' On 2-1-1978, the appellants filed a suit against Muhammad Sharif, the late predecessor-in-interest of the respondents. It was alleged in the plaint that the transfer of suit property, being a portion of Evacuee Building No,E/133 located in Block-E, Burewala Town, District Vehari was the subject-matter of a contest between the parties in the Settlement Department. The matter was resolved through some respectable who conducted an arbitration and on 18-6-1969 decided that Sharif was to sell the suit property in favour of the appellants for a consideration of Rs,15,000. Pursuant to the said decision, an agreement was executed by Sharif in favour of the appellants on 20-6-1969 promising to transfer the suit property to them for a price of Rs,15,000. Receipt of Rs,1,000 out of the said amount, was also acknowledged by said Sharif in the said agreement. It was further contended in the plaint that at the time of execution of the agreement, Sharif has not been issued a PTD by the Department and it was agreed that Sharif would make payment of the requisite dues to the Department and obtain a PTD within two months and thereafter, upon receipt of the balance amount of Rs,14,000 execute a sale-deed transferring the suit property in favour of the appellants and to present the same for registration. Another allegation in the plaint is that Sharif undertook that in case he was not able to obtain a PTD within the said period of two months then whenever he gets the PTD he will issue a notice to the appellants intimating them of the said fact and within two months of the receipt of the said notice, the appellants could get the sale-deed executed and registered upon payment of the balance amount of Rs,14,000. According to the plaint, Sharif did not obtain the said document of transfer. They served notices, dated 18-3-1972, 2-5-1972 and 22-6- 1972. Out of these notices the first one was received by Sharif while he refused to receive the latter.
Sharif was contacted but he kept on representing that the PTD has not so far been issued; that on 16-10-1977 a notice of demolition was served on the appellants by the Municipal Engineer, Burewala and when they made an inquiry, it revealed that notice had been issued at the behest of Sharif who had filed an application before the Martial Law Authorities. It was then the appellants acquired the knowledge that the PTD had been issued to Sharif. Thereafter, a notice was issued on 30-10-1977 for performance of the contract. Some proceedings went on before the Martial Law Authorities who directed the parties to get the matter settled through arbitration. The appellants did appoint their arbitrators but Sharif refused to do so According to para. No,13 of the plaint Sharif ultimately refused to perform contract 15 days before the institution of the suit. With these averments prayer was made for relief of specific performance of agreement, dated 20-6-1969. In his written statement, Sharif objected that the suit is barred by time; that it is mala fide; that interpolation has been made in the agreement, dated 20-6-1969. On merits he pleaded that the arbitrators had decided that the sale-deed is to be executed and registered before 18-8-1969 upon payment of Rs,14,000 by appellants to Sharif. Regarding agreement, dated 20-6-1969 it was alleged that the contents thereof were not read over to Sharif and the appellants themselves got the agreement scribed and executed. It was vehemently contended that the additional note added in agreement, dated 20-6-1969 providing that Sharif would issue a notice after obtaining PTD and within two months thereafter, the sale-deed would be executed and registered, was not present when he had executed the agreement. The details of these averments are contained in reply to para.No,5 of the plaint. However in reply to para. No,6 of the plaint, Sharif contended that PTD was issued to him on 24-8-1972 where after not only he himself but through a Punchayat called upon the appellants to pay him the consideration amount and to get the sale-deed executed and registered. Receipt of or refusal to receive notice was denied.
2. Following issues were framed by the learned trial Court on 5-6-1979: ' ISSUES:
(1) Whether the suit is barred by time? O.P.D.
(2) Whether the plaintiffs are estopped to bring t4 is suit on account of their conduct? O.P.D.
(3) Whether the plaintiffs are not entitled to discretionary relief on account of their mala fide intention? O. P D
(4) Whether the suit property has been incorrectly described. If so, its effect? O.P.D.
(5) Whether the suit is bad on account of non-joinder and misjoinder of necessary parties? O.P.D.
(6) Whether the agreement, dated 20-6-1969 has been interpolated by plaintiffs. If so, its effect?
O.P.D.
(7) Whether the plaintiffs have no locus standi to bring this suit? O.P.D.
(8) Whether the plaintiffs are entitled to decree for specific performance of contract, dated 20-6- 1969? O.P.P.
(9) Whether the defendants are entitled to special costs under section 35-A of C.P.C.? O.P.D.
(10) Relief.
' Evidence of the parties was recorded. Learned trial Court dismissed the suit of the appellants vide a judgment and decree, dated 30-9-1985. It may be noted here that Issues Nos.2, 4, 5, 7 and 9 were answered against the respondents as according to the learned trial Court no evidence was led in support thereof by them. Under Issue No,1 it was held that the suit was barred by time. Issues Nos.3 and 8 were taken up together. It was found that but for the interpolation made in the agreement by the appellants. They were not entitled to specific performance of the same. Issue No,6 was answered against the appellants.
3. The appellants challenged the said Judgment and decree of the learned trial Court by filing a first appeal which was heard by a learned District Judge, Vehari. The learned District Judge set aside the findings of the learned trial Court on Issues Nos.3 and 8, however, findings on Issues Nos.1 and 6 were maintained and the appeal was dismissed on 16-7-1986. The appellants have challenged the Judgment and decrees of both the learned lower Courts by filing this R.S.A. While respondents feeling dissatisfied with the findings of learned District Judge on Issues Nos.3 and 8 having filed cross-objections. I proposed to decide the appeal as well as the cross-objections by this judgment.
4. Learned counsel for the appellants contends that the findings of learned Courts below on Issue No,1 are contrary to law. Regarding Issue No,6, learned counsel contends that both the learned Courts below after holding that there had been interpolation in the agreement proceeded to decide the suit against the appellants without considering the effect thereof or the extent to which prejudice could have been caused to the respondents by the said interpolation.
'Learned counsel for the respondents, on the other hand supports the findings on Issues Nos.1 and 6 of the learned Courts below. Regarding the findings of learned District Judge on Issues Nos.3 and 8 vehemently contends that the appellants were not entitled to the discretionary relief of specific performance in facts ' and circumstances of the present case and the learned District Judge has committed an error of law while setting aside the findings of learned trial Court on Issues Nos.3 and 8.
5. I have gone through the records of the learned Courts below with the assistance of learned counsel for the parties.
6. It goes without saying that minus the disputed additional note made on the right side of agreement, dated 20-6-1969 Exh.P-1, it stands admitted on all hands that it was duly executed by late Sharif. I deem it proper to reproduce the relevant portion of the agreement as it is necessary to record a finding on Issue No,1 pertaining to the objections of limitation. The relevant portion is as follows:--- {{URDU TEXT}} ' On a plain reading, the agreement narrates that it was to be performed within two months of the date of its execution i,e,, 20-6-1969. Article 113 of the Limitation Act,1908 prescribes the limitation period of three years for filing of a suit of instant nature. It further makes provision for two categories of cases: the first category of cases is where in the agreement a date is fixed for performance of the agreement and in the second category fall the cases where no date is fixed for performance of agreement. Where case falls in the first category, the said period of three years would commence from the date so fixed in the agreement while in the cases falling under the said second category, the said period of three years would commence from the date when the plaintiff has the notice of refusal of performance of contract by the defendant. Both the learned Courts below have held that the present suit falls within the said first category of cases provided for in Article 113 of the Limitation Act, 1908.
7. I do not feel inclined to agree with the said finding of the learned Courts below. By now it is settled law that the terms "date fixed" means a date fixed by Calendar; that is to say a "specified date". I have already reproduced the relevant portion of the agreement above and I do not find any date fixed by Calendar for performance of the agreement by any of the parties. Of course it states that the agreement is to be performed within two months of the date of execution thereof but the same cannot be said to be a "date fixed" within the meaning of 1st part of Article 113 of the said Act. I draw support for this observation from the case of "Inam Naqshband v. Haji Shaikh Ijaz Ahmad" (PLD 1995 Supreme Court 314). In the said case the agreement provided that it was to be performed within one week from date of its execution i,e, 24-7-1963. This period ended on 31-7-1963. A suit for specific performance filed on 7-11-1966 was held to be barred by time by the learned trial Court as well as the learned First Appellate Court. The R.S.A. Filed against the two judgments was allowed by this Court holding the suit to be within time. The Supreme Court while dealing with the issue observed as under in para. No,4 of the said report:--- "The words 'date fixed' in the first clause of the third column of Article 113 of the Limitation Act are of great significance. The 'date fixed' means a particular date fixed expressly by the parties for the performance of the agreement. In the instant case, no particular date was expressly fixed by the parties. No doubt, the agreement was to be performed within one week from the date of agreement but this did not tantamount fixing a date for the performance of the agreement. So, it can safely be said that in the instant case no date was fixed for the performance of the contract within the meaning of first clause of the third column of Article 113 of the Limitation Act. So, the case was not governed by first clause of the third column of this Article."
In view of the law so declared by the Supreme Court of Pakistan, it can be safely said that instant case as well, does not fall within the said first category of cases but falls within the said second category of cases which provides for commencement of limitation of three years from the date the plaintiff has the notice of refusal of performance of contract by the defendant.
8. Confronted with the said situation, learned counsel for the respondents refers to document Exh.D-1 which is the arbitration award, dated 19-6-1969. Learned counsel contends that this award clearly referred to a 'specified date' i,e,, 18-8-1969 by which date the agreement was to be performed. I find the said argument to be without any force. The award was given by an Arbitration Council comprising of Shaikh Muhammad Anwar, Chairman and Muhammad Shafi and Abdul Ghafoor as Members. It will be pertinent to note here that it is case of both the parties that after the award the said members of the Arbitration Council went along with the parties to the place where the agreement Exh.P-1 was scribed and got the same scribed themselves. It is also a matter of record that out of the said members of Arbitration Council, Sh. Muhammad Anwar and Muhammad Shafi also attested the agreement Exh.P-1. Now the relevant portion of the agreement governing Issue No,1 has already been reproduced above. It appears that the draftsman of the written statement filed by Sharif deceased was conscious of the implication of the terminology used in the agreement as to time for performance of the same. He made an effort to wriggle-out of the same by alleging in the written statement that the agreement was not read over to Sharif when he subscribed to the same. However the said allegation is falsified by the statement of Sharif himself who appeared in the witness-box as D.W.4. In the course of his cross-examination, he admitted without demur that the agreement was read-over to him before he put his thumb- impressions on the same.
9. In this view of the state of evidence on record nothing turns on the said argument of learned counsel.
10. Having held that the matter of limitation is to be determined keeping in view the provisions of the second clause of said Article 113, it is now to be seen as to when at what point of time did the appellants had the notice of refusal of performance by Sharif. According to the appellants they came to know about the factum of issuance of the PTD in favour of Muhammad Sharif somewhere in-between 16-10-1977 and 30-10-1977 when they issued a notice to Sharif who ultimately refused to perform the contract 15 days before the filing of the suit. Sharif, on the other hand, took the plea that he obtained the PTD on 24-8-1972 where after he himself as also through Punchayat approached the appellants calling upon them to pay him the price and to get the sale-deed executed in their favour Zia Elahi one of the appellants appeared as P.W.8 and stated that PTD had not been issued to Sharif within the stipulated period of two months in the agreement. Thereafter, he had issued notices P-2/1 to P-4/1. P-2 is a "notice, dated 2-5-1972 while P-3 is a notice, dated 22- 6-1972. These notices were sent under registered cover and were received back with the endorsement that Sharif had refused to accept the notices. The said report has been proved by Khushi Muhammad Postman P.W.6. According to these notices, Sharif was called upon to obtain a PTD and to execute a sale-deed in favour of the appellants. P-4/1 is notice, dated 30-10-1977 which was also sent under registered cover and was refused to be received by Sharif. This report has been made by Zafar Ali Postman P.W.7. According to this notice Sharif was informed that the appellants have learnt that PTD had since been issued and he should now perform his part of the contract. It goes without saying that the notice sent under registered cover and returned with a report of refusal shall be deemed to have been served on the addressee. Reference is made to the case of "Bashir Ahmad v. Mumtaz Khan" (PLD 1965 Lahore 126). The fact that the notices were duly posted stands proved on record by examination of P.W.6 and P.W.7 as also to postal receipts. It has not even been alleged by Sharif that notices were not properly addressed. P.W.8 as also Muhammad Ismail P.W.4 have denied that Sharif ever approached them after the issuance of PTD in the manner alleged by him. On the other hand, Sharif entered the witness-box as D.W.4 and stated that after issuance of PTD, he went twice with a Punchayat to appellant No,1 and after showing him the PTD asked him to pay the balance price. His said statement has been duly challenged in cross-examination. In the course of his cross-examination he admitted that the appellants had applied to the Martial Law Authorities for enforcement of the contract whereupon the appellants were asked to appoint arbitrators. He stated that he did appoint arbitrators but the appellants did not agree to the same. Now this happened somewhere in the year 1977 or 1978 as the Martial Law was imposed in July, 1977. This means that the dispute as to the performance of the contract was still going on and some ways and means were being sought out to resolve the controversy. One thing is certain that as against the specific allegations of the appellants, Sharif did not come out with any particular period of time when he refused to perform the contract. I may here also refer to the testimony of Ilam Din D.W.3 who was produced to corroborate Sharif in respect of the said allegation of his having met the appellants after issuance of the PTD. This witness appears to be total strange and does not know any particulars of the appellants.
11. In the said state of evidence on record I find that appellants have been able to plead and prove that they had the notice of refusal by Sharif of performance of contract sometime after 16-10-1977.
In this view of the matter, the suit filed on 2-1-1978 is within time. The findings of the learned Courts below on Issue No,1 are accordingly set aside.
12. Coming to the cross-objections filed by the respondents regarding findings of learned District Judge on Issues Nos.3 and 8. I find that the learned trial Court opted to take-up Issues Nos.3 and 8 together. I have already stated above that the learned trial Court also found that but for the interpolation made in the agreement Exh.P-1, the appellants were entitled to the specific performance of the contract. It may be stated here that the suit was filed in the year 1978. Issues were framed in 1979. Affirmative evidence of the appellants was recorded and closed on 9-9-1979.
The respondents' evidence was recorded and closed on 22-1-1980. In rebuttal P.Ws. 3 to 7 and examination-in-chief of P.W.8 were recorded on 25-3-1980. He was cross-examined on 18-1-1981 while statement of P.W.9 was recorded on 13-12-1981 and the evidence was closed. Thereafter, the matter was adjourned for one reason or the other till 15-3-1984 when the appellants filed an application stating that they will not be relying upon the additional note in the document Exh.P-1 for purpose of the suit. It will be pertinent to note here that Issue No,6 which covers the allegation of the respondents that the agreement has been interpolated by the appellants has been dealt with by learned trial Court in a very strange manner. It refers to the said application of the appellants and states that the appellants are not relying upon the said additional note in Exh.P-1 (the words used in the judgment of the learned trial Court are that the appellants are not pressing the said additional note). From the said statement of the appellants, learned trial Court has inferred that the appellants have not negated the assertion of the respondents regarding the said note. He also concedes that the appellants have led evidence regarding the said issue but in view of their application, dated 15-3-1984 he does not deem it necessary to examine the said evidence. With these observations he proceeded to decide the issue against the appellants.
13. I may state here that Issue No,6 comprises of two parts. The first part relates to the factual position as to whether there has been any interpolation made in agreement Exh.P-1 and the second is as to the effect of the said interpolation. Although under Issue No,6 this second part has not been discussed but as is evident from the findings of the learned trial Court on Issues Nos.3 and 8, the effect was considered in the said issues and it was precisely for the said reason i,e,, alleged interpolation in the agreement that the appellants were held not to be entitled to the relief of specific performance.
14. The alleged interpolation in Exh.P-1 comprises of the following note made on a side of the document. {{URDU TEXT}}
15. Assuming that the said note has in fact been interpolated in the agreement Exh.P-1, its effect has to be seen. Learned counsel for the respondent relies on the case of "Khurshid Ali v. Abdur Rauf etc "
(PLD 1990 Lah. 211) to support his plea that a person who is found to have altered agreement unilaterally is not entitled to specific performance. At a glance the judgment relied upon by learned counsel does support his argument but on examination of the factual background in which the said judgment was rendered, I feel that the respondents cannot draw any support from the same.
In the said reported case, it was found by his lordship that the plaintiffs in the suit had made an alteration in the area of the shop that was agreed to be sold. This fact was considered in the light of the evidence that out of the total area of the shop 6-1/4' was to be retained by the vendors in order to construct a stair case so as to provide access to the upper portion of the premises belonging to them. It was held as a fact by his lordship that the alteration in agreement was material for it had the result of increasing the area agreed to be sold and also was an attempt to deprive the vendors of the 6-1/4" of land which they had kept in order to construct the stair case.
Apart from this it was also noticed by his lordship that certain other additions like stair case which did not belong to the vendors as also electric meter was made in the document. These alterations were held to be material and it was in this perspective that the plaintiffs in the said reported case were found not entitled to the grant of relief of specific performance. While recording the said findings, his lordship relied on the case of "Nathu Lal and others v. Qutab Ali Raza Khan and others"
(AIR 1940 PC 160) wherein the Privy Council observed that if an alteration, erasure or interpolation is made in the material part of the deed, the deed itself is rendered void and is not capable of being enforced.
16. I have already reproduced the material parts of the agreement above as also the additional note which is stated to an interpolation. In my humble opinion the said note cannot be held to be a material alteration in the terms of the contract. Of its own force, it neither helps the appellants nor caused any prejudice to the respondents. I called upon the learned counsel to demonstrate as to if the appellants were to approach his client within two months' period stipulated in the agreement with the balance price, could his client lawfully execute a sale-deed and got it registered in favour of the appellants. The answer of course is in negative for the simple reason that Sharif was not possessed of the necessary title which he could have transferred to the appellants within the time stipulated in the agreement itself. It is also a matter of record that the PTD in fact was issued on 24- 8-1972 (Exh.D-3). At the relevant time, Sharif was possessed of only a P.T.O. (Exh.P-7) which specifically prohibited him from alienating the property in question. Be that as it may ultimately the appellants of their own made a statement that they will not be relying upon the said additional note for purposes of the suit. I have already held under issue No,1 that the suit was in fact within time keeping in view the legal and factual position of the case.
17. I may add here that in the matter of transfer of immovable property, time had never been considered to be of the essence of the contract. Reference be made to the case of "Ghulam Nabi and others v. Seth Muhammad Yaqub and others" (PLD 1983 Supreme Court 344). Applying the principles enunciated by the Supreme Court of Pakistan in the said judgment to the present case, one has only to read the agreement to find that time was not and could not have been essence of the said contract, in the facts and circumstances of the present case. The learned District Judge has, therefore, very correctly upset the findings of learned trial Court on Issues Nos.3 and 8.
18. Learned counsel for the respondents then came-out with a rather unusual plea. He argues that there was in fact no agreement between the parties for the sale of the suit premises which could be enforced. For raising the said plea, which for all purposes has been raised for the first time during the course of his arguments in the present R.S.A., the learned counsel reasons that since the agreement Exh.P-1 was not subscribed to by the appellants, it could not be said that they made a promise or acceptance or a promise constituting consideration for the promise of Sharif evidenced by the agreement. To my mind, the said argument is' simply frivolous. A bare reading of the pleadings as well as the evidence on record would show that parties were never under any mistake of fact or mistake of law as to the respective rights and obligations of the parties under agreement Exh.P-1. Both the parties were ad-idem on the material contents of the agreement i,e,, promise by Sharif to sell the house and promise by appellants to pay the price thereof and further undertaking of Sharif that on payment of price, he will transfer the suit premises to the appellants. I am also of the opinion that if at all this plea could have been available only to the respondents in a suit filed by Sharif and not vice a versa. Be that as it may, in view of the admission contained in the very pleadings that an agreement was in fact entered into between the parties for the sale of the premises on terms contained therein, the argument hardly merits any consideration.
19. The only matter left now is that notwithstanding the fact that the suit was within time in law as well as in fact, the fact remains that the appellants cannot be absolutely absolved of their slackness in approaching the Court after several years even of the issuance of the PTD. I am of the opinion that the respondents could be compensated in the matter by this Court and for forming this opinion I draw support from the case of "Muhammad Siddique v Muhammad Akram" (2000 SCM R 533) wherein the apex Court confronted with a similar situation dealt with the matter by making the following observations in para. No,9 of the said report:- "It has engaged our serious consideration as to what should be the amount of remaining consideration subject to which the suit was to be decreed. Although technically the suit was not barred by time but the fact remains that there is also slackness on the part of the respondent to approach the Court after a period of about nine years after the execution of the agreement of sale.
Had he approached earlier, the respondent/plaintiff would have been benefited by the deposit of the amount of Rs,2,000 at the relevant time, as with the passage of time there was inflation in the value of the currency. The grant of decree for specific performance of agreement being a discretionary and equitable relief under the law, therefore, we would like to exercise discretion in the interest of justice in favor of the appellant for raising the amount of remaining consideration from Rs,2,000 to Rs,1,00,000."
' Respectfully following the said dictum of the Supreme Court of Pakistan, I hereby raise the amount of remaining Consideration from Rs,14,000 to Rs,2,00,000.
20. As a result of the above discussion, I allow the R.S.A. And dismiss the cross-objections filed by the respondents. The judgment and decrees of both the learned Courts below are set aside and the suit of the appellants is decreed with the condition that they are to pay a sum of Rs,2,00,000 to the respondents or to deposit the same in the learned trial Court on or before 30-6-2000, failing which their suit shall stand dismissed with costs throughout. For the moment, the parties are left to bear their own costs.