' The respondent agreed to sell 1/2 portion of the house in dispute for a total consideration of Rs,5,000. The agreement was executed between the parties on 24-7-1963 when the earnest money of Rs,4,500 was paid through cheque while the sale deed was to be registered within one week. It is maintained that the sale-deed was executed and signed by the parties on 25-7-1963 but the respondent did not get the same registered, therefore, the plaintiff was constrained to move Sub- Registrar under section 36 read with section 75 of the Registration Act for the registration of the sale deed. The respondent did not appear in spite of service, therefore, the Sub-Registrar refused to register the same and dismissed the application of the appellant vide order dated 16-9-1963, which was challenged through an appeal before the Registrar, who dismissed the same vide order dated 12-10-1965. The father of the respondent filed a suit on 31-7-1963, which was dismissed by trial Court on 28-9-1966 while the appeal was dismissed by the lower appellate Court on 22-12- 1967.
2. The appellant proceeded to institute a suit for specific performance on 7-11-1966 from which the present appeal has arisen. The suit was contested by the respondent. The trial Court framed the issues, recorded the evidence of the parties and after hearing the arguments decided Issue No, 1 as to limitation in favour of the respondent and as a result thereof rejected the plaint vide judgment and decree dated 4-4-1969. The appellant filed first appeal before the lower appellate Court, who affirmed the findings of the lower Court and dismissed the appeal vide judgment and decree dated 10-11-1969. Hence present appeal, which was admitted to regular hearing and notice was issued to the respondent, who has appeared and contested the appeal.
3. The learned counsel for the appellant argued that the Courts below wrongly and illegally held that the suit was barred under Article 113 of the Limitation Act. It is maintained that the case is covered by the second part of Article 113 of the Limitation Act. The learned counsel in this behalf has referred to Lakshminarayana Reddiar v. Singaravelu Najcker and another (AIR 1963 Madras 24) and Haji Sattar Haji Muhammad v. Allah Rakhya Dhanji (PLD 1963 (W.P.) Karachi 786). It is added that in any case since the appellant was pursuing his remedy as to the registration of the sale-deed duly executed by the respondent, therefore, time spent by him up to the dismissal of the appeal was liable to be excluded while working out the limitation. It is argued that there was no delay in filing the suit. In this behalf, the learned counsel has referred to Momtazul Karim and others v. Abu Hussain and another (1970 SCM R 816).
4. On the other hand, the learned counsel for the respondent argued that the limitation was to be computated from dismissal of the appeal by the Registrar as provided under section 77 of the Registration Act, therefore-thesuit filed after 30 days thereafter was hopelessly time-barred. It is added that if the suit was pending about the same cause of action and was dismissed for want of jurisdiction or defect of like nature, then time spent in prosecution of the case in that Court would be excluded in view of the provisions of section 14 of the Limitation Act. The learned counsel added that neither Sub-Registrar nor Register under the Registration Act is a Court. In this behalf, he has referred to Muhammad Din and others v. Muhammad Din and others (AIR 1938 Lahore 254) and Manavala Goundan v. Kumarappa Reddy (ILR 30 Mad. 327).
5. The learned counsel for the appellant while replying the arguments submitted that the time was not essence of the contract, therefore, the suit was within time. The learned counsel in this behalf has referred to Ghulam Nabi and others v. Seth Muhammad Yaqub and others (PLD 1983 SC 344).
The arguments are summed up with the submission that reference to section 77 on behalf of the respondent is irrelevant because this section is only attracted when the suit is for the registration of a document and not otherwise.
' I have given my anxious consideration to the arguments of the learned counsel for the parties and gone through the record as well as precedent cases. The admitted position between the parties is that one week's time was fixed for execution and registration of sale deed. The only question involved is whether the suit was time-barred and its decision depends on the interpretation of the Article 113 of the Limitation Act, which reads as under:-- {{TABLE}} "113. For specific per- Three years formance of a contract. The date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused."
' The learned counsel for the appellant argued that the suit of the plaintiff is governed by latter part of the above article of the Limitation Act as no 'date' was specified for the performance of the agreement. He in this behalf has referred to the judgment in the cases of Lakshminarayana Reddiar and Haji Sattar-Haji Muhammad (supra). It is argued that the limitation shall start when the plaintiff has notice that the performance has been refused.
7. Now the next question in the series is that from which date the plaintiff has notice that the performance has been refused. The cause of action according to para. 10 of the plaint arbse in favour of the plaintiff on 28-9-1966 when the defendant bluntly refused to complete the deal. It is interesting to note that the defendant in reply to this para. Only stated that there is no cause of action in favour of the plaintiff and he has not specifically denied the claim of the plaintiff as to accrual of cause of action on the date mentioned therein. On the other hand, the respondent in this behalf has not only failed to pinpoint any date but he did not appear as his own witness even to formally deny the allegations. This way the evidence of the appellant, also, remained unrebutted.
Therefore, the suit instituted on 7-11-1966 is within time. The Courts below did not advert to this legal and important aspect at all. The Courts below have worked out this date on surmises and conjectures to conclude that the suit is barred by limitation. This alone is sufficient to set aside their findings. The efforts of the appellant whether under the Registration Act, 1908 or under the Pakistan Penal Code, whether in the office of Registrar or Sub-Registrar or with the police, to expedite the completion of the sale-deed by no stretch of imagination could be construed notice when the performance was refused. This only showed the anxiety of the appellant to secure the title deed of the property.
8. Conversely speaking, the agreement is dated 24-7-1963 and just a week thereafter i,e. 31-7-1963 the father of the respondent filed a suit for declaration that he is owner of the property. This suit was dismissed by the Trial Court and appeal was, also, ultimately dismissed on 22-12-1967.
Therefore, no suit could be brought on the basis of the agreement till 22-12-1967 when title of the respondent in the property became clear. I am fortified in my view by the judgment in the case of Lakshminarayana Reddiar (supra).
9. The learned counsel for the respondent argued that the suit should have been filed within 30 days from 12-10-1965 when the Registrar refused to order the registration of the document as per provision of section 77 of the Registration Act, The learned counsel for the appellant rightly pointed out that it was not a suit for a direction to the Registrar fir registration of the document but it was a suit for specific performance, therefore, it was not covered by section 77 and reference to it is irrelevant. Therefore, there is no merit in the argument of the learned counsel for the respondent that the limitation was 30 days from the order of the refusal recorded by Registrar.
10. The trial Court recorded whole of the evidence, heard arguments but decided only Issue No, 1.
The lower appellate Court should have accepted the appeal and directed the trial Court to decide all the issues but it also failed to perform its duty. This practice of deciding causes in parts has always been depreciated because this results in frequent remands and citizens lose confidence in the Courts due to the inordinate delay in disposal of their cases. The present suit was filed on 7-11- 1966 and after lapse of 28 years only the point whether the suit is within time has been decided. The trial Courts are warned to be careful not to follow this practice.
11. The upshot of the above discussion is that this appeal is allowed with costs. The result is that the impugned judgments of the Courts below are set aside. The case is remanded to Senior Civil Judge, Faisalabad for decision of the remaining issues. The learned Senior Civil Judge is directed to decide the suit expeditiously and in any case by 30th of November, 1994.