Law: Civil Procedure Code (V of 1908)

Section: O.VII, R 11

Law: Specific Relief Act, 1877

Section: 12 , 42

(a)    Civil Procedure Code (V of 1908) ---

----O.VII, R 11 --- Specific Relief Act (I of 1877) , Ss.12 & 42 --- Limitation Act (IX of 1908), First sched., Art.113 --- Suit for declaration along with specific performance of agreement to sell ---Limitation --- Where target date for performance of agreement to sell was not fixed, limitation of three years would run from the date of vendor's refusal --- Limitation being mixed question of law and facts, effect of ---Recording of evidence where limitation is a mixed question of law and facts---Rejection of plaint ---Pre-requisites---Precessor-ininterest of the petitioners (deceased vendor) in 1984 entered into agreement to sell with the respondents/plaintiffs (vendees) and target date thereof for performance of the same was fixed as six months from the date of agreement --Performance of the agreement to sell was delayed due to some clerical mistake in revenue record due to which sale deed could not be executed ---Suit was filed after eleven years when the petitioners allegedly refused performance two days prior to its institution --- Reason for such day cited by the respondents was that an ancillary dispute had been pending at revenue forum---Trial Court rejected the plaint deeming the suit time-barred and lacking cause of action --Whereas, appellate court accepted the appeal and remanded the matter for decision on merits --- Successors of the original vendor challenged the decision of the appellate court in the present civil revision petition --- Pivotal point for determination before the High Court was as to "whether the plaint in a suit for specific performance of an agreement to sell (stipulating only a six-month time frame without a specific date), could be rejected under Order VII, Rule 11 of C.P.C. on the sole ground of limitation, despite the plaintiff's/respondent's (vendee) express assertion that the petitioners/vendors refused to perform their part just two days before the suit was filed; and whether such plea of limitation, being dependent on disputed facts, required framing of issues and recording of evidence rather than outright rejection of the plaint"---Held: Under O.VII, R.11, C.P.C. the plaint could be rejected only if from the statement in plaint, it did not disclose any cause of action or was barred by law or was incorrectly valued for the purpose of court fee or insufficiently stamped and on being required to make up the deficiency within time allowed to the plaintiff to make up the deficiency, if plaintiff failed to do the needful within the time allowed, then plaint could be rejected, which was not the case in the present matter---In the present case, perusal of plaint showed that the same disclosed a cause of action--The plaintiffs/respondents alleged the execution of sale agreement, payment of earnest money, delivery of possession and the execution of document and that they were ready and willing to perform their part ---The agreement did not mention any specific date for the performance of obligation thereunder rather a period of six months was mentioned in the agreement which did not mean any specific date --- Being so, the period of limitation in this case prima facie fell in second part of Art. 113 of Limitation Act, 1908 which provided for three years from the date when the vendee had the notice of refusal to perform by the vendor --- In the present case theplaintiffs/respondents claimed that two days before the filing of suit the petitioners/defendant refused to perform the agreement and this being so ex-facie the plaint could not be rejected on the plea of limitation --- It needed to be proved by evidence as to when plaintiffs/respondents had notice of refusal to perform the agreement by petitioners/defendants --- As to the argument of limitation the objection being mixed question of law and fact the same could not be decided without evidence --- The view taken by the appellate court was in accordance with law, whereby, the judgment and decree rejecting the plaint was set aside and the matter was remanded to Trial Court for decision on merits---Revision petition being without any substance was dismissed, in circumstance.

Irshad Ali v. Sajjad Ali and 4 others PLD 1995 SC 629 rel.