FORM No. HCJD/C-121
ORDER SHEET
IN THE LAHORE HIGH COURT LAHORE
JUDICIAL DEPARTMENT
C.R. No.2164 of 2011
Muhammad Iqbal and others Versus Muhammad Ashraf and others
Sr. No. of order/
proceeding
Date of order/
Proceeding
Order with signature of Judge, and that of parties of counsel, where necessary
22.4.2025 Mr. Majid Karim Khokhar, Advocate for
petitioners.
Nemo for the respondents.
Petitioners in this revision petition have
challenged the judgment dated 06.6.2011 of learned
Addl. District Judge, Pindi Bhattian, District
Hafizabad whereby appeal of respondents/plaintiffs
was accepted and judgment and decree passed by trial
court for rejecting the plaint was set aside and the case
was remanded for decision in accordance with law.
- Plaintiffs/respondents instituted a suit for
declaration along with specific performance of
agreement of sale dated 04.7.1984 claiming that in
terms of agreement the petitioners/defendants had
agreed to sell the suit property for consideration of
Rs.30,000/-, received a sum of Rs.20,000/- as earnest
money in the presence of witnesses and possession
was delivered to the respondents/plaintiffs who had
raised valuable construction in the form of shops, etc.
The agreement was executed by Lal son of Ali
Muhammad (defendant No.1) on behalf of Mst.
Bashiran Bibi (defendant No.2 now deceased and
represented by her legal heirs i.e. petitioners herein)
and that they had committed to execute the registered
sale deed within six months from the agreement. It
was asserted that later the execution of sale deed was
postponed on the pretext that due to some clerical
C.R. No.2164 of 2011 -2-
mistake in the revenue record regarding parentage of
Mst. Bashiran Bibi the sale deed could not be
executed. The petitioners/defendants later claimed
that Mst. Bashiran Bibi had filed an application before
the Collector for settlement of dispute with Allah Yar,
etc. and it was assured that after the settlement of
dispute, she would execute a sale deed. It was claimed
that the defendants kept on apprising the
plaintiffs/respondents that the dispute on the Revenue
side was not settled as yet and thus on this pretext
obligation to execute the sale deed was postponed and
that two days before the filing of suit they refused to
perform their part under the sale agreement, in result,
the suit for specific performance was being filed. - Mst. Bashiran Bibi filed an application under
Order VII, Rule 11, C.P.C. for rejection of plaint on
the ground that suit for declaration to enforce the
agreement of sale was not maintainable, it was barred
by time as it was filed after 11 years, and that the
plaintiffs/respondents had no cause of action to file
the suit. The application after reply was accepted by
the learned Civil Judge and consequently the plaint
was rejected with the observation that it was barred by
time and that the plaintiffs/respondents had no cause
of action or locus standi to file the suit and that the
suit is not maintainable. Appeal filed thereagainst was
accepted by learned Addl. District Judge, in result, the
order of trial court dated 23.1.2010 rejecting the plaint
was set aside, the suit was restored and the learned
Civil Judge was directed to decide it after recording
evidence of parties in accordance with law. Against
this order the instant revision petition has been filed.
C.R. No.2164 of 2011 -3- - Heard.
- The points raised by learned counsel for the
petitioners have been considered in the light of
material documents filed with the petition. Perusal
thereof reveals that suit was instituted to enforce the
sale agreement dated 04.7.1984. The claim of
plaintiffs was that the transaction was settled in the
presence of defendant and the witnesses and that the
agreement was executed by Lal son of Ali
Muhammad and that a sum of Rs. 30,000/- was paid
at the time of execution of agreement, the sale
transaction was to be completed within a period of
six months and that the plaintiffs/respondents
remained ready and willing to perform their part but
the matter was postponed by the other side on the
pretext that there was some confusion qua the name of
Mst. Bashiran Bibi’s father in the revenue record
which would need necessary correction before the sale
deed could be executed. Later, on the pretext of a
dispute with Allah Yar, etc pending on Revenue side,
the sale deed was postponed with the assurance that
the needful would be done after settlement of such
dispute. It was claimed that the possession was
delivered to the plaintiffs/respondents who were in
possession and had invested huge amount on the
construction of shops, etc. The agreement shows that
the period for execution of sale deed was fixed as six
months and no specific date or year was mentioned
therein. Plea of the petitioners was that the suit should
have been filed within three years from the time fixed
in the agreement i.e. six months from the date of
agreement.
C.R. No.2164 of 2011 -4- - This plea found favour with the learned Civil
Judge who assumed that the suit was barred by time;
while the learned Addl. District Judge took a contra
view that no time and date was given in the
agreement, as such, a period of limitation would be
three years from the notice of refusal to perform and
in the plaint it was asserted that two days before the
filing of suit the petitioners/defendants had refused to
perform their part of agreement or to enforce the
agreement and that while dealing with the application
under Order VII, Rule 11, CPC the facts given in the
plaint had to be taken as such and, therefore, the suit
was within time. - The view taken by the learned Addl. District
Judge is in accordance with law. Under Order VII,
Rule 11, C.P.C. the plaint could be rejected only if
from the statement in plaint, it does not disclose any
cause of action or is barred by law or is incorrectly
valued for the purpose of court fee or insufficiently
stamped and on being required to make up the
deficiency within time allowed to the plaintiff to make
up the deficiency, if plaintiff fails to do the needful
within the time allowed, then plaint could be rejected,
which was not the case here. In the instant case
perusal of plaint shows that the same disclosed a
cause of action. The plaintiffs/respondents alleged the
execution of sale agreement, payment of earnest
money, delivery of possession and the execution of
document by Lal son of Ali Muhammad on behalf of
Mst. Bashiran Bibi and that their readiness and
willingness to perform their part. For all intents and
purposes the plaint did disclose a cause of action.
C.R. No.2164 of 2011 -5- - As to the argument of limitation the objection
being mixed question of law and fact the same could
not be decided without evidence. Perusal of
agreement shows that there is no specific date fixed
for the performance of agreement for the purpose of
registration of sale deed rather a period of six months
was given. Article 113 of Limitation Act, 1908
contemplates the period of three years for the specific
performance of contract from the date fixed in the
agreement for performance or if no such date is fixed,
when the plaintiff has the notice that the performance
is refused. In the instant case the agreement does not
mention any specific date for the performance of
obligation thereunder rather a period of six months
was mentioned in the agreement which does not mean
any specific date. Being so, the period of limitation in
this case prima facie falls in second part of Article
113 of Limitation Act, 1908 which provides for three
years from the date when the vendee had the notice of
refusal to perform by the vendor. In this case the
plaintiffs/respondents claimed that two days before
the filing of suit the petitioners/defendant refused to
perform the agreement and this being so exfacie the
plaint could not be rejected on the plea of limitation. It
needs to be proved by evidence as to when
plaintiffs/respondents had notice of refusal to perform
the agreement by petitioners/defendants. In Irshad Ali
v. Sajjad Ali and 4 orders (PLD 1995 SC 629) it was
observed to the effect that question of limitation being
mixed question of law and fact the evidence should
have been recorded thereon and, thereafter, it should
have been decided. Reference can also be made to
Muhmmad Anwar and 8 others v. Bahan and another
C.R. No.2164 of 2011 -6-
(2000 YLR 378), Mst. Kulsoom and 6 others v. Mrs.
Marium and 6 others (1988 CLC 870), Mst. Bibi
Khatoon and 7 others v. Abdul Jalil (PLD 1978 SC
213), Mst. Nazar Rauf and 3 others v. Dr. Riaz
Ahmad and another (1988 PLD Lah. 390) that if
specific date is not given in the agreement to perform
the same, the case will fall in second part of Article
113 of Limitation Act, 1908 which provides for three
years from the date of notice of refusal to perform. - The learned Addl. District Judge correctly
observed that the issue of limitation should be decided
after recording of evidence. The other objection raised
by the petitioners before the court of first instance was
that the agreement to sell does not convey any title,
therefore, the suit for declaration is not maintainable
and that Lal son of Ali Muhammad was neither a
special nor general attorney of Mst. Bashiran Bibi
while she herself had not signed the document,
therefore, the plaintiffs/respondents had no cause of
action or right to sue. In this context, suffice it to
observe that the case of plaintiffs/respondents was that
Lal son of Ali Muhammad had executed the
agreement on behalf of Mst. Bashiran Bibi and,
therefore, if petitioners denied such stance this could
only be resolved by framing of issue and recording
evidence and the objection could not sustain
outrightly without evidence. The respondents were
entitled to prove that the document was executed on
the basis of some authority from Mst. Bashiran Bibi,
particularly, when they alleged that the transaction
was settled in the presence of Mst. Bashiran Bibi and
the witnesses. Such disputed question of fact could
only be resolved after evidence was allowed to be
C.R. No.2164 of 2011 -7-
produced by the parties and plaint could not be
rejected on mere allegations or assertion of denial.
The learned Addl. District Judge rightly set aside the
order of trial court and remanded the case for decision
on merits after recording evidence of parties and in
doing so no error of law or irregularity has been
committed so as to warrant interference. - Resultantly, the revision petition being without
any substance is dismissed.
(RASAAL HASAN SYED)
JUDGE
Announced in open Court on 25.4.2025
JUDGE
Approved for reporting
JUDGE
Rabbani