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Suit No. 610 of 1982, decided on 19th February, 1984.

‑‑Art. 113‑Civil Procedure Code (V of 1908), O. VII, r. 11‑Suit for specific performance ‑ Defendant applying for rejection of plaint under O. VII, r. 1, C. P. C.‑Suit being barred by time‑Period of limitation for such suit‑Held, suit was to be filed within 3 years of date of performance mentioned in agreement of sale and in any case within 3 years from date when plaintiff had notice of refusal by defendant to perform agreement‑Sale of agreement executed on 8th July, 1964‑Sale‑deed was to be executed within 3 months and plaintiff had notice of refusal by defendant to perform agreement in 1973‑Suit filed in 1982, held, was barred by time‑Plaint rejected in circumstances.

Syed Sami Ahmed for Plaintiff.

Z. P. Naqvi for Defendant.

This application under Order VII, rule 11, C. P. C. is filed by the defendant for rejection of the plaint on the ground that the suit of the plaintiff is hopelessly time‑barred.

The admitted position in the case is that the Agreement of Sale which is the basis of the suit was executed between the parties on 18th July, 1964. In the agreement of sale in para. 5 it is mentioned that a sale‑deed was to be executed in favour of the plaintiff within three months frond the date of execution of this agreement. In the plaint it is admitted by the plaintiff that in April, 1973, the defendant instituted an ejectment case against the plaintiff before the Rent Controller. It is also admitted that distress warrant proceedings were also initiated against the plaintiff in the year 1966 m the Court of Small Causes. In paragraph 17 of the plaint, the plaintiff has disclosed the cause of action for the present suit as follows :‑---

"17. That the cause of action arose to the plaintiff and within the jurisdiction of this Honourable Court on 18th July, 1964, when the agreement for sale was executed in respect of the property in suit and that a sum of Rs. 17,000 was paid as substantial part of sale consideration, and on the date when the defendant filed an ejectment application against the plaintiff i. e. R.C. 984 of 1973, backing out of the sale agreement dated 18th July, 1964 and on the date when the defendant threatened the plaintiff of dispossessing him from the property in suit by use of force and on the date when the Suit No. 156 of 1979 was filed by the plaintiff against the defendant, seeking the protection of the Court for retaining the possession and on 29th January, 1981 when the ejectment application filed by the defendant against the plaintiff i. e. R.C. 984 of 1973 was dismissed with a clear finding that there existed no relationship that of a landlord and a tenant between the plaintiff and the defendant, and finally in September, 1981 when the defendant, in the face of the agreement for sale, dated 18th July, 1964, filed the suit that being Suit No. 720 of 1981 before this Honourable Court for possession and mesne profits and that cause of action continue till such time the defendant performs his part of the contract."

From reading of the averments made in the plaint, it is abundantly clear that the suit is based on agreement of sale which was executed between the parties on 18th July, 1964. Under Article 113 of Limitation Act, a suit for specific performance is to be instituted within 3 years of the date of performance mentioned in the agreement of sale and in any other case within 3 years of the date on which plaintiff has notice of refusal by the defendant to perform the agreement. In the present case the agreement of sale provided a period of 3 months for completion of sale. Therefore, firstly, the suit for specific performance should have been instituted within 3 years from 18th October, 1964. Even if it be assumed that the date which was mentioned in the agreement of sale for performance is not be considered as the starting point of limitation for filing of the suit for specific perform ance then according to plaintiff's own showing, the defendant backed out from the agreement of sale when he filed Rent Case No. 984/1973. There fore, at best the suit for specific performance could have been instituted within 3 years of the date when the plaintiff was served in the Rent Case. The learned counsel for the plaintiff admitted that his client was served with the notice of ejectment case in 1973, and therefore, he should have filed the suit during 1976. The learned counsel for the plaintiff contends that in para. 17 of the plaint cause of action is also shown to have arisen on the date when the plaintiff filed Suit No. 156/1979 in the District Court and lastly on the date when defendant instituted Suit No. 720/1981 in this Court for possession and recovery of mesne profits. I am unable to understand, how cause of action could be said to have accrued to the plaintiff on the date when he instituted suit against the defendant for declaration and injunc tion in the subordinate Court. The plaintiff once having notice of refusal defendant to perform the agreement, could not claim further extension of limitation on the ground that he had filed same proceedings against the defendant. The present suit for specific performance was instituted in this Court on 23rd December, 1982, which is on the face of it absolutely time‑barred. I accordingly reject the plaint in Suit No. 610/1982.

M. B. A. Suit dismissed.

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