2012 Y L R 2560
[Balochistan]
Before Muhammad Noor Meskanzai, J
GHULAM MUHAMMAD ---Petitioner
versus
FIDA HUSSAIN ---Respondent
Civil Revision No.11 2 of 2007, decided on 30th July, 2012.
Limitation Act (IX of 1908) ---
----S.3---Question of limitation ---Waiver of ---Scope ---Limitation for being matter of statute and
provisions thereof being mandatory could not be waived, and even if waived could be raised by a
party having waived the same and by the court itself ---Matter of limitation was not required to be
left to pleadings of parties, rather court was bound to raise such question ---Waiver of limitation
would not be permissible in case where its per iod was prescribed by special or local law.
Muhammad Mukhtar and others v. Muhammad Sharif and others 2007 SCMR 1867 ref.
Hakim Muhammad Buta and another v. Habib Ahmed and others PLD 1985 SC 153 rel.
Mian Badar Munir for Petitioner.
Muhammad Ejaz Sawati and Amanullah Khan, A.G. for Respondents.
Date of hearing: 29th June, 2012.
JUDGMENT
MUHAMMAD NOOR MESKANZAI, J. ---Learned counsel for petitioner submitted that the
appellate Court committed material irregularity in remanding the case, as the remand of the case
was not the prayer of either of the parties. Moreover; the scheme of law is also not in favour of
remand of the matters, where sufficient material is available on record warranting decision of the
case on merits. It was further m aintained that the appellate Court was bound to have decided the
matter on the basis of available material. As far as the question of limitation is concerned, though
specific issue has not been framed, yet, both the parties were conscious of this aspect of the
matter and, the appellate Court itself might have adverted to point of limitation. The learned
counsel for the respondents opposed the contentions so put forth and submitted that the limitation
is a mixed question of fact and law, since no issue was f ramed, therefore, the appellate Court
rightly awarded an opportunity to both the parties to agitate the point pro and contra to warrant a
legal decision on the point of limitation.
2. I have heard the learned counsel for the parties and gone through the record. Perusal of
record reflects that the petitioner filed a civil suit for possession mandatory injunction, mesne
profit and permanent injunction against the respondent Fida Hussain. It was the case of
petitioner that pursuant to execution of sale deed dated 30th July, 1984, the petitioner sold his
property bearing Municipal No. 7 -20/1884, Khasra No. 1129/1, vide Mutation No.361,
measuring 800 Sq.Ft situated in Ward No.45, 'Kappa Urban, Tehsil and District, Quetta against
sale consideration of Rs.95,000 . Out of sale consideration Rs.25,000 were paid, whereas, rest of
the amount was required to be paid within nine months, failing which, the agreement shall stand
rescinded and the earnest money forfeited. According to plaintiff, the respondent failed to ma ke
the payment within the stipulated period and thus could not get the mutation effected in his
name.
3. The suit was contested by defendant/respondent by way of filing written statement
whereby the claim of plaintiff/petitioner was strongly contes ted on factual as well as legal
grounds. The learned trial Court, out of the pleadings of parties framed following issues: --
(i) Whether proper court -fee has not been affixed?
(ii) Whether total amount of consideration has been paid to plaintiff by the defendant?
(iii) Whether plaintiff is entitled to relief claimed for?
(iv) Relief.
4. Thereafter, the parties were directed to adduce evidence. Whereupon the
plaintiff/petitioner produced two P.Ws. and got recorded his own statement. In rebuttal the
respondent/defendant adduced three D.Ws. and himself appeared in the witness box. The learned
trial Court after hearing the parties and evaluating the evidence decreed the suit. Feeling
dissatisfied with the judgment and decree passed by the trial Court, respondent preferred Civil
Appeal No. 5 of 2007 before the learned District Judge, Quetta which was later on transferred to
the file of learned Additional District Judge -IV, Quetta. The Additional District Judge -IV, Quetta
vide its judgment and decree date d 22nd March, 2007 accepted the appeal, set aside the
judgment and decree dated 29th December, 2006 passed by Senior Civil Judge -I, Quetta and
remanded the case to the trial Court with direction to formulate legal objections in respect of
delay in filing t he suit and to afford fair opportunity of hearing to both the parties and then to
decide the case on its own merits. Feeling dissatisfied with the above referred judgment and
decree petitioner has filed instant revision petition.
5. I have considered the arguments advanced by both the counsel for parties and perused the
record of the case in the light of submissions so made. Admittedly point of limitation was raised
in the written statement, yet, the trial Court did not frame specific issue in this regard . Both the
parties too did not take pain to make application or draw the attention of the trial Court to this
aspect of the matter. The case of both the parties rests on undisputed agreement dated 30th July,
1984 which itself stipulates period for the pay ment of rest of the amount, as well as for the
transfer of mutation entries. The matter of limitation is not required to be left to the pleading of
the parties but a duty is cast/imposed on Court itself in this regard. Limitation being a matter of
statute and provisions being mandatory the same could not be waived and even if waived could
be taken by the party waiving it and by the Court itself. The waiver of limitation is not
permissible in case where period of limitation is prescribed by special or local law. Reliance
is placed on PLD 1985 SC page 153, (titled as Hakim Muhammad Buta and another v. Habib
Ahmed and others), wherein it has been held as under: --
"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 limitation has not been set up as a defence. If from the
statement in the plaint the suit appears to be barred by limitation, th e 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 Si tharama 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
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 dism issed 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 in a
subsequent case, R emamurthy v. Gopayya I L R 40 Mad. 701, reiterated that the parties
cannot estop themselves from pleading the provisions of the statute of limitation. The
Lahore High Court also look a similar view in Kundo Mal v. Firm Daulat Ram AIR 1940
Lah. 75, and hel d that "there is abundant authority in support of the proposition that
objections regarding limitation cannot he waived and that even if they are waived they
can he taken up again by the parties waiving them or by the Courts themselves."
6. Legally, the appellate Court was required to have adopted the course as provided by the
provisions of Order XLI, Rule 24 C.P.C. by striking out the issue of limitation and hearing the
parties. For the sake of convenience relevant rule is reproduced:
"24. Where eviden ce on record sufficient, Appellate Court may determine case finally ---
Where the evidence upon the record is sufficient to enable the Appellate Court to
pronounce judgment, the Appellate Court may, after resettling the issues, if necessary,
finally determ ine the suit, notwithstanding that the judgment of the Court from whose
decree the appeal is preferred has proceeded wholly upon some ground other than that on
which the Appellate Court proceeds."
7. Of course, by resorting to the provisions of Order XLI Rule 24 C.P.C. not only the
purpose of law would be served rather the parties would be saved from the agony and torture of
another round of litigation before the trial Court. By holding the view, I am fortified by the
dictum laid down in the judgment titl ed as Muhammad Mukhiar and others v. Muhammad Sharif
and others reported in 2007 SCMR 1867, wherein it has been held as under: --
"10. As far as the contentions of the learned counsel for the appellants that after the order
of the learned First Appellate Court allowing additional evidence was set aside, the
learned High Court should have remanded the case, has not merit. This Court has, on a
number of occasions, reiterated that if evidence on record is sufficient, the Court of
appeal should finally decide the matter rather than remanding it to the subordinate forum.
Such a course is not only permissible under Rule 24 of Order XLI of the Code of
Procedure but is desirable as well because by avoiding remand the parties are saved of
the torture of another roun d of litigation."
In the light of above discussion, impugned judgment and decree dated 22nd March, 2007
passed by Additional District Judge -IV, Quetta are hereby set aside and the case is remanded to
the appellate Court with direction to press into ser vice the provisions of Order XLI Rule 24
C.P.C. and to decide the matter afresh in the light of observations made hereinabove. The parties
are left to bear their own costs.
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