Ch. IJAZ AHMAD, J.- The brief facts out of which the present second appeal arises are that the respondents filed a suit for specific performance on 25.4.1978 on the basis of an agreement to sell dated 16.11.1970 and sale deed dated 23.11.1970 in their favour regarding the plot in question measuring 18 marlas situated in Road Kot Kasur. The contents of the plaint reveal that the appellants agreed to sell the plot in dispute for a consideration of Rs.3,500/- and received a sum of Rs.440/- as earnest money. The sale deed was executed on 23.11.1970 which could not be got registered because Muhammad Din and others filed a suit regarding the plot in question in a Civil Court and obtained an injunction order against the respondents as well as the appellants. The contents of the plaint further reveal that the sale deed could not be got registered on account of the said temporary injunction order. This suit was dismissed finally by the Civil Court on 8.10.1977.
The respondents, therefore, filed the present suit after the dismissal of the said suit instituted by Muhammad Din and others. They were in possession of the plot in dispute in part performance of the agreement. The present appellants tiled a written statement controverted the allegations levelled in the plaint with preliminary objections that the suit is time barred etc.
2. Out of the pleadings of the parties, the learned trial Court framed the following issues:
(i) Whether the suit is within time?
(ii) What are the terms or conditions of agreement dated 16.11.1970 between the parties?
(iii) Whether the defendants failed to perform their part of performance according to agreement dated 16.11.1970?
(iv) Whether the plaintiffs are not entitled to the decree prayed for due to hardship and conduct of the plaintiff as mentioned in the preliminary Objections No. 2 & 3 of the written statement?
(v) Relief.
The learned trial Court decreed the suit vide its judgment and decree dated 20.12.1982. The appellant being aggrieved filed an appeal before the District Judge, Kasur which was entrusted to Addl. District Judge, Kasur who dismissed the appeal vide judgment and decree dated 29.11.1984.
Hence the present second appeal.
3. Learned counsel for the appellant contended that agreement to sell was executed on 16.11.1970 and the suit was filed on 25.4.1978. Therefore, the suit by the respondent is liable to be dismissed as time barred. He further stated that Section 15 of the Limitation Act is not attracted from 26.11.1970 to 8.10.1977. The period during which preliminary objection remained in force restraining the parties from selling land to the present plaintiffs will not legally in any manner extended the time for instituting the suit for specific performance and he relied upon Narayan Jivaji Patil and another v.
Gurunathgouda Khandappagouda Patil and another (ILR 1939 Bombay 173). He further stated that agreement to sell was executed between the parties on 16.11.1970 could not be specifically enforced in 1978 as the performance of the contract would involve the great hardship to the appellants but both the Courts below did not consider this aspect of the case. He relied upon Section 22 of the Specific Relief Act and on the following judgments:
(i) 1990 CLC 1649.
(ii) ,1994 CLC 733.
(iii) 1996 SGMR 575.
(iv) 1993 SCM R 804.
(v) PLD 1892 314.
Learned counsel for the appellants further stated that PW-1-Muhammad Sharif Chawala admitted that the sale deed was not registered on account of lack of funds by the respondent but both the Courts below did not consider this piece of evidence. Therefore, judgment of both the Courts below is not sustainable in the eyes of law. He summed up his arguments that both the Courts below mis- read the record and the judgments of both the Courts below are not sustainable in the eyes of law.
4. Learned counsel for the respondents contended that both the Courts below gave concurrent findings of fact against the appellants after proper appreciation or evidence. He further urged that case of respondents is fully covered under Section 15 of the Limitation Act; coupled with the facts that Exh. P-3 reveals o the effect of not interfering in possession and selling the plot in disputem the appellants and respondents are the defendants in the suit of Muhammad Din, therefore, there was no occasion for the respondents to file suit for specific performance. In case the respondents instituted the suit for specific performance it would have certainly violated the restraining order of Civil Court passed in the suit instituted by Muhammad Din and others against the present appellant and respondents; that both the Courts below rightly excluded the period during the pendency of said suit from 26.11.1970 to 8.10.1997 therefore, the suit filed by respondents is within limitation. He further stated that both the Courts below gave concurrent findings of fact on the point of limitation against the appellant; that the respondents were restrainted to file suit during the existence of restraint order passed by Civil Court in the aforesaid suit filed by Muhammad Din.
He further stated that sale deed was not executed on account of restraint order passed by the Civil Court in Muhammad Din's case, therefore, question of hardship does not arise in this case. The judgment cited by the learned counsel for the appellant is distinguished on facts and law.
5. I have given my anxious consideration to the contention of learned counsel for the parties and perused the record. The main point of the appellant is that Section 15 of the Limitation Act is not attracted and the suit filed by respondents is time-barred on the basis of the principle laid down by I.L.R. 1939 Bombay 173 and the relevant observation relied upon by the learned counsel for the appellant js as follows:- "I have set out the decree made by the Court, and in my opinion, it would be difficult to hold that the decree operated as stay of suit of possession or as an injunction restraining the defendant from filing a suit for possession of immovable property."
It is better and appropriate before proceeding further to reproduce the interim orders passed by learned Civil Judge, Kasur in Muhammad Din's case:- Tliis order was confirmed in the> following terms vide order dated 17.11.1971:- -'A if ''*-** 4)''S * #tbs Jj. #the J- ~t j> {{Urdu text]} It is pertinent to mention here that present appellants and respondents are defendants in the above-mentioned case; and the present appellant and defendants did not take inconsistent pleas in their written statements in the aforesaid case. The aforesaid order dated 17.11.1971 restraint them to alienate the property in-question. This fact is sufficient to come to the conclusion that the respondents were justified not to file any suit during the existence of the aforesaid restraining order, therefore, judgment cited by the appellants' counsel is distinguished on facts and law. It is settled proposition of law that Section 15 of Limitation Act is applicable to injunction and order judicially made. I am fortified by the reported judgment (A.I.R. 1941 Oudh 93). It is also settled law that it is not necessary that the order should be valid one or that it should be proper. I am supported by the following judgments: (A.I.R. 1944 Nagpur 155); and (A.I.R. 1953 Orisa 13).
The aforesaid interim order although did not prohibit the respondents to institute a suit for specific performance but the respondents and appellants were restrained to change the character of the property in-question by sale. Resultantly, in case the respondents instituted a suit that would have been violation of the aforesaid injunctive order; both the Courts below gave concurrent findings of fact after proper appreciation of evidence against the appellant on the point- of limitation. The aforesaid interim orders reveal that respondents are restrained to sell the property in question meaning thereby Agreement to Sell was suspended. The respondents have to institute suit for enforcement of Agreement to Sell and the Court cannot give relief regarding to enforcement of Agreement to Sell in presence of aforesaid interim orders. I am fortified by the judgments of Hon'ble Supreme Court in Mirza Muhammad Munawar's case (1985 SCM R 212) and I am also fortified by the observation of Hon'ble Supreme Court in M/s. Ensari brother's case (PLD 1971 S.C. 700) and the relevant observation is as follows: "Under the Rule of reasonable time the tenant in this case could, at the most, claim a period of 34 days from the Appellate order for depositing the orders as was allowed to him under the order of Rent Controller less 31 days elapsed between the Rent Controller order dated 3.12.1959 and the stay order, dated 4.1.1960 granted by the Appellate Court hence the tenant, who has already spent 31 days before the said stay order should have been deposited the arrears within three days after dismissal of the appeal on 2.4.1960."
In view of what has been discussed above the appeal has no force. It is admitted fact that the land in-question was agreed to sell for consideration of Rs.3500/- and the respondents have only paid Rs.440/- to the appellant. The Hon'ble Supreme Court has also laid down principle while interpreting Section 22 of Specific Relief Act in lrshad Hussain's case (1994 P.S.C. Cases 855) and observed as follows:- "We. Therefore, allow the appeal and restore the judgment of the learned trial Court on the condition that the appellant shall pay the balance amount of Rs.1,50,000/- with mark up at the rate of 12-% per anum from the date of suit till payment."
Similarly both the Courts below after proper appreciation of evidence gave findings of fact against the appellants qua the hardship of the parties; the sale was not executed on account of the intervention of 3rd party by filing a suit against them and obtained restraint order in their favour, therefore, both the parties are not responsible for delay of execution of the sale deed. The judgment cited by the learned counsel for the appellants are distinguished. On facts and law. It is admitted fact on record that the trial Court as well as the 1st Appellate Court after scrutinizing the whole evidence on record and for cogent reasons believed the evidence of respondents and gave concurrent findings of fact after appreciation of evidence against the present appellant; the High Court in second appeal had no jurisdiction to go into the question relating to the weight to be attached to the statement of PW-1 and Exh. P-3. Needless to say that believing or disbelieving the evidence is the discretion of trial Court and finding recorded in regard thereto is not open to challenge in second appeal by the High Court in exercise of its jurisdiction under Section I0O C.P.C, simply because some other view point on the evidence produced could also be taken. It is well settled that interference in concurrent findings of fact can be made by the High Court only when the evidence is misread and findings is based on surmises and conjucture or based on in- admissible evidence or there existed an error or defect in the procedure which may possibly have introduced the error or defect in the decision on merits. The learned counsel for the appellants failed to point out any illegality or misreading of record by both the Courts below.
In view of the dictum laid down by the Hon'ble Supreme Court in Irshad Hussain's case cited above; the respondents shall pay the balance amount of Rs.3060/- with mark up at the rate of Rs.12% per anum from the date of suit till payment. The payment should be made by the respondents within a period of one month.
For what has been discussed above, this appeal is disposed of in the aforesaid terms.