2008 PLP 943 (CLC)

ALI SAIN DINO METLO, J.-- Applicant's Suit, bearing No.437 of 2002, for declaration, possession and mense profits was dismissed as time-barred by the IIIrd Senior Civil Judge, Karachi East, on 7-4-2005. His Appeal bearing No.95 of 2005, was dismissed by the District Judge, Karachi East, on 15-8-2006, By this revision, he has challenged the two orders, mainly on the ground that there was no limit of time for filing a suit for possession.

2. Briefly, the facts are that in the year 1979, the applicant, claiming ownership, filed a Civil Suit hearing No.325 of 1979 (new number 389 of 1985), against the respondent and others in respect of a hall measuring 14 x 42 ft., situated on Plot No.KC-A/PB, Khudadad Colony, Karachi. On 18-10-2000, the suit was dismissed as withdrawn with permission to file a fresh suit. On 8-5-2002, the fresh suit bearing No.437 of 2002 was filed for possession and mense profits at the rate of Rs.50 per day from 1-12-1968 till the delivery of possession alleging that the respondent had illegally occupied the hall on 1-12-1968.

3. The learned Senior Civil Judge rejected/dismissed the suit on 7-4-2005 on the ground that it was hopelessly time-barred. The learned District Judge confirmed that the suit was time-barred and dismissed the applicant's appeal on 15-8-2006.

4. It is the case of the applicant himself, narrated in the plaint, that the respondent had illegally occupied the hall on 1-12-1968. The suit was filed on 8-5-2002 i.e. after more than 33 years. According to the Articles 142 and 144 read with section 28 (then in force) of the Limitation Act, 1908, a suit for possession could be filed within 12 years of the date of dispossession or discontinuance or of defendant's possession becoming adverse to the plaintiff. In view of the provisions of rule 2 of Order XXIII of the Code of Civil Procedure Code, 1908, in suit filed with permission granted under rule 1(2) (ibid), the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. The withdrawal of the previous suit with permission to institute a fresh suit cannot, therefore, has the effect of extending the period of limitation. The permission will save the fresh suit only from the bar contained in sub-rule (3) (ibid), according to which on an unconditional withdrawal a plaintiff is precluded from instituting fresh instituting fresh suit on the same cause of action. It will not save the fresh suit from the bar of limitation.

5. There is no force in the contention of the learned counsel for the applicant that in view of the decision of the Shariat Appellate Bench of the Honourable Supreme Court in the case of Maqbool Ahmed v. Hakoomat-e-Pakistan reported in 1991 SCMR 2063, the suit could not be dismissed as time-barred. In the said case section 28 of the Limitation Act, 1908, was held to be repugnant to the Injunctions of Islam insofar as it provided for extinguishment of the right in the property at the determination of period prescribed for instituting a suit for possession of the said property. However, the decision cannot be given retrospective effect particularly when the "order of the Court" specifically mentions that the "decision shall take effect from 31st August, 1991". It cannot, therefore, have the effect of reviving already extinguished rights.

6. It is the applicant's own case that the respondent had illegally occupied the hall on 1-12-1968, but they did not approach the Court immediately as they wanted to settle the matter amicably outside Court. Thus, the delay in seeking legal remedy was deliberate. According to Articles 142 and 144 (then in force) read with section 28 (then in force) of the Limitation Act, 1908, suit for possession could be filed within 12 years of dispossession or discontinuance or of defendant's possession becoming adverse to the plaintiff. Thus, the suit filed by the applicant in 1979, being within 1.2 years of respondent's illegal occupation, was within time. However, after the withdrawal of the first suit, the second suit was filed in 2002 i.e. after 33 years of respondent's illegal occupation and was, therefore, hopelessly time-barred. On 31-8-1991 i.e. on the date of the enforcement of decision given in Maqbool Ahmed's case (supra), which was after more than 22 years of respondent's illegal occupation, applicant's alleged right of ownership, having already extinguished under the provisions of section 28 (ibid), was no more in existence. The decision cannot have the effect of reviewing a non-existent right. In the precedents reported in AIR 1940 Cal. 115 (D.B.) and AIR 1957 All. 740 (D.B.), it was held that in absence of any expression of intention by the Legislature to the contrary, even statutory amendment, extending the period of limitation, cannot have the effect of reviving a right of suit which had already been barred by limitation, as an extinguished/extinct right cannot be revived by the subsequent amendment.

7. For the above reasons, the revision, being meritless, is dismissed with costs. M.H./M-30/K Revision dismissed.