MUHAMMAD AFZAL KHAN vs MUHAMMAD ASLAM (DECEASED) S — 2022 SCMR 1275 SUPREME-COURT

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MUHAMMAD AFZAL KHAN VS MUHAMMAD ASLAM (DECEASED) S. 12--- Specific performance of an agreement to sell---Scope---Buyer/vendee who had not signed the agreement of sale was not disentitled from filing a suit seeking its specific performance. Head NotesCase Description Citation Name: 2022 SCMR 1275 SUPREME-COURTBookmark this Case MUHAMMAD AFZAL KHAN VS MUHAMMAD ASLAM (DECEASED) S. 12---Civil Procedure Code (V of 1908), S. 11---Limitation Act (IX of 1908), First Sched., Art. 113---Suit for specific performance of an agreement to sell---Maintainability---Suit barred under the principle of res judicata and also filed beyond the prescribed period of limitation---In the present case, the appellant/vendee by his own showing had divested his purported interest in the said land (having statedly sold it to his brothers in 1973); he also did not array his brothers as parties in his suit filed in the year 1992, nor did so later---Brothers also did not come forward themselves to assert their purported rights of ownership in the said land---However, the respondent/vendor had arrayed the appellant/vendee and his brothers in his suit, which was decreed, and the unchallenged judgment with regard to the said land constituted res judicata in terms of section 11 of the C.P.C.---Said unchallenged judgment attained finality as neither the appellant nor his brothers challenged it---Appellant was a party to respondent's suit, and was also aware of the unchallenged judgment, as it was exhibited in the appellant's suit---As regards the point of limitation the appellant had filed the suit in the year 1992, seeking specific performance of a purported sale agreement dated 4th May 1966, that is, after a period of 26 years, which suit he then withdrew and filed the fresh suit in the year 1996, that is after 30 years---Suit seeking specific performance of a contract is required to be filed within three years, as per Article 113 of the First Schedule to the Limitation Act, 1908---Suit filed by appellant was not maintainable in view of the principle of res judicata and for being filed beyond the prescribed period of limitation---Civil Judge and Appellate Court when decreeing the suit of the appellant did not consider the objections of the respondent regarding res judicata and limitation---High Court also did not consider the said objections, but dismissed the suit on other grounds---Appeal was dismissed and suit filed by appellant was held to be not maintainable. Head NotesCase Description

MUHAMMAD AFZAL KHAN vs MUHAMMAD ASLAM (DECEASED) S — 2022 SCMR 1275 SUPREME-COURT

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