Muhammad Ali (deceased) vs Umar Farooq Ss — 2025 YLR 1662 LAHORE-HIGH-COURT-LAHORE

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Muhammad Ali (deceased) VS Umar Farooq Ss.12 & 22---Limitation Act (IX of 1908), First Sched. Art.113 ---Suit for specific performance of agreement to sell immoveable property---Maintainability---Limitation period for filing such suit stated---Time not the essence of contract, principle of---Scope---Where time is not of the essence, vendee must prove date of refusal and efforts to seek performance---Three-year limitation starts from date fixed for performance or from notice of refusal --- Delay of each and every day in approaching the court has to be explained---Discretionary nature of specific performance, explained---Court is not bound to grant decree even if contract is otherwise enforceable --- The facts in brevity were that the present civil revision had arisen out of judgments and decrees passed by the Trial Court and the District court, respectively, whereby the respondent's (vendee) suit for possession through specific performance was decreed and upheld on appeal --- The suit was based on an agreement to sell dated 10.10.1995, allegedly executed by the deceased vendor, the predecessor-in-interest of the petitioners, in favour of the respondent (vendee) --- The deceased vendor, in his lifetime, filed written statement denying the execution of the agreement --- Six issues were framed, including one on the point of limitation (Issue No.4) --- After recording evidence, the Trial Court decreed the suit, and the appellate court upheld the judgment --- The pivotal question demanding consideration before the High Court was as to "whether a suit for specific performance, filed (17) years after an agreement without a fixed date for performance, was maintainable without specific evidence by the vendee proving as to when the notice of the vendor's refusal to perform the agreement was received and that he had duly and continuously demanded performance during the intervening period of (17) years" ---Held: Since no date was fixed for performance of the agreement to sell, therefore, it was for the respondent to have proved that when did he get the notice that deceased or the petitioners were refusing to perform the agreement --- It was the case of the respondent (vendee) that he had time and again approached the deceased (vendor) for performance of the agreement, however, neither any dates were mentioned in the plaint nor the names of any witnesses were mentioned wherefrom this could be culled out as to when and in presence of whom respondent (vendee) approached the deceased for performance of the agreement to sell as the time lag between the execution of the same and the filing of the suit was about seventeen years---Limitation for filing the suit by the respondent would start from the date when he had notice of refusal by the vendor and in the present case, since the respondent (vendee) neither in his plaint nor in his evidence was able to prove that when, at what time, in presence of whom, where and through whom he had approached the deceased (vendor) for performance of the agreement, therefore, he had failed to prove that he remained ready and willing to perform his part of the contract --- Art. 113 of the Limitation Act, 1908 clearly stipulated that where the time was essence of the contract, upon the expiry of the stipulated period the cause of action would accrue to the parties to file a suit, however, where no date was fixed for performance of the same, it would accrue for the plaintiff to file the suit when he had notice that the performance had been refused and in both the eventualities the period of limitation would be three years which would be counted from the expiry of stipulated period or the notice of refusal, as the case may be ---Another aspect which further weakened the stance of the respondent (vendee) was that it was for him to prove that upon execution of the agreement he had paid the complete sale consideration and got the possession of the property in dispute---Question was why he did not get the sale deed registered at the outset and if it was delayed (for seventeen years) what was the logical explanation as he had failed to explain the delay -- In such circumstances, since the respondent (vendee) had approached the court for seeking performance of the agreement to sell, therefore, being the beneficiary of the same the onus was upon him to prove that he was ready and willing to perform his part of the contract and the delinquency/refusal was on part of the deceased and since the contract was executed in the year 1995 and he filed the suit in the year 2012, therefore, it was also imperative for him to have explained the interregnum period so as to bring his case within the four corners of Article 113 of the Limitation Act 1908, which he had failed to prove --- Each and every day consumed for approaching a court beyond the period of limitation has to be explained, which the respondent had failed to do --- Even otherwise, relief of specific performance could not be granted, as under S.22 of the Specific Relief Act, 1877 it has been provided that the jurisdiction to issue a decree of specific performance is discretionary in nature as it is an equitable relief and the court is not bound to grant such relief merely because it is lawful to do so --- Since both the courts below failed to appreciate the true import of Art.113 of the Limitation Act, 1908, therefore, the impugned judgments and decrees could not be sustained----Present civil revision was allowed, the impugned judgments and decrees were set aside, and resultantly the suit filed by the respondent (vendee) stood dismissed.

Muhammad Ali (deceased) vs Umar Farooq Ss — 2025 YLR 1662 LAHORE-HIGH-COURT-LAHORE

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