P L D 2024 Balochistan 165
Before Gul Hassan Tareen, J
IMAM BAKHSH and 6 others ---Petitioners
Versus
MUHAMMAD SIDDIQUE ---Respondent
Civil Revision No. 144 of 2013, decided on 15th August, 2022.
(a) Limitation Act (IX of 1908) ---
----S.14 ---Balochistan Land Revenue Act (XVII of 1967), S.7--- Limitation ---Exclusion of
time---Terms "another civil proceeding" and "Court" ---Applicability ---Terms "another civil
proceeding" and "Court" incorporated in S. 14 of Limitation Act, 1908, do not include
revenue proceeding and Revenue Authority respectively ---Revenue Authority is not a Court
within the meaning of S. 7 of Balochistan Land Revenue Act, 1967, nor its proceeding is
judicial/civil.
Rehman Khan v. Asadullah Khan PLD 1983 Quetta 52; Investment Corporation of
Pakistan v. Jamaat Ali Shah 1992 SCMR 1195 and Haji Abdul Karim and others v. Messrs
Florida Builders (Pvt.) Limited PLD 2012 SC 247 rel.
(b) Limitation Act (IX of 1908)---
----S. 9 ---Continuous running of time ---Scope ---Once period of limitation commences, it
cannot be avoided by introducing another cause of action or relief in the suit.
(c) Specific Relief Act (I of 1877) ---
----Ss. 12, 22 & 42--- Suit for declaration and specific performance of agreement to sell ---
Limitation ---Time barred suit ---Effect ---Illiterate old woman ---Equitable relief ---Suit was
concurrently decreed by Trial Court and Lower Appellate Court in favour of
respondent/plaintiff ---Plea raised by petitioner/defendant was that suit was barred by
limitation ---Validity ---Respondent/plaintiff instituted suit with delay of 4 ½ years and such
delay defeated equity ---Respondent/plaintiff failed to prove that he paid price of suit land---
Plaintiff was out of possession and respondent/defendant was an illiterate woman of extremly old age ---Equity leaned in favour of petitioner/defendant and not in favour of
respondent/plaintiff, who had come with tainted hands ---Relief of specific performance is
equitable under Ss. 12 & 22 of Specific Relief Act, 1877---High Court set aside concurrent findings of facts by two Courts below as the same were perverse ---Revision was dismissed,
in circumstances.
Liaqat Ali Khan and others v. Falak Sher and others PLD 2014 SC 506 and Samar
Gul v. Mohabat Khan 2000 SCMR 974 rel.
Muhammad Saleem Lashari for Petitioners.
Muhammad Riaz Ahmed for Respondent.
Date of hearing: 4th August, 2022.
JUDGMENT
GUL HASSAN TAREEN, J. ---The petitioners have assailed the concurrent
judgments under section 115, the Civil Procedure Code, 1908 ("Code") passed by the courts
of, Qazi Lasbella at Uthal in Civil Suit No. 49/1998 ("trial Court") and Majlis -e-Shoora
Lasbella at Hub in Civil Appeal No. 15/2006 ("appellate Court"), whereby suit instituted by the predecessor of respondent was decreed.
2. The predecessors of the respondent and petitioners were plaintiff and defendant
respectively in the Original Suit No. 49/1998. The following are the facts:
The plaintiff and defendant mutually entered into a contract of sale ("contract")
whereby the defendant sold out her land bearing khasra Nos. 470, 471, 472 and 473
measuring 10 Acres 0 Rod 33 Poles ("suit land") to the plaintiff in exchange for a price of Rs. 315,000/ - and the price was allegedly paid in the following mode:
(i) Rs. 15,000/ - cash;
(ii) a tractor including its agricultural equipments, of Rs. 200,000/ -;
(iii) a mare of Rs. 40, 000/ -;
(iv) a camel of Rs. 20, 000/ -; and
(v) a cow of Rs. 40, 000/ -.
Contract was reduced into writing on 02nd March, 1991 and the plaintiff was placed
in the possession of the suit land. The defendant had assured him that she would have no
objection on the transfer of the suit land in the revenue record. Whenever, the plaintiff would
demand conveyance, they will make a common application to the Revenue Authority for the
conveyance/mutation. However, few days latter, the defendant applied to the Assistant
Commissioner, Bella for refraining the plaintiff from interference in the suit land because she
had not received the livestock ( ) which were promised to be given as part of the alleged
sale consideration. On plaintiff's application and payment of mutation fee of Rs.14,332/ -,
mutation No. 188 of the suit land was transferred in his name. The defendant made an application to the District Collector for cancellation of mutation entry No. 188. The District Collector cancelled mutation entry No. 188, however, on the appeal of the plaintiff, the
mutation entry No. 188 was restored by the Revenue Appellate Authority by an order dated
16th October, 1995. Against this, the defendant filed revision before the Member -III, Board of
Revenue ("M.B.R"), Quetta, who was pleased to set aside the impugned order which remained
uphold by the High Court of Balochistan and finally, by the Hon'ble Supreme Court of
Pakistan with the following observations:
"The above petition is dismissed as not pressed, subject to
the right of petitioner to file a suit or other competent proceedings."
In suit, plaintiff has prayed as under:
3. On being summoned, the defendant submitted a contesting written statement. The
defendant raised question of limitation; placed reliance on proviso to section 42, the Specific
Relief Act, 1877 and questioned the maintainability of the suit by relying on sections 14, 17 and 19 of the Contract Act, 1872. On merits, the defendant had not denied the execution of
contract, however, defended that she was betrayed by the plaintiff because the plaintiff had
not shown, the tractor and the livestock, to her. The tractor was found, out of order and she
paid back the received Rs. 15,000/ - to the plaintiff. Finally, she defended that the contract
was breached by the plaintiff.
4. On such pleadings, the trial Court framed the following nine (09) issues:
5. The plaintiff examined 17 witnesses amongst whom, PW -9 is the deed writer, PW- 10
Abdul Jalil, Assistant Collector Grade -II had verified the contract, PW -12 Haji Abdul, PW -
13 Muhammad Umar, PW -14 Ali Muhammad and PW -15 Gul Muhammad are the marginal
witnesses of the contract who tendered it in evidence as Ex: P/1. Finally, the plaintiff
appeared as his own witness. In rebuttal, the defendant examined six witnesses and finally, through attorney Ghulam Muhammad, appeared as her own witness.
6. The trial Court decreed the suit in favour of the plaintiff on 29th October, 1999. The
said decree was affirmed by the appellate Court in Civil Appeal No. 03/2000, on 14th March, 2001. The Civil Revision Petition No. 148/2001 preferred by the defendant was allowed on 15th May, 2006 by this Court and the case was remanded back to the appellate Court for re -
writing of judgment, keeping in view the provisions of Order XLI rule 31 of the Code.
7. In post remand proceedings, on 22nd August, 2006, the appellate Court again
concurred with the findings of the trial Court, however, subject to an exception that the
defendant is entitled to receive Rs. 200,000/ -, the price of the tractor for, the tractor was
without title document. With this modification, the appellate Court affirmed the decree of the
trial Court.
8. The post remand decree was assailed by the plaintiff and the defendant in Civil
Revision Petitions Nos. 264/2006 and 340/2006. The petitions were allowed by this Court on 31st December, 2012, by a common judgment. The relevant portion of the judgment is as under:
"Both the courts below instead of dilating upon issues with reference to provisions of Limitation Act based their findings on the narration of plaintiffs that he has been allowed by the Apex Court to approach the Civil Court, therefore, there is no hurdle of limitation in his way. In my considered opinion, such approach of lower forum is neither proper nor legal, though the Apex Court has allowed the petitioner to file civil suit but has not condoned the delay, therefore, issue of limitation must have been dealt with reference to the provisions of Limitation Act by both the Courts below. So far documentary evidence is concerned, the same too should be viewed with reference to Registration Act and the proof within the context of Qanun- e-Shahadat Order. With
these observations, the judgment and decree dated 22nd August, 2006 passed by learned Majlis -e-Shoora, Lasbella at Hub are set aside and the case is remanded to the
Appellate Court with direction to hear both the parties afresh and, thereafter, to re -
write the judgment in accordance with law keeping in view the observations made hereinabove. "
9. After remand, the appellate Court for the second time, concurred with the judgment of
the trial Court and dismissed the appeal of the defendant by judgment and decree dated 9th April, 2013.
10. The defendant again came to this Court by filing a Civil Revision No. 144/2013.
During the pendency of the civil revision before this Court, both plaintiff and defendant passed away, hence, their legal representatives were brought on record as respondent and petitioners, respectively. After hearing parties, this Court vide judgment dated 19th April, 2021 allowed the revision petition and held that suit of the plaintiff was time -barred.
11. The respondent had impugned the judgment dated 19th April, 2021, before the
Hon'ble Supreme Court of Pakistan by filing Civil Appeal No. 6- Q/2021. On 21st July, 2022,
with the consent of both the parties, the judgment was set aside and case was remanded to
this Court. The relevant portion of the remand order reads as:
"2. After hearing the learned counsel for the parties, it has been agreed that the matter be remanded back to the High Court for decision afresh on the point of limitation as well as on merits of the case. In this view of the matter, this appeal is allowed. The impugned judgment of the learned High Court is set aside. The matter is remanded back to the learned High Court to decide the Civil Revision on merits afresh after hearing the learned counsel for the parties on the point of limitation as well as other issues. It is also observed that as the learned Judge of the High Court has expressed his opinion, therefore, the learned Chief Justice if feels appropriate may hear the Civil Revision or may fix it before any other Bench. Civil Revision No. 144 of 2013 shall be deemed to be pending before the High Court. The parties shall appear before the High Court on 01.08.2022. It is expected that the civil revision will be decided within a period of one month from the date of receipt of this order. This appeal is allowed in the above terms."
12. Mr. Muhammad Saleem Lashari, learned counsel, representing the petitioners,
submits that the suit instituted by the plaintiff was hopelessly barred by time under Article 113, paragraph- 2, Schedule -I, of the Limitation Act 1908 ("the Act"); the subordinate Courts
have condoned the delay on the basis of proceedings of earlier round of litigation before the revenue hierarchy and in this respect, section 14 of the Act has incorrectly been interpreted; submits that on merits, the plaintiff has failed to establish that he had paid the price of the suit land; submits that the deceased plaintiff was not placed in possession of the suit land in part performance of the contract. The learned counsel submits that the contract is outcome of fraud as such is a void contract under sections 14, 15 and 17 of the Contract Act 1872.
13. The learned Mr. Muhammad Riaz Ahmed Advocate, representing the respondent, at
the very outset submits that there are concurrent findings of the two Courts on the question of, law i.e. limitation and fact. This Court cannot disturb them in the limited jurisdiction conferred upon it by section 115, the Code; submits that petitioners have failed to point out any misreading and non- reading of evidence by the subordinate Courts. With reference to
section 14 of the Act, the learned counsel placed relied on the case of Sherin v. Fazal Muhammad, published in 1995 SCMR 584.
The learned counsel submits that contract doesn't contain words "essence of contract",
therefore, Art: 113, Schedule -I, of the Act does not apply to the case of the plaintiff; submits
that since revenue hierarchy was resorted to by the defendant, therefore, the provision of section 14 of the Act has enlarged the period of limitation in favour of the plaintiff; also submits that after attestation of the mutation entry No. 188, the sale for all intents and purposes was completed and the plaintiff became full owner of the suit land and finally submits that the impugned judgment being well reasoned, may be upheld.
14. Arguments heard and the record perused.
15. The plaintiff instituted the suit on 26th September, 1998 for specific performance of
contract dated 02nd March, 1991. For the purpose of deciding the issue of limitation, the
following portion of the contract would be relevant:
The suit of the plaintiff was governed by Article 113, Schedule -I, of the Act, which
reads:
Description of suit Period of suit Time from which period beings
to run
113. For Specific per -
formance of 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
Article 113 of the Act has two parts. In this case, the second part of column 3 of Article
113 is relevant because no date was fixed in the contract for the performance. Under its second part, a suit for specific performance can be instituted within a period of three years from the date when plaintiff gains notice that performance has been refused. Now I have to resort to the pleading and evidence for determining the starting point of limitation i.e. the date when the plaintiff came to know that the defendant has refused the performance. The paras Nos. 5, 9 and 13 of the plaint are relevant which are reproduced herein below:
16. According to para Nos. 9 and 13, cause of action accrued to the plaintiff on 4th
March, 1991 when defendant made an application to the Revenue Authority to refrain
plaintiff not to keep any concern with the suit land and not to carry out mutation. On the
application of the defendant, the Revenue Authority/ Assistant Commissioner, Bella directed plaintiff and defendant to approach Civil Court vide order dated 11th March, 1991. This fact has come on record through the statement of PW -3, that the defendant had returned back the
tractor to the plaintiff by parking it in- front of his shop. In this case, the starting point of
limitation was, 4th March, 1991 when, as per plaintiff's own averment, cause of action
accrued to him on 4th March, 1991, or at the most, was 11th March, 1991, when the Revenue
Authority directed both parties to approach the Civil Court. Plaintiff instituted suit on 26th September, 1998 (as mentioned in the impugned judgment of the trial Court) whereas he gained notice on 11th March, 1991 that defendant has refused performance. The application of the defendant to the Revenue Authority and returning back of tractor, are instances of the refusal to perform the contract. The refusal was open, unambiguous and categoric. The plaintiff should have been to institute his suit on or before 10th March, 1994 in view of the second portion of Article 113, Schedule -I, of the Act. Institution of suit on 26th September,
1998 was hopelessly barred by time whereas no case for exemption from the law of
limitation was set forth in the plaint in view of Order VII rule 6, the Code, which reads:
"6. Grounds of exemption from limitation law. - Where the suit is instituted after the
expiration of the period prescribed by the law of limitation, the plaint shall show the
ground upon which exemption from such law is claimed."
The perusal of suit does not express any ground of exemption within the meaning of
sections 6 to 22 of the Act, for condonation of the inordinate delay of four years and five months. Hence the suit was liable to dismissal under section 3, of the Act.
17. Mr. Riaz Ahmed, the respondent's counsel has placed reliance on section 14 of the
Act and stated that time consumed in the revenue hierarchy and finally before the Apex Courts is condonable while computing the period of limitation of the suit. Section 14, of the
Act 1908 reads as under:
"14. Exclusion of time of proceeding Bona fide in Court without jurisdiction.__ (1) In
computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from. defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
(2) ………………………………
Explanation I.___ In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted.
Explanation II.___ For the purposes of this section, a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding.
Explanation III. - For the purposes of this section misjoinder of parties or of cause of
action shall be deemed to be a cause of a like nature with defect of jurisdiction"
Section 14, of the Act comes into play when the following conditions are fulfilled:
a. that the plaintiff has been prosecuting another Civil proceeding against the defendant;
b. that he has been prosecuting it with due diligence;
c. that the proceeding is, upon the same cause of action and between the same parties;
d. that it is prosecuted in good faith;
e. that it does not bear fruit because the Court is unable to entertain it due to defect of
jurisdiction or other cause of a like nature."
The words "another civil proceeding", and "Court" incorporated in section 14, do not
mean and include "Revenue proceeding and a Revenue Authority" respectively. A Revenue Authority is not a Court within the meaning of section 7, the Balochistan Land Revenue Act, 1967 nor its proceeding is judicial/civil proceedings. This Court in the case of Rehman Khan v. Asadullah Khan, reported in PLD 1983 Quetta 52, defined the word Court and finally held that "for the purpose of section 42, the Specific Relief Act 1877 (S.R.A) Court means a
forum created under the Civil courts Ordinance 1961 and it does not include authorities
exercising quasi judicial functions". Same is the position in case of section 12, the S.R.A. Apart from it, plaintiff had not applied to the Revenue Authority for specific performance of the contract as such the other components of section 14 of the Act need not discussion. Hence, section 14 of the Act 1908 has not extended the period of limitation in the case of
plaintiff. The case law referred by the respondent's counsel is not relevant to this case. For
application of section 14, the former and the latter suit must be based upon the same cause of
action. The revenue proceeding was not a suit nor was based upon same cause of action. The defendant initiated revenue proceedings for cancellation of mutation. I may place reliance on the case of Investment Corporation of Pakistan v. Jamaat Ali Shah 1992 SCMR 1195, which enunciated as under:
"----The careful reading of the aforementioned provisions of law makes it amply clear
that the plaintiff/appellant cannot legally claim the exemption of the period spent in carrying out the proceedings before the Collector for the realisation of debt ----"
Before proceeding further, I would also like to dilate upon another submission of the
learned counsel for the plaintiff that time was not essence of the contract, therefore, the limitation would not apply. I do not find myself persuaded to agree with this plea. When a party to a contract promises to do a certain thing at or before a specified time and fails to do any such thing at or before the specified time, the contract or so much of it as has not been performed, becomes voidable, at the option of the promisee, if the intention of the parties was that time should be the essence of the contract. Such equitable principle has nothing to do with the law of limitation. The Hon'ble Supreme Court of Pakistan in the case of Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited PLD 2012 SC 247 propounded this proposition as under:
"7. Before proceeding further in the matter and being still on the subject of limitation
(Article 113 ibid), we would also like to dilate upon another submission of the learned
counsel for the petitioners, that in view of the general principle and on account of the
peculiar circumstances of this case the time was not the essence of the contract, therefore, the period of limitation shall be covered as per paragraph No.18 of the plaint attracting second part of the Article. In this regard, in our candid view the noted rule has nothing to do with the proposition of limitation of the specific performance cases. The said rule is not an enunciation of any statutory instrument, but has emerged as the principle of equity for the exercise of discretion by the Courts in specific performance cases. It only touches on the right to enforce the contract and has relevance and nexus in respect of the judicial consideration, whether the agreement/contract should be enforced or not by the court in the set of facts of a given case, by resorting to the said rule and nothing more. Whereas, the limitation is a command of law, prescribing the statutory period within which the right has to be exercised and enforced. The courts thus shall have no lawful authority to ignore the date/period stipulated in the contract, which as a legal consequence is meant to regulate the period of limitation in terms of first part of Article 113 ibid, and on the touchstone of the equitable, discretionary principle, and to hold against the vivid and clear provisions of law, by extending, enlarging or exempting the said period in violation thereof.
18. The trial Court applied Article 138, Schedule -I, of the Act and through a brief and non-
speaking findings held that suit is in time. The findings of the trial Court are misconceived and baseless. The appellate Court held that by virtue of section 14, of the Act, the suit is in time. Once the period of limitation commences, it cannot be avoided by introducing another cause of action or relief in the suit. Section 9 of the Act 1908 reads:
"9. Continuous running of time. --- Where once time has begun to run, no subsequent
disability or inability to sue stops it:
Provided that where letters or administration to the estate of a creditor have been
granted to his debtor, the running of the time prescribed for a suit to recover the debt
shall be suspended while the administration continues."
For the reasons hereinabove, the findings of the trial Court and the appellate Court on
the issue of limitation, are legally not sustainable.
19. On merits too, the plaintiff has no case. There is no denial of the execution of the contract
by the defendant side, however, defendant asserted that she had not received the price of the suit
land. It is an admitted aspect of the case that the defendant had returned back the tractor to the
plaintiff which was parked beside the shop of the plaintiff and latter, was taken into custody by the police under section 550, the Criminal Procedure Code, 1898 and then auctioned by the District Administration. The PWs -1, 2 and 3 during their cross -examination stated as under:
Plaintiff in reply of Q. No. 19 answered as under:
The camels and cow were not received as a sale consideration by the defendant
because plaintiff's own evidence reflects that such sale consideration was not received by the defendant himself. The tractor was without a registration book and number plate. It had no title documents. Admittedly the defendant had not received the sale consideration of the transaction whereas the plaintiff not bothered to pay the price of, tractor Rs. 200,000/ - and
livestock of Rs.100,000/ - to the defendant or deposit it in the Civil Court Deposits ("C.C.D")
at the institution of the suit. The jurisdiction to decree specific performance is discretionary, under section 22, S.R.A. Plaintiff had betrayed an illiterate women of extremly old age just to deprive her from the title of the suit land. The plaintiff was waiting in the wings to replace the defendant and got the suit land without payment of the price.
20. For the purposes of, limitation and merits, the following facts appears to have been
overlooked by the subordinate Courts. During his cross -examination, plaintiff answered
question Nos. 13 and 14 as under:
In his pleading and evidence, the plaintiff has intentionally concealed this material fact
from the Court as such had not come to the Court with clean hands. Plaintiff has not prayed
for the possession of the suit land.
The discretion exercised by the subordinate Court is not based on sound and
reasonable analysis of the relevant facts. The plaintiff instituted the suit with delay of 4.5 years, as such delay defeats equity; plaintiff failed to prove that he paid the price of the suit land; plaintiff is out of possession and the defendant was an illiterate woman of extreme old age. In such circumstances equity leans in favour of the defendant and not in favour of plaintiff who has come with tainted hands. The relief of specific performance is equitable under sections 12 and 22 of the Specific Relief Act. I place reliance on the judgment passed by the Hon'ble Supreme Court of Pakistan, reported as Liaqat Ali Khan and others v. Falak Sher and others PLD 2014 SC 506. The relevant portion reads as under:
"18. A plain reading of above reproduced statutory provision leads to a definite conclusion that the relief of specific performance claimed by respondents Nos. 1 to 4 in their suit is, purely discretionary in nature and the Court is not bound to grant such relief merely as it is lawful to do so. At the same time, the discretion to be exercised by the Court shall not be arbitrary, but it should be based on sound and reasonable analysis of the relevant facts of each case, guided by judicial principles and capable of
correction by a Court of appeal. Moreover, in sub -paragraphs Nos. i, ii and iii of section
22 (ibid) some instances have been given, where the Court can refuse to exercise its direction to pass a decree for specific performance. A careful reading of these instances, which are self -explanatory, further amplify vast powers of the Court in the matter of
exercise of its discretion for ordering specific performance or otherwise. ----"
21. Since execution of the contract was not disputed, therefore, issue No. 3 was framed
unnecessarily. The findings of the subordinate Courts on rest of the issues are outcome of misreading and non- reading of record in view of findings recorded in paras Nos. 19 and 20.
Plaintiff is not entitled for specific performance of contract, therefore, mutation entry No. 188 cannot be restored in his name.
22. If the concurrent findings are perverse, the same cannot be termed as sacrosanct and
can be interfered with. Reliance is made to the case of Samar Gul v. Mohabat Khan (2000 SCMR 974), wherein it was observed:
"It is trite law that if concurrent findings of the courts below are the result of misreading of evidence on the record, it becomes the duty of the High Court/revisional forum to set the wrong right in accord with its jurisdiction under section 115 C.P.C ---"
23. Sequel to the above discussion is that I am inclined to allow this revision petition.
Resultantly the impugned judgments are set aside and the suit is dismissed. Since suit was concurrently decreed and the concurrently judgments are set aside, therefore, the parties shall bear their own costs.
Decree sheet be prepared.
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