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Civil Revision No. 810 of 1985, decided on 21st May, 1985.

Specific Relief Act (1 of 1877)--

---S. 39--Limitation Act (IX of 1908), S.3 and Art. 92--Civil Procedure Code (V of 1908) O . VI, r. 4--Sale-deed--Execution--Suit for cancellation--Limitation--Suit for cancellation of sale-deed filed about five years after its execution--No particulars of fraud or misrepresenta tion and specific date regarding knowledge about execution of sale-deed given by plaintiff in plaint--Burden to prove fraudulent execution of sale-deed exclusively lay upon plaintiff--Failure of plaintiff to give particulars of fraud and date of knowledge of execution of sale-deed in plaint was omission which stared right in his face--Plea based on fraud was not entertainable.

M. Aslam Riaz for Petitioner.

Date of hearing: 21st May, 1985.

Suit instituted by the petitioner on 12-5-1983 to seek cancellation under section 39 of the Specific Relief Act of a registered sale-deed, dated 2-10-1978 executed by him in favour of his wife, was dismissed with the finding that there was no fraud or misrepresentation involved in the execution thereof. His appeal was also dismissed by a learned Additional District Judge by affirming those findings. He took the view also that the particulars of fraud, as required by Order VI, rule 4 of the C . P. C . had not been given in the plaint and found the suit to be time-barred under Article 92 of the Limitation Act in so far as it was brought almost five years after the execution thereof despite the fact that the original deed in suit had been produced by the plaintiff petitioner himself as Exh.P.22 and in the plaint itself he had not even averred any specific date regarding his knowledge about the execution of the impugned deed.

2. Learned counsel argues that the evidence produced by the petitioner has not received adequate consideration at the hands of the two Courts below whose judgments are vitiated on account of their incorrect approach to issue No. 5, the burden of proof whereof was wrongly laid on the plaintiff in so far as it was for the defendant, the holder of the deed, to have proved the due execution thereof and still her evidence has not been brought under consideration by them. This contention is not well conceived in so far as the initial onus to prove his case lay exclusively upon the plaintiff-petitioner who having failed to discharge the same to the satisfaction of the Courts below, there did not arise any occasion to bring under consideration the evidence led by the respondent. Moreover, petitioner's failure to give particulars of the alleged fraud in the plaint is an omission which stares right to his face and the plea based on fraud is not really entertainable in this suit which has been rightly held by the learned Additional District Judge to be time-barred under Article 92 of the Limitation Act. Since the suit was liable to be dismissed under section 3 thereof, therefore, the foregoing contention of the learned counsel is only in consequential and cannot to given effect.

3. The Civil Revision has no merit. The same is accordingly dismissed in limine.

H . B . T .

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