In the first instance the petitioner filed a suit for specific performance of agreement to sell dated 31-3-1970 whereby Israr Hussain predecessor-in-interest of the respondents proceeded to agree to sell suit-land to the petitioner for a consideration of Rs,20.000. Out of this amount Rs,10,000 were paid by way of earnest. Acting under the said agreement the petitioner proceeded to get the land allotted against the Units of the said Israr Hussain and thereafter paid him the balance price as well. However. Israr Hussain proceeded to alienate the land through some transaction of exchange ''and gift. This suit was tried by a learned Civil Judge Jhang. who dismissed the same on 30-1-1986.
A First appeal filed by the petitioner was dismissed by a learned Additional District Judge, Jhang, on 22-11-1986. It may be noted here that both the said Courts held as a fact that agreement was executed and that Israr Hussain did receive Rs,20,000 from the petitioner. However, it was found that Israr Hussain was not the sole owner of the suit-land and there was no evidence that other co- owner had authorised him to enter into an agreement. It was on this later ground that suit was dismissed because of bar against partial performance. Thereafter, the petitioner filed a suit on 6- 5-1987 for recovery of said amount of Rs,20,000. This suit was resisted by the respondents. Issues were framed. Evidence of the parties was recorded. It was held as a fact that petitioner had paid Rs,20,000 to Israr Hussain. The suit was, however, dismissed on the ground that it was barred by Order II, rule 2, C.P.C. and also by limitation vide judgment and decree dated 11-3-1992. A learned Additional District Judge, Jhang, dismissed the first appeal of the petitioner on 15-11-1992.
2. Mr. Khan Khizar Abbas. Khan, Advocate, relying upon the case of Munni Babu and another v.
Kunwar Kamta Singh (AIR 1923 Allabad 378) argues that the suit was neither barred by time nor by Order II, rule 2, C.P.C. No one, has turned up for the respondents. They have been served and are represented by Mr. Shabbir Hussain Dhillon, Advocate, whose name stands listed in the cause list for today but no one has turned up for respondents despite calls. They are proceeded against ex parte.
3. I have ,gone through copies of 'the records appended with this civil resivion It has been found as a fact that Israr Hussain the predecessor-in-interest of the respondents did receive Rs,20,000 as price of the land in suit but the agreement was void and land could not be transferred to' the petitioner. The said judgment relied upon by the learned counsel fully supports his contention. It has been held that dismissal of a suit for specific performance of agreement to sell is no bar to subsequent suit for recovery of earnest money paid in pursuance of such agreement and that the limitation for the said second suit start running only from the date of final decision of the earlier suit. Thus, in the present case the limitation would start running from the date of decision of the appeal dismissed by the 'learned Additional District Judge, Jhang, on 22-11-1986 and bar of Order II, rule 2, C.P.C. would also not be applicable. Even otherwise I find that cause of action for suit for r recovery of price paid under the agreement, would arise only when its specific performance has been refused because otherwise the claim for specific performance and return of price would be inconsistent and plaintiff would not the obliged to sue for the said relief, till such time that specific performance is disallowed. This civil revision is accordingly allowed and both the judgments and decrees of the learned Lower Courts are set aside and the suit of the petitioner is decreed in the sum of Rs,20,000. No order as to costs.