2021 C L C 151
[Balochistan]
Before Jamal Khan Mandokhail and Rozi Khan Barrech, JJ
Mst. KHAIR BIBI and 4 others ----Appellants
Versus
GHULAM SARWAR and 17 others ----Respondents
Regular First Appeal No.05 of 2017, decided on 28th June, 2019.
(a) Limitation Act (IX of 1908) ---
----Ss.3, 5 & 14 & Art. 120--- Specific Relief Act (I of 1877), Ss.42, 39 & 54--- Civil
Procedure Code (V of 1908), Ss. 96, 114 & 115---Suit for declaration, cancellation of sale
deed and permanent injunction--- Limitation ---Appeal before wrong forum ---Condonation of
delay ---Requirements ---Contention of plaintiffs was that mutation and sale deed in favour of
defendants were based on fraud and misrepresentation ---Suit was dismissed being time
barred against which appeal was filed before District Court which was returned for want of pecuniary jurisdiction--- Plaintiffs moved review petition against the said order which was
dismissed ---Plaintiffs filed revision petition before High Court which was converted into
appeal ---Contention of plaintiffs was that limitation would run from the date of their
knowledge ---Validity ---High Court observed that plaintiffs should have filed an appeal
before High Court by availing benefit of S.14 of Limitation Act, 1908, within ninety days or challenged the order of return of memo of appeal passed by the District Court ---Where
appeal had been filed with delay then appellant must explain the delay of each and every day---No application under Ss. 5 and 14 of Limitation Act, 1908 for justifying the delay had
been filed in the present case--- Plaintiffs had consumed time in approaching the wrong
forum ---Plaintiffs had not submitted any explanation for choosing the wrong forum ---If
litigant had not acted in a bona fide manner or he had acted without due diligenc e in
prosecuting remedies before wrong forum then he could not be benefited under S.14 of Limitation Act, 1908---Plaintiffs had challenged the judgment and decree of Trial Court after a lapse of eleven months ---Plaintiffs had filed the suit after lapse of more than forty years ---
Nothing was on record as to when impugned mutation and sale deed came in the knowledge of plaintiffs ---Limitation for declaratory suit was six years and for cancellation of a deed was
three years ---No explanation had been offered by the plaintiffs to justify the delay in filing of
the suit--- Predecessor -in-interest of plaintiffs had not filed any suit against the impugned
mutation and sale deed in his life time before any forum ---Suit property was not mutated in
favour of defendants through fraud rather it was with the consent and knowledge of plaintiffs ---Appeal was dismissed being time barred, in circumstances.
Muhammad Ishaq v. Province of the Punjab 1998 SCMR 9 and Chaudhry Muhammad
Sharif v. Muhammad Ali Khan and others 1975 SC MR 259 rel.
(b) Limitation Act (IX of 1908)---
----Art.120--- Specific Relief Act (I of 1877), S.42--- Suit for declaration ---Limitation ---Suit
for declaration could be filed within six years.
(c) Limitation Act (IX of 1908)---
----S.3 ---Suit instituted after period of limitation ---Effect ---Institution of suit after the
limitation period would be subject to the provisions of Limitation Act, 1908--- Court was
bound to decide the question of limitation first and only thereafter proceed to decide the
matter on m erits---Court was to address the question of limitation irrespective of the fact that
whether it was agitated or not ---Suit barred by time should be dismissed even if nobody had
taken the ground of limitation--- Plaint was to be rejected forthwith even with out issuing
notice to the other side if suit was barred by limitation.
Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153
rel.
(d) Civil Procedure Code (V of 1908) ---
----S.96 ---Appeal ---Limitation ---Appeal before High Court could be filed within ninety days.
(e) Civil Procedure Code (V of 1908) ---
----S.115--- Revision ---Limitation ---Revision could be filed within ninety days.
(f) Limitation ---
----Delay of each and every day to be explained.
(g) Administration of justice ---
----Law is for vigilant and not for indolent.
(h) Administration of justice ---
----One could not be benefited on account of his own mistake.
Muhammad Asif Barrech for Appe llant.
Pir Muhammad Mengal for Respondents Nos.1 to 9.
Taj Muhammad Mengal for Respondents Nos.10 to 14.
Noroz Khan Mengal for Respondents Nos.15 to 17.
Shai Haq Baloch, A.A.G. for the State.
Date of hearing: 11th June, 2019.
JUDGMENT
ROZI KHAN BARRE CH, J .---Succinctly, the facts of the case are that the
appellants filed a suit for declaration, correction of entries, cancellation of sale deed dated
06.07.1997 and permanent injunction against the respondents, before the trial court. Background of the c ase is that in the year 1969, the predecessor -in-interest of the appellants
allowed the predecessors -in-interest of the respondents Nos.10 to 12 namely Mir Munawar
Khan to irrigate the properties bearing Khasras Nos. 558, 568, 570, 571, 604, 609, 610, 569,
608, 611, 619, 547, 549, 553, 556, 559, 550, 558 and 652, Khewat No.55 Khatooni No.71,
Khewat No.61 Khatooni No.79, Khewat No.79, Khewat No.61 Khatooni No.80 and Khewat
No.62 Khatooni No.80 measuring 65 Acres 3 Rods and 39 Poles (the "property in question")
along with the adjacent Shamilat land, for forty years and it was agreed that the predecessor will give 1/6 shares out of the produce, to the owner. It was further stated by the appellants that their predecessor -in-interest was an illiterate person as s uch the predecessor -in-interest
of the respondent Nos. 1 to 9 taking advantage of his illiteracy, got the property in question mutated on his name fraudulently, in collusion with the revenue authorities, by showing that initially the property in question w as mortgaged by appellants' predecessor -in-interest (Mir
Munawar Khan) but subsequently the same was sold to respondent No.15 vide sale deed dated 06.08.1997. The predecessor -in-interest of the appellants having remained sick for
fifteen years, died in the year 2012. It is contended by the appellants that they came to know
about the mutation entries after the death of their predecessor -in-interest, they approached
the revenue officials and the respondents for correction of entries, but they refused to do the
needful, hence this suit was filed.
2. The respondents filed separate written statements and contested the suit on legal and
factual grounds. Out of the pleadings, the trial court framed the following issues:
"1 Whether the suit of plaintiff is hit by the provision of mis -joinder and non- joinder of
necessary parties?
2. Whether the suit of plaintiff is time barred?
3. Whether ancestral property of plaintiffs are fraudulently mutated by the defendants?
4. Whether the sale deed dated 16.08.1997 is liable to be revoked?
5. Relief ?"
In support of their claim, the appellants produced three witnesses and recorded their
statements through the appellant No.3 as attorney. In rebuttal, the respondents Nos. 1 to 9 produced seven witnesses and recorded their statements through attorney namely Haji Abdul
Khaliq, attorney for respondents Nos. 10 to 14 namely Ziaullah and attorney for respondents Nos.15 to 17 and representative of respondent No.18 got their statements recorded. On
completion of the case, the trial court vide impugned judgment and decree dated 29.01.2016,
dismissed the suit filed by the appellants on the ground of limitation.
3. The appellants assailed the impugned judgment and decree of the trial court before
the District Court by filing an appeal under Section 96, C.P.C., however the same was
returned by the appellate court vide impugned order dated 23.06.2016 for want of pecuniary
jurisdiction. Feeling aggrieved the appellants filed a review application before the appellate court under Section 114, C.P.C., which too was dismissed vide order dated 22.11.2016.
4. The appellants feeling aggrieved, initially filed a revision petition before this court,
however, subsequently on 27.02.2017 at the request of the learned counsel for the appellants the same was converted into this Appeal.
5. Learned counsel for the appellants contended that the impugned judgment and decree
passed by the trial court as well as the impugned orders passed by the appellate court are against the law and facts; that the findings of the trial court are a result of misreading and
non- reading of evidence available on record, therefore there was no occasion to dismiss the
suit. He added that after framing of the issues, dismissal of the suit merely on technical grounds without discussing each and every issue in its tr ue perspective is an illegality. The
learned counsel argued that the appellants have wrongly been knocked out on the ground of limitation by the trial court without considering the fact that the appellants have specifically mentioned in their plaint that t hey came to know about the impugned mutation entries
recently, therefore the limitation would run from the date of their knowledge, but this aspect of the matter has totally been ignored by the trial court.
6. Learned counsel for respondents contended that the mutation entries were made in
favor of respondents in the year 1969, which was subsequently sold out through the sale deed executed in the year 1997, thus the trial court has rightly held that the suit filed by the appellants was barred by time, as th e appellants have challenged the mutation entries, after a
lapse of more than forty years. Learned counsel further argued that the revision petition filed before this court is barred by time, but the appellants did not file any application for condonation of delay along with the petition. Though the revision was converted into this
appeal, whereas, limitation for both is the same, hence on this score, the appeal is liable to be dismissed, as barred by limitation.
7. We have considered the arguments and have gone through the record.
8. The moot question; whether the instant appeal is barred by time or otherwise ? It may
be seen that the appellants filed appeal against the Judgment and decree of trial court, which was returned and thereafter they filed an appl ication under section 114, C.P.C., which was
dismissed. Consequent thereto, the appellant invokea the revisional jurisdiction of this Court under section 115, C.P.C., and later, on their request it was converted into Regular First Appeal. For purpose of de termining the limitation, it may be seen that for filing a Revision,
the prescribed limit of time is 90 days whereas for an appeal under section 96, C.P.C. before the High Court is 90 days.
The facts reveal that suit of appellants was dismissed on 29.01.2016, appeal filed
before District Judge was returned on 23.06.2016, and review was dismissed on 22.11.2016.
When the memo of appeal was returned by the District Judge, the appellants were under legal obligation to have filed an appeal under section 96, C.P .C. before this Court, but to the
contrary, they filed a review application before the appellate court which was dismissed.
Later on both orders passed by District Court were assailed through Civil Revision, filed on
22.12.2016, (later converted into an ap peal under section 96, C.P.C. on 27.02.2017). It is
worthwhile to mention here that when the learned District Judge returned the memo of
appeal to appellants for want of pecuniary jurisdiction, the appellants should have filed an appeal before this Court b y availing benefit of section 14 of the Limitation Act, 1908, within
90 days), or, they should have challenged the order of return of the memo of appeal passed by the District Court. But this was not done and instead, they waited for the decision upon the review application.
9. During course of arguments, when the learned Counsel for appellants was confronted
with this legal position, he failed to satisfy this Court by giving any reasonable justification for not approaching this Court within the prescribed limitation of time. It is a well settled
principle of law that where the appeal is filed with delay to the satisfaction of the court, the
appellant must explain the delay of each and every day, but in the case in hand what to say of
explaining the delay, e ven no application under sections 5 and 14 of the Limitation Act have
been filed for the purpose of justifying the delay, caused in filing of appeal against the judgment and decree as well as the order of return of the memo. of the appeal.
Be that as it i s, in the instant case, the time was consumed by the appellants in
approaching the wrong forum and it is well settled that law is for vigilant and not for indolent and one cannot be benefited on account of his own mistake. For choosing the wrong
forum, the re is no explanation on the part of appellants. There is a consistent view of the
Hon'ble Supreme Court that, if a litigant had not acted in a bona fide manner or he has acted without due diligence in prosecuting remedies before the wrong forum, he cannot be
benefited under Section 14 of the Limitation Act. In a case of Muhammad Ishaq v. Province of the Punjab (1998 SCMR 9), it was held that "the prosecuting remedies before wrong forum hardly amounted to a bona fide mistake and did not constitute due dilige nce the
essential requirement of section 14 of the Limitation Act". In another case titled as Chaudhry Muhammad Sharif v. Muhammad Ali Khan and others (1975 SCMR 259), it was held by the Hon'ble apex Court as under:
"9 ....... Failure to acquaint himself with relevant provisions of law relating to the
jurisdiction of the Court, amounting to negligence on the part of counsel and hence the delay was not condoned. "
10. The appellants on one hand, have challenged the judgment and decree of the trial
court aft er a lapse of about eleven months and have challenged the order dated 23.06.2016,
after lapse of about six months. The law does not help the indolent. Each and every day's delay is required to be explained by the appellants, which has not been done in the present case.
11. The next point for consideration is that whether the suit filed by the appellants was
barred by limitation? The appellants have challenged the mutation entries of the year 1969
and the sale deed dated 06.07.1997 through this suit, after l apse of more than 40 years.
Though the appellants averted in their plaint that they were not in the knowledge about the attestation of mutation entries and when they came to know about attestation of mutation entries they filed the suit, but perusal of the statement of PW -1 Muhammad Ayub, PW -2
Amir Hamza and PW- 3 Muhammad Anwar shows that they have not uttered a word about
gaining of knowledge of mutation and the sale deed. Under Article 120 of the Limitation Act, limitation for filing of a declaratory suit is six years and for cancellation of a deed is three
years. The appellant had filed the suit in the year 2012 challenging the mutation entries of the year, 1969. The record is totally silent as to the date of knowledge of the appellants of the impugned mu tations and the deed, in as much as, no explanation has been offered by the
appellants to justify the delay in filing the suit. The predecessor -in-interest of the appellants
did not file any suit or for that matter challenge the mutation entries in his lif e time before
any forum provided by law. As soon as he died, the appellants filed the instant suit, therefore inference can easily be drawn that the property in question was not fraudulently mutated by the respondents, rather it was with the consent and knowledge of the appellants and their predecessor.
Be that as it is, Section 3 of the Limitation Act provides that the institution of the suit
after the limitation period shall be subject to the provisions of the Limitation Act irrespective of the fact that the limitation has not been pleaded as defense. It is obligatory on the court to decide the question of limitation first and only thereafter proceed to 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 taken this ground. Even the plaint is to be rejected by exercising power under Order VII,
Rule 11, C.P.C. forthwith even without issuing notice to the other side, if it appears from the
plaint that the suit is barred by limitation. While dealing with the issue of limitation in the case of Hakim Muhammad Buta and another v. Habib Ahmed and others (PLD 1985 SC 153) the Hon'ble Supreme Court has laid d own the following guidelines:
"The words of section 3 of the Limitation Act are mandatory in nature in 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 limitat ion has not been set up as a defense. If
from the statement of the plaint the suit appears to be barred 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 chain 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 Courts 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 th ey having admitted their liability for the
amount in resisting the plaintiffs application in a previous 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 allowe d by the law, postpone its
operation, or introduce exceptions not recognized by it". The same Court in
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."
The net result of the overall discussion is that, while maintaining the judgment and
decree of trial Court the instant appeal is dismissed being barr ed by time, with no order as to
costs.
ZC/83/Bal Appeal 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,
let us know.