2021 C L C 1127
[Balochistan]
Before Rozi Khan Barrech, J
SECRETARY COMMUNICATION AND WORKS DEPARTMENT, GOVERNMENT
OF BALOCHISTAN, QUETTA and another ----Petitioners
Versus
ABDUL MAJEED and 7 others ----Respondents
Civil Revision No.228 of 2017, decided on 16th September, 2020.
Specific Relief Act (I of 1877) ---
----Ss.12 & 42--- Contract Act (IX of 1872), S. 23---Constitution of Pakistan, Art.25--- Civil
Procedure Code (V of 1908), S.115---Suit for specific performance of agreement and declaration --- Void agreement ---Unlawful consideration--- Plaintiff / respondent gave his
land to defendant / authorities for construction of rest house on the basis of an agreement to provide job/service of class -iv to a person nominated by him ---Suit filed by plaintiff /
respondent was dismissed by Trial Court but Lower Appellate Court decreed the same in his favour ---Validity ---Such agreement was not according to law as no post could be filled on
recommendation of private persons ---Agreement in question had no legal sanctity, it was
illegal and against public policy--- No one had a right to be appointed on recommendations
of donor of land as the same was in violation of Art.25 of the Constitution--- Agreement of
donated land in consideration of employment tantamount to sale of public office which was illegal under S.23 of Contract Act, 1872--- Plaintiff/respondent claimed specific performance
of void agreement and Lower Appellate Court did not consider such aspect of the matter while passing judgment ---High Court set a side judgment and decree passed by Lower
Appellate Court as the same was passed illegally and irregularly whereas restored that of Trial Court ---Revision was allowed in circumstances.
Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153
ref.
Ahmed Ali Baloch, Additional Advocate General ("AAG") for Petitioners.
Basit Shah for Respondents.
Date of hearing: 3rd September, 2020.
JUDGMENT
ROZI KHAN BARRECH, J. ----This Civil Revision Petition in terms of section 115
of The Code of Civi l Procedure (V of 1908) (hereinafter referred as ("C.P.C.") arises out of
judgment and decree dated 30.05.2017 (hereinafter "the impugned Judgment") passed by
learned Majlis -e-Shoora, Kalat (hereinafter "the appellate court") whereby the appeal filed by
the respondents was accepted and the judgment and decree dated 22.10.2016 (hereinafter
"the Judgment") passed by learned Qazi Sohrab (hereinafter "the trial court") was set aside.
2. Epitomized facts necessary for adjudication of the instant petition are tha t the
respondents/plaintiff filed a suit for declaration, specific performance of the agreement dated 24.03.2009 before the learned trial Court against the petitioners/defendants with the averments that the respondents/plaintiffs provide a piece of land measuring 17270 sqft under Khewat Khatooni No.1, Khasra No.11, Tehsil Surab adjacent to national Highway for construction of Rest House with commitment with that nominee of respondents/plaintiffs will be provided job/service of class -IV by the petitioners/de fendants and in this regard an
agreement executed between the parties. The plaintiffs/respondents time and again remanded for provision of job/services to the petitioner/defendant No.2 and all other concern authorities but they did not pay any heed towards their request nor took any notice of the
agreement deed signed between the parties. Notice was served upon petitioners/defendants despite that none appeared, and the learned trial Court initiated ex- parte order against them
and after that the learned trial Court framed the following issues: -
3. After framing issues, the plaintiffs/respondents produced their respective evidence.
4. After hearing arguments of learned counsel for the plaintiffs/respondents, the suit of
the plaintiffs/petitioners was dismissed by the learned trial Court on 22.10.2016.
5. Being aggrieved from the judgment and decree dated 22.10.2016, the
respondents/plaintiffs filed an appeal before the learned appellate Court (Majlis -e-Shoora,
Kalat).
6. After hearing arguments of the learned counsel for the parties, the appellate court
accepted the appeal, set aside the judgment and decree dated 22.10.2016 passed by the learned trial Court and decree the suit of the plaintiffs/respondents on 30.05.2017, whereafter, the petitioners/defendants filed the instant revision petition,
7. I have heard the learned counsel for the petitioners as well as respondents at
considerable length and also perused the record with their able assistance.
8. The first limb of the ma tter is that whether the suit filed by the plaintiffs/respondents
was barred by limitation or else. The plaintiffs/respondents filed the suit for specific
performance of the agreement dated 24.03.2009 by way of filing the suit in the year 2015 that too aft er the lapse of six (06) years and despite that the plaintiffs/respondents stated in
their plaint that in the year 2009 he sent a notice to the petitioners/defendants to abide the agreement, but they did not feel any heeds towards the request nor take any notice of the agreement deed signed between the parties, and despite that the plaintiffs/respondents were silent for six years and after six years they filed the instant suit. Limitation to file a suit for specific performance of agreement under section 11 3 of Limitation Act is three (03) years, in
the instant case the plaintiffs/respondents filed the suit in the year 2015 which was barred by time. It has time and again been held by the Hon'ble Supreme Court that an aggrieved person has to pursue his legal remedy with diligence and if the suit is filed beyond the period of limitation, each day's delay is to be explained. In the instant case no explanation whatsoever was given in this respect.
9. Section 3 of the Act provides that the institution of the suit after the limitation period
shall be subject to the provisions of the Act irrespective of the fact that the limitation has not been pleaded as a defense. It is obligatory on the Court to decide the question of limitation first and only thereafter proceed t o decide the matter on merits. The Court is bound to
address the question of limitation irrespective of the fact that whether it was agitated or not. A suit barred by time should be dismissed even if nobody has pointed out such lacuna if the proceedings br ought before the Court are barred by time the Court cannot assume
jurisdiction, it shall have no jurisdiction in the matter unless the delay is condoned first for
disposal of the suit on merits alone is not sufficient to be presumed that the delay was condoned. The suit/plaint is to be rejected forthwith even without resorting to the evidence or framing of any issues under Order VII, Rule 11, C.P.C. if it appears from the plaint that the suit is barred by limitation. Reliance placed on the reported judgment of the Hon'ble
Supreme Court in the case of Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153.
10. The claim of the respondents/plaintiffs are that they provided a piece of land
measuring 17270 sqft under Khewat Khatooni No.1, Khas ra No.11, Tehsil Surab adjacent to
national Highway for construction of Rest House with the commitment that nominee of respondents/plaintiffs will be provided job/service of class -IV by the petitioners/defendants
and in this regard an agreement executed be tween the parties which was duly signed by the
XEN Provincial B&R District Kalat.
11. The agreement was not according to law because no post can be filled on the
recommendation of the private persons. Such agreement has no legal sanctity; it is illegal and
against the public policy. According to the said agreement, it means that on the basis of the referred agreement no one has a right to be appointed except on the recommendation of the donor of the land. Such exercise if allowed amounts to a violation of A rticle 25 of the
Constitution of Islamic Republic of Pakistan, which reads as under: -
"25. Equality of citizens. (1) All citizens are equal before law and are entitled to equal
protection of law.
(2) There shall be no discrimination on the basis of sex.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.
12. If the alleged agreement is abided the landless citizen would be deprived of
expectation for appointment as Class -IV employ ee. The agreement of donated land in
consideration of employment is tantamount to sale the public office, which is completely illegal. Section 23 of the Contract Act, 1872 is applicable is reproduced as under: -
"23. What consideration and objects are lawf ul and what not.
The considerate or object of an agreement is lawful, unless it is forbidden by law; or,
Is of such a nature that, if permitted, it would defeat the provisions of any law; or
Involves or implies injury to the person or property of another; or
In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void".
In view of the above discussion, the plaintiffs/respondents claim specific performance
of the void agreement and the learned appellate court has not considered this aspect of the matter while passing the impugned judgment and has committed gross illegality and irregularity, as such, the impugned judgment and decree dated 30.05.2017 passed by learned
Majlis -e-Shoora, Kalat, is hereby set aside, the revision petition filed by the petitioners is
accepted and the judgment and decree dated 22.10.2016 passed by learned Qazi Sohrab is
hereby upheld.
MH/197/Bal. Revision allowed.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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