KARAMAT NAZIR BHANDARI, J.- On 31.1.1993 respondent filed a suit for- specific performance of an agreement of sale of land dated 16.8.1983 for a sum of Rs. 1,00,000/- (rupees one lac) out of which Rs. 30.000/- (rupees thirty thousand) were claimed to have been paid. In Para No. 4 of the plaint it was stated that the petitioner-defendant agreed to complete the sale in favour of the respondent- plaintiff by 16.11.1983, on receipt of balance of Rs. 70,000/- (rupees seventy thousands). The petitioner appeared and prayed for rejection of the plaint by filing application under Order 7 Rule 11 of the Civil Procedure Code, 1908 on the ground that the suit was barred by time. The application was resisted vide order dated 22.11.1993 the trial Court allowed the application and dismissed the suit as barred by time. The - order/decree was appealed against and on 19.9.1995 the learned Additional District Judge set aside the decree and remanded the case for. Trial, as according to the leamed Court the issue of limitation can only be decided after receiving evidence. This is the revision directed against the appellate order.
2. On behalf of respondent two objections preliminary in nature have been taken. It is stated that revision is not maintainable as on the date of institution viz 31.1.1993, a second appeal against the decree was competent in this Court and the petitioner should have filed second appeal against the decree or first appeal against the order of remand, as per Order 43 of the Civil Procedure Code, 1908. It is also urged that revision is barred by time as when it was presented to this Court on 18.2.1996, it was already barred by two days and then was refiled on 5.3.1996 after removal of objections, it was further barred.
3. The first objection is technical and hardly touches the merit of the controversy. It has not been contested that this revision can be allowed to be converted into appeal against remand order. It should also be noticed that period for revision as well as appeal in this Court is 90 days. There is no legal basis to uphold the objection and dismiss the revision on this ground. As regards second objection it should be noticed that while returning the revision, this Court did not fix any time for refilling. The refilling has not been inordinately delayed as the same was refiled on 5.3.1996. In any case in exercise of revisional jurisdiction it is for this Court to see that the jurisdiction/by the subordinate has been exercised properly. I am not minded to give effect to this objection either. On its own showing as contained in Paras Nos. 3 and 4 of the plaint the time fixed by the parties for completion of the sale was 16.11.1983. Under Article 113 of Schedule-I of the Limitation Act, 1908 the period of three years would start running from the "date fixed for the performance". The date admittedly is Iff. 11.1983 and the suit brought on 31.1.1993 is barred by time.
4. Leamed counsel for the respondent has attempted to wriggle out of this apparent legal position by inviting my attention to para No. 7 of the plaint from which it is observed that when many a time the plaintiff went to the house of the defendant, the members of the family would tell the plaintiff that the defendant has gone out of country. Due to this the registration of the sale was delayed.
Leamed counsel has relied on Section 13 of the Limitation Act, 1908 to contend that the period for which the defendant remained out of Pakistan has to be excluded. According to the leamed counsel this can only be settled by making an issue and leading evidence. In reply, it is contended that the plaintiff is required to plead with the particularity, the ground seeking exemption from the law of limitation. This is so provided in Order 7 Rule 6 of the Civil Procedure Code, 1908.
5. If the respondent-plaintiff was seeking the benefit of Section 13 of the Limitation, Act; 1908 he has to so say in the plaint and in fact aver the period for which, according to his information the defendant remained abroad. Mere general averment will not help the respondent-plaintiff. Leamed counsel for the respondent says that after the remand order and before filing the revision, the respondent has filed an application for amendment of plaint. It is clear that during the course of litigation, the plaintiff is getting wiser. As it is , the suit is badly barred by time and the rejection of plaint by the trial Court was correct and legal.
6. For the above reasons, this revision is allowed. The appellate judgment and order dated 19.9.1995 is set aside and that of the trial Court dated 22.11.1993 is restored. The parties are left to bear their own costs.