This is an appeal against a judgment and decree of the High Court dated Poh 4, 2002, by which it affirmed a judgment and decree dated Sawan 22,2002 of the District Judge, Mirpur, whereby the judgment and decree dated Chet 7, 2001 of the Munsiff of Bhimber was affirmed.

(2) On Baisakh 9,1990, the respondent No. 1, agreed to convey 27 Kanals 10 Marlas of land situated in village Mathral to the appellants and to respondent No. 2, on payment of a sum of Rs. 950/- and to put them in possession of the same. This land at one time was the tenancy holding of Sarban - an uncle of the appellants & of the respondent No. 2, who in or about the year 1983 made an oral sale of it to the respondent No. 1, which was given effect to by a mutation order dated Maghar 16, 1983. The appellants had challenged this Mutation Order and in the course of litigation which ensued the above agreement was arrived at which was also recorded in an order of the Revenue Court of the same date.

(3) From the date of the sale, the respondent No. 1, continuously remained in possession of the; property and by Ailan No. 4 of 1993, the proprietary rights in the land were conferred upon him by the State. The land thus purchased abutted and adjoined a Nullah and in order to prevent of flooding of the fields, the respondent No. 1, in the course of his possession put up embankment and planted trees and made other improvement at an estimated cost of Rs. 400 /-.

(4) On Magh 16,2000, the appellants instituted the suit out of which this appeal has arisen to enforce the above contract dated Baisakh 9,1990 and this suit has been dismissed unanimously by all the Courts below on the grounds that it is barred by Art. 84, Limitation Act, 1995 and by S. 22, cl. (2), Specific Belief Act, 1877.

(5) Article 84, Limitation Act provides 3 years as a period of limitation for a suit for a specific performance of a contract, time to commence from "the date fixed for the performance or, if no such date is fixed when the plaintiff has notice that the performance is refused". In the above contract, no date was fixed for the performance and the suit is clearly governed by the second alternative clause which runs the time against the plaintiff when he gets notice of the refusal of performance.

(6) Undoubtedly there has been a delay of 10 years in bringing the suit but there is no evidence that three years before the suit the appellant made any demand for the performance of the contract which was refused, nor there is any evidence that three years before the suit the respondent repudiated the contract to the knowledge of the appellants. In the absence of any evidence which may satisfy the condition laid down in the second alternative clause, it is not possible to hold on the basis of mere delay in bringing the suit that the claim is barred by limitation and the findings of the Courts below in this matter cannot be legally supported.

(7) The twenty-second section of the Specific Belief Act states that -

"The jurisdiction to decree specific performance is discretionary, and the Court is not bound to grant such relief merely because it is lawful to do so; ............"

(8) It provides the following as a case "in which the Court may properly exercise a discretion not to decree specific performance: "II. Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff".

(9) The appellants contend that there is no evidence of any waiver of their right on their part and that the respondent did not serve any notice before making any improvement and they made the improvements at their own risk and that the delay in bringing the suit, if it cannot defeat the claim on the plea of Limitation, it cannot also defeat the claim on equitable ground under Specific Relief Act.

(10) Delay in bringing the suit to enforce a contract per se may not be a ground to refuse specific performance of a cont

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