IN THE SUPREME COURT OF PAKISTAN 
(APPELLATE JURISDICTION)  
 
 
PRESENT: 
MR. JUSTICE EJAZ AFZAL KHAN 
MR. JUSTICE MAQBOOL BAQAR 
MR. JUSTICE FAISAL ARAB  
 
CIVIL PETITION NO. 1598 OF 2016 
(On appeal against the judgment dated 01.04.2016 
passed by the Lahore High Court, Lahore in RSA No. 
15/2009) 
 
Major (R) Pervaiz Iqbal 
… Petitioner 
VERSUS 
 
Munir Ahmad & others 
… Respondents 
 
For the Petitioner:  
Mr. Shahzada Mazhar, ASC 
 
 
 
 
Ch. Akhtar Ali, AOR 
 
For Respondents (1(b,c): Mr. Mehmood Ahmed Bhatti, ASC 
 
 
 
 
Syed Rifaqat Hussain Shah, AOR 
 
 
Date of Hearing:  
15.01.2018 
 
 
JUDGMENT 
 
 
 
 
FAISAL ARAB, J.- Bungalow No. 73 measuring 4.29 
acres located on Quaid-e-Azam Road, Sialkot Cantt, became 
evacuee property upon partition of India. It was allotted to one 
migrant from India Syed Chiragh Ali Shah. Out of the total area of 
the bungalow, twelve Kanals of land were subsequently resumed 
by the Government and the bungalow with the remaining land was 
handed over to the allottee.  
 
2. 
 
On 15.05.1984, the successors-in-interest of Syed 
Chiragh Ali Shah entered into an agreement with the petitioner to 
sell the said bungalow. While the transaction under this agreement 
was yet to be completed, the petitioner on 10.07.1986 entered into 
CIVIL PETITION NO. 1598 OF 2016 
2
an agreement with respondents No. 1 & 33 (hereafter referred to as 
the buyers) to sell a portion of land of the said bungalow 
measuring seven Kanals for a total sale consideration of 
Rs.500,000/-. At the time of execution of this agreement, the 
buyers paid Rs.55,000/- as earnest money and the remaining 
amount of Rs.445,000/- was to be paid on 13.07.1986. This period 
was later extended upto 16.09.1986 by which time it was expected 
that the property under the earlier agreement would stand 
transferred in the name of the petitioner. However, as the 
successor-in-interests of Syed Chiragh Ali Shah did not transfer 
the bungalow to the petitioner on the basis of agreement with him, 
the petitioner in turn could not transfer seven Kanals to the 
buyers. It is the agreement dated 10.07.1986 which is subject 
matter of the present proceedings.  
 
3. 
 
On 01.03.1987, the petitioner filed a suit for specific 
performance of the contract executed on 15.05.1984 with the 
successor-in-interests of Syed Chiragh Ali Shah.  The buyers of the 
agreement dated 10.07.1986 were also arrayed as plaintiffs in the 
suit, however, during the pendency of the suit, on the application 
of the petitioner, the buyers were deleted from the array of the 
plaintiffs vide order dated 29.01.1991 who were directed to secure 
their rights under their agreement with the petitioner by filing a 
separate suit.  
 
4. 
 
In 1994, the earlier suit filed by the petitioner against 
the successor-in-interests of Syed Chiragh Ali Shah was 
compromised in terms of a settlement agreement reached on  
CIVIL PETITION NO. 1598 OF 2016 
3
28.11.1994 and pursuant thereto a compromise decree was passed 
in favour of the petitioner on 21.12.1994. While execution of the 
compromise decree was yet to be carried out, the buyers filed a 
suit on 27.10.1996 seeking specific performance of the contract 
dated 10.07.1986. Along with the petitioner, all the successors-in-
interest of the late Syed Chiragh Ali Shah were also made party to 
the suit.  
 
5. 
 
The petitioner on the basis of compromise decree 
passed in his suit eventually got the bungalow transferred in his 
name on 02.03.2000. The suit filed by the buyers against the 
petitioner continued and was finally decreed on 17.04.2006. The 
petitioner challenged the decree in appeal before the District Court 
on the ground that the suit was barred by time. His appeal failed. 
He preferred second appeal in the High Court which was 
dismissed. Aggrieved by such decision, the petitioner has preferred 
the present petition seeking leave to appeal.  
 
6. 
 
 Learned counsel for the petitioner argued that under 
the agreement with the buyers, the transaction was to be 
completed by 16.09.1986 whereas suit was filed on 27.10.1996 
and in terms of Article 113 of the Limitation Act, the suit for 
specific performance of the contract is to be filed within three 
years, it was clearly barred by time. He further contended that 
even if the commencement of the limitation is to be reckoned from 
the date when the order dated 29.01.1991 in his suit was passed 
whereby the Court deleted the names of the buyers from the array 
of the plaintiffs by giving them the opportunity to seek remedy by 
CIVIL PETITION NO. 1598 OF 2016 
4
bringing their own suit on the basis of their agreement with the 
petitioner, such suit ought to have been filed by the buyers within 
the next three years i.e. on or before 28.01.1994 however as the 
suit was filed as late as 27.10.1996 the same was hopelessly 
barred by time. In support of his argument learned counsel relied 
upon cases reported as Haji Abdul Karim etc. Vs. M/s Flordia 
Builders (Pvt) Ltd (PLD 2012 SC 247), Muhammad Bashir Vs. 
Hakim Ali (2000 YLR 368), Muhammad Ramzan Vs. Muhammad 
Qasim (2011 SCMR 249) & Overseas Pakistanis Foundation etc. 
Vs. Sqn. Ldr (R) Syed Mukhtar Ali Shah (2007 SCMR 569). 
Lakshminarayana Vs. Singaravelu (AIR 1963 Madras 24).  
 
7. 
 
Learned counsel for the buyers, on the other hand, 
argued that the limitation for filing of the suit could only have 
started from 02.03.2000 when the successors-in-interest of Syed 
Chiragh Ali Shah conveyed the bungalow in favour of the 
petitioner. According to the learned counsel, it was this date when 
the cause of action accrued to the buyers and the suit filed by 
them in 1996 was premature, therefore, the question of it being 
barred by time did not arise. Learned counsel for the buyers also 
argued that it was also the petitioner’s case in his written 
statement that the claim raised by the buyers in their suit was 
premature, hence the plea that suit was barred by time cuts across 
the argument of the petitioner’s counsel. He maintained that all 
the three Courts below rightly decreed the suit on the basis of the 
evidence that came on the record and rightly did not treat the suit 
to be barred by time. In support of his argument learned counsel 
relied upon the case from Indian jurisdiction reported as 
CIVIL PETITION NO. 1598 OF 2016 
5
Lakshminarayana Vs. Singaravelu (AIR 1963 Madras 24) and on 
the case of Inam Naqshaband vs. Haji Shaikh Ijaz Ahmed (PLD 
1995 SC 314).  
 
8. 
 
Under the agreement dated 10.7.1986, the petitioner 
agreed to sell seven Kanals which were part of the property that at 
that time had not yet been transferred in his name by the 
successors-in-interest of Syed Chiragh Ali Shah, therefore, unless 
such transfer takes place, there was no occasion for the buyers to 
seek transfer of seven Kanals of land in their names. This 
uncertainty continued until a compromise was reached in the suit 
filed by the petitioner and the property in question was eventually 
conveyed in the name of the petitioner on 02.03.2000. It was from 
this date onwards that the petitioner was legally competent to 
honour his commitment under the agreement entered into with the 
buyers. 
 
9. 
 
The parties to the agreement dated 10.07.1986 very 
well knew from the very inception that unless the successors-in-
interest of Syed Chiragh Ali Shah convey the property in question 
in the name of the petitioner the transaction could not be 
completed. In these circumstances, the fixation of the time under 
the agreement was subject to such conveyance. The real intention 
of the parties to an agreement has to be gathered from what they 
intended at the time of the execution of the agreement which in 
this case was that upon transfer of the property by the successors-
in-interest of Syed Chiragh Ali Shah in the name of the petitioner, 
the petitioner would then transfer seven Kanals of land to the 
CIVIL PETITION NO. 1598 OF 2016 
6
buyers. This intention has to be imputed to the parties to the 
agreement dated 10.07.1986. In the case of Lakshminarayana Vs. 
Singaravelu (AIR 1963 Madras 24) cited by learned counsel of the 
buyers, it was held in paragraph 6 as under:- 
 
“the doctrine of imputing intention to the parties to a contract 
which may at times be at variance with the terms of a contract 
reduced to writing is a doctrine which has found acceptance of 
late with courts. This doctrine really rests upon the principle of 
construing an agreement with reference to the real situation or 
context in which it was entered into and not relying upon the 
mere wording of the contract as fixing the real intention of the 
parties”.  
 
10. 
 
In the above referred case, it has also been held as 
under:- 
 
“13. In the first case relied upon by the learned counsel 
for the appellant, Mallikarjuna v. Parthasarathi, ILR 
(1944) Mad 742 : MANU/TN/0201/1943 : AIR 1944 Mad 
218, the court had to consider whether the period 
indicated in a contract for sale of immovable property as 
the time for performance was a definite period from which 
limitation could start. In that case the contract was 
entered into on 18-7-1934 and the promise contained in 
the contract was to execute the sale deed when both the 
brothers of the obligor returned to the village for the next 
summer vacation, that is, May-June 1935. The question 
was whether limitation began to run from May-June 1935. 
The Bench observed thus:  
 
"This is much too indefinite to be regarded as fixing 
a 'date' for the performance of the contract and we 
agree with the lower court that the period of 
limitation must be computed from the date of 
refusal to perform......"  
CIVIL PETITION NO. 1598 OF 2016 
7
 
What, according to us, underlies this decision is that the 
words of the third column in Article 113 of the First 
Schedule to the Indian Limitation Act should not be 
literally construed but liberally construed having regard to 
the facts of each individual case. "The date fixed for the 
performance", which is the phrase occurring in the third 
column of Article 113, must therefore be not only a date 
which can be identified without any doubt as a particular 
point of time, but it should also be a date which the 
parties intended should be the date when the contract 
could be performed. This principle, though not explicitly 
stated in the decision cited, above, is in our opinion the 
rationale behind the ruling of the decision.”  
 
11. 
 
In the case of Inam Naqshaband vs. Haji Shaikh Ijaz 
Ahmed (PLD 1995 SC 314) it was held as under:- 
 
“6. 
Adverting to the point at No.(iii) raised by the learned 
counsel for the petitioner we find that question of limitation is 
not a pure question of fact. It is a mixed question of law and 
fact. So, the High Court was quite competent to reverse the 
concurrent findings of the two Courts below on this issue. In 
the peculiar circumstances of the case, that the property was 
sold for Rs.5,000 and  the respondent/vendee paid 
Rs.4,500/- as earnest money and  only nominal amount of 
Rs.500/- was to be paid by him within a week of the 
agreement; that the sale deed was actually drawn up on 
25.7.1963 and signed by the parties but before it could be 
presented 
before 
the 
Registrar 
for 
registration, 
the 
petitioner/plaintiff slipped away; that before expiry of the one 
week’s time for the performance of the contract, the father of 
the petitioner/defendant filed suit for declaration that he was 
the owner in possession of the suit property, we are of the 
view that the cause of action to file a suit for specific 
performance of agreement to sell relatable to the property 
which was subject matter of the suit between the father and 
CIVIL PETITION NO. 1598 OF 2016 
8
the son/petitioner, the cause of action remains suspended till 
the decision of the suit against the father of the petitioner on  
28.9.1966. We are convinced that it was on 28.9.1966 that 
the title of the petitioner over the suit property became clear. It 
is by now well settled that the cause of action to sue for the 
specific performance of the contract arises only  when the 
vendee is in a position to perform his part of contract 
effectively and till such date no cause of action arises for the 
other party to compel him to perform his part of the contract. In 
the instant case, a week after the agreement, the father of the 
petitioner filed a suit against petitioner seeking declaration to 
the effect that he was owner in possession of the suit 
property. He also obtained a stay order. So it  can safely be 
held  that the cause of action was inchoate and incomplete 
and became complete on 28.9.1966 when the suit of the 
father was dismissed, or on 22.12.1967 when the appeal filed 
by the father of the petitioner against the judgment and decree 
dated 28.9.1966 was dismissed by the appellate Court. 
Before a defendant can successfully invoke the bar of 
limitation under second clause of third column of Article 113 of 
the Limitation Act, he has to prove affirmatively that more 
than three years before the filing of the suit he had 
unequivocally, unconditionally and clearly refused to perform 
his part of the contract. In the instant case he had not stated 
so.” 
 
 
12. 
 
When the order of the Court dated 29.01.1991 is 
analyzed whereby the buyers of the agreement dated 10.07.1986 
were deleted as party and set at liberty to bring their own suit 
against the petitioner for enforcement of their right, it becomes 
evident that the earlier suit was only for the enforcement of the 
transaction 
entered 
into 
between 
the 
petitioner 
and 
the 
successors-in-interest of Syed Chiragh Ali Shah and the buyers of 
the agreement dated 10.07.1986 had nothing to do with that suit 
except that they were dependent upon the petitioner’s success in 
CIVIL PETITION NO. 1598 OF 2016 
9
that suit. The order of the Court dated 29.01.1991 only 
acknowledged the right of the buyers to file their own suit to seek 
specific performance of the agreement. Even when the buyers filed 
their suit in 1996, the petitioner had not gained the title to the 
property in question hence their claim was still premature. The 
cause of action could have only arisen to the buyers when the 
petitioner had come in the position to complete the transaction 
with them and that accrued on 02.03.2000 when the property in 
question was conveyed in the name of the petitioner therefore no 
decree prior to this date could have been passed in favour of the 
buyers compelling the petitioner to convey seven Kanals of land 
out of the property in question. The fact that the suit filed in 1996 
was premature was acknowledged by the petitioner in his written 
statement. When the petitioner himself took this plea then taking 
the plea of limitation would in fact amount to taking mutually 
destructive pleas because if the suit is considered to be premature, 
it cannot be said to be barred by time and if the suit was barred by 
time then it cannot be said to be premature. Undoubtedly, the 
cause of action accrued to the petitioner on 02.03.2000 when the 
title of the property in question was transferred in his favour and 
at that time suit for specific performance of contract dated 
10.07.1986 was already pending, therefore, question that it was 
barred by time did not arise at all.   
 
13. 
 
We are, therefore, of the view that the trial court has 
rightly decreed the suit for specific performance of the contract in 
terms of the agreement dated 10.07.1986, which was upheld in 
appeals both by the District Court and the High Court. However, 
CIVIL PETITION NO. 1598 OF 2016 
10
we are of the view that pursuant to the agreement, possession was 
handed over to the buyers whereas they retained the balance sale 
consideration of Rs.445,000/- with them till the same was 
deposited with the Nazir under the orders of the Trial Court. In the 
circumstances, the petitioner shall be entitled to a sum of 
Rs.3,000,000/- as equalizer over and above the balance sale 
consideration, which shall be deposited with the Nazir of the Trial 
Court within a period of two months.  
 
14. 
 
The above are the detailed reasons of our short order 
dated 15.01.2018 when we converted this petition into appeal and 
partly allowed it in the following terms:- 
 
“For the reasons to be recorded later, this petition is converted into 
appeal and partly allowed. Decree for specific performance of 
contract is maintained with the modification that the respondent 
will deposit an amount of Rs.30,00000/- over and above the 
amount already deposited with the trial court within a period of two 
months.”  
 
 
JUDGE 
 
JUDGE 
 
 
 
JUDGE 
Islamabad, the 
15th of January, 2018 
Approved For Reporting 
Khurram 
 
