2001 PLP 331 (YLR)

Mr. Muhammad Sharif, learned counsel for the plaintiffs, in his reply contended that the present suit has been instituted on the clear observations of the Hon'ble High Court contained in the order, dated 14-11-1996, therefore, the question of limitation cannot be raised in the present suit. Learned counsel further referred to section 14 of the Limitation Act and contended that under this provision of law the period consumed in bona fide litigation i.e. in filing of earlier suit, is to be excluded. Lastly, learned counsel referring to the case of Mst. Sarwar Jan v: Abdul Majeed (PLD 1965 (W.P.) Pesh. 5) also contended that in the present suit question of limitation is to be considered with reference to particular cause of action, which in the instant suit accrued to the plaintiffs on 14-11-1996. When permission to tile fresh suit was allowed to them by an order passed in R.A. No.208 of 1994 and thus, this suit when instituted on 23-1-1997 was within time. Mr. Sharif, however, did not dispute that for the purpose of limitation this suit is governed by Article 91 of the Limitation Act. I have carefully considered the arguments advanced by the learned counsel and perused the case record. The case of plaintiffs is that since before 1960 they are in possession of Plot No.1S-25, ST-32, Sector-4, admeasuring 80 Sq. yds. Malir Township Karachi which was illegally allotted to the defendant No. 1 on 1-3-1989 and registered lease was executed in his favour on 15-3-1989. It is also the case of the plaintiffs that they got the knowledge of all these facts firstly on 19-4-1989 and on the basis of such knowledge they filed the earlier Suit No.842 of 1989 on 27-5-1989, which was later on allowed to be withdrawn on 19-5-1994 without permission to file fresh suit. However, vide order, dated 14-11-1996 passed in R.A. No.208 of 1994 they got the permission for filing of fresh suit and thereafter they filed the present suit on 23-1-1997. The contents of para.6 of the Plaint in Suit No.842 of 1989, earlier filed by the plaintiffs (an admitted and undisputed document) are relevant in this regard as they confirm the above recorded facts more specifically. Same are reproduced as under:

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6. That the cause of action accrued to the plaintiff against the defendants firstly on 19-4-1998 when they came to know that the defendant No. 1 on 1-3-1989 has fraudulently and illegally got allotted the suit plot in his name on 27-4-1989 when the plaintiffs served a legal notice on the defendant No.2 and it Tailed to comply therewith and on the same day, when the officer of the defendant No.2 informed the plaintiffs about the execution of lease deed of the suit plot in favour of the defendant No.1 on 25-5-1989 when the demolition squade of the defendant No.2 attempted to dispossess the plaintiffs and the same is continuance till allotment and lease in the name of the defendant No.1 is cancelled and the suit plot is regularised/ allotted and leased on the name of the plaintiffs Nos.1 and 2 jointly or in the name of any one of them." Examining the legal aspect with reference to the question of limitation, it will be advantageous to reproduce here Article 91 of the 1st Schedule to the Limitation Act and also Rule 2 of the Order XXIII, C.P.C. which read as under: "Article

91. To cancel or set (Three years) When the facts aside an instru- entitling the plain ment, not other- tiff to have the wise provided instrument can for. celled or set aside became known to him. Rule 2, Order XXIII, C.P.C. Limitation law not affected by first suit. In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same mariner as if the first suit had not been instituted." A bare reading of these provisions of law clearly indicates that under the former (Article 91 of Limitation Act) three years prescribed period of limitation is to be computed from the date of knowledge of the facts entitling a party to have the instrument cancelled or set aside and under the latter (Rule 2 of Order XXIII, C.P.C.) in case of institution of fresh suit on the basis of permission granted under Rule 1 of Order XXIII, C.P.C. the plaintiff is bound by-.the law of limitation in the manner as if the first suit had not been instituted. Thus, it will be seen that not only the time consumed in litigation in the form of earlier suit instituted by the plaintiffs is to be counted and not to be excluded for the purpose of limitation but applicability of section 14 of the Limitation Act has also been excluded as it is to be deemed that no first suit had been instituted earlier. Thus, the arguments of Mr. Sharif that in such circumstances section 14 of the Limitation Act will come to the rescue of plaintiffs has no force. Considering the question of applicability of section 14 of the Limitation Act from another angle even if, for the arguments sake, it is presumed that section 14 of the Limitation Act could be made applicable in a situation where earlier suit was withdrawn with permission to file fresh one, then also on facts it will be seen that even the basic requirement of section 14 that (a) earlier proceedings were bona fide, (b) and were pending before a Court without jurisdiction, are lacking in this suit. No where it was/is the case of the plaintiffs that the Court of IV-Senior Civil Judge Karachi (East), where earlier suit was instituted by the plaintiffs had no jurisdiction to proceed with that suit, even the application under Order XXIII, Rule 1, C.P.C., its supporting affidavit and in the plaint of the present suit no such plea has been taken by the plaintiffs. In the case of Saddar Din v. Allah Rakha (PLD 1984 Lahore 38), in somewhat similar facts and circumstances contention of the learned counsel was repelled by the learned Single Judge of Lahore High Court with the following observations: "The rationale behind section 14 of the Act is the protection against the bar of limitation of a party bona fide pursuing his case and seeking adjudication on merits but nevertheless prevented from getting a trial on merits on account of defect of jurisdiction or other cause of a like nature. Applying the well -established rule in the construction of statutes, the phrase 'other cause of a like nature' has a meaning ejusdem generis with the words, 'defect of jurisdiction'. Hence it is a cause analogous to the defect of jurisdiction. Refer Mathura Singh v. Bhawani Singh (ILR 22 All. 248). The present case is of a different nature. The first suit was not withdrawn for defect of jurisdiction or other cause of a like nature. Here the respondent-plaintiff brought a suit which he later withdrew with permission of the Court to file a fresh one under Order XXIII, rule 1, Code of Civil Procedure, and therefore, section 14 of the Act was not applicable in view of the provisions of rule 2 of the said Order, which provides that in any fresh suit instituted on permission bring a fresh suit and the respondent -plaintiff was, therefore, bound by the law of limitation in the same manner as if the first suit had not been instituted." The other contention of Mr. Sharif that there are certain observations of this Court in the order, dated 14-11-1996 passed in R.A. 208 of 1994 due to which the question of limitation involved in this suit is to be resolved in favour of the plaintiffs, has also no force, firstly for the reason that there are no such observations in the said order which clearly state that "the applicants (plaintiffs) would be at liberty to file fresh suit subject to all just exceptions in accordance with law", and secondly an observation of this Court will not ipso facto exclude the applicability of statutory provisions of law relating to limitation. The last contention of the learned counsel which has been pressed with reference to the case of Mst. Sarwar Jan (supra) has also no force as on facts the plea of particular cause of action raised by the learned counsel for plaintiffs, has no nexus to the facts of present suit where three years period of limitation had already commenced in the year 1989. The case of Mst. Sarwar Jan, which on facts relate to the exercise of right of option of puberty by a Muhammadan Woman and successive causes of action in that regard has also no relevancy or applicability to the present case. In the light of above discussed legal position when relevant facts are deduced from the averments of the plaint and other admitted and undisputed document viz plaint in Suit No.842 of 1989, and arithmetical calculations are made for computing three years period of limitation, it is evident that present suit when instituted on 23-1-1997, even after excluding the period from 19-5-1994 to 14-11-1996, which time may be attributed to the wrong committed by the Court and thus, to be excluded, is clearly time-barred. This being the position C.M.A. No.2364 of 1997 is allowed and plaint in this suit is rejected under Order VII, rule 11, C.P.C. with no order as to costs. (2) (3): These applications have become infructuous and are dismissed as such. Q.M.H./M.A.K./B-29/K Order accordingly.