On 30-1-1980 the respondent No. 1 (Khair Din deceased) filed a suit against the petitioners and respondents Nos.2 and 3. In the plaint it was stated that the suit house mentioned in the plaint was allotted to Fazal Muhammad, the predecessor-in-interest of the petitioners on 24-2-1963. He entered into an agreement with respondent No. 1 on 11-1-1973 for sale of said house in his favour for a consideration of Rs.25,000. A sum of Rs.17,150 was received by Fazal Muhammad while balance amount of R,s.7,850 was to be adjusted against the loan amount due to respondent No.3. The said Fazal Muhammad also executed a general power of attorney in favour of a son of the said respondent: that entire amount was paid to respondent No.3 against the receipts. It was complaint that when clearance certificate was sought to be issued, the said respondent was informed that Fazal Muhammad has cancelled power of attorney and certificate cannot be issued. Similar was the response of respondent No.2. In the first instance relief was sought for declaration that the said respondent is in possession of the suit house in part performance of the agreement. Later the plaint was amended in circumstances to be narrated later and relief of specific performance was also sought. The late Fazal Muhammad filed a written statement on 23-4-1980. He objected to the form of the suit; that the suit is barred by time and that agreement cannot be performed in absence of the clearance certificate of respondent No.3 and permission of respondent No.2. On merits he in round about manner proceeded to state that he did receive Rs.17,150 as earnest money and executed a power of attorney in favour of son of said respondent. He, however, insisted that the time was essence of the contract and since the agreement was not performed, it stood rescinded. Issues were framed. Evidence of the parties was recorded. The suit was dismissed by the learned trial Court vide judgment and decree dated 18-3-1984 on the ground that the suit was not competent in its present form. The respondent No.1 filed an appeal. Vide order dated 13-3-1986 the learned Court of appeal allowed the respondent No.1 to amend the plaint to add the relief of specific performance and remanded back the case. An amended plaint was accordingly filed.
Meanwhile both Fazal Muhammad and Khair Din died and their L.Rs. Were impleaded. The amended pleadings were filed accordingly. Issues were framed according to the amended pleadings. Evidence of the parties was recorded. The suit was decreed by the learned trial Court vide judgment and decree dated 31-5-1992. A first appeal filed by the petitioner was dismissed by a learned Additional District Judge, Faisalabad, on 14-6-1994.
2. Learned counsel for the petitioners contends that the suit was barred by time. According to the learned counsel the amendment was allowed on 13-3-1986 while amended plaint was filed on 21- 4-1986 and that on the said date the suit had become barred by time. Learned counsel has not much to say regarding the findings recorded by the learned Courts below on merits of the case.
Learned counsel for respondent No. 1, on the other hand, argues that the amendment would date back to the date of presentation of the plaint and as such the suit is within time.
3. I have gone through the copies of the records, appended with this civil revision, with the assistance of the learned counsel for the parties. I have already narrated in some detail, the respective pleadings of the parties. Now the execution of the agreement and receipt of said amount of Rs.17,150 has been admitted. It also stands admitted that the remaining amount was to be paid to respondent No.3 to adjust the loan. It has come in evidence that the entire amount was paid by respondent No. 1 to respondent No. 3. This being so, the findings of the learned Courts below that the agreement was executed and performed by respondent No.1 in its entirety do not call for any interference, even otherwise these have not been questioned by the learned counsel for the petitioners.
4. So far as the said contention of the learned counsel is concerned, the same is misconceived. In the agreement Exh. P.1 no time for performance has been fixed. On the other hand undertaking was that upon the issuance of clearance certificate, the house will be transferred to the respondent No.1. It stands established that the entire consideration stands adjusted i.e. Partly paid directly to the late Fazal Muhammad and partly deposited with respondent No.3 in terms of the agreement.
This being so, the matter will be governed by Second Part of Article 113 of the Limitation Act, 1908.
Now only overt act attributable to Fazal Muhammad which may be interpreted as notice of refusal to perform agreement is cancellation of power of attorney. This document is Exh.D.3 on the record and is dated 24-6-1978. Notwithstanding the fact that respondent No. 1 pleaded absence of notice of cancellation, even if it be assumed that respondent No. 1 had the notice of said cancellation on the date it was effected i.e. 24-6-1978, the suit having been filed on 30-1-1980 is within period of three years prescribed by the said provisions of the Limitation Act, 1908. Now learned counsel insists that on the date when amended plaint' containing the relief of specific performance was filed, the suit had become barred by time. To my mind, the contention is rather fallacious. The matter relating to amendment of pleadings had been subject-matter of several judgments of the Hon'ble Supreme Court. The settled position is that unless and until the very nature of the suit is changed and cause of action itself stands substituted, amendment is not to be refused on the ground that defendants in the case will be deprived of defence of limitation. Needles to state that the law is that the amendment in the pleadings takes effect from the date the pleading was initially filed and not from the date of order allowing the amendment or filing the amended pleadings. I may also refer to the case of Mst. Ghulam Bibi and others v. Sarsa Khan and others (PLD 1985 SC 345). In the said case an application for amendment of the plaint so as to convert a declaratory suit into one for specific performance of the agreement to sell was disallowed by this Court while hearing the RSA.
In the appeal against the judgment it was argued on behalf of respondents that suit for specific performance would be barred by time. It was held that by an amendment in the relief clause by substituting for declaration, cause of action does not change and main substance of the suit and nature of the suit would not change and if that does not change the question of limitation would then remain only of form and not of substance. The judgment of this Court was set aside and Hon'ble Supreme Court allowed the amendment. Now it is nobody's case that the said amendment necessitated impleadment of any additional party so as to attract the provisions of Order 1, Rule 10(5), C.P.C. To govern the question of limitation. This being so, no question of limitation, important or unimportant arose in this case. No other point has been urged. The civil revision is without any force and accordingly is dismissed, leaving the parties to bear their own costs.