P L D 1965 (W (PLP)

MUHAMMAD AKRAM, J.‑This is a regular second appear against the judgment and decree passed by the District Judge Montgomery.

2. The facts in brief are that on the 3rd of January 1946, Muhammad Sharif respondent submitted a tender temporary cultivation of State land situated in Chak No. 88‑A/6‑R, Tehsil and District Montgomery. According to one of the terms of the tender he was required to deposit Ks. 7,000 with the Public Works Department (Irrigation Branch) in order to meet the cost of construction of a bond and a water course on the land. The respondent did not deposit the stipulated amount in cash and instead of it made an application to the authorities that he may be permitted to undertake the construc tion of the 6und and the water course on tile land at his cost. On the 1st of April 1946, the Deputy Commissioner, Montgomery, accepted the tender for the temporary cultivation of the land submitted by the respondent on the following conditions: (a) That the respondent shall construct the water‑course at Sukharawa near Burji No. 18820RD, Rajbah 1/6 a bund and an acquaduct in accordance with the design and instructions of the Canal Authorities and shall on completion produce a certificate from them to the effect that the work was completed by him in accordance with their requirements. (b) that after complying with this condition the respondent shall deposit the lease money by the 15th of May 1946, and (c) that the respondent shall execute the required deed of lease in accordance with the conditions laid down in Notification No. 1879‑6‑C, dated the 9th of March 1946. It appears that the respondent had started the construction of the bund and water‑course in anticipation of this acceptance of his tender by the Deputy Commissioner. On the 23rd of April 1946, he wrote to the Executive Engineer concerned (vide Exh. P. 8) informing him that he had already completed this work by the 25th of March 1946 and that in that connection the Overseer and the Sub‑Divisional Officer incharge had already sent their reports certifying that the construction was completed by him to their entire satisfaction. Thereafter the respondent repeatedly pressed the Canal Authorities for the necessary certificate to enable him to proceed further. He also made certain representations to the civil authorities for the purpose. At first, the Canal Authorities remained unconcerned and indifferent towards him on the plea that they were not bound to issue any certificate to the respondent. However, on further representation by the respondent, the Superintending Engineer on the 5th of August 1946, wrote to the Deputy Commissioner (vide Exh. P. 11) certifying that the bund and the water‑course etc. were constructed by the respondent to his satisfaction before, the 30th of April 1946. On this the respondent offered to deposit the lease money payable by him but. Sardar Nanak Singh, the then Officiating Deputy Commissioner, Montgomery refused to accept it and cancelled the agreement on the 1st of December 1946, (vide Exh. P. 15) on the excuse that the respondent had failed to produce the certificate from the Canal Authorities about the completion of the bund ‑and the water‑course before the 15th of May 1946, in accordance with the acceptance of the tender. Soon afterwards on the 9th of December 1946, the respondent applied to the Deputy Commissioner, Montgomery, for a review of this order of cancellation of the lease. Meanwhile Sardar Nanak Singh had been transferred and his successor‑in‑office Sardar Saeed Zaman Khan, Deputy Commissioner, Montgomery after holding necessary enquiry found that it was a fit case in which the order of the cancellation of the lease passed by Sardar Nanak Singh should be reviewed. He wrote to the Commissioner, Multan Division, Multan (vide Exh. P. 16) on the 11th April 1947, for permission to review the order passed by his predecessor. In this connection the conclud ing paragraph of his memorandum to the Commissioner reads as under:‑ " Muhammad Sharif has submitted an application for revision of the order of my predecessor dated 1‑12‑1946, for the reason that he completed the necessary work before 30‑4‑1946, but the Canal Department delayed their report to the Colony Officer. The fact that Muhammad Sharif was allowed to construct necessary work at his own cost implies that the condition of depositing Rs. 7,000 for constructing a bund etc. had been cancelled. The Superintending Engineer has stated in his letter, dated 5‑8‑1946, that necessary works were constructed by Muhammad Sharif before 30‑4‑1946. 1n view of this fact, I am of the opinion that the order of my predecessor may be reviewed with your permission and the tendered directed to execute lease deed and take possession of the land with effect from Kharif 1947. "

3. Before any permission for the review could be granted Mr. Mushtaq Ahmad Cheema took over as Deputy Commis sioner, Montgomery. He proposed that the case of the res pondent should be filed. The Commissioner did not agree with him and insisted that the Deputy Commissioner should supply the information required of him by the Government in its Memorandum No. 3134, dated the 18th of July 1952. On the 23rd. of September 1952, the Commissioner wrote (vide Exh. 17) to Mr. Niaz Ahmad, who had succeeded Mr. Cheema as the Deputy Commissioner, Montgomery, that strong and convincing reasons should have been advanced before suggesting that the case of the respondent should be filed. On 16th October 1952, even the Financial Commissioner wrote to the Deputy Com missioner concerned as under:‑ "This is a very hard case and needs full examination and consideration. The applicant has not yet got satisfaction for the amount deposited by him. Please do not allot out of this disputed land to any one until the case is decided by you and this should be done early." In spite of all this, Mr. Niaz Ahmad, the Deputy Commissioner, Montgomery, passed the following order on the 15th of December 1953: "Muhammad Sharif, plaintiff, is present. Arguments heard. Muhammad Sharif has no right over the land in dispute, so the papers be filed."

4. In these circumstances, on the 1st of October 1955, Muhammad Sharif, respondent was compelled to file a, suit against the Government in the civil Court at Montgomery, for specific performance of the agreement of lease for temporary cultivation of land in question for a period of 5 years and in the alternative for recovery of Rs. 4,500 as compensation and damages on account of the following: (i) Rs. 3,678 as the expenditure incurred by the plaintiff respondent on the construction of the bund, culvert, water course and acquaduct etc. as, per the estimate filed by the plaintiff along with his plaint, (ii) Rs. 42 on account of the, advance money deposited by the plaintiff with the Government he time of the tender, and (iii) Rs. 780 as the miscellaneous expenditure incurred by the plaintiff on sundary, matters in connection with his case,

5. The defendant‑appellant contested this suit of the plaintiff‑respondent alleging that it was barred by limitation; that the jurisdiction of the civil Courts was barred by the provisions of the Colonization of Government (Tenants) Land Act, 1912; that the plaintiff had committed the breaches of the agreement between the parties and was not entitled to any relief against the defendant. On the pleadings of the parties the trial Court framed the following issues: (1) Whether the suit for specific performance of the agreement of lease was cognizable by the civil Courts? (2) Whether the plaintiff has failed to comply with the terms of the lease and was not entitled to any relief? (3) Whether the suit for damages was not cognizable by the civil Courts? (4) What amount the plaintiff had spent in order to comply with the conditions of the lease and to what amount he was entitled as damages? (5) Was the plaintiff entitled to any decree for the amount spent on correspondence and other miscellaneous items? If so, to what amount? (6) Was the suit time barred? (7) Relief.

6. The learned Senior Civil Judge, Montgomery, dismissed the suit of the plaintiff for specific performance as not maintain able and barred by the provisions of sections 36 and 10 (4) of the Colonization of Government (Tenants) Land Act, 1912. As regards the alternative claim of the plaintiff, the trial Court found that the defendant was liable to compensate the plaintiff for Rs. 3,300 for the loss caused to the plaintiff on account of the breaches of the agreement committed by the defendant. The suit of the plaintiff was, however, held to be barred by time on the finding that the cause of action had accrued to the plaintiff on the 1st of December 1946, when Sardar Nanak bingh, Deputy Commissioner, Montgomery can celled the lease and refused to grant the land to the plaintiff. According to the trial Court Article 65 of the Limitation Act was applicable to the suit under which the limitation for the suit is only 3 years. In the result the suit of the plaintiff was dismissed by the trial Court.

7. On appeal by the plaintiff the learned District Judge, Montgomery, reversed the decree passed by the trial Court and granted a decree to the plaintiff against the defendant for recovery of Rs. 3,300 as compensation for damages for wrongful cancellation of the lease by the defendant. The lower appellate Court has held that in the case of the plaintiff the period of limitation started to run from the 15th of December 1953, the date on which Mr. Niaz Ahmad, the then Deputy Commissioner, Montgomery, finally dismissed his application for review, and the suit of the plaintiff brought within 3 years from that date was within time.

8. This is a second appeal by the Government in which the finding of the learned District Judge on issue No. 6 alone were challenged before us. On behalf of the appellant it was argued before us that in this case the period of limitation started to run against the plaintiff from 1st December 1946, when the agreement was cancelled by Sardar Nanak Singh, Deputy Commissioner, Montgomery and he refused to grant any lease to the plaintiff and not from the 15th of December 1953, when the review petition by the plaintiff was rejected by the authorities.

9. This argument of the learned counsel for the appellant completely ignores the important developments which took place in the case after the 1st of December 1946. Immediately after the cancellation of his lease by Sardar Nanak Singh, the Deputy Commissioner, Montgomery on 9th December 1946 the plaintiff applied to him for review. This application was not disposed of until the 15th of December 1953. Sardar Saeed Zaman Khan, who succeeded Sardar Nanak Singh as the Deputy Commissioner, Montgomery, after enquiry on that application found that it was a fit case for review. He accordingly wrote to the Commissioner, Multan Division, on the 11th of April 1947, (Exh. P. 16) for the requisite permission to review the order passed by his predecessor and in the concluding paragraph of his recommendation he expressed himself strongly in favour of the plaintiff for the grant of the lease of the land to him with effect from Kharif 1947. The authorities, for reasons best known to them, kept the case of the plaintiff pending for a long time. On the 16th of October 1952, even the Financial Commissioner strongly wrote to the Deputy Commissioner in favour of the plaintiff as under: "This is a very hard case and needs full examination and consideration. The applicant has not yet got satisfaction for the amount deposited by him. Please do not allot out of this disputed land to any one until the case is decided by you and this should be done early." In spite of this it took another one year for the authorities to dispose of the application of the plaintiff for the review. It was only on the 15th of December 1953, that Mr. Niaz Ahmad, Deputy Commissioner, Montgomery, finally rejected his applica tion for the review. The plaintiff is not at all to be blamed for this delay. From the very start his application for review of the order of the cancellation of the lease was received favourably by the authorities and met with sympathetic consideration at the hands of the Government till suddenly on the 15th of December 1953, it was dismissed. In all fairness, under these circumstances the plaintiff could not be expected to rush to a Court of law so long as his case was receiving the attention of the authorities who had expressed their readiness to reconsider his case favourably. All along he was lulled into the bona fide belief and legitimate hope that he shall soon get his redress from the authorities for the wrong done to him and the necessity to take the matter to a Court of Law may not even arise. On the cancellation of the lease it was open to the plaintiff to apply for the review of the order in accordance with the provisions of the Colonization of the (Government Tenants) Land Act, 1912. The order of cancellation of the lease was itself subject to the other provisions of the Act and was dependent upon the result of the application of the plaintiff for the review. In these circumstances it cannot be expected that the plaintiff should have filed his suit without waiting for the result of his application for the review and cannot be said that in the circumstances of this case the period of limitation started to run against the plaintiff once for all from the 1st of December 1946. In fact these subsequent events, coupled with the old fact gave rise to a fresh cause of action for the plaintiff to bring his suit after his review petition was dismissed.

10. In Abdul Mafur v. The Thal Development Authority, Jauharabad (P L D 1958 Lah. 169) the services of the appellant as an Overseer under the Thal Development Authority were terminated by .a notice served on him by the Superintending Engineer. He preferred an appeal against that order to the Authority in accordance with the rules framed by the Provincial Government under the Thal Develop ment Act of 1949, but the Chairman rejected his appeal on the 26th of January 1955, and the order was communicated to the appel lant by means of a letter written on 10th of February 1955. Thereafter on the 16th of February 1955, the appellant brought his suit challenging the order of his removal from service. The Thal Development Authority pleaded the bar of limitation against that suit. The High Court on appeal observed there can be no doubt that once limitation starts running, no subsequent event can stop or suspend it but that this principle had no application to the facts and circumstances of that case before it and there could not be only one starting point of limitation in a case. The High Court has held that there is no law or principle in support of the preposition that a subsequent cause of action can arise only when the first has either been satisfied or discharged and that a fresh circumstance or set of circumstances, combined with the old facts, which in itself constitute a completed cause of action, may, in a certain given case, give rise to a second and a fresh cause of action. After examining the facts in Chandra Mani Saha v. Anarjan Bibi (A I R 1934 P C 134) the learned Judge who decided that case observed as under: "To my mind this case is a very clear authority for the proposition that where the language in a provision relating to limitation for suit permits it, regard should be had to the plaintiff's right of appeal against an order against which he feels aggrieved in determining the starting point of limitation, and that so far as possible the limitation provisions should not be so construed as to deprive the aggrieved party of his right of appeal an adverse order before resorting to a suit. These principles are fully applicable to the facts of the present case", and on the facts of that case ` it was further remarked by the learned Judge as follows; "There can be no doubt that in the particular circumstances of this case a fresh cause of action accrued to the plaintiff on the 10th of February 1956, when he received notice of the dismissal of his appeal by the Chairman. If the dismissal from service by an appealable order of a subordinate authority could furnish a cause of action to the dismissed servant, it would be wrong, in reason as well as on principles, to' hold that the final order of the final authority confirming the dismissal would not. The monstrous injustice of the contrary proposition would be manifest by examining the consequences which could have resulted from the institution of the present suit immediately after the first order. Should the plaintiff have also simultaneously filed a departmental appeal or not .He had a legal right to that appeal under the Act. There was no law to deprive him of that right, and had there one it would have been flagrantly unjust and harsh. If he had also filed an appeal simultaneously with the suit, either the proceed ings in the civil Court would have been stayed‑ pending the decision of the appeal or they would have gone on. If the appeal had succeeded, the suit would have turned out to be a vain litigation. It would also have resulted in much un‑ necessary expense to the parties and waste of much valuable time of the Court if the proceedings in the suit have not been stayed." This is a lucid exposition of the true legal position and we respectfully agree with the reasoning ad anted in that case.

11. The case in Chandra Mani Saha v. Anarjan Bibi arose out of an application by the auction purchaser for delivery of possession of the property to him. Under Article 180 of the Limitation Act the starting point for limitation for such an application is 90 days from the date "when the sale becomes absolute". Meanwhile the judgment‑debtor filed an application under Order XXI, rule 90 of the Code of Civil Procedure objecting to the auction to have it set aside, but his application was rejected and the sale was confirmed by the executing Court on the 22nd of April 1924. The appeal. of the judgment‑debtor was also dismissed by the High Court on the 17th of March 1927. A question arose if in these circumstances for the purposes of Article 180 of the Limitation Act the sale became absolute on the 22nd of Aril 1924, as required under Order XXI, rule 92 or on the 17th arch 1927, when the High Court dismissed the appeal of the judgment‑debtor. In this connection, their Lord ships of the Privy Council have remarked as under: "But the judgment‑debtors had a right of appeal under Order XLI, rule 1 (j) against the order of the subordinate Judge by which lie disallowed their applications to set aside the sales. This right of appeal the judgment‑debtors exercised Upon the hearing of the appeals, ‑the High Court, by reason of the provisions of section 107 (2) of the Code, had the same powers as the Court of the Subordinate Judge . . . . . . , Upon consideration' of the sections and the Orders of the Code, their Lordships are of opinion that in construing the meaning of the words "when, the sale becomes absolute" in Article 180, Limitation Act, regard must be had not only to the provisions of Order XXI, rule 92 (i) of the Schedule to the Civil P. C., but also to the other material sections and orders of the Code, Including those which relate to appeals from orders made under Order XXI, rule 92 (1). The result is that where there is an appeal from an order of the subordinate Judge, disallowing the application to set aside the sale, the sale will not become absolute within the meaning of Article 180, Limitation Act, until the disposal of the appeal

12. In another Privy Council case reported as Mst. Ranee Surno Movee v. Shooshee Mokhee Burmonia and others (12 Moore's I A C 244), an auction sale of the right '4 certain Putneedars in a Putnee talook, by the Zamindar for arrears of rent, was set aside by the Zillah Court and the Putneedars, who had been dispossessed, restored, with mesne profits to be paid by the purchaser, during the time they were out of possession. The Zamindar then brought suit against the Putneedars to recover arrears of rent which had accrued before and after the time they were out of possession. The High Court decided that the suit, not being within 3 years from the time the rent first became due, was barred by limitation. This finding was reversed on appeal by the Judicial Committee holding that the cause of action accrued at the date of the decree reversing 'the auction sale and that the suit having been brought within three years from the date of decree, was within time. Their Lordships of the Privy Council observed that it was perfectly clear that the cause of auction accrued at the time at which the sale having been set aside, the

obligation to pay the sum of money revived.

13. In Bassu Kaur v. Dhrun Singh (I L R 1889 All. 47) in contemplation of a sale of land by a debtor to the creditor it was agreed that the book debts should be retained by the former in satisfaction of a part of the price but the parties failing to agree as to certain other terms, a suit brought by the intending vendor for specific performance was dismissed on the ground that no actual agreement had been made. The creditor then brought a suit for the recovery of the debt. In these circumstances the Privy Council held that the decree for specific performance brought about a new state of things and imposed a new obligation on the debtor, who could no longer allege that he was absolved by the creditor being entitled to the land instead of the money. He became bound to pay that which he had retained in payment of his land, the date of the decree giving the date of the failure of an existing consideration, within the meaning of Article

97. During the course of the judgment it was remarked as under: "Baru Mal (the creditor) might have sued for his debt, but the utmost benefit that could have come to him from such a suit would have been to have it suspended or retained in Court till after decision, of the appeal in the specific perfoitnance suit. Dhum Singh's (the debtor) defence would have been that the debt was paid by virtue of the contract and that defence must have prevailed if the suit were heard while the decree of 1881 still stood unreversed. It would tie an in convenient State of the law if it were found necessary for a man to institute a perfectly vain litigation under peril of losing his property it' he does not. And it would be a lamentable State of law if it were found that a debtor who for years has been insisting that his creditor shall take payment in a particular mode, turn round and say that the lapse of time had relieved him from paying at all." These concluding remarks of their Lordships of the Privy' Council apply with full force to the facts of the present case as well.

14. In another case Murlidhar and others v. Ram Saran Das and others (A I R 1947 All. 256) the relevant facts were that 'L', one of tile holders of a decree for a sum of money transferred his half share in the decree to 'S'. The other decree‑holders filed a suit against 'L' and 'S' for specific performance of contract of sale about L's half share in the decree. The suit was decreed on the 2nd of January 1930, as a result of which the other decree‑holders were declared to be entitled to the whole amount of the decree which they subsequently realised in execution on the 21st of July 1932. On the 2nd of October 1935, the decree for specific performance was reversed in appeal with the result that 'S' was declared to be a purchaser of L's half share in the decree. 'S' then filed a suit on the 12th of January 1938 against the other decree‑holders for recovery of his share in the decretal amount already realised by them. In these circumstances it was held that the law Court do recognise general principles of suspension of limitation of right of action in cases where a ‑party is prevented under certain circumstances from taking action in pursuance of his rights.

15. In Haji Adam v. Levant Line and two others (P L D 1959 Kar. 364) the High Court has remarked that "it is a fundamental principle of lam of limitation that it always implies an existing cause of action ant that unless a cause of action for a suit has arisen limitation for such a suit cannot begin to run. In short, where there is no cause of action, there can be on limitation . . . . ..there is another class of cases in which cause of action is satisfies and discharged and limitation stops to run in regard to such cause of action, but if they are nullified by a subsequent even the plaintiff is entitled to a fresh cause of action".

16. Quite recently in a reported case F. A. Khan v. The Government of Pakistan (P L D 1964 S C 520), the Supreme Court has held that the starting point for limitation for a suit by a State Servant who has challenged the legality of his order of removal from service, should be reckoned front the date of the order passed by the appellate authority confirming the original order of the removal. In this connection it was remarked by their Lordships of the Supreme Court as under: "It may be that a right to sue may accrue on the first denial and yet in the particular circumstances of a case, the option may rest with the person concerned to wait till the denial of right acquires finality by some subsequent develop ment."

17. For the reasons discussed above we are of the opinion that under the circumstances of this case a second and a fresh cause of action accrued to the plaintiff to sue the Government when his application for review was finally rejected on the 15th of December 1953, by Mr. Niaz Ahmad, Deputy Commissioner, Montgomery and his suit brought on the 1st of October 1955, within three years from that date, was within time both under Article 65 and Article 115 of the Limitation Act. It is, therefore, hardly necessary for us to go into the question as to which of the two Articles will govern the case.

18. In the result we see no force in this appeal which is dismissed with costs. K. B. A. Appeal dismissed.