Hussain Farooq, the petitioner/plaintiff, through the filing of the present revision petition, has called in question judgment dated 25.6.1991, whereby the learned District Judge accepted respondent's appeal and dismissed petitioner's suit for specific performance of agreements, while setting aside the judgment and decree dated 1.11.1989, passed by the learned trial Court, through which, it decreed the suit for specific performance of agreements to sell, filed by the petitioner against the respondents.
2. The petitioner filed suit for specific performance of two agreements to sell dated 21.1.1968 and 22.1.1968, against the respondents, inter alia, asserting that Naeem Ullah, the Respondent No, 2 who was held to be entitled to the allotment of land against his verified units, through his general attorney, Malik Jamil Ahmad, the Respondent No, 1, approached the petitioner to find out the land and to procure its transfer in the name of Naeem Ullah, against the said units, which request was acceded to by the petitioner, provided half of the land, to be allotted in the name of the respondents, is to be transferred in the name of the petitioner. Pursuant thereto two agreements dated 21.1.1968 and 22.1.1968 were executed by Malik Jameel Ahmad, favouring the petitioner, thereby acknowledging the receipt of total consideration of Rs, 5,000/-, for the sale of half of the land, likely to be allotted in favour of the respondents. Subsequently, Four Kanals of land at Egerton Road, (Kashmir Road) was allotted in the name of Naeem Ullah, against his verified units, which was however, subsequently cancelled. Upon filing the Constitutional petition, by Naeem Ullah, the said land was restored and stood finally transferred, in the name of Naeem Ullah. According to the plaintiff, after obtaining knowledge about the attestation of mutation, regarding the questioned land in the revenue record, on 12.7.1984, he contacted Malik Jameel Ahmad and requested for the transfer of one half of the land in his favour but the said request was declined. Thereafter, legal notice dated 26.6.1985 was served and the refusal of the respondents to accede to the demand of the petitioner, for the transfer of one half of the land, necessitated the filing of the aforenoted suit against the respondents and Lahore Development Authority. The respondents contested the suit and filed joint written statement, thereby taking certain legal objections and also denying the execution of both the agreements and having received any consideration. According to the stance of the respondents, both the agreements are result of fraud and coercion and mis-representation.
3. Out of the divergent pleadings of the parties, the learned trial Court framed the following issue:-- ISSUES 1.Whether the plaintiff has not come with clean hands? OPD.
2.Whether the plaintiff has no cause of action? OPD.
3.Whether the suit is barred under law and not maintainable? OPD.
4.Whether Ikram Mohyuddin is a necessary party? If so, its effect? OPD.
5. Whether the suit is time-barred ? OPD.
6.Whether the Defendant No, 1, as the attorney, agreed to sell to the plaintiff, the land likely to be allotted to Defendant No, 2 in consideration of Rs, 5000/- and executed an agreement to this effect on 21.1.1968 after receiving Rs, 4500/-? OPD.
7.Whether the Defendant No, 1 executed another agreement to sell in furtherance of the first agreement on 22.1.1968 after receiving Rs, 500/-? OPD.
Whether the plaintiff is entitled to the decree for the specific performance of contract against the defendants regarding the land allotted to the Defendant No, 2? If so, on what terms & conditions?
OPP.
9 Whether the Defendant No, 3 was not entitled to grant any exemption to Defendants Nos, 1 & 2 in lieu of the land allotted and confirmed in the name of Defendant No, 2? OPP.
10.Whether the Defendant No, 1 had always represented himself as beneficiary and real owner of the land going to be allotted to Defendant No, 2 ? If so, its effect?
11.Relief.
12.The learned trial Court, after recording the evidence of the parties and while deciding all the issues, favouring the petitioner, proceeded to decree the suit vide judgment and decree dated 1.11.1989. Respondents' appeal was however allowed and the learned District Judge dismissed petitioner's suit vide impugned judgment dated 25.6.1991, hence the present revision petition.
4. The learned counsel for the petitioner, while relying upon latter part of Article 113 of Limitation Act, has contended that as no date for the performance of the agreements was mentioned in any of the agreements, therefore, the period of limitation for filing the suit for specific performance will start from the date of the refusal, and therefore, the suit was within time. He has relied upon Habibullah Khan and others vs. Qazi Muhammad Ishaq and others (PLD 1966 S.C. 505) and Inam Naqshband vs. Haji Shaikh Ijaz Ahmad (PLD 1995 SC 314). He has next contended-that the agreements are not against the public policy and thus Section 23 of the Contract Act has no applicability in the present case. He has reinforced his arguments by submitting that the said plea was not raised by the respondents in their written statement, inasmuch as no issue was framed, therefore, the learned District Judge could not have dismissed the suit on the ground that the agreements were opposed to public policy. He has further submitted 'that under the law, a person can only lead evidence on the facts, which have been pleaded in the pleadings and not beyond that. Finally, he has urged that the remarks against Ikram Mohyuddin may be expunged.
Conversely, the learned counsel for the respondents has submitted that although no date was fixed in the agreements, yet the date can be ascertained with reference to the event of allotment, therefore, the limitation period for filing the suit for specific performance would start running from the date of the allotment, therefore, the suit is barred by time. He has relied upon R.Muniswani Goundar (died) and another vs. B.M. Shamanna Gouda and others (AIR (37) 1950 Madras 820). He has further submitted that the agreements were void being against public policy and even if the said plea was not taken in the written statement, it is the duty of the Court to see that the immoral contracts and agreements, opposed to public policy are not to be enforced. He has added that the partial specific performance is not permissible under the law.
5. In view of the arguments raised by the learned counsel for the parties. I have examined the impugned judgment and find that the learned District Judge proceeded to dismiss petitioner's suit, which was decreed by the learned trial Court, on two grounds (i) that the suit is barred by time and
(ii) that the agreements (Ex. P1 and Ex. P2) were against public policy.
6. Firstly coming to the execution both the agreements, i,e, Ex. P1 and Ex. P2. As noted above, initially the respondents denied the execution of both the agreements in their written statement and that was the reason why Issues Nos, 6 and 7 were framed, however, the same was decided in favour of the petitioner by both the Courts below. The learned District Judge, while dealing with Issues Nos, 6 and 7, regarding the execution of the agreements, has maintained the findings of the learned trial Court and came to the conclusion that the aforenoted two agreements were executed by the Respondent NO. 1, who acted as attorney and real beneficiary and owner of the land to be allotted, for the sale of the disputed land for consideration of Rs, 5000/- and received the total consideration price, as incorporated in both the agreements. It would be appropriate to reproduce a portion of para 6 of the impugned judgment, which reads as follows: The deeds were scribed by Arshad Tariq P.W. and witnessed by Humaira Hashmi (PW.1)
Psychologist Consultant and Ikram Mohyuddin (P.W.4) besides carrying the signatures of Malik Jamil Ahmad appellant and Hussain Farooq respondent. Syed Akhtar Shah (PW3) had prepared English draft of agreement deed EX. P2. All the witnesses related to the documents namely Humaira Hashmi and Ikram Mohyuddin affirmed the execution of the documents. Arshad Tariq P.W. deposed that he had ascribed the document. Syed Akhtar Shah. P.W. owned preparation of draft of the agreement Ex. P2. The evidence of the respondent to the extent of execution of the agreement deed Ex. P2 is in fact so heavy that Malik Jamil Ahmad appellant had to admit in cross-examination his signatures on both the agreement Ex. P1 and Ex. P2. The defence plea that the signatures on the documents might have been obtained by fraud was raised as diffidently as is undigestable. He has not given particulars and details of the fraud. It is hard to believe that Jamil Ahmad who is a literate person should sign the document without reading. The finding of he learned Civil Judge at least to the extent of execution of the agreement deeds and payment of consideration of Rs, 5000/- is not open to exception and in fact, the learned counsel for the appellants had not made serious attempt to challenge them. Issues Nos, 6 and 7 therefore, remain answered in favour of the respondent and against the appellants."
7. As regards the first ground. I have examined the two agreements and find that in first agreement dated 21.1.1968 (Ex. P1), Malik Jamil Ahmad, as attorney of Naeem Ullah, agreed to sell one half of the land, yet to be allotted and transferred in the name of Naeem Ullah in lieu of his units, to the petitioner for a total consideration of Rs, 5000/-, out of which Rs, 4500/- was received by him. It was agreed that after transfer half of the land would be the ownership of Naeem Ullah, whereas the other half of the land would be sold to the petitioner. It is evident from the contents of Ex. P1 that no date for the performance of the said agreement was fixed in the agreement itself. Adverting to the other agreement dated 22.1.1968 (Ex. P2) executed between the same parties in respect of the same subject matter. In the second agreement, while reiterating the contents of the earlier agreement dated 21.1.1968 (Ex. P1), it was incorporated that Malik Jamil Ahmad is the real and beneficial owner of the land, likely to be procured with the efforts of the petitioner, and that the total consideration has-been received. Contents of the latest agreement also show that no date for the performance of either of the agreements was fixed in the latest agreement.
8. Having said that, now it appears appropriate to reproduce Article. 113 of the Limitation Act, which article undoubtedly, applies in case of suit for specific performance of the contract:-- "(1) Article 113 of the First Schedule of the Limitation Act.
Description of suits.Period of Limitation Time from which period begins to turn.
For Specific performance of a contract.Three years. The date fixed for the performance, or if no such date is fixed, when the plaintiff has notice that performance is refused."
It flows therefrom that the limitation period for filing suit for specific performance is three years and the time from which such period begins would be from the date fixed in the agreement for its performance and if no such date is fixed in the agreement itself, then,the period of limitation would be computed from the date when the plaintiff has the notice that performance is refused.
9. The Hon'ble Apex Court of the country, while dealing with Article 113 of the Limitation Act with reference to the question as to from what date, the period of three years will commenced in the judgment reported as Habibullah Khan and others vs. Qazi Muhammad Ishaq and others (PLD 1966 S.C. 505) at page 509 has held as under:-- "The question then is as to from what date the period of three years will commence? The High Court has construed this as meaning within three years after the expiry of a reasonable time from the date on which the performance could have been first insisted upon for, in its view, it would be unreasonable to allow the person entitled to the performance of the agreement to wait indefinitely, We are unable to upheld this view of the High Court. The language used by the Legislature is not ambiguous and fixes with certainly the date of the commencement of limitation as the date when the plaintiff has notice that performance is refused. In view of this clear language there can be no doubt that the date of commencement of limitation is the date on which the party seeking performance has notice. that his right is denied. The cause of action arises from that date and the limitation also begins to run from the same date.
Honourable Supreme Court of Pakistan in a case reported as Inam Naqshband vs. Haji Shaikh Ijaz Ahmad (PLD 1995 SC 314), while dealing with the first part of Article 113 of the Limitation Act with reference to date "fixed", at page 318, has held as under: The words "date fixed" in the first clause of the third column of Article 113 of the Limitation Act are of great significance. The 'date fixed' means a particular date fixed expressly by the parties for the performance of the agreement. In the instant case, no particular date was expressly fixed by the parties. No doubt, the agreement was to be performed within one week from the date of agreement but this did not tantamount fixing a date for the performance of the agreement. So, it can safely be said that in the instant case no date was fixed for the performance of the contract within the meaning of first clause of the third column of Article 113 of the Limitation Act. So, the case was not governed by first clause of the third column of this Article. Point at No, (i) raised by the learned counsel for the petitioner is answered accordingly." (Underling is mine). In the case of Inam Naqshband, ibid, at page 320, it has been held as under:-- "Before a defendant can successfully invoke the bar of limitation under second clause of third column of Article 113 of the Limitation Act, he has to prove affirmatively that more than three years before the filing of the suit he had unequivocally, unconditionally and clearly refused to perform his- part of the contract. In the instant case he had not stated so." It flows from the above that when in an agreement, a specific and particular date is fixed for the performance of the contract, then the limitation period for filing the suit for specific performance, would commence from the date so fixed and if no particular date was expressly fixed by the parties, then the limitation period for filing the suit for specific performance would start from the date when the plaintiff had the notice that the performance is refused and that a defendant can only invoke the bar of limitation, when he has been able to prove that more than three years before the filing of the suit, he had clearly refused to perform his part of the contract.
10. In the above perspective and the aforenoted law declared, now I advert to the present case. As noted above, no date was particularly fixed by the parties in either of the, agreements. Interestingly, the learned District Judge in the impugned judgment, has also held that no doubt, the date was not fixed for performance of the contract in this case." Placing the facts of the present case injuxta position with the Article 113 of the Limitation Act, coupled with the law declared, it is crystal clear that as no particular date was fixed in both the agreements, therefore, first part of Article 113 of the Limitation Act would not be applicable and to my mind, the suit could not have been dismissed on the ground of being barred by limitation on the erroneous plea that the plaintiff should have brought the action within the prescribed period of three years from the date of allotment of land be 26.2.1968. It is pertinent to point out here that the said date was neither mentioned, nor was fixed in any of the agreements for the performance of the same. Additionally, from the examination of the evidence on record, I do not find that the respondents, being defendants in the suit, were able to prove and establish, as per the principle laid down in the case of Inam Naqshband (supra) that more than three years before the filing of the suit, they clearly refused to perform their part of the contract. Findings of the learned District Judge on Issues No, 5 are thus not sustainable, therefore, the same are set aside and the findings of the learned trial Court on the said issues are reinstated. In view of the law declared by the Apex Court of this Country, in the case of Habibullah Khan and others vs. Qazi Muhammad Ishaq and others (PLD 1966 S.C. 505) and Inam Naqshband vs. Haji Shaikh ljaz Ahmad (PLD 1995 SC 314), the case of R. Muniswa ni Goundar (died) and another vs. B.M.
Shamanna Gouda and others (AIR (37) 1950 Madras 820), relied upon by the learned counsel for the respondents, from the Indian jurisdiction is of no avail to the respondents.
12.Now turning to the next question, viz. the agreements (Ex. P1 and Ex. P2) being opposed to public policy. I have examined the written statement, jointly filed by the respondents, and find that no such objection regarding Section 23 of the Contract Act was either raised or pleaded in the written statement. Under the law a defendant is required to specifically raise all points of law or fact in the written statement in order to show that suit is not maintainable and barred by law inasmuch as the legal infirmities in the suit must be specifically pleaded and its particulars must be narrated ? in the written statement. A defendant will not be allowed to raise in appeal, for the first time, a plea, depending upon the evidence for its determination. Reference can be made to the judgments reported as Amir Shah vs. Ziarat Gul (1998 SCMR 593) and Anwar Aki and others vs. Manzoor Hussain and another (1996 SCMR 1770). Next question would be as to what would be the affect of not pleading a specific question of fact or law in the written statement. It is settled law by now that a party is not permitted to deviate from its pleadings nor a Court can set up a different plea for a party. If any judgments are required, the cases reported as Messrs Chaudhary Brothers Ltd., Sialkot vs. The Jaranwala Central Co-operative Bank Ltd., Jaranwala (1968 SCMR 804), Mst. Jannat Bibi vs. Sher Muhammad and others (1988 SCMR 1696) and Binyameen and 3 others vs. Chaudhary Hakim and another (1996 SCMR 336) can be referred.
13.Even otherwise, upon the reading of the contents of both the contracts injuxta position with the provisions of Section 23 of the Contract Act, it does not even indicate that the agreements are either hit by Section 23 of the Contract Act or the same are opposed to the public policy. In this regard, Sindh High Court, in a case reported as Sultan Textile Mills (Karachi) Ltd., Karachi vs. Muhammad Yousuf Shamsi (PLD 1972 Karachi 226), while dealing with the question of public policy, within the meaning of Section 23 of the Contract Act, in relation to the law of the pleadings, at page 237 has held as under:-- "The expression "public policy" itself occurs in it and if we remember that we can, as well as ought, to use this Section, then we become clear in mind that disregard of the law of pleadings cannot be justified in the name of public policy. If a contract is illegal on the face of it, then Section 23 of the Contract At is itself a bar against its enforcement. In such a situation there is legally no contract and in consequence there is no question of a plea to that effect. The contract speaks for itself. But in those situations in which the position is not as clear as that, the law of pleadings is neither displaced by common law, nor by the Contract Act. The following observations of Pollock and Mulla are instructive in this behalf."
14. I find from the agreements that through the execution of both the agreements, admittedly, parties did not agree, which is prohibited by law, nor the terms of the agreements over ride any legal provision, as such it can neither be held nor legitimately argued that the agreements were opposed to public policy, thus not enforceable.
In view whereof, to my mind, the findings of the learned District Judge about the agreements, being against public policy, are not sustainable in law, thus those findings are reversed.
15. Now coming to the expungement of remarks against Ikram Mohyuddin. Admittedly, he was not party to the proceedings at any stage and thus under the law, no remarks could have been rendered against Ikram Mohyuddin at his back without providing any opportunity of hearing to him and he was condemned unheard. It has been held in Muhammad Punhal vs. Dr. Abdul Wahid Abbasi and another (PLJ 2003 SC 706) that the appellate/revisional Courts should be very careful in passing remarks in respect of conduct of an Officer, specially when he was not given opportunity of hearing and remarks passed were not tenable in the eye of law for the reason that he was condemned un-heard, therefore, the Supreme Court of Pakistan expunged the remarks.
In the present case, the learned District Judge has passed certain remarks against Ikram Mohyuddin, without hearing him, therefore guided by the law declared by the Apex Court of the Country, in the case of Muhammad Punhal (supra), the said remarks by the learned District Judge are hereby expunged.
16.In the above back drop, I have examined the impugned judgment and find that the learned District Judge has definitely committed illegality and material irregularity, in passing the impugned judgment, thus, this is a fit case for the invocation of the revisional jurisdiction, hence, am inclined to exercise the revisional jurisdiction, of this Court. The findings of the learned District Judge on Issues Nos, 1, 2, 3, 5, 8, 9 and 10 are reversed.
17. Upshot of the above discussion is that the present revision petition is allowed, the findings of the learned District Judge on issues Nos, 1, 2, 3, 5, 8, 9, and 10 are reversed and to that extent the impugned judgment and decree is set aside with no order as to costs. Resultantly, the judgment and decree of the learned trial Court dated 1.11.1989 is ordered to be restored and petitioner's suit stands decreed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.