2017 C L C 646
[Balochistan]
Before Muhammad Ejaz Swati, J
MURAD BAKHSH and 4 others ----Petitioners
Versus
Mst. Syeda ASHRAF JAHAN and 4 others ----Respondents
Civil Revisions Nos.221 of 2015 and 390 of 2014, decided on 25th November, 2016.
(a) Specific Relief Act (I of 1877) ---
----S. 42--- Limitation Act (IX of 1908), S.3 & Art.120---Suit for declaration ---Limitation ---
Plaintiffs challenged mutation entries recorded in the revenue record ---Suit was dismissed being
time barred ---Validity ---Suit filed in the year 2009 to challenge the mutation entries of 1979 was
barred by time ---High Court observed that aggrieved person had to pursue his legal remedy with
diligence ---If a suit was filed beyond limitation then each day's delay had to be explained---No
explanation had been given in the present case ---Plaintiffs had not specified the date when they
came to know about the impugned mutations ---No issue was framed with regard to limitation but
suit was dismissed on the ground of limitation ---Plaint could be rejected if suit was filed after the
period of limitation ---No material piece of evidence had been ignored or excluded out of
consideration by the courts below while passing the impugned judgments and decrees ---Revision
was dismissed in circumstances.
Muhamma d Raz Khan v. Government of N.- W.F.P. and another PLD 1997 SC 397 and
Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153 rel.
(b) Limitation Act (IX of 1908)---
----Art. 120---Specific Relief Act (I of 1877), S.42---Suit for declarat ion--- Limitation ---
Limitation to file a declaratory suit was six years.
(c) Limitation Act (IX of 1908)---
----S. 3---Suit instituted after the period of limitation was to be dismissed, even if limitation had
not been pleaded as defence.
(d) Civil Proced ure Code (V of 1908) ---
----S. 144---Restitution ---Scope and object ---Where a decree passed by a Court of first instance
had been varied or reversed, said Court on the application of any party entitled to any benefit
should cause such restitution and place the parties in a position which they had prior to the
decree---Question of restitution would arise where a decree was passed in favour of one party
and the decree holder obtained subject matter of the decree in execution of the same but decree
on appeal o r revision was reversed or varied ---Object of restitution was to place the parties in the
same position which they would have occupied prior to the decree ---Court to whom such
application was filed had powers to order for restitution and for refund of cost s and for payment
of interest, damages, compensation and mesne profits which were consequential on such
variation or reversal ---Party who suffered a loss on account of wrong decree must be
compensated ---Initial decree of Trial Court was liable to be set as ide---Any benefit received by
the decree holder under the decree refundable or returnable and parties were entitled to benefit of
restitution on the variance or reversal of the decree.
(e) Administration of justice ---
----Party not to be prejudiced by the act of the Court.
Nasratullah Baloch and Abdul Razaq Shar for Petitioners (in Civil Revision Petition
No.221 of 2015).
Habib Tahir for Respondents Nos.1 to 5 (in Civil Revision Petition No.221 of 2015).
Farooq Sarwar, Asstt. A.G. for Respondent (in Civil Revision Petition No.221 of 2015).
Habib Tahir for Petitioner (in Civil Revision No.390 of 2014),
Nasratullah Baloch and Abdul Razaq Shar for Respondents Nos.1 to 5 (in Civil Revision
No.390 of 2014).
Farooq Sarwar, Asstt. A.G. for Official Respondents ( in Civil Revision No.390 of 2014).
Date of hearing: 14th November, 2016.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. --- The petitioners in Civil Revision Petition No.221
of 2015 have challenged the validity of ex -parte judgment and decree dated 20th December,
2014 (hereinafter the "impugned judgment and decree") passed by Qazi, Lasbella at Uthal
(hereinafter the "trial Cou rt"), whereby the suit filed by the petitioners was dismissed and the
judgment and decree dated 9th July, 2015 (hereinafter the "impugned judgment and decree")
passed by Majlis -e-Shoora, Lasbella at Hub (hereinafter the "appellate Court"), whereby the ex -
parte judgment and decree of the trial Court was upheld.
2. The facts of the case are that the petitioners (plaintiffs) of Civil Revision Petition No.221
of 2015 filed a suit against the respondents (defendants) on 23rd April, 2009 for Declaration,
Permanen t Injunction and Cancellation and Correction of Entries and Mutations in the Revenue
record with further prayer for cancellation of mutation entries recorded on the name of Jahangir
Shah in respect of Khasra No.96 dated 14th February 1979 and 15th April, 1979 in respect of
property Khasra Nos.98, 89, 101, 164 and 100 (mutations in question) recorded on the name of
respondent Nos.1 to 4 namely Mst. Syeda Ashraf Jahan, Sayyid Liaquat Hussain, Mst. Waqar -
un-Nisa and Sayyid Mujahid Ali Shah (defendants). The pe titioners averred that the predecessor
of the petitioner No.1 Hussain son of Ali paternal grandfather of petitioners Nos.2 and 3 and
maternal grandfather of petitioners Nos.4 and 5 was owner in possession of land in dispute
bearing Khasra numbers mentioned in the plaint. It was further averred that at the time of
settlement, the property bearing Khara Nos.96, 98, 164, 100, 101 and 89 were entered on the
name of predecessor in interest of the petitioners (plaintiffs) and the remaining Khasra numbers
were als o entered on their name. According to the petitioners. Hussain expired in the year 1978,
however the petitioners were in continuous possession of the property in dispute being legal
heirs. It was further averred that when the petitioners intended to partit ion the property in
dispute, approached the Revenue authorities, where they came to know that the respondents vide
impugned mutations have fraudulently and through misrepresentation transferred the property in
dispute in the Revenue record, which are appar ently false and forged and thereafter the
subsequent mutations were carried out. However the petitioners in the suit have sought following
prayer:
3. The respondents Nos.1 to 4 and 8 to 12 in Civil Revision Petition No.221 of 2015
contested the suit by way of filing their statements and claimed purchase of the property in
dispute from Hussain in the year 1979.
4. The divergent pleadings of the parties necessitated following issues:
5. During proceedings, the name of the respondent Nos.8 to 12 were deleted on the
application of the petitioners and in the petition though they were arrayed as respondents,
however, on 24th June, 2016, the name of the respondents Nos.8 to 11 has been deleted from the
petition. After framing of issues by the trial Court, due to absence of the respondents
(defendants), the trial Court passed ex -parte order dated 13th June, 2009. The application for
setting aside ex -parte order filed by the respondents (petitioners) in Civil Revision Petition
No.390 of 2014 was dismissed on 21st October, 2009 and on the same day ex -parte decree was
passed. The respondents Nos.1 to 4 filed an appeal, but during pendency of the appeal, the trial
Court during execution proceedings directed the Revenue authorities to restore the impugned
mutations on the name of Hussain predecessor of the petitioner No.1, which was acted upon by
the Revenue authorities accordingly. However, during appeal proceedings, the petitioners had
entered into compromise with the respondent No.12 Suleman Ibrahim to the extent of land
bearing Khasra No. 98, but despite affecting compromise, two appeals filed by the respondents
were dismissed, against which, Civil Revision Petition No.90 of 2010 was filed before this
Court, which was accepted vide order dated 19th January, 2010 and the impugned ex -parte
judgment and decree passed against the respondents was set aside and the case was remanded to
the trial Court. However, a petition before the Hon'ble Supreme Court was also filed, which was
allowed on 24th May, 2011 and the matter was rem anded to the learned Qazi, Uthal to firstly
resolve the matter of compromise between the plaintiffs and defendant No.12 prior to deciding
the whole case. It is pertinent to mention here that after remand, the respondents (petitioners) of
Civil Revision Petition No.390 of 2014 filed two applications under section 144, C.P.C. which
were dismissed by the trial Court on 12th July, 2011 and the appeal filed by the respondents
(petitioners) of Civil Revision Petition No.390 of 2014 was also dismissed by the appel late Court
on 21st May, 2012. Civil Revision Petition No.239 of 2012 before this Court was filed which
was allowed on 22nd October, 2013 and the case was remanded to the trial Court. After remand
the trial court allowed both the applications vide order dat ed 25th April, 2014 and restored the
mutation entries on the name of defendants (petitioners) of Civil Revision Petition No.390 of
2014. The aforesaid order was challenged by the petitioners (plaintiffs) by way of filing appeal,
which was allowed by the ap pellate Court vide order dated 31st October, 2014 and remanded the
case to the trial Court with direction that the applications under section 144, C.P.C. filed by the
defendants (petitioners) of Civil Revision Petition No.390 of 2014 are to be decided alon g with
the main suit with final judgment. The petitioners (defendants) have assailed the order of the
appellate court dated 31st October, 2014 by way of filing Civil Revision Petition No.390 of
2014.
6. During pendency of Civil Revision Petition No.390 of 2014, the trial Court dismissed the
suit of the petitioners (plaintiffs) of Civil Revision Petition No.221 of 2015 vide impugned ex -
parte judgment and decree, which was challenged by the petitioners (plaintiffs) by way of filing
Appeal No.04 of 2015. The s aid judgment and decree before the appellate Court, was also
dismissed by the appellate Court vide impugned judgment and decree, which have been assailed
by the petitioners (plaintiffs) in Civil Revision Petition No.221 of 2015.
Since both the Civil Revis ion Petition Nos.221 of 2015 and 390 of 2014 arising out of the
same suit, therefore, are being disposed of through this common judgment.
7. The learned counsel for the petitioners of Civil Revision Petition No.221 of 2015
contended that the impugned judgm ents and decrees passed by both the Courts below reflect
misreading and non- reading of evidence; that no issue related to limitation was framed by either
Court, but the trial Court as well as appellate Court considered the point of limitation against the
petitioners (plaintiffs); that the petitioners (plaintiffs) in their suit have specifically mentioned
that they came to know recently about the impugned mutation entries, therefore, the limitation
would run from the date of knowledge and in this respect ex -parte evidence was produced, which
had been ignored by both the Courts below and thus committed glaring illegalities; that the father
of petitioner No.1 had died in the year 1978 and the impugned mutations were effected in the
year 1979 and this fact was not rebutted by the respondents (defendants), therefore, this material
aspect of the matter had totally been ignored by both the Courts below and non -suited the
petitioners from their valuable rights in the property in dispute.
8. The learned counsel for th e respondents Nos.1 to 5 (defendants) of Civil Revision
Petition No.221 of 2015 and petitioners in Civil Revision Petition No.390 of 2014 contended that
the impugned judgment and decree passed by the trial Court reflects that after attending the issue
of limitation, the suit was rightly found barred by time as the petitioners/ plaintiffs had
challenged the impugned mutations after 30 years, but the plaintiffs have also failed to establish
the alleged fraud or misrepresentation pursuant to impugned mutation entries.
9. With regard to Civil Revision Petition No.390 of 2014, the learned counsel for the
petitioners (defendants) contended that the initial judgment and decree dated 21st October, 2009
passed by the trial Court was set aside by this Court in Civil R evision Petition No. 90 of 2010,
therefore, after remand, the trial Court was under legal obligation to have allowed the
applications under section 144, C.P.C. filed by the defendants, which has not been done so. They
challenged the dismissal of their applications under section 144, C.P.C. through Civil Revision
Petition No.390 of 2014, however the appellate Court in the impugned judgment and decree
decided the question of restitution in favour of the petitioners/defendants.
10. Having heard the learned counsel for the parties and perused the record of the case. It is
necessary to mention here that the petitioners (plaintiffs) before the appellate Court have entered
into compromise with the respondent No.12 (defendant) with regard to land bearing Khara
Nos.96, 98 and 867/100 and had withdrawn from their case against the said respondents to that
extent and now the dispute between the parties relates to the extent of Khasra Nos.89, 101, 164
and 868/100. The impugned mutation entries Ex.P/3 indicates that the pr operty bearing, Khasra
No.96 had been mutated vide mutation dated 14th February, 1979 in favour of Syed Jahangir
Shah son of Agha Zahoor Shah. The respondent No.5 (defendant) vide mutation Ex.P/1 dated
15th April 1979, the property in dispute has been transferred on the name of respondents Nos.1
to 4 (defendants). The petitioners (plaintiffs) had challenged the mutation entries of 1979 by way
of filing suit after 30 years and they in respect of delay averred in the plaint that the said
mutations and its attestations were without their knowledge and the moment they came to know
about it, they filed the suit, it does not bear to reason. The suit was filed in the year 2009 and the
witnesses produced by the plaintiffs i.e. Abdul Khaliq and Muhammad Ismail had not stated
about the cause of action of the petitioners (plaintiffs). The limitation to file a declaratory suit in
terms of Article 120 of the Limitation Act, is 6 years.
11. In the instant case, the suit filed in the year 2009 to challenge the mutation entr ies of
1979 was barred by time. It has time and again held by the Hon'ble Supreme Court of Pakistan
that any aggrieved person has to pursue his legal remedy with diligence and if a suit filed beyond
limitation, each day delay is to be explained. In the ins tant case, no explanation was given even
without specifying the date of knowledge of the impugned mutations. In Muhammad Raz Khan
v. Government of N. -W.F.P. and another, PLD 1997 SC 397, the Hon'ble Supreme Court of
Pakistan observed as under:
"It is undoubtedly imperative for aggrieved party to pursue legal remedies with utmost
diligence and satisfy conscious of the Court or quasi -judicial authority for approaching
respective forums beyond prescribed limitation, even if objections to that effect were not
raised. This principle has been discussed in PLD 1985 SC 153 (Hakim Muhammad Buta
and another v. Habib Ahmed and others) and PLD 1993 SC 147 (Province of Punjab and
others v. Muhammad Hussain and others). Thus, aggrieved person seeking redress has
legal obl igation to justify each day's delay for launching proceedings, because with lapse
of time valuable right accrues to the opposite side. This view has been consistently
maintained by superior Courts. However, reference may be made to judgments reported
in (i) PLD 1996 SC 292 (Ali Muhammad and others v. Muhammad Shafi and others), (ii)
PLD 1995 SC 396 (Government of Punjab v. Muhammad Saleem), (iii) 1986 SCMR 930
(Muhammad Feroze Khan v. Khalique Dad Khan and 28 others), (iv) PLD 1982 SC
(AJ&K) 13 (Khadim Huss ain Khan v. The State)."
12. In the instant case, the bare perusal of plaint indicates that the petitioners (plaintiffs) have
neither specified the date when they came to know about the impugned mutations nor given any
explanation tenable under the law to justify their contention. The trial Court in the impugned
judgment, though has not framed issue related to limitation, however, the impugned judgment
reflects dismissal of the suit on the ground of limitation too. The appellate Court also considered
this s ubstantial question and decided the point of limitation against the petitioners/ plaintiffs.
Section 3 of the Limitation Act provides that every suit instituted after the period of limitation
shall, subject to the provisions of Limitation Act irrespective of the fact that limitation has not
been pleaded as defence. If it appears from the plaint that the suit is barred by limitation, the
plaint is to be rejected under Order VII, Rule 11, C.P.C. without resorting to evidence or framing
any issue. In this respect, reliance is placed on the judgment of Hakim Muhammad Buta and
another v. Habib Ahmed and others, PLD 1985 SC 153, wherein, the Hon'ble Supreme Court of
Pakistan observed as under:
"The words of section 3 of the Limitation Act are mandatory in nature i n that every suit
instituted after the period of limitation shall, subject to the provision of sections 4 to 25 of
that Act, be dismissed although limitation has not been set up as a defence. If from the
statement of the plaint the suit appears to be barre d by limitation, the plaint shall have to
be rejected also under Order VII, rule 11, C.P.C. The law, therefore, does not leave the
matter of limitation to the pleadings of the parties. It imposes a duty in this regard upon
the Court itself. There is a chai n of authority, and a detailed discussion of the same is not
necessary, to lay down that limitation being a matter of statute and the provisions being
mandatory, it cannot be waived and even if waived can be taken up by the party waiving
it and by the Cour ts themselves. In Sitharama v. Krishnaswami (ILR 38 Mad. 374),
where the defendants had pleaded the bar of limitation but the trial Court had held that
they having admitted their liability for the amount in resisting the plaintiff's application in
a previo us suit, were estopped on general principles of law and equity from pleading that
the suit was barred by limitation. It was ruled that the defendants were not estopped and it
was observed that "the bar of limitation cannot be waived, and suits and other
proceedings must be dismissed if brought after the prescribed period of limitation" and
that "the Judge cannot, on equitable grounds, enlarge the time allowed by the law,
postpone its operation, or introduce exceptions not recognized by it". The same Court i n
subsequent case, Ramamurthy v. Gopayya (ILR 40 Mad. 701), reiterated that the parties
cannot estop themselves from pleading the provisions of the statute of limitation. The
Lahore High Court also took a similar view in Kundo Mal v. Firm Daulat Ram (AIR
1940 Lah. 75), and held that "there is abundant authority in support of the proposition
that objections regarding limitation cannot be waived and that even if they are waived
they can be taken up against by the parties waiving them or by the Courts themselves."
13. Whereas the contention of the learned counsel for the petitioners (plaintiffs) that the
impugned mutations were result of fraud, forgery and misrepresentation is concerned, in this
respect, the petitioners (plaintiffs) had merely pleaded in the pl aint that the father of plaintiff
No.1 Hussain had died in the year 1978 while the mutations were effected in the year 1979, but
no evidence was led to substantiate their contention through any authentic document/evidence,
therefore, the only ground for ca ncellation of mutation entries taken by the petitioners (plaintiffs)
had not been substantiated, which aspect of the matter has properly been considered by the
Courts below and the findings thereof are based on reasoning warrant no interference.
14. Whereas the contention of the learned counsel for the petitioners in Civil Revision
Petition No.390 of 2014 regarding deciding of their applications under section 144, C.P.C. for
restitution is concerned, admittedly the trial Court after passing of impugned ex -parte judgment
and decree dated 21st October, 2009 directed the Tehsildar, Gaddani to restore the entries on the
name of predecessor of plaintiff No.1 Hussain and vide order dated 5th December, 2009, the
Tehsildar reversed the mutation entries from the name of the petitioners (defendants). The said
judgment of the trial Court upheld by the appellate Court was set aside in Civil Revision Petition
No. 90 of 2010 by this Court vide judgment dated 19th January, 2011 and the case was remanded
to the trial Court, therefore, the provision of section 144, C.P.C. was attracted, which reads as
under:
"144. Application for restitution. -- (1) Where and in so far as a decree is varied or
reversed the Court of first instance shall, on the application of any party entitled to any
benefit by way of restitution or otherwise, cause such restitution to be made as will so far
as may be, place the parties in the position which they would have occupied but for such
decree or such part thereof as has been varied or reversed; and, f or this purpose, the Court
may make any orders, including orders for the refund of costs and for the payment of
interest, damages, compensation and mesne profits, which are properly consequential on
such variation or reversal.
(2) No suit shall be instituted for the purpose of obtaining any restitution or other
relief which could be obtained by application under subsection (1)."
15. The aforesaid provision manifests that if any decree is varied or reversed where a decree
passed by a Court of first instance has been varied or reversed, the Court at first instance shall on
the application of any party entitled to any benefit caused such restitution and place the parties in
a position, which they were acted prior to decree. The principle of law is to provide re medy to
the parties concerned from any act of the Court and party should not be prejudiced by the act of
the Court, therefore, when the decree of the Court of first instance has been set aside, the Court
of first instance on the application is required to pass an order.
16. Since another suit is barred for restitution, section 144, C.P.C. provides the remedy of
restitution. The remedy is by way of an application. The question of restitution arises where a
decree is passed in favour of one party and the decr ee holder obtained subject matter of the
decree in execution of the decree, but the decree is on appeal or revision reversed or varied. The
object of this section is to place the parties in the same position, which they would have occupied
prior to the dec ree. This section empowers the Court of first instance to whom an application
under section 144, C.P.C. is made, not only to order for restitution, but also to make orders "for
the refund of costs and for the payment of interest, damages, compensation and mesne profits,
which are properly consequential on such variation or reversal" the party, who has suffered a loss
on account of wrong decree must be compensated. The Court should, therefore, not only be
cognizant of this power, but should also exercise it in accordance with law and in the
circumstances of each case.
17. In the instant case, the initial decree of the trial Court dated 13th June, 2009/21st October,
2009 was set aside by this Court in Civil Revision Petition No.90 of 2010 vide order dated 19th
January, 2010, therefore, any benefit received by the decree -holder under the decree was
required to be varied or reversed, is refundable or returnable and the parties were entitled to
benefit of restitution on the variance or reversal of the decree.
18. Though the petitioners in Civil Revision Petition No.390 of 2014 have sought setting
aside of order dated 25th April, 2014, whereby the applications under section 144, C.P.C. filed
by the petitioners were dismissed by the trial Court and on appeal, the app ellate Court vide order
dated 31st October, 2014 set aside the impugned order, however, directed the trial Court to
decide the applications in the final judgment. During pendency of Civil Revision Petition No.390
of 2014, the trial Court passed the judgment and decree against the plaintiffs and the appellate
Court while dismissing the appeal filed by the plaintiffs vide impugned judgment and decree also
directed the Revenue authorities as under:
"The revenue authorities are also directed to restitute the en tries of the lands in question
in the names of the respondents as were before institution of the suit."
18. Since the relief pursuant to Civil Revision Petition No.390 of 2014 has already been
extended to the petitioners (defendants) by the appellate Court and the judgment/decree has also
been affirmed in the instant petition, therefore, Civil Revision Petition No.390 of 2014 has
become infructuous.
20. Coming to Civil Revision Petition No.221 of 2015, the findings of the Courts below are
in consonance with the evidence on record and no material piece of evidence seems to have been
ignored or excluded out of consideration. Overall assessment of evidence made by the trial Court
and upheld by the appellate Court and findings thereof do not call for interferenc e.
In view of the above, Civil Revision Petition No 221 of 2015 is dismissed with no order
as to cost and Civil Revision Petition No.390 of 2014 is decided as mentioned hereinabove
accordingly.
ZC/5/Bal. Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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