Shaikh MUHAMMAD SABIR vs K.K — 2024 CLC 347 KARACHI-HIGH-COURT-SINDH

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Shaikh MUHAMMAD SABIR VS K.K. BUILDERS (PVT.) LIMITED O.VII, Rr. 6, 11---Limitation Act (IX of 1908), S.3 & Art.113---Specific Relief Act (I of 1877), Ss. 8, 42 & 54---Suit for specific performance of agreement, possession and injunction---Limitation---Rejecting of plaint---Scope---Respondents entered into agreement for sale cum transfer of partially completed building project with the appellant, who paid entire sale consideration to the respondents----Due to ailment of the appellant, respondents occupied the suit property---Appellant filed a suit for specific performance, possession, rendition of accounts and injunction---Trial Court rejected the plaint on the ground that the suit filed by the appellant was barred by limitation---Validity---Appellant had averred in the plaint that on 01.03.2007, he suffered brain hemorrhage and remained in hospital and was under treatment for a period of about 2½ years, however, it appeared that nothing was produced or attached with the plaint to support such fact---According to appellant, on or about 10.04.2007, respondent No.2 with the help of his persons removed his staff from the premises and illegally took over all record and account books and controlled possession of the project---However, when the respondents failed to perform their part of the contract to handover the possession of the subject property, the appellant filed the subject suit seeking specific performance---It was claimed by the appellant that cause of action first accrued on 10.04.2007 when the respondents allegedly dispossessed the appellant from the subject property, and for all practical purposes refused performance of the agreement between the parties---As such, it could safely be concluded that the performance of contract was refused on 10.04.2007, thus time began to run from that date under Art. 113 of Limitation Act, 1908---However, admittedly the appellant did not file the suit for specific performance within the period of limitation as provided under law i.e. three years, nor took any steps or even took a plea that appellant was prevented by sufficient cause to file the Suit within the period of limitation, whereas, no application seeking condonation of delay had been filed---In a case, where it was evident from the averments of the plaint that the suit was filed beyond the period of limitation prescribed under Art. 113 of the Limitation Act, 1908 the Trial Court was not required to frame issues and record evidence---Appellant had not referred to any ground for exemption or seeking condonation of delay in terms of O.VII, R. 6, C.P.C.---In any event, structure of law is founded upon legal maxim that delay defeats equity, time and tide wait for none---Law helped the vigilant and not the indolent---Limitation created a substantial right in favour of succeeding party and against the defaulting party, which could not be taken away casually on inconsistent pleas or lame excuses---Plea of the appellant that law of limitation was a mixed question of law and fact, therefore, when there were allegations in the plaint, it required an enquiry and recording of evidence, was misconceived for the reason that the question of limitation was floating on the record based on the averments in plaint, whereas, there was no dispute relating to date of refusal i.e. 10.04.2007---Law of limitation is not merely a matter of technicality, but is a foundation of law, hence if the facts and circumstances particularly of the plaint, on perusal, bring no other conclusion but that of suit being barred by law of limitation, then the Court has no option but to reject the plaint under O. VII, R.11(d), C.P.C. for being barred by law---Appeal was dismissed, in circumstances.

Shaikh MUHAMMAD SABIR vs K.K — 2024 CLC 347 KARACHI-HIGH-COURT-SINDH

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