ORDER SHEET
IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Civil Revision Application No.59 of 2017
DATE ORDER
WITH SIGNATURE OF JUDGE
30.08.2021
1. For hearing of main case.
2. For hearing of CMA No.550/2017.
Mr. Tarique G. Hanif Mangi, advocate
for the Applicant
Mr. Abdul Qayoom Arain Advocate for
respondent.
ZAFAR AHMED RAJPUT, J.- Applicant herein filed a F.C. suit
bearing No.57/2013 for specific performance
of contract and permanent injunction against the respondents wherein the
plaint was dismissed by the earned Senior Civil Judge Naushehro Feroze u/o VII
Rule 11 CPC vide order dated 16.02.2015. Against that order, the applicant
preferred Civil appeal No.17/2015 which was heard and dismissed by the learned
District Judge Naushehro Feroze vide judgment dated 08.04.2017 and decree dated
14.04.2017. It is against that order/judgment, the instant civil revision has
been preferred by the applicant.
2. Learned
counsel for applicant has contended that the impugned decisions of the Courts
below being contrary to law are liable to be set-aside; that the learned trial
Court rejected the plaint on the sole ground of limitation without providing an
opportunity to parties to adduce their
evidence; that the suit filed by the applicant had no nexus with the suit
bearing No.222/1992 filed earlier as the instant suit was filed on the basis of
a sale agreement executed between the applicant and respondent No.3 on 22.10.1996;
that the impugned order was passed by the trial Court after framing of the
issues hence, it is incumbent upon the Court to record evidence of the parties
and decide the lis on merit; that the
learned Courts below failed to exercise their jurisdiction in accordance with
law hence, the impugned order/judgment are not sustainable in law.
3. On the other hand learned counsel for
respondents has failed to support the decisions of the courts below.
4. I have heard learned counsel for parties
and perused the material available on record.
5. It is an admitted position that prior to
filing of suit No.57/2013 by the applicant, a round of litigation between the
same parties on the same subject matter round over in Suit for declaration,
possession, perpetual injunction bearing No.222/92 filed by the father of
present respondent No.3 wherein present applicant was one of the defendants who
contested said suit up to the Honourable Supreme Court of Pakistan and he
remained failed. However, during pending of execution application, the
applicant filed the instant suit on the basis of an agreement to sell.
6. The learned trial Court rejected the
plaint vide order dated 16.02.2015 by observing, inter alia, that the suit of
the applicant was barred under Article 113 of Limitation Act by 17 years. The
learned appellant Court while passing impugned judgment observed as under;
“From the perusal of record it would appear that the impugned
order/decree is based on two premises; firstly that the suit was time barred
and was hit of Article 113 of the Limitation Ac, 1908 (the Act) and secondly
that the same property/house had remained the subject mater of a prolonged
litigation between the parties and at every forum, it was decided in favouf of
the respondent No.1 but to defeat the said decisions, the agreement in question
was fabricated to show a fresh cause of action.
Both the observations/findings recorded in the impugned Order seem to
carry substance. Firstly, according to own showing of the appellant, the
agreement in question was entered into year, 1996 while the suit for its’
performance was filed in 2013. Even if the agreement which is subject matter of
the suit is assumed to be genuine, the limitation for filing suit for specific
performance of a contract as provided in Article 113 of the Act is 3 (three)
years, from the date fixed for the performance, but if no such date is fixed,
then form the date of refusal of performance. Here, the said agreement shows
that no date of performance was stipulated in it and thus as per contention of
the Advocate for the appellant, it would be the latter part of Article 113,
which would come int play and by such computation, the suit was not
time-barred. Going by the above contention of the learned Advocate, if we
minutely examine the plaint, it would show that no specific date or even the
month of the alleged refusal of performance by the respondent No.1 has been
cited in it. All that was said, is that after the suit was decreed in favour of
respondent No.1, the appellant approached him. Again it would be noticed that
the referred suit was decreed twice first by the original Court on 11.3.1998
and then by the appellate Court on 07.09.1998 and even the revision (No.84/1998) filed before the Hon’ble High
Court Bench at Sukkur was decided on 10.02.2010. As against it, the suit here
was filed in late March 2013. Thus, ostensibly the suit was hit by Article 113
and was rightly held to be time-barred by the trial Court. Adverting to the
second aspect of the matter, it may be mentioned that it is an undisputed fact
that the litigation in shape of Suit No.222/1992 over the same property/house
with the same area of 2736 Sq. ft”
started between the appellant and the father of the respondent No.1 and
admittedly at every forum i.e. original trial Court, appellate Court and the
High Court it was decided in favour of the respondent NO.1. It may be added
here that after the father of respondent No.1 filed suit No.222/1992, another
suit bearing No.14/1993 was filed by Gul Hassan, the father of appellant for Specific
Performance of Contract with the same story that the father of the respondent
No.1 had executed a sale agreement with him in respect of the same
property/house in the year, 1990. The said suit was consolidated with suit
NO.222/1992 and decided through single judgment by the trial Court whereby suit
No.222/1992 was decreed while suit
No.14/1993 was dismissed and the said decision was maintained in appeal and as
also in the revision. In such circumstances, it would be too naïve to expect
the winning party i.e. the respondent No.1 to enter into any fresh agreement
against his losing opponent i.e. the appellant. Thus the rejection of the
plaint by the learned trial Judge was not only based on correct appreciation of
the matter but was imminently called for. The contention of the learned
Advocate for the appellant that the evidence ought to have been recorded in the
matter, has not impressed one as it is within the lawful powers of the Court to
reject the plaint in terms of Order VII Rule 11 CPC when it is found to be hit
by any of the clauses provided therein. Here in the stated background, it was
concluded by the learned Judge and rightly so that there was no fresh cause of
action and he rejected the plaint exercising powers under Order VII Rule 11
CPC. There was no legal embargo on the exercise of such powers at any stage and
indeed, it was always proper and advisable to set at rest an earliest
opportunity the litigation which was inherently defective and destined to fail.
7. The learned counsel for applicant failed
to rebut aforementioned observations of the learned appellate Court, even he could
not satisfy the Court on the query when the alleged agreement to sell was
executed on 22.10.1996 why the applicant did not bring on record of the case in
suit No.222/1992 and sought adjudication of said suit on the basis of alleged
sale agreement. The suit of the plaintiff is not only barred under Article 113
of Limitation Act but also under section 11 of CPC.
8. For the foregoing facts, discussion and
reasons, the judgment passed by the appellate Court appears to be well reasoned
and in accordance with the pleadings and evidence of the parties on record,
which does not suffer from any illegality and irregularity requiring any
interference by this Court in its revisional jurisdiction. Accordingly, instant
civil revision application is dismissed along with pending application being
devoid of any merit.
J U D G E
Ihsan/*