P L D 1969 Karachi 52 (PLP)

(a) Limitation Act (IX of 1908), S.6‑Legal inability‑Recog nised only for purpose of Institution of suit and making applications for execution‑Such benefit not available for purposes of appeal. The language of section 6 (1), Limitation Act. 1908 sows that legal inability is recognized by the law of limitation for purposes of institution of suits and making applications for executions. After this is done, the plaintiff or the applicant is to follow the ordinary law like any other party. He has to observe the law of limitation and cannot be heard at every step to plead his legal inability for disregarding it, and thus to abrogate it for himself. Phoolbas‑Koonwar v. Lalla Jogeshhur Sahoy I L R 1 Cal. 226 rel. (b) Limitation Act (IX of 1908), S. 6‑Legal disability Receiver.‑Cannot assume role of uper‑owner of estate and change decision of parties not to pursue suits‑Receiver acting as next friend of minors‑Not within his rights to go in appeal‑Nor can minor get benefit of section 6 for preferring appeals. The Receiver, who was not a party to the suits, cannot assume the role of a super‑owner of the estate, and change the decision of the parties who had declined to pursue the suits. It is true that a minor is not bound to wait until he attained the majority, and can take legal action by a next friend, but he cannot get the benefit of section 6 of the Limitation Act for preferring appeals. John Teti & Co. v. Abdool Hye 19 W R 37 and Basu's Law of Receivers, 1964, p. 29 rel. Naumburg v. Hyatt (1885) 24 Fed. 398 and Patterson v. Gas Light Co. (1896) 2 Ch. D 476 (C A) ref. QADEERUDDIN AHMAD, J.‑The facts, which form the back. ground of this appeal, are that a well‑known gentleman by the name of Mr. Osman Azad entered into an agreement with Mr. N. E. Dinshaw on the 19th of February 1958. The purport of the agreement was that a lease‑deed be executed by Mr. N. E. Dinshaw in favour of Mr. Osman Azad with respect to a piece of land situated in Saddar Opposite Capital Cinema, measuring about 3,069 square yards. It was stated in the agreement that there were super structures on that land, and that unauthorised occupants had taken possession, of small portions of the land which were not built over by the owner. The lease in favour of Mr. Osman Azad was to be for thirty years, and Rs. 15,345 were to be paid per year as rent. The rent, which was recoverable, by Mr. N. E. Dinshaw was less than that. It was Rs. 146‑12‑0 only. Mr. Osman Azad could evict the unauthorised occupants, and the tenants for developing the land and erecting buildings for his own benefit. After thirty years the land, along with the buildings constructed by Mr. Osman Azad, was to revert to Mr. Dinshaw. The contemplated lease‑deed was not executed, and, according to Mr. Ramchand, counsel for the respondents, Mr. Osman Azad did not reply to notices, which were sent by Mr. N. E. Dinshaw calling upon him to do so. After about three years of the date of agreement, Mr. Osman Azad filed a suit against Hoshang N. E. Dinshaw on the 2nd of May 1961, being Suit No. 86 of 1961, for specific performance of the agreement by the execution of a lease‑deed, and in the alternative, for the recovery of damages in the amount of Rs. 1,00,000 as well as refund of Rs. 15,000 which had been paid by Mr. Osman Azad to Mr. N. E. Dinshaw towards rent for one year.

2. On the same day on which the above‑mentioned agreement was executed, the parties entered into another agreement to the effect that Mr. Osman Azad would purchase a piece of land, which is also situated in Saddar opposite to the Capital Cinema and adjoining to the above‑mentioned plot, measuring about 760 square yards. Mr. Osman Azad paid Rs. 10,000 as earnest money, and was to pay the balance of the price at the time of the registration of the sale‑deed. Mr. Ramchand, counsel for the opposite‑party, says that this plot was occupied by tenants, who were paying rent at the rate of about Rs. 300 per month to Mr. Dinshaw. The object of Mr. Osman Azad, according to Mr. Ramchand, was to evict the tenants and to construct a block of buildings on this plot, but he avoided the execution of a sale‑deed, in spite of notices from Mr. N. E. Dinshaw calling upon him to do so. After about three years of the date of the agreement, Mr. Osman Azad filed a suit, bearing No. 85 of 1961, for the specific performance of the agreement, and, in the alternative, for the recovery of Rs. 50,000 as damages, and refund of Rs. 10,000 which was deposited by way of earnest money.

3. The two suits were ripe for hearing, when Mr. Osman Azad died on the 11th of September 1964. His legal representatives were brought on the record, but a dispute arose about succession. One Mr. Mahmooda Begum applied for being impleaded as a party to the suit on the allegation that she was one of the widows of Mr. Osman Azad. That application was granted on the 22nd of October 1965, and it was ordered that she should act as the next friend of her two sons, who were already on the record. The Court further ordered as follows: "Amended application to be filed within a week. Dr. Mahmooda Begum is allowed to engage a counsel. She !s further directed to furnish her address for service in the two suits." Mr. Ramchand says that, the word `application' In the above order is a misprint for the word `plaint' and that this was known to the parties.

4. Dr. Mahmooda Begum did not take further interest, nor did the legal representatives file an amended plaint. Their counsel, namely, Mr. Matin, applied to the Court stating in it that he had informed Mr. Irfan Azad, son of the deceased plaintiff, as well as Mr. Omar Farooq, younger brother of the deceased plaintiff, that the plaintiffs had to file an amended plaint. Mr. Matin actually prepared an amended plaint and sent It for the signatures of the legal representatives with a warning that the matter was urgent. On the 11th of November 1965, Mr. Badruddin, husband of Mst. Sultana Begum, daughter of the deceased plaintiff, returned the amended plaint with a covering letter, stating that the legal representatives, excepting his wife, had declined to sign, because they said that they had no interest 9n the case. There is nothing on record to show whether even Mst. Sultana Begum signed the plaint or not. This situation was brought to the notice of the Court by Mr. Matin who made a statement on the 22nd of November 1965. Mr. Justice A. S. Faruqui, who presided at that time ordered in Suit No. 85 of 1961, as follows: "Mr. Matin for the plaintiff states that he had sent an amended plaint to the legal representatives of the plaintiff for signature. Upon this, the husband of L. R. No.

2. Sultana Begum, has written to him to say that the other L. Re. have declined to sign the amended plaint on the ground that they are no longer interested in the suit. Mr. Malin states that he further wrote to L. Rs. telling them that the suit was fixed for 22‑11‑1965 for consideration whether the suit should be dismissed for non‑prosecution. To this he has received no reply. Mr. Matin states that in the circumstances, he is helpless and can do nothing more. That is the true position. In the circumstances, I dismiss the suit for non‑prosecution with no order as to costs." In Suit No. 86 of 1961, an order was made subsequently on the 6th of December 1965 as follows: "Mr. Abdul Matin, Advocate, has filed a statement, showing that the legal representatives of the deceased plaintiff have not only declined to sign the amended plaint, but that they are taking no interest whatever in this suit. In the circumstances, I dismiss the suit for non-prosecution, with no order as to cost." Mr. Ramchandani for the defendant present" Both the suits were thus dismissed for non‑prosecution and no action was taken by anybody in respect of them until December 1966, when the Official Assignee filed two Letters Patent Appeals, which have been numbered as 279 and 280 of 1966. They were admitted to regular hearing, and came up for final disposal before us on the 6th of this month.

5. Preliminary objections to their maintainability were raised as follows: (1) The Official Assignee has no locus standi to file these appeals. (2) The appeals are time‑barred by about seven, or eight months. (3) There are no grounds for condoning the delay either from the point of view that these appeals have been filed by the Official Assignee or from the point of view that there are minors amongst the appellants. (4) If these appeals are allowed to be prosecuted by the Official Assignee as the next friend of the minors, then the original causes of action, being indivisible, and the adults having either given up their claims or debarred by limitation, It will be unfair to tile respondents, who are legal represen tatives of Mr. N. B. Dinshaw to entertain them. (5) The valuable right to get the appeals thrown out on the ground of limitation which bas accrued to the legal representatives, should not be denied to them. The above objections were supported by counsel by referring to the circumstances which go to show that it is not in the interest of the minors that this litigation should be continued. It was emphasised that implementation of the agreements cannot be beneficial even to the adult legal representatives of Mr. Osman Azad, much less can they be so to the minors. It was said that ejectment of tenants is a time consuming litigation, and eject ment of unauthorised occupants, whose identity can surreptitiously change, means infinite patience, expenditure of huge amounts of money, combined with uncertainty.

6. We have heard counsel for the parties on three days. The first proposition, which we have to examine, is whether the Official Assignee has the locus standi to file these appeals as a receiver. W o should point out that he has filed them on behalf of the legal representatives of Mr. Osman Azad, and not as the appellant himself. According to him, the legal representatives are the parties in whom the title to the property vests, but he represents them before the Court. In paragraph 12 of the memorandum of the appeals he has said" "That on 28‑4‑1966 in Administration Suit No. 97/65, Muhammad Irfan v. Mst. Sultana and others this Hon'ble Court appointed Official Assignee as Receiver of the properties and claims of the deceased Muhammad Osman Azad hence the appeal by the Receiver." The above plea discloses that he does not purport to derive his authority from the appellants, but from his status of being the Receiver. In other words, he does not represent their will. This stand is consistent with his previous conduct, because he had obtained permission of the Court in above‑mentioned Administra tion suit to file the appeals, and obtained no authority from the appellants to do so. The learned Advocate, who has filed the appeals, has not been appointed by the appellants. His Vakalatnamas have been signed by the receiver as the appellant.

7. But the form of the appeals is not consistent with this stand, because the receiver does not figure in them as the appellant. On the contrary, the legal representatives of Mr. Osman Azad are named in the memorandums of appeals as the appellants. This should mean that the receiver purports to act on their behalf. If this was the situation, then, the receiver should have had the authority of the appellants to represent them, but he neither claims to hold a power of attorney from them, nor has he signed the memorandums of appeals on their behalf.

8. There is thus an inconsistency in the stand taken by him in paragraph 12 of the memorandums of appeals, and in the forms in which the memorandums have been prepared. We guess that this inconsistency has been created in order to take advantage of the minority of two appellants, whose next friend he has become ostensibly. He even applied under Order XXXII, rule 9, C. P. C. for the removal of the next friend, who had allowed the suits to be dismissed in default, and to be "formerly recorded" as the next friend of the minor‑appellants.

9. An attempt was made during the arguments to take advantage, for purposes of limitation, of the minority of two appellants as well as of the status of receivership. Section 6 of the Limitation Act is there to let an argument to be raised on the basis of minority, and the orders of the Court appointing the receiver and granting him permission to prefer appeals could be pressed into use on the ground of receivership. These pleas are set out in the affidavit filed in support of the application which was made to get the delay, which has occurred in the institution of the appeals, condoned. Those paragraphs are as under "(11) That two of the appellants are still minors, and I am advised, that it is not necessary that they should wait until they attain majority for taking proceedings to get rid of the conse quences of their next friend's negligence, and that they are entitled to condonation of delay in filing the appeal caused by the negligence of their next friend. (12) That as set out earlier on 28‑4‑66, I was appointed Receiver of properties and claims, etc. of the deceased Muhammad Osman Azad in Administration Suit No. 97/66, Muhammad Irfan v. Mst. Sultana and others and came to know of the dismissal of the suit for non‑prosecution in May 1966 when I recorded the statements for finding his properties and claims, etc. (14) That the Court gave requisite leave for filing the above appeal in August 1966. "

10. We would like to dispose of the above‑mentioned two contentions before proceeding further because they can be dealt with shortly and are basic for other considerations. The language of the above‑quoted paragraph (11) corresponds to the language of B. B. Mitra, which he has used to explain the views of the Privy Council in Phoolbas Koonwur v. Lalla Jogeshhur Sahoy (I L R 1 Cal. 226 at p. 243) with reference to section 6 of the Limitation Act. He has stated as follows: "The benefit of this section is not absolute; the plaintiff or applicant labouring under the disability is not bound to wait till the disability ceases. He has the option either to take proceed ings through his guardian or next friend, or to wait until the expiration of the period of his minority. The minor can bring a suit or make an application during his minority by his next friend, and can claim the benefit of this section. That is, this section will save such suit from the bar of limitation, even though instituted after the ordinary period prescribed for the suit." Note the words "suit" and "application", and mark the absence of any reference to "appeal" The reason is to be found in the section itself. Subsection (1) of the section, which is relevant at present, is as follows: "Where a person entitled to institute a suit or proceedings or make an application for the execution of a decree is at the time from which the period of limitation is to be reckoned. a minor, an insane, or an idiot he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time prescribed therefor in the third column of the first schedule."

11. The above language shows that legal inability is recognized by the law of limitation for purposes of institution of suits and making applications for executions. After this is done, the plaintiff or the applicant is to follow the ordinary law like any other party. He has to observe the law of limitation and cannot .4 be heard at every step to plead his legal inability for disregarding it, and thus to abrogate it for himself. B. B. Mitra has observed in his book on the Law of Limitation in his commentary on this section that: "This section will not grant an indulgence to a minor entitled to prefer an appeal."

12. Let me recapitulate the second argument for the sake of convenience. It is said that the Official Assignee was appointed as the receiver of the estate of Mr. Osman Azad in April, 1966, whereas these suits were dismissed for default in November and December, 1965; therefore, the receiver had no locus standi to act earlier than his appointment for the benefit of the estate, and that he came to know of the dismissal of the suits during certain proceedings held by him as the receiver in May 1966. Therefore, he could not act in this behalf earlier than his knowledge of the default. But actually, he did not act even in May 1966, for which omission his further excuse is that he had to obtain copies of the orders of dismissal, and then to get permission of the Court which had appointed him as the Receiver to prefer these appeals. The permission was granted in August, 1966 but the appeals were filed in December 1966. There is no explanation whatsoever for not instituting them until the 12th of December 1966.

13. The four months unexplained delay from August to December is itself fatal, because these being Letters Patent Appeals, the period of limitation for them is twenty days. In reality, the excuses put forward to explain inaction from‑ November 1965 to August, 1966 are also misconceived. Their gist is that the Official Assignee became responsible to protect the property of Mr. Osman Azad in April 1966 when be was appointed as the Receiver in the Administration suit but that this respon sibility could not be discharged by him until he came to know of` the dismissal in default of the suits. He is, according to his plea, free from any blame for delay in not filing the appeals forthwith. After knowledge, he had to obtain copies of the orders, and then to get permission of the Court to file them. If' we examine these excuses closely, we find that they are more in the nature of the receiver's personal explanations for delay in discharging his supposed duty. This is not the same thing as explaining delay in the institution of these appeals, because the adult‑appellants could themselves institute them, and the mother of the minors could act as their next friend. The Receiver has presumed that it was his duty to institute these appeals and of nobody else, with the result they could not be filed earlier. Both parts of his presumption are erroneous. The error of the second part has been explained. We proceed to explain the error of the first part.

14. His presumption that it was his duty to prefer these: appeals is founded on another presumption which is that his interest in the property is superior to that of the parties them selves, and also that having become the receiver in one nit, he can represent, in a paramount sense, the interest of the deceased owner in the estate for protecting it against the entire world,, including the consequences of the acts of the parties themselves by putting his foot into any dubious legal situation, and using the prestige of Court's orders for getting over the consequences of his, own omissions and misconceptions. It is noteworthy that the suits were dismissed for default on the ground that the legal representatives of the deceased declined to take interest in them, in spite of the warnings of their Advocate about the consequences. Their subsequent conduct was consistent with that decision because they did not tell the receiver of the default, nor did they request him to take any action in that behalf. He discovered the default, and proceeded to adopt means to protect the estate against. it, in other words; he has disregarded the decision of the parties not to pursue the suits on the pretext that he is responsible to protect the estate. Woodroffe has observed at page 170 of his book, The Law of Receivers (1964), on the authority of John Tiel & Co. v. Abdool Hye (19 W R 37 at. P. 38) that: "We need hardly here remark that on the original side of this Court, a question has been lately considered and discussed, at some length as to what are the proper functions, and what is the true status, of a receiver appointed by the Court in a Civil Suit, with the object of preserving property and of keeping it within reach of the Court until a final decree can be made between the parties. We may, however, say, we consider it to be quite settled that the Receiver, even in that case, can but exercise at the utmost such powers and rights over the property as the parties to the suit turn out to be possessed of when those rights are finally determined. He does not, as seems sometimes to be imagined, in some mysterious way, represent the Court itself and by virtue of its authority override the parties and all the world besides." The following remarks which appear in Basu's commentary on the Law of Receivers (1964) at page 29, should clarify the misconcep tion from another angle: "The receiver appointed in an ordinary Civil suit does not represent the estate nor the parties. He only holds the estate for the benefit of the successful litigant. Although the position of an administrator pendente lite is similar to that of a receiver, there is a distinction inasmuch as an administrator pendente lite represents the estate for all purposes except for distribution." Further at page 30 "He is not strictly a trustee, as he has not the legal title, and has assumed the performance of no express or definite trust:. He only obeys the orders and directions of the Court which he represents in holding the property. (Naumburg v. Hyatt, (1885) 24 Fed. 398 at 401). The relation between the receiver and the owner of the property is more like that of caretaker and owner. (Patterson v. Gas Light Co. 1896 2 Ch. D. 476 (483) C. A.)."

15. The conclusion, therefore, is that the Receiver, who was not a party to the suits, cannot assume the role of a super owner of the estate, and change the decision of the parties who had: declined to pursue the suits. He has no right to file these appeals from this point of view. The legal representatives of Mr. Osman Azad, including the minors who are named in the memorandums of appeals as the appellants, have not appealed; nor could they be represented by the Official Assignee without their authority simply because he is the Receiver in another suit, which happens to be an Administration Suit. If the Receiver has chosen to act as the next friend of the minors on account of greater sympathy for them, than their near relatives, including the mother, then, the first hurdle in his way is of limitation. It is true that a minor is not bound to wait until he attained the majority, and can take legal action by a next friend, but he cannot get the benefit of section 6 of the Limitation Act for preferring appeals. These appeals are hopelessly barred by time, and there is no good reason for condoning the delay.

16. As a result of the above discussion, we dismiss them with costs, which will be payable by the Receiver from the estate of the deceased, because these appeals were filed with the permis sion of the Court obtained in the Administration Suit. Appeal dismissed.