2003 PLP 200 (CLC)

(iv) The defendants, their agents, servants, or, any body acting on their behalf or in his individual capacity be restrained to transfer, sell or anybody else in the said property to dispose it of in any manner. (v) The defendants be ordered/directed to pay Rs.500 rent per month with legal increments as envisaged in the Sindh Rented Premises Ordinance, 1979 since their occupation till the vacation of the premises. (vi) Cost. (vii) Any other relief (s) which this Hon'ble Court may deem fit and proper in the circumstances."

5. The defendants, through this application, have sought rejection of plaint on the grounds that the suit is barred by time; barred by doctrine of res judicata; barred by Order 11, Rule 2, C.P.C.; and no cause of action has accrued to the plaintiff for filing of this suit. While resisting this application, the plaintiff's attorney Ghulam Mohiuddin Qureshi, in his affidavit, stated that cause of action has accrued to him in the light of judgment/order of the Hon'ble High Court and that of the Honourable Supreme Court.

6. I have heard learned counsel for parties.

7. Elaborating his case, Mr. Sajjad Ali Shah, learned counsel for defendants Nos.1 to 4 submitted that limitation for relief of declaration is covered by Article 120 of the Limitation Act wherein the period for instituting a suit is 6 years and for cancellation of deeds is 3 years and for possession the period of limitation under Article 142 is 12 years, but since the suit has been filed after a period of about 30 years the same is hopelessly time‑barred. According to him, the said agreement was executed by plaintiff Kazim Imam Jan himself in favour of Muhammad Jawed on 24‑2‑1971 and possession was delivered on the same day and subsequently the Sale Deed was executed in favour of Muhammad Jawed through plaintiff's attorney Noor Muhammad (based on a fresh agreement} and if the said irrevocable Power of Attorney was cancelled on 14‑12‑1971 as claimed by plaintiff then the cause of action arose on tie aforesaid date i.e. 14‑12‑1971 whereas the suit has been filed in 12‑4‑2001. He further contended that the property was mortgaged, therefore, after paying entire money it was released and in the year 1980 the property was mutated in the name of Muhammad Jawed who gifted the same to Gul Muhammad in the year 1980 and such mutation was effected in 1981, therefore, on that count also the suit for cancellation of documents filed in the year 2001 was barred by time. He further explained that the Honourable Supreme Court as also this Court by observing that the title was not to be decided through rent proceedings, and the parties may approach Civil Court did not extend the period of limitation. He emphasized that the case of plaintiff is not covered even by section 14 of the Limitation Act as the said section does not cover the proceedings through rent cases.

8. Learned counsel for plaintiff was emphatic on the point that Power of Attorney in favour of Noor Muhammad was cancelled by plaintiff through letter dated 14‑12‑1971, therefore, after cancellation the defendants became tenants and since the Honourable Supreme Court has observed that serious question of title could not be decided through rent proceedings and the parties may approach Civil Court, therefore, cause of action has accrued to plaintiff only in pursuance of the said observations and the suit was accordingly within time. He further submitted that the Power of Attorney was executed in favour of Ghulam Mohiuddin Qureshi in the year 1991, therefore, cause of action accrued in the year 1991 and Article 142 comes into play in this respect. The suit, therefore, could be filed within 12 years from the said date i.e. 3‑9‑1991.

9. I have given anxious consideration to all these contentions. In the first instance, it would be advantageous to reproduce the observations of the Honourable Supreme Court made in the order dated 18‑7‑2000 dismissing C.P.L.A. No. 287‑K of 2000, which run as under:‑‑ .........It is, clear that ownership of the premises is being claimed by petitioner Kazim Imam Jan, his attorney Rukhsana Tabassum Shaikh and respondent No. 1 Gul Muhammad. It appears to be the case of serious dispute, about title of the premises. In a case like this, issue of title cannot be declared by Rent Controller and the parties may approach Civil Court. The premises was in possession of respondent No.1 Gul Muhammad(now deceased) at the time when it was illegally taken by the petitioner. . In consequence, leave to appeal is refused and the petition is dismissed. The petitioner is directed to hand over vacant possession of the premises to legal heirs of the respondent No. 1 within 4 months from now. In case of failure to do so, the writ of possession shall be issued without notice against the petitioner with police aid, if necessary. "

10. The observation of this Court in the order Passed in F.R.A No.143 of 1998 are also reproduced below:‑‑‑ " . In the first instance Mr. Sharif attempted to show that the aforesaid lady had been muted in her name, I pointed out that the question of title could only be settled by Civil Court and it was unnecessary to raise the controversy. " ..................... For the foregoing reasons, I would direct that possession, be delivered to the appellant within two months from today, failing which a writ of possession will issue without notice. It will however, be open to the respondent No 1 or any person claiming to be landlord of the property to seek ejectment of the appellant according to law. The above is also without prejudice to the respective claims of the parties as to title which will be decided on the original side." (Emphasis supplied).

11. The legal position emerging from the above observations need no extensive deliberation. The Hon'ble Supreme Court, in clear and precise words, has directed the parties to approach the Civil Court as the issue of title could not be decided by the Rent Controller. Such an order, undoubtedly, provides guidance to the parties to seek redressal of their grievance in accordance with law and so also the relevant Court is expected to decide the case in accordance with law. It cannot, at all, be read from these observations that the Hon'ble Supreme Court directly or indirectly extended the period of limitation enabling the party to prosecute a time‑barred claim/relief which was absolutely not an issue before the Honourable Supreme Court. No party can be allowed to raise a presumption from an order of Hon'ble Supreme Court when something is not expressly observed or stated therein. The law is well‑settled that vested rights are created on account of limitation, (see 1975 SCMR 304 and 1982 SCMR 285), therefore, determination of such rights cannot eventually be subjected to presumptions and self‑conceited inferences. The plaintiff has to face the consequences of limitation on the merits of his own case and cannot seek a refuge under the above observations made either by the Hon'ble Supreme Court or even by this Court in its rent appellate jurisdiction.

12. Admittedly, the registered sale‑deed, founded on the irrevocable Power of Attorney executed by plaintiff in favour of Noor Muhammad,, was executed on 22‑11‑1972 and if cancellation of this document is sought after 30 years the suit would certainly be barred by time under Article 91 of the Limitation Act. Even if it is assumed that the fact of registered sale-deed or even subsequent registered declaration of gift came to the knowledge of plaintiff at a later stage through the rent proceedings instituted in the year 1991, it would be manifestly established that from that period onwards the plaintiff knew about these documents, he could seek cancellation of the said deeds/documents within 3 years, but he kept quiet. Yet after going to a maximum extent of relaxation it can certainly be said that after filing of application under section 12(2), C.P.C. by Gul Muhammad, lack of knowledge of these documents cannot at all be‑conceived, as the order, dated 11‑1‑1995 passed by this Court in F.R.A. No. 62 of 1994 in clear terms mentions that plaintiff Kazim Imam Jan, being respondent No.1 therein, was represented by an Advocate Mr. G.M. Saleem in those proceedings. The said rent appeal, as already stated, was filed by Gul Muhammad to whom the property was gifted through registered declaration of gift by Muhammad Jawed deriving title from the aforementioned registered sale deed. In this manner, at least in the month of January, 1995 the existence of aforementioned registered documents, undoubtedly, became known to the plaintiff; consequently, on that score too the suit filed in the year 2001 was barred by time under Article 91 of the Limitation Act as' it was filed after the prescribed time of three years.

13. Initially, the sale agreement was admittedly executed on 24‑2‑1971. The suit as against this contract as also the sale agreement, dated 21‑11‑1972 referred to in para. 4 of the plaint is also hopelessly barred under Article 114 of the Limitation Act which provides a period of 3 years only for rescission of contract.

14. It is also an admitted position that on the said date i.e. 24‑2‑1971 the possession was delivered by Kazim Imam Jan, the plaintiff to Muhammad Jawed, therefore, relief of possession after 30 years was also barred within the meaning of Article 142 to the Schedule to Limitation Act which provides a period of 12 years from the period of discontinuance of the possession. The plaintiff was divested of his title through registered sale deed on 22‑11‑1972 and again in 1980 Muhammad Jawed gifted the property to Gul Muhammad whereafter even mutation was effected. A declaration for title to property was also barred by time within the purview of Article 120 of the Limitation Act.

15. It may, consequently, be summed up that on all counts the instant suit was hopelessly time‑barred. However, the plea raised on behalf of the plaintiff that under section 14 of the Limitation Act the time spent in seeking remedies through rent jurisdiction be excluded needs to be examined in the light of circumstances of the case. In order to extend benefit of section 14 of the Limitation Act for the purpose of exclusion of time the Court can exclude the time during which the plaintiff has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or in a Court of appeal against the defendants when such proceedings are founded upon the same cause of action and he has prosecuted in good faith in a Court which, from the lack of jurisdiction or other cause of like nature, is unable to entertain it Reliance, in this regard, may be placed on Ghulam Ali v. Akhter PLD 1991 SC 957.

16. In the instant case the plaintiff himself is an advocate and it is incomprehensible that he failed to prosecute his case on a wrong legal advice. He had admittedly executed a sale agreement and also parted with possession after receiving a good amount of consideration in the year 1971, that is to say about 30 years back. It cannot be presumed that he had no knowledge of law. Further during the rent proceedings his title was clearly and effectively questioned yet he did not prefer to seek a declaration to his title. All that he did was that he indulged in appointing attorneys one after the other. Initially, he appointed one Noor Muhammad through an Irrevocable Power of Attorney in the year 1971, then he appointed one Mehmood Shah as his attorney, while Mst. Rukhsana Tabbasum also claimed to be his attorney and instituted rent proceedings at her own level on behalf of plaintiff and lastly one Ghulam Mohiuddin Qureshi who has filed this suit is his attorney. As pointed out by learned counsel for defendants Nos. 1 to 4 the plaintiff Kazim Imam Jan has not himself signed the plaint in the instant suit. It is not known when will he turn up and bid farewell to the last attorney also. All the circumstances put together lead to a sustainable inference that plaintiff Kazim Imam Jan was not entitled to exclusion of time of limitation within the meaning of section 14 of the Limitation Act: Indeed, the irresistible conclusion would be that the plaintiff's suit is hopelessly time‑barred.

17. In result of the foregoing discussion it is held that the plaint is liable to be rejected within the meaning of Order VII, Rule 11, C.P.C. being barred by law of limitation and is hereby rejected with no order as to costs.

18. The rest of the applications are dismissed having become infructuous in a consequence of the above. Q.M.H./M.A.K./K‑64/K Plaint rejected.