, for decision of question of limitation qua the newly- added defendants it is section 22 of the Limitation Act, which is relevant. The provision of Order 1, Rule 10(5), C.P.C. Appears to have been enacted to safeguard the interest of the newly-added defendants qua the proceedings and orders already taken and passed in the suit in relation to the rights and liabilities arising therefrom so that newly-added defendants should not be taken to be bound by whatever had been dor., earlier. For example if an order for temporary injunction had already been passed, the same would not be binding on the newly-added defendants from the period prior to their impleadment.
24. Since appellants 1 to 3 were subsequent purchasers, therefore, they could protect their rights only if it was established that they purchased the property without notice of the previous agreement of sale for valuable consideration in good faith as such the question of limitation in a suit for specific performance of previous agreement of sale against the vendor in which the subsequent vendees were impleaded as party has to be determined with reference to the question of evidence of notice to them and purchase of property for a valuable consideration in good faith.
A further question would also arise as to what would be the period of limitation in such a suit against subsequent vendee and from which date the same would start. There is no provision in the Limitation Act, which prescribes any period of limitation in such a suit against the subsequent vendee independently. Article 113 which is the only Article applicable to a case of suit for specific performance of an agreement of sale provides that for such a suit the limitation is three years from the date fixed for the performance of the said agreement and in case no such date was fixed, the starting point of limitation would be when the plaintiff, had notice that performance had been refused. The suit in hand was admittedly filed within three years from the date fixed in the agreement of sale and the date on which the period of fortnight expired as mentioned in notice Exh. D.1. In such a situation applying this Article how could it be held that as regards subsequent purchaser there was any covenant between the plaintiff and the such vendees for performance of agreement on a specified date or any question of refusal to perform agreement on their part would have arisen. Apart from this if provisions of section 22 of the Limitation Act, are interpreted in the manner as is being canvassed it would result in serious implifications inasmuch as the vendor and the subsequent vendee shall have free hand to defeat the plaintiff in his suit for specific performance of an agreement by collusively entering into subsequent contract of sale and keeping the same secret. As a matter of fact the suit could be held to be barred by time had one of the original vendors against whom period of limitation had started running under Article 113 not been impleaded originally but was impleaded as party subsequently after the expiry of period of limitation under Article 113. Since I have already held that the appellants 1 to 3 had notice of the agreement of sale executed by appellants 4 to 8 in favour of the respondent/plaintiff, therefore, for all these reasons the suit was not barred by time on account of impleadment of appellant No, 3 on 14-2-1991. It may be mentioned that appellant No, 3 could not maintain that he did not have the knowledge of pendency of the suit after his co-vendees/appellants 1 and 2 had been made party in the said suit. The subsequent purchasers were to be impleaded as party in the suit merely to provide them opportunity to establish that they were purchasers in good faith for valuable consideration without notice, therefore, on coming to know of the pendency of the suit for specific performance of previous agreement of sale, it was for them to have sought an order for their impleadment as party to safeguard their own interest and in such a case it was not the obligation of the plaintiff only to implead such subsequent purchasers as party. Anyhow, appellant No, 3 having been impleaded as defendant in the suit and having had full opportunity to produce evidence therefore, no prejudice was caused to him for his impleadment as defendant on 14-2- 1991. This view finds support from judgment reported as Dundigalla Kesavalu and others v.
Kalavaguntla Rajaram and others (AIR 1920 Madras 96). The findings of the two Courts below on the question of limitation thus suffer from no legal infirmity.
25. After close scrutiny of evidence produced by the parties, I find that the two Courts below have not committed any illegality in recording concurrent findings of fact on all the issues, therefore, the judgments and decree passed by them do not suffer from any legal infirmity. The appeal fails which is accordingly dismissed leaving the parties to bear their own costs.