leave of the Court, is directed against the judgment and decree passed by the High Court on 29.2.2000, whereby the appeal filed by the appellants, herein, as well as an application for amendment of the plaint were dismissed.
2. The necessary facts, forming the background of the present appeal, are that an agreement for sale of land comprising Khasra No. 159/1, measuring 13 kanals, 4 marlas and Khasra No. 162, measuring 10 kanals, was executed by respondent No. 1, Muhammad Hussain Khan, in favour of appellants on 29.4.1984, for a consideration of Rs. 70,000/-. In pursuance of the aforesaid agreement the possession of the land was transferred to the . Appellants. It was stipulated in the agreement that if the respondent-vendor failed to execute the sale-deed within a period of one month from the date of the execution of the agreement, the appellants can get sale-deed executed through the Court. The appellants alleged in the plaint that they built a house in the land and made improvements worth Rs. 1,00,000/-. When the respondent-vendor failed to executed the sale-deed, the appellants filed a suit before the Sub-Judge Bagh on 25.7.1984, but during the pendency of the suit and existence of . Injunction, the and in dispute was transferred through two separate sale-deeds in favour of respondents .Nos. 2, 3 and 4 on 25.9.1986 and 4.6.1987. The Sub- Judge Bagh returned the plaint to the plaintiffs-appellants for want of pecuniary jurisdiction on 6.12.1994 as the value of the suit was fixed as Rs. 70,000/-. The cross suit filed by Muhammad Sharif, one of the respondents, for possession of the land was also returned by Sub-Judge. The- appellants thereafter filed a suit in the Court of District Judge on 22.1.1995. It was claimed-by the appellants that the period spent in pursuing remedy before the wrong forum might be condoned and suit be tried by the District Judge. The respondents objected to the maintainability of the suit on the ground of limitation. Issues' were framed accordingly and the plaintiffs-appellants were directed to produce evidence, on 31.7.1995, but this order was challenged through a revision petition in the High Court, whereby it was directed that the District Judge should first decide legal issues Nos. 3 and 5. The District Judge after the remand of case by the High Court, heard the parties on legal. Issues and dismissed the suit as being time-barred. The appellants went 'in appeal before the High Court wherein they moved an 'application on 16.12.1988, seeking amendment in their plaint to the following effect:- That Shaukat Hussain Khan and Abrar Ahmed Khan, the plaintiffs-appellants, were initially minors at the time of institution, of suit. Shaukat Hussain plaintiff two years prior to the institution of suit became major whereas Abrar Ahmed became major on 1st of May, 1997, as such after the attainment of their majority the suit filed before the District Judge was within the period of limitation.
It was prayed by the appellants that a plea may be allowed to be raised by way of amendment that they were in possession of the suit and on the payment of Rs. 70,000/- as part performance of the contract and they are ready to pay further amount of consideration as may be determined by the Court after taking into consideration the market value of the land and in accordance with the provisions of section 53-A of the Transfer of Property Act are entitled to retain their possession. In the alternative the -amendment was also sought for that a decree for perpetual injunction in terms that the possession of plaintiff-appellants on the suit land may not be disturbed may be granted. The High Court vide the impugned judgment and decree dated 29.2.2000 dismissed the appeal filed by the appellants as well as the application for amendment of plaint. It is the aforesaid judgment and decree of the High Court which is the subject of present appeal.
3. In support of appeal it was vehemently contended by Mr. Abdul Rashid Abbasi, tho learned counsel for the -appellants, that the High Court fell in error in dismissing the appeal as well as the application for amendment of plaint filed by appellants. The learned counsel contended that the case was fixed for announcing the judgment on the application 'for amendment of plaint but the High Court vide the impugned judgment not only dismissed the application for amendment of plaint but also dismissed the appeal as being barred by limitation, even without hearing the appellants. -the learned counsel contended that by seeking amendment of plaint the plaintiffs-appellants simply wanted to raise an alternate plea that plaintiffs are entitled to retain their possession on the suit land as provided under section .53-A of the Transfer of Property Act. The learned counsel contended that the principle enunciated in section 53-A of the Transfer of Property Act equally applies to the plaintiffs as well because it cannot only be used as a weapon of defence but also as a weapon of offence. The learned counsel contended that the High Court fell in error in observing that if the proposed amendment is allowed , it would reshape the original case of the plaintiffs and would tantamount to convert the suit of one character into another of a different one. The learned counsel submitted that delay per se is no ground for refusing the application for amendment. So far as the merits of the case are- concerned, the learned counsel submitted that the appeal has wrongly been dismissed by the High Court as well as the District Judge on the ground that the suit filed by the appellants was, on the face of it, time-barred. The learned counsel contended that the period of limitation will start from the date of attaining the majority of plaintiffs Nos. 5 and 6, and if we calculate the period from the date of their majority, the suit is well within time. It was strenuously argued by the learned counsel for the appellants that even otherwise it was wrongly observed by the High Court that agreement for sale does not confer any right upon the appellants when the sale-deeds for the same land stand executed in favour of other respondents. Similarly it was also unwarranted on the part of High Court to observe that the appellants at the most were entitled to the money given through agreement or compensation in accordance with law. These observations, according to the learned counsel for appellants, are unwarranted as under the agreement-to-sell when there is a part performance of the contract the appellants have the right to defend their possession under section 53-A of the Transfer of Property Act and to protect their title. The learned counsel for the appellants in support of his contentions relied upon reported cases titled Mst. Ghulam Bibi and others vs. Sarsa Khan and others (PLD 1985 SC 345), Muhammad Akram and 2 others vs. Muhammad Ashraf and 5 others (1997 SCR 315), Mst. Barkat Bibi vs. Khushi Muhammad and others (1994 P.S.C. 787), Mst. Akhtar Begum vs. Mian Aziz and others (1985 SCM R .1617), Faiz Bakhsh and others vs. Muhammad Munir and others (1986 CLC 507 (Lahore)), Niaz Mohyuddin and others vs. Muhammad Yar and others (1994 CLC 1628) (Lahore)), Muhammad Bashir vs. Haji Muhammad Siddique and others (PLJ 1988 SC (AJK) 41) and Mayat Ullah and others vs. Shah Muhammad and others (PLD 1961 W.P. (Lahore) 372).
4. Raja Muhammad Hanif Khan, the learned counsel for respondents , controverted the arguments raised by the learned counsel for the appellants. He contended that when the agreement-for sale was allegedly executed in favour of appellants on 29.4.1984 the plaintiffs-appellants Nos. 5 and 6 were not shown as minors. When the suit was filed before the Sub-Judge and then appeal before the District Judge they were also not shown as minors as the suit on their behalf was not filed through a next friend. Similarly when the appeal was filed before the High Court the afore stated plaintiffs were also not shown as minors. The learned counsel contended that even the Wakalatnama executed by these plaintiffs shows that they were entered therein as major and not as minors: The learned counsel pointed out that as the suit of plaintiffs was, on the face of it, time- barred therefore to cover up that fatal defect the plaintiffs moved the application for amendment after a considerable delay of about more than 13 years which, on the facts of it, appears to be male fide. The learned counsel also submitted that it is wrong to say that the complexion of original suit will not be changed rather the appellants want to convert the suit of specific performance of contract into a suit of permanent injunction. The learned counsel also maintained that the plea under section 53-A of the Transfer of Property Act is available to be used in defence and not as a weapon of offence as claimed by the plaintiffs. The learned counsel for respondents pressed into service the submission that the conduct of appellants throughout the proceedings had not been fair and just rather the application for amendment appears to be based on mala fide which was moved simply to save their suit from the mischief of limitation, as such the application filed for amendment of the plaint could not be allowed. The learned counsel' for respondents in support of his contentions relied upon reported cases titled Malik- Riaz Ahmad and others vs. Lnayatullah Qureshi and others (1989 M LD 244 (Lahore)), Hidayatullah and 2 others vs. Haq Nawaz and another (1990 CLC 1095 (Peshawar)), Hikmat Khan vs. Shamsur Rehman (1993 SCM R 428), Azad Government vs. Haji Abdur Rashid and others (1999 SCR 345) and Masood Ahmed and others vs. United Bank Limited (1992 SCR 98).
5.. After hearing the respective contentions of the learned counsel - for the parties, it may be stated that throughout during the proceedings before the Sub-Judge, the District Judge and the High Court before filing the application for amendment the plaintiffs-appellants Nos. 5 and 6 were .Not shown as minors. When the suit was filed before the Sub-Judge, then appeal before the District judge and similarly before the High Court, the said appellants were not shown as minors as the suit on. Their behalf was not filed through a next friend. Even the Wakalatnama executed by these plaintiffs-- appellants, Shaukat Hussain Khan and Abrar Ahmed, appearing at page 9 of " " of the file of District Judge appears to have been executed through their attorney and 'father Haji Sardar Ameer Hussain Khan. Even the power-of-attorney executed by Shaukat Hussain Khan in favour of his father appears to have been executed on 27.5.1992 in his capacity as a major. Similarly Abrar Ahmed also executed a power-of-attorney in favour of his father on 8.1.1995 in this capacity as a major. The. Power-of-attorney executed by Abrar Ahmed on 8.1.1995 in favour of his father shows that he was major on the said date but in accordance with the application for amendment he claims that he attained majority in 199T It is also pertinent to note that even when the agreement- to-sell of the land in dispute was executed in favour of above said two plaintiffs-appellants, they were shown as majors. The above conduct of the appellants goes a long way to establish the fact that their conduct had not been just and fair enough to seek the amendment in their plaint.
6. The learned counsel for appellants, Mr. Abdul Rashid Abbasi, vehemently argued that when the fact of minority of Shaukat Hussain Khan and Abrar Ahmed stands admitted by defendants in their written statement, the proposed amendment should be allowed. This contention of the learned counsel for the appellants is not tenable for the simple reason that plaintiffs have always to succeed on the strength of their own case and not on the weaknesses of the case of defendants. The defendants .Right from very beginning took the plea that the suit before the Sub-Judge was not maintainable as the appellants chose a wrong forum for its institution; instead the suit was triable by the District Judge in view of its pecuniary. Valuation which was fixed by plaintiffs as Rs. 70,000/-. The other objection with regard to the minority of plaintiffs-appellants Nos. 5 and 6 was raised that the suit filed in their name shall be deemed to be a nullity and non-existent in the eye of law, but the plaintiffs despite having full 'knowledge of these objections kept on pursuing their remedy before a wrong forum for nearly about 9 years and then chose to file the suit before the District Judge when the period of limitation had already elapsed.
Thus, in the aforesaid view of the matter,in our considered view, the conduct of appellants had been unfair, unjust, reprehensible and deplorable which does not entitle them to seek the amendment in the plaint especially to cover the bar of limitation.. It is indeed correct that delay per se is no ground for refusing the application for amendment but at the same time if it is coupled with the unfair and unjust conduct of appellants and with a male fide intention, such type of amendment cannot be allowed to circumvent the process of law.
7. Now we may deal with the case-law cited by the learned counsel for the parties, In a case reported as Mst. Ghu/am Bibi and others vs. -Sarsa Khan and others (PLD 1985 SC 345), it was observed that expiry of limitation by itself when considering question of amendment was not to be treated as a bar if otherwise it was found to be necessary for the purposes mentioned in Order VI, rule 17, C.P.C. It was also observed that except for technical verbal variations, amendment sought not bringing any substantial changes in facts on which plaintiff relied while filing plaint, such change by itself, would not be a ground, for refusing amendment if otherwise it has to be permitted under Order VI, rule 17, C.P.C.
Ina case reported as Mst. Akhtar Begum vs. Mian Aziz and others (1985 SCM R 1617), it was observed that the plaintiff can be granted the declaration that he was in possession of property under an enforceable contract of sale in his favour and that defendants and persons claiming under them are restrained from interfering with their possession.
1986 CLC 507 (Lahore)), a suit for perpetual injunction was decreed in favour of plaintiffs- appellants on the ground that they had purchased the suit land on the basis of agreement to sell which stood admitted by the defendants before the revenue officer.
1994 CLC 1628 (Lahore)), it was observed that the document Ex.P.W. 2/1 itself that-the possession had been delivered. The requirements of section 53-A of the Transfer of Property Act are, thus, present and as such the' suit seeking confirmation of the possession in pursuance of agreement to sell was maintainable.
1990 CLC 1095 (Peshawar)), it was observed that amendment in pleadings would be refused by Court on the ground that it was delayed too long and that if granted would cause injustice or injury to opposite party. Where petitioners seeking amendment in written statement for the first time in revision before. High Court had raised a new plea aiming at improving the original case, the same was refused.
1993 SCMR 428), it was.Observed as under:- "Section 53-A of the Transfer of Property Act enunciates equitable principle to protect the rights of such purchasers who have entered into agreement and in pursuance thereof obtained the possession of the immovable property and have further either performed their part of the agreement or are agreeable to perform the same. In such circumstances, mere non-registration of a deed which requires registration under section 17 of the Registration Act, will not deprive him of the benefit which he is entitled, to protect by virtue of section 53-A of the Transfer of Property Act. It is true that section 53-A does not confer or create any right but it provides a defence to a transferee to protect his possession. Reference can be made to the cases of Kakmuddin Ansari vs: Director, Excise and Taxation, Karachi and another (PLD 1971 SC 114) and Sri Kalulam Subranmanyam and another vs. Kurra Subba Rao (PLD 1948 PC 52). Section 53-A debars a transferor from enforcing any right other than rights specifically provided by the contract against a transferee who is part performance of a contract has taken possession. Reference may be made to the cases of Abdullah Bhai and others vs. Ahmed Din (PLD 1964 SC 106) and Mst. Ghulam Sakina vs. Umar Bakhsh and another (PLD 1964 SC 456). In the present case, the agreement itself recites that the appellant in part performance of the agreement had been put in possession of the property. The appellant is, therefore, entitled to the protection of his possession. Likewise, the respondent No. 1 and his sons (respondents 2 to 4) cannot enforce any right against the appellant except the rights which have been specifically mentioned in the contract."
There is yet another aspect of the matter. As has already been pointed out that the plaintiff- respondent did not sue for the specific performance of the contract, rather he has filed merely a declaratory suit. It is well-settled principle of law that the doctrine of part performance of the contract cannot be made as a weapon of offence. It is merely a shield which can be used in defence. In other words, irrespective of the fact that the doctrine of part performance was not pleaded in the suit by the plaintiff-respondent, even otherwise; that could not be made basis for a declaratory decree in favour of the plaintiff.
1993 SCMR 428), referred earlier, it has further been held that in case of an unregistered document which is compulsorily registerable, the doctrine envisaged under section 53-A could not be used as a weapon to assert title over the property; it can only be used as defence in answer to the claim of possession by the vendor or any other persons claiming through or uncle; him."
8. From the survey of case-law, referred to above, the Supreme Court of Pakistan in a case reported as Hikmat Khan vs. Shamsur Rehman (1993 SCM R 428) and , this Court in a case reported as Azad Government vs. Haji Abdur Rashid and others (1999 SCR 345) and various other plethora of rulings of Supreme Court of Pakistan and from Indian jurisdiction have upheld the view hat the principle enunciated under section 53-A of the Transfer of property Act is merely a shield which can be used in defence and not as a weapon to assert title over the property. It can only be used as a defence in answer to claim of possession by the vendor or any other person claiming through or under him. The right conferred by this section is only available to defendant to protect his possession. This section does not create a title on the defendant. It merely operates as a bar to the plaintiff asserting his title. It is limited to cases where the transferee had taken the possession and against him the transferor is debarred from enforcing any right other than that expressly provided by the contract.
9. The authority cited by the learned counsel for the appellants titled Mst. Ghulam Bibi and others vs. Sarsa, Khan and others (PLD 1985 SC 345) is distinguishable as in the said authority it was observed that not withsyanding the expiry of limitation if the amendment was essential for the purpose of determining the real question of controversy between the parties as required under Order VI, rule 17 C.P.C. And the 'fact that amendment sought for did not bring any substantial changes in the original plaint the amendment may be allowed.
10. Assuming for the sake of arguments that even a plaintiff can protect his possession as provided under section 53-A of the Transfer of Property Act, the same would have no bearing on the facts of the case in hand. In the instant case the suit of plaintiffs was basically for 'specific performance of contract which having been filed before a wrong forum was barred by limitation with the passage of time when it was presented before a competent forum. The learned counsel for appellants failed to cite a single ruling on the point that if a suit for specific performance of contract on account of being filed before a wrong forum and having become barred by limitation could be substituted by way of an amendment seeking the perpetual injunction against the defendants-respondents to refrain from interfering in their possession. The application for amendment of plaint was moved in the High Court whereas the suit of plaintiffs-appellants had become barred by limitation when the plaint was returned to the plaintiffs-appellants by the Sub-Judge. This shows that the suit had become barred by limitation much earlier than filing the application for amendment of the plaint. Article 113 of the Limitation Act provides that in a suit for specific performance of a contract the limitation provided at the relevant time was three years from the date fixed for performance or if no such date is fixed when the plaintiff has notice that performance is refused. Thus, as stated earlier , at the time of Seeking amendment the suit having become barred by limitation a valuable right had accrued in favour of defendants-respondents which could not have been taken away by inserting an amendment as that will amount to circumvent the process of law.
11. Even otherwise only that amendment is to be allowed which is essential for the purpose of determining the real point in controversy between the parties. In the instant case the controversy between - the parties was seeking a direction from the Court for execution of sale-deed in accordance with the terms and conditions of agreement-to-sell but, as stated earlier, when the application for amendment of plaint was moved the suit filed by plaintiffs-appellants had already become barred by limitation. Therefore, such an amendment could not be allowed where it would take away a defendant's right accrued to him by lapse of time. A reference may be made to a case reported as Bhagwanji Moraji Goculdas vs. Alembic Chemical Works Co. Ltd. And others (A.I.R. 1948 Privy Council 100).
12. The plaintiffs-appellants could also not claim the benefit of pursuing their remedy before a wrong forum. If a forum is not chosen with due care and diligence the same cannot be made a ground for the condonation of delay. Our aforesaid view is supported by a case titled Masood Ahmed and others vs. United Bank Limited (1992 SCR 98).
13. The learned counsel for appellants hotly contested that the arguments on the application for amendment were heard by the High Court and the case was fixed for judgment on the said application but when the judgment was announced, both the application as well as the appeal wee dismissed. He therefore contended that so far as the appeal is Concerned it was decided without hearing him. We have given our due consideration to the aforesaid argument. The learned District Judge as well as the High Court have mainly dismissed the appeal on the ground of limitation. Instead of remanding the case to he High Court and to avoid a further litigation for a considerable time e have heard the learned counsel for the appellants on the point of mitation and have reached the similar conclusion that the suit filed by the appellants was on the face of it barred by limitation. Thus, we re of the view that the District Judge as well as the High Court committed no error in dismissing the application for amendment of plaint and the suit filed by appellants as being barred by limitation.
14. Before parting with the case it may be observed that the learned counsel for the appellants has argued that observation by the High Court that appellants are only entitled to receive back the consideration of the agreement-to-sell and are not entitled to any other benefit would deprive them from seeking the protection of section 53-A of the Transfer of Property Act in future is unfounded for the simple reason that this observation was not made with regard to the provisions contained in section 53-A of the Transfer of Property Act; even otherwise after the above- mentioned discussion on the scope, of section 53-A, the appellants,' subject to all just exceptions, may seek the protection of section 53-A for defending their possession if an occasion so arises in the regard.
15. In the light of what has been stated above, finding no force in this appeal, the same stands dismissed with no order as to costs.