1992 PLP 1776 (MLD)

(1) Decree was itself void being contrary to section 23 of the Contract Act. (2) Being a void decree, the law of limitation would not apply for setting aside the void decree. (3) Admittedly there were four defendants, compromise application was subscribed by only plaintiff and defendant No.4 and not by defendants 1, 2 and 3 against whom reliefs were sought. (4) The application was filed under section 12(2) read with section 151, C.P.C. On the other hand, Mr. Muhammad Sharif learned counsel appearing for the first respondent submitted that the application was barred by time. He supported the impugned order. We have considered the submissions of the learned counsel for the parties. Mr. Nadeem contended with some amount of force that the compromise decree is void, as such no period of limitation is prescribed for filing an application or petition for setting aside the decree. The stand of Mr. Muhammad Sharif, as already indicated, is that Article 181 of the Limitation Act, 1908 (the Act for brevity's sake) is attracted to the instant case and in the light of the period prescribed therein, the application or petition under section 12(2) or section 151 of the Code of Civil Procedure could be filed by the appellants when the cause of action accrued to them. In order to sustain this argument of his, learned Assistant Advocate‑General has referred to certain judgments, but we find it wholly unnecessary to refer to those judgments, as we are firmly of the opinion that the controversy in hand practically stands resolved by the authoritative pronouncements of their Lordships of the Supreme Court in Muhammad Iqbal and others v. Muhammad Alamgir and others, 1990 SCMR 1377, Mst. Amtul Kabir and others v. State, Khatoon and others 1991 SCMR 1022, Mst. Nigar Bibi and others v. Salahuddin Khan and others PLD 1990 SC 76, Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197 and Mst. Afzal Begum and others v. Y.M.C.A. through its General Secretary PLD 1979 SC

18. In the last mentioned case, the Hon'ble Supreme Court observed at page 30 that: "In the light of the above discussion I am of the considered opinion that the ejectment order, dated 9th of April 1974 was passed ex parte by the High Court in appeal under section 15(4) of the Urban Rent Restriction Ordinance, 1959. It was not a decree as such and therefore, Article 169 of the Limitation Act was not at all applicable to the application made by the petitioners to set aside the ex parte order and rehearing of the appeal. It was governed by the residuary Article 181 of the Limitation Act and the application for rehearing of the appeal could have been made within three years: The cause of action had accrued to the petitioners on the passing of the ex parte ejectment order on 9‑4‑1974 and therefore, the application filed by them in the High Court on the 23rd of February 1978 for rehearing of the appeal was clearly barred by time." In Mst. Nigar Bibi and others v. Salahuddin Khan and others PLD 1990 SC 76, it was observed by the Hon'ble Supreme Court at page 79 as follows:‑ "As for the question of limitation, this case would not be governed by Article 162 of the Limitation Act. The order against the respondents was passed ex parte, therefore, the application under section 151, C.P.C. was fully competent for which period of limitation is three years as prescribed by Article 181 of the Limitation Act." In Muhammad Iqbal and another v. Muhammad Alamgir and others 1990 SCMR 1377 it was observed on page 1382 para. 10 as under:‑ "In view of these decisions, so far as the leave granting order is concerned, it stands answered that no conflict seems to exist and Article 181 of the Limitation Act has been correctly applied to the proceedings under section 12(2) of the Code of Civil Procedure." In Mst. Amtul Kabir and others v. Safia Khatoon and others 1991 SCMR 1022, the Hon'ble Supreme Court observed at page 1027 as under:‑ "Learned Judge in the High Court has also rightly taken the view that the application under section 12(2) of the Code was barred by time. In this behalf, this Court has already held in Muhammad Iqbal v. Muhammad Alamgir 1990 SCMR 1377 that the period of limitation for filing of an application under section 12(2) of the Code is three years under Article 181 of the Limitation Act." In Government of Sindh v. Fazal Muhammad PLD 1991 SC 197, the Hon'ble Supreme Court observed on page 201 para. 15 as follows:‑ "The intention of the legislature in amending section 12, C.P.C. by adding subsection (2) is to provide substitute for such a suit against a judgment, decree or order obtained by fraud etc. Since no limitation period is specifically provided for such an application, but in view of the above object, we are of the opinion that this will be governed by Article 181 of the Limitation Act, which is a residuary Article for applications for which no period of limitation is provided elsewhere in the Limitation Act or by section 48 of the C.P.C. The period for such application, as provided in the Article is three years when the right to apply accrues i.e. the date when the judgment, decree or order was obtained by fraud, misrepresentation or without jurisdiction." We are thus firstly of the opinion that the provisions of Article 181 of the Act clearly govern the situation and the appellants could file application within three years when the right to apply accrued i.e. the date when the compromise was recorded by misrepresentation or fraud. Under the Article, the time begins to run when the right to apply accrues and one should have thought that there would be no difficulty in finding out the meaning of these words. Ordinarily the words of a statute have to be given their strict grammatical meaning and equitable consideration particularly in provisions of law limiting the period of limitation for filing suits or legal proceedings or applications. This was laid down by the Privy Council in Nagendra Nath Dey and another v. Suresh Chandra Dey and others AIR 1932 PC

165. In this case Privy Council observed that: "The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide." In General Accident, Fire & Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim AIR 1941 PC 6 it was observed as under:‑ " ..a Limitation Act ought to receive such a construction as the language in its plain meaning imports. See the decision of this Board in 36 IA

148. As was well stated by Mr. Mitra in his Tagore Law Lectures, Edn. 6 (1932) (Vo.1, p.256): A law of limitation and prescription may appear to operate harshly or unjustly in particular cases, but where such law has been adopted by the State . . . . . it must if unambiguous be applied with stringency. The rule must be enforced even at the risk of hardship to a particular party. The Judge cannot on equitable grounds enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognized by it. . Very little reflection is necessary to show that great hardship may occasionally be caused by statutes of limitation in cases of poverty, distress and ignorance of rights; yet the statutory rules must be enforced according to their ordinary meaning in these and in other like cases." The rule of limitation is based on public policy. These rules proceed upon the presumption that claims are extinct or ought to be held extinct whenever they are not litigated in the proper forum within the prescribed period. In this view of the matter, we are not inclined to consider the various contentions raised by Mr. K.M. Nadeem as the application was hopelessly barred by time. In, our opinion, the learned Single Judge, therefore, was right,. in dismissing the application of the appellants. In the light of what has been stated above, this appeal fails. Accordingly it is dismissed with no order as to costs. AA./G‑285/K Appeal dismissed.