' This civil revision is directed against the judgment and decree dated 31-5-1990 whereby the appeal of the petitioners was dismissed and the judgment and decree, dated 3-11-1987, passed by the trial Court, whereby their suit for specific performance of contract was dismissed, was maintained.
2. Briefly the facts are that Nusrat Hussain respondent No,l was the owner of land in dispute measuring 64 Kanals situated in Mouza Dunyapur Ganga. The petitioners filed a suit for specific performance on 29-4-1980 on the ground that respondent No,1 had entered into an agreement of sale on 1-1-1974 in respect of the land in question in favour of Ghulam Rasool father of the petitioner for a sale consideration of Rs,21,000. It was averred that a sum of Rs,6,000 was paid as earnest money and formal agreement to sell was to be executed after the payment of a further sum of Rs,4,000 within one week. According to the plaint the registered sale-deed of the suit property was to be executed by 1-1-1975 when the balance sale consideration was to be paid. It was further averred that on 30-4-1977 another amount of Rs,2,200 paid by the petitioner to respondent No,1 in continuation of the original agreement to sell dated 1-1-1974. The suit was contested. Although the respondents admitted having executed the receipt on 1-1-1974 after obtaining a sum of Rs,6,000 as part payment of earnest money, he denied the claim for specific performance on the ground that the petitioner/plaintiff did not pay the sum of Rs,4,000 within one week as stipulated and also failed to get the sale-deed registered by 1-1-1975. Receipt dated 30-4-1977 was denied and it was alleged that the same was a forged and fictitious document. The suit was also resisted on the ground of limitation and non-maintainability.
3. From the pleadings of the parties following issues were framed:-- Issues
(1) Whether the suit is barred by time? OPD
(2) Whether the defendant executed the receipt dated 30-4-1977 and received a sum of Rs,2,200 from the plaintiff? OPP (Amended issue).
(3) Whether the plaintiff himself failed to comply with the terms of, the contract, if so, what is its effect? OPD
(4) Whether the receipt dated 1-4-1974 does not disclose any contract, if so, what is its effect? OPD
(5) Whether the contract, if any, is not executable per preliminary Objection No,5? OPD
(6) Whether the suit cannot proceed in its present form and no cause of action accrued to the plaintiff to file the present suit? OPD
(7) Whether the suit is bad for non-joinder of necessary parties? OPD
(g) Whether the plaintiff is entitled to a decree for specific performance of the contract for the reasons disclosed in the plaint, if so on what terms? OPP (8-A) Whether the suit is liable to be dismissed in view of preliminary Objection No,11 of written statement? OPD (additional issue)
(9) Relief.
4. In support of their case the plaintiff has examined Israr-ul-Haq, Handwriting Expert, Rahimyar Khan as P.W.1, Irshad. Ahmed son of Abdul Wahid resident of Dunyapur Ganga as P.W.2, and Shams-udDin plaintiff No,1 has appeared as P.W.3. They have also produced the original receipt dated 1-1-1974 Exh.P.1, copy of Khasra Girdawari from Kharif 1974 to Rabi 1978 Exh.P 2, copy of Khasra Girdawari from Kh 1979 to Rabi 1980 Exh.P.3, copy of Ja Jandi for the year 1977-78 Exh.P.4, receipt dated 30-4-1977 (disputed) Exh.P.5, subsequent signatures of Nusrat Hussain Cheema Exh.P.6 and enlarged photograph of the signatures of Nusrat Hussain Cheema Exh.P.6/1 and report of Handwriting Expert Exh.P.7. In rebuttal Muhammad Aslam son of Rehmat Khan the Special Attoiney of the defendants has appeared as D.W.1.
5. The learned trial Court concluded from the evidence on the record that the receipt dated 30-4- 1977 was not proved. In fact the learned trial Court found the signatures of Nusrat Hussain on the receipt dated 30-4-1977 to be traced from the receipt Exh.P.1. It also found that as the original receipt Exh. I was executed on 1-1-1974 and according to the plaintiff himself the sale-deed was to be executed before 1-1-1975, the suit filed on 29-4-1980 was barred by time. The trial Court further held that terms and conditions contained in the receipt dated 1-1-1974 Exh.P.1 were not complied by the petitioner/plaintiff and therefore, they were not entitled to any relief for specific performance.
' Resultantly, the suit was dismissed vide judgment and decree dated 3-11-1987. The petitioners preferred an appeal which was dismissed vide judgment and decree, dated 31-5-1990. The learned Appellate Court reevaluated the entire evidence before it and concurred with the findings of the trial Court both in respect of the status of the agreement, dated 30-4-1977 and regarding limitation.
6. In this civil revision the concurrent findings of both the lower Courts have been challenged on the grounds that both the Courts below have erred in holding that the suit of the petitioners was time- barred. It is submitted that in accordance with Article 113 of the Limitation Act,, a suit for specific performance of a contract can be filed from the date of refusal as no date of performance was fixed in Exh.P.1. It was next contended that time was not of the essence of the contract and even if non-payment is proved on any one date, it cannot be said that the petitioner was not regally and willing to perform his part of contract. It was further urged that the receipt Exh.P.5 was duly proved on the record and under section 19 of the Limitation Act, time for filing suit for specific performance of contract would stand extended from the said date. It was lastly contended that respondent No,1 did not appear as his own witness and therefore, the evidence produced on his behalf could not be relied upon.
7. Arguments have been heard. Record perused.
8. According to averment in the plaint itself the agreement to sell between the parties came into being on 1-1-1974 and was evidenced by a receipt Exh.P.1 through which a sum of Rs,6,000 was paid as earnest money. It is also the case of the petitioner himself that a further sum of Rs,4,000 was to be paid by him to respondent No,1 within one week of 1-1-1974 after which a formal agreement was to be executed. More importantly the petitioner admits that 1-1-1975 was fixed as a date when the registered deed had to be completed. In view of this assertion of the petitioner himself a suit for specific performance, which was filed beyond three years of the date fixed for performance shall be barred by time. Article 113 of the Limitation reads as under:- {{DATA MISS ARANGE}} "113. For specific Three The date fixed performance of years. For the per- contract. Formance, or if no such date is fixed when the plaintiff has notice that per- formance is refused."
9. The words "date fixed" in the first clause of 3rd column of Article 113 of the Limitation Act are of great significance. In the present case, according to the contention of the petitioner himself 1st January, 1975 was the date fixed for the performance of contract. The findings of both the lower Courts is strictly in accordance with law.
10. The next submission of the learned counsel for the petitioner that period of limitation shall stand extended from the execution of receipt dated 30-4-1977 (Exh.P.5) is also devoid of force. Both the lower Courts have come to a concurrent finding of fact that this receipt was never executed by the respondent. In any event as the petitioner had neither paid the remaining part of earnest money of Rs,4,000 within one week ,nor did anything to complete the sale-deed by the stipulated dated i,e, 1- 1-1975 by paying the balance amount, he cannot derive any benefit from the receipt dated 30-4- 1977. The contention of the learned counsel that such a receipt would amount to an acknowledgment under section 19 of the Limitation Act, 1908 is also untenable.
11, The entire evidence has been reviewed. The learned trial Court examined the receipt Exh.P.5 and rightly concluded that receipt contained the names of Sufi Khusi Muhammad and Muhammad Saleem none of whom were produced in evidence. The marginal witnesses namely Wahid Bux and Irshad Ahmed were added by a different hand and out of them only Irshad Ahmed had been examined as P.W.2. Receipt Exh.P.5 was rightly held to be not proved by the trial Court. This finding was further affirmed by the Appellate Court. The learned counsel for the petitioner has not been able to point out any misreading or non-reading of documentary or oral evidence on the record.
The report of the Handwriting Expert was not relied upon and cogent reasons has been given by both the Courts below for the same. Grant of specific performance of an agreement to sell is a discretionary relief. Both the lower Courts on the basis of the evidence on the record refused to grant this equitable remedy to the petitioner in exercise of their discretion. Such discretion is neither perverse fanciful or arbitrary.
12. As a result, no interference has been made out by the petitioner, this civil revision is devoid of force and is hereby dismissed. Parties to bear their own costs.