This appeal is directed against the order passed by the learned Additional District Judge, Lahore dated 5-1-1993 remanding the case to the trial Court.
2. The facts giving rise to this appeal are that Abdul Samad Khan (the predecessor-in-interest of defendant/respondent No,2) deceased, agreed to sell a plot measuring 15 Marlas, 56 sq. Ft. Vide agreement dated 6-4-1986 to the plaintiff/respondent No,-1 Tajbar Khan for a consideration of RsA,50,000. A sum of Rs,25,000 was paid to said Abdul Samad Khan asearnest money at the time of the execution of the agreement to sell and the remaining amount of Rs,1,25,000 was to be paid at the time of the registration of the sale-deed before the Sub-Registrar. The sale was to be completed till 6-7-1986. Before the expiry of the stipulated date i,e, 6-7-1986 for completion of the sale, vendor, Abdul Samad Khan died issueless on 2-5-1986. The said Abdul Samad Khan had two brothers, Abdul Wahid and Abdul Hamid and two sisters, Mst. Batool Bibi (respondent) and Mst.
Qudsia Khatoon. Both the brothers and one sister Mst. Qudsia Khatoon, predeceased Abdul Samad Khan. Abdul Hamid Khan (the brother of Abdul Samad Khan) vendor also died issueless. Abdul Wahid left behind the defendants/appellants. It was averred in the plaint that the plaintiff was unaware of the legal representatives of deceased, Abdul Samad Khan. He contacted the Revenue Authorities and "Halqa Patwari time and again but no information was received by him regarding legal heirs of deceased, Abdul Samad Khan. Three months before the filing of the suit the plaintiff came to know from the "Halqa Patwari" that mutation of Inheritance No,25292 has been attested in favour of the defendants on 11-2-1990 on the basis of an order of the Civil Court dated 25-10-1987.
The plaintiff obtained the certified copies of the documents and filed the suit. The defendants have refused to honour the agreement made by their predecessor-in-interest.
The defendants made an application under Order VII, Rule 111 C.P.C. For rejection of the plaint on the ground that the plaintiff admitted in para.7 of the plaint that he obtained certified copy of the judgment dated 25-10-1987. Thus he had got the knowledge of the legal representatives of deceased, Abdul Samad Khan on the date of passing of the decree. The instant suit was instituted on 13-4-1991, thus was barred by time. The plaintiff/respondent filed a reply to the said application and refuted the allegations therein. The learned trial Court vide its judgment dated 22-10-1991 rejected the plaint of the plaintiff/respondent No,2. An appeal was preferred before the District Judge, Lahore which came up for hearing before the Additional District Judge, Lahore who vide his judgment dated 5-1-1993 allowed the same and remanded the case to the trial Court on the ground that question of limitation being a mixed question of law and fact was to be decided after framing of the issues and recording of the evidence. The learned counsel for the petitioner submitted that the suit was barred by time. His argument was two-fold that the stipulated date for completion of the sale was 6-7-1986. The vendor died on 2-5-1986, before-the stipulated date, as such if the time is not treated as essence of the contract the suit should have been filed within three years of the date of the agreement i,e, 6-4-1986. The other argument of the learned counsel was that the respondent came to know of the legal heirs of the deceased/vendor on 25-2-1987 i,e, the date of passing of the judgment by the Civil Court.
Under section 17(2) of the Limitation Act, 1908 the period of limitation is to be computed from the time when there is a legal representative of the deceased against whom the plaintiff may institute a suit. The plaintiff failed to file the suit within the period of limitation. Reliance was placed on Abdul Rashid Velmi v. Habib-ur-Rehman and 4 others 1995 M LD 397; Mst. Ambrin Begum v. Dr. Dev-Kishan alias Mahan 1991 M LD 318 and Muhammad Akram v. Aurangzeb and another 1989 CLC 1405. Conversely the learned counsel for the respondent defended the impugned judgment stating that the plaintiff came to know of the legal representatives of the deceased Abdul Samad Khan after the sanctioning of the mutation i,e, 11-2-1990 and he promptly filed the suit. Reliance was placed on Lakshminaryana Reddiar v. Singaravelu Naicker and another AIR 1963 Mad. 24 and Inam Naqshband v. Haji Shaikh Ijaz Ahmad PLD 1995 SC 314.
4. I have gone through the judgment of the Courts below and perused the record. Under Article 113 to the First Schedule of the Limitation Act, 1908, in a suit for specific performance of a contract, the cause of action arises from the date, fixed for the performance. The stipulated date in the instant case was 6-7-1986 for completion of the sale but the vendor died on 2-5-1986 before the stipulated date for completion of the contract. In my opinion in these circumstances the provisions of section 17(2) of the Limitation Act, 1908 would be applicable. This section contemplates that a complete cause of action cannot accrue unless there be a person in existence capable of being sued. Until the person exists there cannot be a perfect cause of action. In the instant case the vendor Abdul Samad Khan died issueless. The mutation of inheritance was sanctioned on 11-2- 1990. The question that the plaintiff knew of his death on 25-10-1987 when the succession certificate was granted by the Civil Court, can only be decided after framing the issue and recording the evidence. I do not find any admission in the plaint by the plaintiff. The mutation of Inheritance No,25292 was attested on 11-2-1990 but the plaintiff stated in the plaint that he came to know of the same about three months before filing of the suit. It was yet to be seen as to when he cause of action was acquired and whether there is any delay on his part in filing the suit. The authorities relied upon by the learned counsel for the petitioner are not applicable to the facts of the instant case. In the case of Abdul Rashid Velmi v. Habib-ur-Rehman and 4 others (supra) the deceased had left behind a widow, the sister of the plaintiff and seven children as his legal heirs. In these circumstances it was held that the limitation in such a case is to compute from the date when the vendor had died. In the instant case Abdul Samad Khan died issueless and the plaintiff had no knowledge of legal representatives of the deceased. In the case of Mst. Ambrin Begum v. Dr. Dev- Kishan alias Kishan (supra) the facts are not applicable to the facts of the present case. It was simply held that the suit filed after the period of limitation specified by Article 113 was barred by time. The plaintiff had the notice of refusal in the said case whereas it is missing in the instant case. In the case of Lakshminaryan Reddiar v. Singaravelu Naicker and another (supra) in a somewhat similar situation it was held that "the cause of action accrued to the appellant no doubt on the date of the contract but no suit could have been brought on this cause of action as the litigation was pending before the Courts". The case was remanded by the High Court to the District Judge who disposed of the case on 8-1-1953. The suit was filed on 4-1-1954 on the original contract. The suit was held to be within time. The case Inam Naqshband v. Haji Shaikh Ijaz Ahmad (supra) is not applicable to the facts of the instant case as it lays down only a general principle of law for specific performance of contract.
In the peculiar circumstances of the case the question of limitation is a mixed question of law and fact and cannot be decided without recording the evidence. I do not find any infirmity in the judgment the learned Additional District Judge. This appeal has no merit and is dismissed leaving the parties to bear their own costs. The parties to appear before the trial Court on 29-4-2003.