PLJ
2004
Present: MIAN HAMID FAROOQ J. HUSSAIN FAROOQ-Petitioner
versus MALIK JAMIL AHMAD and another-Respondents
C.R. No. 1462-D of 1991, decided on 8.3.2004. (i) Limitation Act, 1908 (IX of 1908)--
—Art. 113-Specific Relief Act
1877, S. 12-Suit for specific performance of
agreement-Limitation for-Period for
limitation commenced from date
fixed in the agreement, for the
performance of contract, otherwise it
would start from the date when
plaintiff had notice that the performance
was refused-Held: Defendant could
only invoke the bar of limitation if
he proved that more than three years
before filing of suit, he had clearly
refused to perform his part of
contract. [P. 981] A
(ii) Civil Procedure Code, 1908 (V of 1908)--
—O. VI, R. 7-Departure from pleadings-A party was not permitted to deviate from its pleadings nor a" Court could set up a different plea for a party-Defendant's plea regarding the disputed agreement to sell being against public policy was not considered by High Court under said rule.
[P. 982]'B
(iii) Contract Act, 1872 (IX of 1872)--
—S. 23-Specific Relief Act, S. 12-Suit for specific performance-Agreement whether against public policy-If the parties to agreement did not agree to do something prohibited by law and the terms did not override any legal provision, it could not be held that agreement was against public policy.
[P. 983] C
(iv) Civil Procedure Code, 1908 (V of 1908)--
—S. 151-Expungement of remarks-Adverse remarks could not be passed
against a person at his back
without providing any opportunity of hearing
to him and he was condemned unheard-High
Court expunged such
remarks passed by Appellate Court to a person who was even not a party
tothelis. [PV983]D&E
PLD 1966 SC 505, PLD 1995 SC 314, 1968 SCMR 804, 1998 SCMR 1696,
AIR (37) 1950
Kar. 226 and PLJ 2003 SC 706 referred.
Mian Nisar Ahmad, Advocate for Petitioner. , Malik Muhammad Azam Rasul, Advocate for Respondents. Date of hearing : 20.2.2004.
judgment
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
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.
p. 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.
8.
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.
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 RMuniswani
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.
PI and Ex. P2) were against public policy.
6. Firstly coming to the
execution both the agreements, i.e. Ex. PI
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 e.xecuted 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.l) Psychologist Consultant and Ikra-m 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. PI 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. 500Q/- 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, rem'ain 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. PI), 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' PI 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 iEx 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. Pi), it was
incorporated that Malik Jamil Ahmad is the real and beneficial owner «i 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 Period of Time from which period
of suits. Limitation begins to turn.
For Specific Three years. The date fixed for the
performance . performance, or if no such
of a contract. 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 douht, the agreement was to be performed within one week from the date of agreement hut this did not tantamount fixing a date for the performance of the agreement. So, it can safely he 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 actiqji within the prescribed period of three years from the date of allotment of land i-.e. 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 Ijaz Ahmad (PLD 1995 SC 314). the case of R. Muniswani 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. PI
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 riot
[pleading a specific question of fact or law in the written statement. It is
fflsettled law by now that, a party is not permitted to deviate from its pleadings
Inor a Court .can set up a different plea for a party. If any judgments are
required, the cases
reported as Messrs Chaudhary Brothers Ltd.,
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
(
"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 Aqt 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 arg^ued
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, I- 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.
(J.R.) Writ allowed.