2012 Y L R 2560
[Balochistan]
Before Muhammad Noor Meskanzai, J
GHULAM MUHAMMAD ---Petitioner
versus
FIDA HUSSAIN ---Respondent
Civil Revision No.112 of 2007, deci ded 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 par ty 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 period was prescri bed 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 maintained 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
framed, therefor e, 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 Jul y, 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 c onsideration 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 make 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 contested 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/def endant 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 dated 22nd March, 2 007 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 the 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 adva nced 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 part ies 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 payment 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. Reli ance 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, 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 they having admitted their liability for the
amount in resisting the plaintiff's application in a previous suit, were estopped on
general pri nciples 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 brough t 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, Remamurthy v. Go payya 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 held that "there i s 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 evidence on record su fficient, 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 determine the suit, n otwithstanding 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 titled 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 rath er 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 round 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 service the provis ions 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.
SAK/81/Q Case remanded.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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