SAYED NAJAM-UL-HASSAN KAZMI, J.- This revision petition arises from judgments of Courts below by which suit for specific performance, filed by the respondents, was decreed and appeal of the petitioners was dismissed.
2. . Respondents filed a suit for specific performance of an agreement of sale, against Shauq Muhammad deceased, predecessor of the petitioners, claiming that vide agreement of sale dated 30.3.1968, the petitioners had agreed to sell land measuring 33 kanals, 6 marlas, in their favour in consideration of Rs. 9000/- and received Rs. 4000/- as earnest money, a part of land was mortgaged with the Central Government, which the vendor had agreed to redeem before execution of the sale-deed and that after the redemption of property and restoration of title, the vendor did not execute the sale-deed which necessitated the filing of suit. During pendency of suit, Shauq Muhammad died and petitioners were impleaded as his legal heirs. Suit was resisted by the petitioners who, inter alia, maintained that the suit was not correctly valuated for Court-fee and jurisdiction purposes, the respondents earlier filed a suit for declaration which was dismissed on 11.10.1976, the suit was filed without any cause of action and that the suit was barred by time.
3. On consideration of the evidence, the learned Civil Judge decreed the suit by his judgment dated 26.9.1983. In terms of the decree, respondents were directed to deposit Rs. 5000/- being balance sale price, on or before 26.11.1983, failing the suit would be deemed to have been dismissed.
4. Feeling aggrieved, petitioners went in appeal which was dismissed by the learned Additional District Judge, Kasur vide judgment dated 16.7.1984.
5. Learned counsel for the petitioners argued that the petitioners filed a civil revision, though in point of fact, RSA would be competent and therefore, petition should be treated as appeal. It was contended that the respondent earlier tiled a suit for declaration, which was dismissed and attempt was made to interpolate entries in the revenue record, which could not succeed, the respondents had claimed ownership on the basis of agreement, which plea did not prevail, the land was always exclusive ownership of the petitioners and, therefore, the suit should not have been filed within three years from the date given in the agreement for the completion of transaction and since no suit was tiled within three years from the said date, it was barred by time.
Learned counsel submitted that the recital in the agreement, stating part of property to be under mortgage, was incorrect and as per khasra numbers in. Exh. P2, petitioners' predecessor was competent to execute sale-deed and, therefore, subsequent redemption through mutation No. 470 from the Central Government was immaterial and suit being barred by time could not be decreed.
Learned counsel finally submitted that no case was made out for discretionary relief.
6. In defence it was vehemently argued that revision petition was not properly framed as copies of relevant evidence was not annexed with the revision. It was contended that the petitioners could not, at this-late stage, ask for conversion of revision in appeal. Learned counsel submitted that the petitioners had themselves admitted in the cross-examination and Exh.D1 that a substantial part of land was mortgaged with the Central Government and that the sale deed would be executed on its redemption and since the petitioners were not in a position to convey title till redemption was made in 1975, therefore, no limitation would start as the agreement was not executable or enforceable by the time. Lastly, it was argued that the previous suit was not pressed, as it was not in a proper form and the suit for specific performance had already been filed.
7. From the pleadings and evidence on record, the factual position which emerges is that the suit was based on an agreement of sale dated 30.3.1968, executed by Shauq Muhammad, predecessor of the petitioners, the execution of the agreement was not disputed, the payment of earnest money was also not a point in issue but the parties were at variance, on the question of maintainability of suit and also on the question of limitation. The first objection as to maintainability of the suit was that previously a suit for declaration was tiled which was allegedly dismissed. Record indicates that the earlier suit was for declaration with consequential relief tiled on 26.6.1976 in which plaint was rejected under Order 7, Rule 11 of CPC, in view of the objections raised by the petitioners, as it was found that the suit in its existing form was not maintainable and that the respondents could have filed a suit for specific performance to enforce agreement of sale dated-30.3.I968. In revision, the learned revisional Court vide order dated 23.5.1977, observed that the suit for declaration could have been treated as a suit for specific performance and, therefore, the case was remanded for decision on merit by treating the suit for declaration as one for specific performance, after getting the additional Court-fee. In the meanwhile, suit for specific performance had been filed on 17.11.1976, therefore, the respondents withdrew the earlier suit and opted to pursue the second one. This was, of course, permissible in law. Under Order 23, Rule 1 of CPC, if the suit is withdrawn without permission to bring fresh one, the subsequent suit on the same cause of action is barred but if the subsequent suit is filed cluing pendency of earlier suit and earlier suit is withdrawn later, this bar is not attracted. Reference can he made to Ghulam Nahi and others Vs. Seth Muhammad Yaqoob (PLD 1983 SC 344).
8. Next objection was on account of limitation. The case built up by the petitioners was that: in terms of sale agreement dated 30.3.1968 Exh.D1, the transaction was; to he concluded till 15.6.1968 and, therefore, the case would fall in the first part of Article 113 of the Limitation Act. It was claimed that the suit could have been filed within. Three years from the date fixed in the agreement to conclude the transaction. Article 113 of the Limitation Act visualizes two situations, one where the date is fixed for performance and the other where no date is fixed for such performance. In the former:-case, suit for specific performance can he filed within three years from the date fixed Mr performance in the agreement, 'while in the later case, the suit can be maintained within three years from the date when the purchaser has the notice that performance was refused. Careful review of Article 113 of the Limitation Act leaves no room of doubt that the date fixed in the agreement will he material if the vendor is capable of performing the agreement or is vested with the complete title to transfer the property or interest in favour of the purchaser. In a case, where the vendor is not in a position to execute the sale-deed or has to fulfil certain preconditions for the complete transfer of title or where there is impediment in transfer of title free of charge, then possibly case would not he covered by the first part of the article and the vendee would he entitled to file a suit within, three years from the notice of refusal to perform the agreement or from the date when the title matures and the vendor is in a position to perform the agreement. Obviously, the vendee is not expected to pay the price if the vendor is to take certain steps as a pre-requisite to arm himself with a title free of encumbrances, for conveyance to vendee. Reference can be made to Said Muhammad Vs. Abdur Rehman (1996 M LD 60), where it was observed that mere fact that some time was mentioned in the agreement for performance of any act would not necessarily lead to conclusion that the time so fixed was essence of the contract. Real intentions of parties has to be deduced from all surrounding circumstances of case and vendee need not to have offered to make payment of balance amount to the vendor on specified date, if vendor's title was not perfect on the said date and he was not ready on the date so fixed to perform his reciprocal promise of transferring the property in favour of the vendee. In the present case, it is noted from the agreement Exh.D I, that the vendor (Shauq Muhammad) predecessor of petitioners clearly recited that some units of the land were under mortgage and instalments were payable by him and that payment of those instalments would be made before the enforcement of the agreement. This makes it obvious that completion of the deed within the date fixed in the agreement was dependent on the redemption of the land on payment 'of instalments by the vendor. It is also in the evidence that the redemption took place on 31.5.1973. Copy of mutation, by which the ownership rights of Shauq Muhammad in the land were restored, on payment of instalments and redemption.
Of mortgage from Central Government, was produced as Ex.P5.This document will show that the proprietary rights were restored on 31.5.1973, On deposit of Rs: 11053,39 in favour of the Central Government it would 'thus mean that till 15.6.1968, Shauq Muhammad, , . predecessor.:of Petitioners. Was not in a position to perform his reciprocal performance. Under.
Exh.D1, nor he could execute the sale-deed. The proprietary` rights were restored through Exh.P5 in May, 1973 and, therefore, the question of completion of deed till 15.6.1968 or tiling of suit within 3 years from this date would not arise. In law, the date. Given in the agreement cannot be used as a commencing date of limitation unless it is proved that the vendor was in a position, on the date of limitation unless it is proved that the vendor was in a position, on the date mentioned, to perform his reciprocal commitment to convey title. Keeping in view the admitted circumstances of the record, it cannot be accepted that the suit would fall within first part of Article 113 and in fact the limitation will be governed by later part of Article 113 of the Limitation Act, which permits filing of suit, within three years from notice of refusal of performance by the vendor. Admittedly, no notice was given by the vendor, informing the respondents as to the acquisition of proprietary rights or as to his legal entitlement to execute the sale-deed by receiving the balance price. It cannot be ignored that at no stage, any notice of rescission of contract in terms of Section 55 of the Contract Act was ever sent or served upon the vendee which indicates that the petitioners or their predecessor kept the agreement alive and never rescind or treated it as non-existent, on the expiry of stipulated date. Be that as it may, the respondents cannot be made to suffer for any inaction or inability of the petitioners. It was for the petitioners to fulfil the commitments under Exh.D1, get the property redeemed, notify the respondents as to perfection of title, require them to make balance payment for getting the deed concluded. This having not been done, the suit was lawfully filed within three years from the date of having knowledge of refusal to perform the agreement.
9. The arguments that as per Exh.P2, the land was not under mortgage, cannot be accepted for the simple reason that agreement Exh.D1, clearly indicates that a part of land was under mortgage, while Exh. indicates that redemption took place in May, 1973. The petitioners cannot be allowed to blow hot and cold at the same time nor they can be permitted to appropriate and reprobate simultaneously or plead contrary to the terms of agreement. Be that as it may, if according to the petitioners, a wrong admission was made in the agreement as to subsisting mortgage charge, it was for them or their predecessor to notify in writing to the vendee that recital of mortgage charge appearing in the agreement was factually incorrect and that there was no subsisting charge on any part of the land and also that the vendor was fully armed with perfect title to convey and if after such notice, the respondents had refused to perform their part, then the situation would have been different.
Here in this case, the petitioner never sent any notice claiming perfection of title or pleading any alleged error in the agreement, hence this plea do not have any merit nor it can be entertained to non-suit the respondents.
10. As to the entitlement, to seek enforcement of agreement of sale, respondents did lead sufficient evidence to prove their readiness and willingness to perform the same and it stands proved that they were entitled to the decree for specific performance, in exercise of discretionary jurisdiction.
Findings recorded by the Courts below do not in any way, suffer from misreading of record or error of law.
11. As regard the request for treating the revision as appeal, it is be observed that even if the revision is treated as appeal, the petitioners will not be able to get any benefit, for the reason that it has been held that the findings recorded by the Courts below do not suffer from misreading of evidence or error of law.
12. For the reasons above, there is no merit in this petition, which is accordingly dismissed.