Specific performance limitations start case law.
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| Limitation of specific performance |
**Point Decided:**
When full payment is made and possession is delivered without a fixed date for performance, the limitation period for a suit for specific performance begins from the date the refusal to perform is known. This protects the buyer’s right to enforce the contract despite time limitations.
### Unique Point Decided:
**Limitation Period for Specific Performance with Full Payment and Possession:**
The Lahore High Court decided that in cases where:
- The full sale consideration has been paid,
- Possession of the property has been delivered,
- No specific date for performance was fixed,
the limitation period for filing a suit for specific performance starts from the date the plaintiff becomes aware of the refusal to perform the contract. This ensures that the buyer’s right to enforce the contract is preserved despite the passage of time, as long as they are in possession and have paid the full consideration.
Certainly. Here's a concise summary of the case based on the provided judgment:
### Story of the Case
**Background:**
Muhammad Afzal and others (the petitioners) filed a suit for specific performance of a contract against Abdul Hameed and others (the respondents). The contract in question was related to a property measuring 01-Kanal and 4-Marlas, which their predecessor, Allah Rehm, had agreed to purchase from the respondents via Iqrarnama No.271 dated 14.06.1977. The full sale consideration of Rs.10,000/- was paid, and possession of the property was delivered to Allah Rehm, who then constructed a house and shops on it. After Allah Rehm's death, the petitioners continued to possess the property as owners.
**Issue:**
When the petitioners sought to get the registered sale deed executed in their favor, the respondents refused. Consequently, the petitioners filed a suit for specific performance on 29.02.2016, claiming the cause of action arose in July 2014.
**Trial Court:**
The trial court ruled in favor of the petitioners on 26.10.2017, decreeing that the respondents were obliged to execute the sale deed.
**Appellate Court:**
The respondents appealed, and the appellate court reversed the trial court’s decision on 30.09.2021, dismissing the suit filed by the petitioners.
**Revision Petition:**
The petitioners then filed a revision petition in the Lahore High Court, arguing that the suit was filed within the limitation period as the cause of action arose in July 2014. They also contended that the payment and possession under the Iqrarnama granted them a right to get the sale deed executed.
**High Court Judgment:**
Upon hearing the case, the Lahore High Court observed the following:
1. **Limitation Period:** The suit was filed within the permissible period under Article 113 of the Limitation Act, 1908.
2. **Payment and Possession:** The petitioners had the right to execute the sale deed because they had paid the full consideration and were in possession of the property.
3. **Authenticity of Iqrarnama:** The petitioners produced witnesses to verify the signatures and writing in the Iqrarnama, while the respondents' evidence was deemed hearsay and insufficient as they did not present firsthand witnesses.
**Conclusion:**
The High Court found that the appellate court had misread the evidence and failed to appreciate the law correctly. Consequently, it set aside the appellate court's judgment and restored the trial court's decree, thereby ruling in favor of the petitioners and decreeing the suit for specific performance.
This summary encapsulates the essential narrative and legal trajectory of the case.
In the context of this case, the term "limitation" refers to the period within which a legal action must be brought, as specified by law. Here, the relevant provision is Article 113 of the Limitation Act, 1908, which deals with suits for specific performance of a contract.
### Limitation in This Case
**Article 113 of the Limitation Act, 1908:**
This provision sets a three-year limitation period for filing a suit for specific performance of a contract. The starting point for this limitation period can be either:
1. The date fixed for the performance of the contract, or
2. If no such date is fixed, the date when the plaintiff has notice that the performance is refused.
### Application to This Case
1. **No Fixed Date for Performance:** In this case, no specific date was fixed for the performance of the contract in the Iqrarnama (agreement).
2. **Notice of Refusal:** The petitioners claimed that they were notified of the refusal in July 2014.
3. **Filing of Suit:** The petitioners filed the suit on 29.02.2016.
### Court's Analysis
The court considered the second part of Article 113, since no date for performance was fixed. The court noted that the petitioners filed the suit within three years from when they had notice of the refusal (July 2014). Therefore, the court determined that the suit was filed within the limitation period prescribed by law.
### Conclusion
The objection of limitation raised by the respondents was found to be without merit, as the suit was filed within the allowable three-year period from the date the petitioners had notice of the refusal of performance. This allowed the petitioners to pursue their claim for specific performance of the contract.
Stereo. HCJDA 38
JUDGMENT SHEET
IN THE LAHORE HIGH COURT, LAHORE
JUDICIAL DEPARTMENT
**منفرد نکتہ طے کیا گیا:**
جب مکمل ادائیگی کی جاتی ہے اور کارکردگی کے لیے ایک مقررہ تاریخ کے بغیر قبضہ فراہم کر دیا جاتا ہے، تو مخصوص کارکردگی کے سوٹ کے لیے حد کی مدت اس تاریخ سے شروع ہوتی ہے جب انجام دینے سے انکار معلوم ہوتا ہے۔ یہ وقت کی پابندیوں کے باوجود معاہدہ کو نافذ کرنے کے خریدار کے حق کی حفاظت کرتا ہے۔
Muhammad Afzal and others
VERSUS
Abdul Hameed and others
JUDGMENT
Date of Hearing: 14.05.2024
Petitioner(s):
M/s Sheikh Naveed Shehryar, Imran
A. Mian and Uneeza Siddiqui,
Advocates
Respondent(s):
M/s Ch. Muhammad Masud Akhtar
Khan, Muhammad Ghayoor Sarwar
& Janaan Gull, Advocates for legal
heirs of respondent No.2
Respondent No.3 ex parte on
21.10.2022
SHAHID BILAL HASSAN-J: Facts in concision are
as such that the petitioners instituted a suit for specific
performance of contract with regards to the suit
property against the respondents/defendants, which was
duly contested by them while submitting written
statement. Out of the divergent pleadings of the parties,
the learned trial Court framed issues and evidence of
the parties in pro and contra was recorded. On
conclusion of trial, the learned trial Court vide
judgment and decree dated 26.10.2017 decreed the suit
C.R.No.66888 of 2021
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in favour of the petitioners, against the respondents.
The respondents/defendants preferred an appeal. The
learned appellate Court vide impugned judgment and
decree dated 30.09.2021 accepted the appeal, set aside
the judgment and decree dated 26.10.2017 ibid and
dismissed suit of the petitioners; hence, the instant
revision petition.
2.
Heard.
3.
It is case of the petitioners that their
predecessor in interest namely Allah Rehm (deceased)
entered into a contract via Iqrarnama No.271 dated
14.06.1977 with the respondents germane to 01-Kanal
4-Marlas suit property for a consideration of
Rs.10,000/- and entire sale consideration was paid in
presence of the witnesses and that it was settled that as
and when the deceased predecessor of the petitioners
namely Allah Rehm would want, the registered sale
deed would be executed, therefore, in pursuance of the
said contract possession was delivered to Allah Rehm,
who constructed a house and shops over the suit
property and since then the possession of the suit
property remained, firstly with Allah Rehm and after
his death the petitioners are in possession of the same as
owners. However, when the respondents were contacted
for getting the registered sale deed executed in favour
C.R.No.66888 of 2021
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of the petitioners, they refused, which culminated in
filing of the suit.
4.
First of all the objection of limitation is
taken up. Article 113 of the Limitation Act, 1908
provides three years for filing such suit from the date
fixed for the performance or if no such date is fixed,
when the plaintiff has notice that performance is
refused. In this case, no cutoff date for performance of
contract was fixed in the Iqrarnama, therefore, the
second part of the above said Article would attract,
which provides that if no such date is fixed, when the
plaintiff has notice that performance is refused and in
the present case, the petitioners specifically pleaded that
the cause of action arose and accrued in July 2014 and
the suit was instituted on 29.02.2016, which is well
within time from the date of refusal. Therefore, the
objection has no force, which is hereby repelled.
5.
Additionally, when the sale consideration
is totally paid and possession was also delivered to the
petitioners’ predecessor in interest namely Allah Rehm,
the petitioners were well within right to get executed
the sale deed on the basis of the Iqrarnama in question.
Reliance is placed on Syed Hakeem Shah (Deceased)
through LRs and others v. Muhammad Idrees and
C.R.No.66888 of 2021
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others (2017 SCMR 316), wherein it has been held
that:-
‘Insofar as the plea of limitation is
concerned, the factual position is that the
claim of the respondent No.1 was that he
paid the entire sale consideration and was
also handed over possession of the suit
property and only the sublease was not
being executed by the seller. In this
background, when the sale consideration
is totally paid and possession was also
delivered to the respondent No.1 and only
on account of the ban on the registration
of leases that transfer document was not
executed, the respondent No.1 was well
within his right to seek execution of the
sublease in his favour when the ban was
lifted and when respondent No.2
unlawfully entered into sale transaction
with respondent No.3.’
Though for filing of suit for specific performance of a
contract, the prescribed period of limitation is three
years but as the petitioners have instituted the suit on
the basis of Iqrarnama which is coupled with transfer of
possession after payment of entire sale consideration,
the impediment and hurdle of limitation would not
come in their way, because where a plaintiff(s)
continues to enjoy a right then the statute of limitation
cannot take away such a right as the law of limitation is
C.R.No.66888 of 2021
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not meant to take away an existing right. It only bars
remedy to gain one’s lost right. The right created under
section 53-A of the Transfer of Property Act, 1882 is an
existing right and is not vanished by any length of time.
There cannot be any expiry date for enjoyment of a
right conferred upon a transferee in possession under
section 53-A of the Act ibid.
In judgment reported as Mst. Rehmat and others
v. Mst. Zubaida Begum and others (2021 SCMR 1534),
it has invariably been held by Supreme Court of
Pakistan that:-
8. As to the possession, he admitted in
his examination in chief that 'As
Muhammad Idrees was my friend,
therefore, I allowed him for temporary
shelter but after two days; they backed out
from their promises and have not yet
vacated the house18'. He further admitted
in his cross-examination as DW-1 that 'It
is a fact that since 1973 till today Mst.
Zubaida is in possession, voluntarily says
that possession is illegal19'. These
admissions of DW-1 who is the attorney as
well as the husband of appellant No.1 are
sufficient enough to establish that the sale
transaction was entered between Mst.
Ashfaq Jehan and the Respondent No.1 in
the year 1973 and the vendee paid a sum
of Rs. 36,000/- in part performance of sale
C.R.No.66888 of 2021
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consideration while the possession was
also delivered to her. It is an established
principle of law that facts admitted need
not be proved, reference can be made to
Article 30 of the Qanun-e-Shahadat Order,
1984 and the case of Nazir Ahmed v. M.
Muzaffar Hussain,20 wherein Paragraph
No.8 of the judgment this Court observed
that:
‘8. So far as the execution of
agreement is concerned, the appellant
Nazir Ahmad who appeared as D.W.1
admitted the execution of the
agreement for sale of the property in
dispute for consideration of Rs.50,000
and the execution of the agreement
was further testified by Allah Ditta
Scribe of the document who appeared
as D.W.4. The said witness appeared
twice in the Court; firstly as P. W.1
and secondly as D.W.4 and admitted
the thumb impression of Nazir Ahmad
and signatures of Rashid Ahmad
appellants on the agreement to sell
(Exh.P.1). It means that the execution
of agreement is admitted not disputed
and it is well settled proposition of law
that the admitted facts need not to be
proved. The admission has been
defined in Article 30 of the Qanun-eShahadat Order, 1984 which reads as
under:-
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"30. Admission defined. An admission
is a statement, oral or documentary,
which suggests any inference as to any
fact in issue or relevant fact, and
which is made by any of the persons,
and under the circumstances,
hereinafter mentioned."
9. The Appellant, under facts and
circumstances of the case, can neither
claim nor could substantiate, that she is
bona fide purchaser without notice to the
earlier transaction. In a case Jaiwanti Bai
v. Messrs Amir Corporation,21 in
paragraphs 19 and 20 it was held 'that the
right of a person having established that
they were equipped with unregistered
instrument, which were prior in time, and
were in possession of property in part
performance of such instrument, would
rank superior even against the subsequent
registered instrument'. Therefore, in the
instant case, the position of respondent
No.1 being in possession of the suit house
since 1973, having paid 80% of the total
sale consideration, much before time fixed
in the sale agreement and much before
performance of reciprocal obligations set
out under clause 4 of the agreement, on
the part of the Respondent No.2, is much
stronger than that of the appellant No.1
more particularly the possession is
specifically admitted by DW-1 in his
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statement in view of the Nazir Ahmed's
case supra.’
6.
Moreover, in the present case, the
petitioners produced sons of Sultan and Ghulam
Muhammad, both the marginal witnesses, as admittedly
both of them have breathed their last and their sons
while appearing in the witness box as P.W.2 and P.W.3
identified the signatures of the marginal witnesses and
P.W.6, brother of the scribe also identified the writing
and signature of the scribe. Meaning thereby, the
authenticity and veracity of Iqrarnama Ex.P1 has fully
been proved by the petitioners. As against this, the
deposition of D.W.1, who is attorney of the
respondents, is based on hearsay as he was not present
at the relevant time, so non-appearance of the
respondents in the witness box and making deposition
on oath also goes against them. In judgment reported as
Mrs. Zakia Hussain and another v. Syed Farooq
Hussain (PLD 2020 Supreme Court 401) it has been
candidly held by Supreme Court of Pakistan that:-
‘Initially, it is the party itself to depose
about the first hand and direct evidence of
material facts of the transaction or the
dispute and its attorney having no such
information cannot be termed as a
competent witness within the meaning of
Order III, Rules 1 and 2 of C.P.C. Yes!
C.R.No.66888 of 2021
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The attorney can step-in as a witness if he
possess the first hand and direct
information of the material facts of the
case or the party had acted through the
attorney from the very inception till the
accrual of cause of action. Deposition of
such an attorney under the law would be
as good as that of the principal itself. Nonappearance of the party as a witness in
such a situation would not be fatal. If facts
and circumstances of the case reflect that a
party intentionally did not appear before
the court to depose in person just to avoid
the test of cross examination or with an
intention to suppress some material facts
from the court, then it will be open for the
court to presume adversely against said
party as provided in Article 129(g) of
Qanun-e-Shahadat Order 1984 (QSO,
1984).’
7.
Pursuant to the above discussion it is
observed that the learned appellate Court has failed to
adjudicate upon the matter in hand by appreciating law
on the subject; thus, the learned appellate Court has
misread evidence of the parties and when the position is
as such, this Court is vested with authority to undo the
same in exercise of supervisory jurisdiction under
section 115, Code of Civil Procedure, 1908. Reliance is
placed on Nazim-Ud-Din and others v. Sheikh Zia-U
C.R.No.66888 of 2021
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Qamar and others (2016 SCMR 24), Sultan
Muhammad and another v. Muhammad Qasim and
others (2010 SCMR 1630), Ghulam Muhammad and 3
others v. Ghulam Ali (2004 SCMR 1001), Habib Khan
and others v. Mst. Bakhtmina and others (2004 SCMR
1668) and Haji Wajdad v. Provincial Government
through Secretary Board of Revenue Government of
Balochistan, Quetta and others (2020 SCMR 2046).
8.
In view of the above, while placing
reliance on the judgments supra, the revision petition in
hand is allowed, impugned judgment and decree dated
30.09.2021 passed by the learned appellate Court is set
aside and by restoring the judgment and decree dated
26.10.2017 delivered by the learned trial Court, the suit
is decreed in favour of the petitioners. No order as to
the costs.
SHAHID BILAL HASSAN
Judge
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