2020 C L C 976
[Balochistan]
Before Muhammad Ejaz Swati, J
Syed MUHAMMAD ALI ----Petitioner
Versus
Syed FASAHAT HUSSAIN and 5 others ----Respondents
Civil Revision No.152 of 2014, decided on 30th September, 2019.
(a) Specific Relief Act (I of 1877)---
----S.12 ---Limitation Act (IX of 1908), S. 3--- Suit for specific performance of agreement to
sell---Limitation ---Suit was dismissed being time barred---Validity ---Plaintiff had not
established his claim being in possession of the suit property--- Plaintiff had failed to rebut
the documentary evidence produced by the defendants ---Limitation could not be construed as
technical in nature---Court had to dismiss suit which was barred by time even though
limitation had not been set out as a defence--- No illegality or irregularity had been pointed
out in the impugned judgments and decrees passed by the Courts below ---Revision was
dismissed, in circumstances.
(b) Specific Relief Act (I of 1877) ---
----S.39 ---Limitation Act (IX of 1908), Art. 91--- Suit for cancellatio n of instrument ---
Limitation ---Suit for cancellation of instrument could be filed within three years.
(c) Limitation Act (IX of 1908)---
----S. 3 ---Suit instituted after limitation period ---Effect ---Limitation was not a mere technical
issue ---Court had to dismiss suit which was barred by time even though limitation had not
been set out as a defence---Law of limitation required that a person must approach the Court and take recourse to legal remedies with due diligence within time provided by the law.
Muhammad Akram Shah for Petitioner.
Abuzar Hiader and Syed Baqir Shah for Respondent No.1.
Ms. Robina Shaheen for Respondent No.5.
Muhammad Saleem Ansari for Respondent No.6.
Date of hearing: 13th September, 2019.
JUDGMENT
MUHAMMAD EJAZ SWATI, J .---The p etitioner (plaintiff) contended that he
purchased house bearing No.98- A/B4, situated at Satellite Town, Quetta (`house in question')
from the respondent No.1, vide agreement dated 24.07.1985 and token amount of
Rs.100,000/ - (rupees one hundred thousand) wa s paid to respondent No.1 and the remaining
amount i.e. Rs.2,04,000/ - was to be paid at the time of handing over possession of the house
to the petitioner after payment of the remaining amount on 04.08.1985, the possession of the house in question was handed over to the petitioner and in this respect another agreement dated 4 -8-1985 was executed between them; that an irrevocable power of attorney dated 4- 7-
1985 registered on 7- 8-1985 was also issued by the respondent No.1. The house in question
was mortgage d with the House Building Finance Corporation (HBFC), therefore, mutation
was not carried out in favour of the petitioner. It was the case of the petitioner that he rented out the house in question to respondent No.2 after obtaining pagri of Rs.1,50,000/ - (rupees
one lac fifty thousand) but the respondent No.2 with concealment of facts, obtained irrevocable power of attorney on 20.12.1992 from the respondent No.1 without cancelling the first irrevocable power of attorney dated 04.07.1985. The respondent No.2 after transferring the house in question, transferred the mutation of the house in question in favour
of the respondent No.3. According to the petitioner he came to know about the above facts in
1997.
2. The respondents Nos.1 to 3 and 5 and 6 filed their written statements separately. Out
of pleadings of the parties, five issues were framed, however, after remand of the case by the appellate Court, additional issues were also framed.
3. The petitioner produced nine witnesses and got recorded his statement through
attorney, whereas, the respondents also produced their respective evidences.
4 The learned Civil Judge- I, Quetta (hereinafter referred to as "the trial Court") vide
judgment and decree dated 26th March 2013 ("hereinafter referred to as "t he impugned
judgment and decree") dismissed the suit. On appeal filed by the petitioner, the learned Additional District Judge -III Quetta (hereinafter referred to as "the appellate Court") vide
judgment and decree dated 17th February 2014 ("hereinafter ref erred to as "the impugned
judgment and decree") also dismissed the appeal.
5. Learned counsel for the petitioner contended that the agreements dated 24.07.1985
and 04.08.1985 and irrevocable general power of attorney dated 04.07.1985, produced by the petitioner, establish his right with respect to the house in question; that the agreements and
power of attorney, on the basis whereof the house in question was purchased, had neither been denied by the respondent No.1, nor rebutted by the respondents Nos.2 and 3, but the
trial Court as well as appellate Court had failed to consider this aspect of the matter; that the trial Court and the appellant Court non- suited the petitioner on mere technical question of
limitation; that right and entitlement of the petition er in respect of the house in question has
not been adhered by the Courts below and in this respect committed glaring illegalities and irregularities.
The learned counsel for the private respondents contended that the agreements arrived
at between the pet itioner and the respondent No.1 is not disputed, however, the petitioner
himself sold the house to respondent No.2 and asked the respondent No.1 for issuance of
irrevocable power of attorney in favour of the respondent No.2, who further sold the house in question to the respondent No.3; that the petitioner is estopped from his conduct as he
remained silent till 2005 and he filed the suit due to mala fide intention; that the petitioner
could not rebut the above evidence, therefore, the impugned judgments / decrees are liable to
be sustained.
6. Heard the learned counsel for the parties. The respondent No.1 was the real owner of
the house in question and he has not denied the execution of the agreement with the petitioner, however, replied in written statement as under:
"that the contents of paras Nos.1 to 11 are strongly contested hence denied, it is clarified that replying defendant had sold the house bearing No.98- AE-1, B -4,
Satellite Town, Quetta, in the year 1985 to plaintiff and in this regard an agreeme nt
was also executed between replying defendant and plaintiff whereby, apart from other terms and conditions, it was also agreed that the loan obtained by the replying defendant against said house from HBFC is also adjusted by the plaintiff. After 3 / 4
months of the purchase of the house in question by the plaintiff, the plaintiff again
sold the same to defendant No.2 and plaintiff requested the replying defendant to give
power of attorney to defendant No.2 for adjustment of loan of HBFC and transfer of house in question in his name. On said power of attorney, the defendant No.2 further got transferred the property in question in the name of his brother i.e. defendant No.3 and also adjusted the loan amount of HBFC".
7. It is pertinent to mention here that t hat the suit of the petitioner was initially
dismissed by the trial Court, vide judgment and decree dated 28th October 2011. On appeal filed by the petitioner, the appellate Court, vide judgment and decree dated 21st December 2012, while allowing the appea l remanded the case to the trial Court to decide the same after
framing additional issues. The trial Court framed following additional issues.
"i. Whether the plaintiff after purchase of the house in question sold the same to defendants Nos.2 and 3?
ii. Whether plaintiff directed the defendant No.1 to issue power of attorney (irrevocable)
to defendant No.2 to clear the outstanding loan of HBFC?
iii. Whether defendant No.2 further transferred the disputed house to defendant No.3 after purchase the defendant No.3 received the documents after existing the loan from HBFC and transferred the house in his favour as per law?"
8. After remand and framing of above additional issues, the petitioner despite availing
opportunity did not produce any further evidence. The evidence on record reveals that the
respondent No.1 issued irrevocable power of attorney in favour of respondent No.2, who further sold the house to respondent No.3 and the respondent No.3 after clearing liabilities of HBFC transferred the house in questi on on his name. Had there been any fraudulent intention
on the part of the respondent No.1? he would have concealed the fact or denied the execution
of the agreement with petitioner, but his stance in the written statement has further been
established that on the asking of the petitioner, he had given irrevocable power of attorney to
respondent No.2 and there is no rebuttal from the petitioner. Except PW -1 to PW -4, who
being official witnesses produced power of attorney and the documents related to HBFC, regarding which no dispute has been raised by the respondent No.1, however, the petitioner
could not rebut the stance of the respondent No.1, with regard to issuance of irrevocable
power of attorney in favour of the respondent No.2 on the ground of adjustment of loan of
the HBFC. Admittedly, the respondent No.3 after purchasing the house in question from the respondent No.2 cleared the liability of the loan and in this respect, receipts of payment of instalment had been produced as Ex- D/1 to Ex -D/13. The regi stered irrevocable power of
attorney in favour of the respondent No.2 was executed on 20th December 1992 and on the basis of said power of attorney, entries of the house in question were carried out in favour of the respondent No.3. The petitioner has neit her established his claim being in possession of
the house nor substantiated through evidence that he had rented out the house in question to the respondent No.2. The initial burden was upon the petitioner, but in respect of additional issues, he could not produce any evidence or rebut the documentary evidence produced by
the respondents, therefore, on merit, the findings of the trial Court and the appellate Court are immune from any material illegality or irregularity. The claim of the petitioner was based
on an irrevocable power of attorney allegedly registered on 7th August 1985 and he sought cancellation of irrevocable power of attorney dated 20th December 1992 in favour of the respondent No.2, however, he filed the suit on 20th December 2005. Basically the suit filed by the petitioner was for cancellation of irrevocable power of attorney dated 20th December 1992 and subsequent mutation entries of the house in question in favour of the respondent No.3, on the allegation of fraud, forgery and misrepresenta tion, which suit shall squarely
falls within the purview of section 39 or the Specific Relief Act and as per Article 91 of the
Limitation Act, the prescribed period of limitation shall be three years. In the peculiar circumstances of the case, particularly when the petitioner in his suit clearly mentioned that
he came to know about above transaction in the year 1997, therefore, it can be inferred that law of limitation cannot be construed merely a technical and that too is procedural in nature; rather from mandate of section 3 of the Limitation Act, it is obligatory upon the Court to
dismiss the suit, which is barred by time, even though limitation has not been set out as defence. The law of limitation requires that a person must approach the Court and take recourse to legal remedies with due diligence within time provided by the law, as against choosing his own time for the purpose of bringing forth a legal action at his own whim and desire, the reason behind that, if he is so permitted to happen, it would f rustrate the due
process of law. Reference in this respect is to be made to the case titled Atta Muhammad v. Maula Bakhsh and others, 2007 SCMR 1446, wherein the Hon'ble Supreme Court of Pakistan observed as under:
"The law of limitation provides an element of certainty in the conduct of human affair. Statutes of limitation and prescription are, thus, statues of peace and repose. In order to avoid the difficulty and errors that necessarily result from lapse of time, the presumption of coincidence of fact and right is rightly accepted as final after a certain number of years. Whoever wishes to dispute this presumption must do so, within that period otherwise his rights if any, will be forfeited as a penalty for his neglect. In other words the law of limitation is a law which is designed to impose quietus on legal dissensions and conflicts. It requires that persons must come to Court and take
recourse to legal remedies with due diligence."
9. The question of limitation i s not based on technicalities, it cultivates right in favour of
the opposite party. Reliance is placed on the case reported in 2011 SCMR 1424 and 2011
SCMR 8.
10. So far as the relief of declaration is concerned, it had been claimed by the petitioner
in a negative form and not to safeguard his legal character or right to property, but the petitioner sought declaration that the respondents Nos.1 to 3 had no right or entitlement in the house in question, without substantiating his legal character or right to the property. The
findings rendered by the trial court and upheld by the Appellate Court not reflect material illegalities or irregularities, thus warrant no interference by this Court in its revisional jurisdiction.
In view of the above, Civil Revision P etition No.152 of 2014 is dismissed. Parties are
left to bear their own cots.
ZC/126/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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