1. ' In this suit for specific performance of contract, declaration, damages and injunction the defendant has moved an application under Order VII, Rule 11, C.P.C. (C.M.A. No, 2466/99) for seeking rejection of plaint on the sole ground that the suit is barred by limitation.
2. ' Succinctly the facts relevant for disposal of this application are that on 30th December, 1991 plaintiff entered into an agreement for sale with the defendant in respect of property bearing Survey No, B-7, Bath Island. Karachi (admeasuring 2500 sq. Yds.). In the agreement no specific time for performance was fixed between the parties. On 8th August, 1995 plaintiff served a notice to the defendant calling upon him for performance of such agreement within 15 days of the receipt of such notice. The defendant gave reply of the said notice through his counsel on 26th August, 1995, which reply, according to plaintiff, was received by his counsel in the first week of. September, 1995, but in the meantime on 29-8-1998 he filed the present suit.
3. ' Contents of last paragraph of notice, dated 8th August, 1995 filed as Annexure D/1 to the plaint have induced the defendant for seeking rejection of plaint in the suit, same are reproduced as under: "That for the first time on 7th August, 1995 our client came to know that you do not intend to specifically perform the agreement and further that dishonestly you want to sell the said property to some other person or persons. Our client has, therefore, instructed us to warn the general public through newspapers about the abovesaid transaction and also to call upon you to specifically perform the above agreement and convey the property to our client as envisaged by the Agreement referred to above, within 15 days of the receipt hereof, failing which we have full and final instructions to proceed against you in due course of law at your sole risk as to cost and consequences."
4. ' Mr. Hamza I. Ali in his arguments contended that from the above-quoted paragraph of the notice, dated 8-8-1995 given by the plaintiff it is an admitted position that on 7th August, 1995 he came to know about the intention of the defendant that he is not ready to specifically perform the agreement for sale, dated 30th December, 1991 and thus in the absence of any time fixed in the agreement for performance of such agreement, the period of three years as prescribed under Article 113 of the Limitation Act is to be computed from such date viz. 7th August, 1995 and on that basis the present suit is clearly time-barred. Learned counsel further contended that there is no prescribed form of refusal provided under Article 113 of the Limitation Act, such refusal can either be express or implied and in both the situations the period of limitation is to commence and computed from the date of such refusal. To fortify his contentions learned counsel placed reliance upon 1984 CLC 2364 and PLD 1985 Kar.
5. 674.
6. ' On the other hand Mr. Abrar Hassan disputing the above contention of the defendant's counsel contended that in case the plaintiff had any express or implied knowledge of refusal from the defendant then there was no need for him to issue notice, dated 8th August, 1995 calling upon defendant for performance of agreement for sale, dated 30-12-1991, within 15 days of the notice.
7. Any reference in the notice, dated 8th August, 1995 is mere perception and not refusal within the meaning of Article 113 of the Limitation Act. Learned counsel referred to the definition of notice as given in the Black's Law Dictionary to show that "notice" legally means something more than mere apprehension or suspicion of a party. To fortify his arguments Mr. Abrar Hassan placed reliance upon the following cases: PLD 1997 Karachi 377; 1986 CLC 1887; PLD 1961 Karachi 599; PLD 1966 SC 505; AIR 1923 Rangoon 44(1) and AIR 1957 Madh. Bha.
8. 177.
9. ' The ground of limitation urged in the application C.M.A. No,2466 of 1999 is solely based on the contents of the notice, dated 8th August, 1995 as reproduced above.
10. ' A careful reading of this paragraph clearly goes to show that no intention or knowledge of refusal of the plaintiff is spelled out from the said paragraph of the notice but it is only the perception or suspicion of the plaintiff which has been expressed therein which cannot be equated with notice of refusal within the frame of word "refused" used in Article 113 of the Limitation Act. This position is further confirmed from the fact that in the same paragraph of notice the plaintiff has called upon the defendant for performance of the agreement in question within 15 days of such notice. To say it in other words the relevant paragraph of notice, dated 8th August, 1999 is not couched in a manner so that any definite knowledge of notice of refusal can be gathered from it to make the present suit barred by limitation. In the case of Miran alias Mir Muhammad v. Ghulam Hussain (PLD 1985 Karachi 674) a learned Judge of this Court rightly observed that in the situation where there is some doubt as to limitation the benefit of doubt, if any, should be given to the party who has acquired valuable rights for good consideration and not to the one who is trying to back out from the commitment and trying to shield himself behind the regulatory provisions of the statute and seeking to deprive the other from the rights acquired. For this reason too contents of the notice, dated 8-8-1995 cannot be interpreted and accepted as notice of refusal to the plaintiff.
11. 'Besides, in paragraph 15 of the plaint the plaintiff has stated that his counsel received reply notice from the defendant in the first week of September, 1995, and in such circumstances it will be matter of evidence to see whether the present suit has been instituted by the plaintiff within three years from the date of notice of refusal from the defendant within the parameters of Article 113 of the Limitation Act or not.
12. ' A review of cases referred by the learned counsel for parties also strengthens this position.
13. ' For the foregoing reasons the listed application merits dismissal. Order accordingly.