2007 PLP 2215 (YLR)

MRS. QAISER IQBAL J, Through C.M.A. No.2511 of 2003 defendant No.1 rejection of the plaint is sought. Precisely facts leading to the case are that deceased Mrs. Gulshan Afroze filed suit against her son Muhammad Jamal for declaration, cancellation, accounts and permanent injunction in respect of 50% of her share along with her deceased husband Muhammad Yousuf in Plot No.15-A, Block No.6, P.E.C.H.S. Shahrah-e-Faisal, Karachi, with 'construction thereon. Muhammad Yousaf husband of Mst. Gulshan Afroze expired leaving behind her and other surviving legal representatives arrayed as party to the suit. In disputed property 50% share upon the death of Muhammad Yousuf devolved upon his widow and all surviving legal heirs in respect of commercial building comprising of shops and office and were entitled to inheritance in the rental income and profits. Controversy arose when the defendant No.1 convinced his deceased mother Gulshan Aforze expired during the pendency of the case to execute deed of relinquishment instead of power of attorney for management of the property. It is alleged that defendant No.1 obtained signatures of his mother and other legal representatives of the deceased in respect of 50% share on a deed of relinqueshment dated 4-4-1993 and also obtained signatures of the legal heirs of deceased Muhammad Yousuf on a similar deed of relinquishment dated 6-1-1993 without consideration, and upon claiming to be the absolute owner of the suit property started realizing income from the suit property. On the basis of deed of relinquishment defendant No.1 managed 50% share and his deceased after mutated in the record of P.E.C.H.S and deceased Gulshan Afroze share to the extent of 50% was also transferred in favour of defendant No.1 on the basis of gift deed dated 25-2-1993. Suit property was mortgaged by the father of the defendant No.1 in his lifetime with United Bank Limited. Several cases were pending, mother of the defendant No.1 decided to entrust the management of the suit property to the defendant No.1 executed a gift deed in 1993 as Benami with clear understanding to facilitate the defendant No.1 to manage and defend the cases. The mother defendant No.1 did not deliver physical possession and she resided in suit property along with her family members. Finding no way out Mst. Gulshan Aforze had proceeded to file suit for declaration and injunction. Mr. Habib-ur-Rehman, learned counsel for defendant No.1 has contended that the declaration has been sought in respect of 50% owner share. right in the property by the mother of defendant No.1 that gift deed dated 25-2-1993 neither conferred any right, title or interest in favour of the property, which was allegedly obtained through fraud ' and misrepresentation to the extent of the management of the suit property. It is contended that gift deed was registered on 25-2-1993; whereas on 15-3-2003 after the lapse of nine years hopelessly time-barred suit was filed. It is contended that on 30th January, 2004 defendant No.1 had agreed to enter into a compromise with his mother Mst. Gulshan Afroze, which was challenged in J.M. No.19 of 2004, dismissed on 30-5-2005, assailed in H.C.A. No.203 of 2005, whereby a Division Bench of this Court had ordered for disposal of pending application under Order VII, rule 11, C.P.C. Much of the emphasis has been laid in clauses (a) (c) and (f) of prayer pertained to the cancellation of the gift deed dated 25-2-1993 contending that Article 91 of Limitation Act shall be attracted to the facts of the present case, which reads as under: -- Description. of suit Period of limitation Time from which period begins to run

91. To cancel or set aside an instrument not other-wise prove deed for. 9 (Three years) When the facts entitling the plaintiff to have the instrument cancelled or set aside became known to him. In any view of the matter, article shall be applicable whereas suit was brought to cancel the instrument. It is urged that the plaintiff has resorted to file Suit No.1488 of 2002 in the Court of VIIth Senior Judge, Karachi-East, the plaint was rejected under Order VII, rule 11 vide order dated 21st December, 2002, appeal was not preferred, therefore, order has attained finality. The present lis is hit by Order II, rule 2, C.P.C. In support thereof reliance is placed on the case of Abdul Hakim v. Saadullah Khan PLD 1970 SC 63, wherein it has been held as under: "The expression "cause of action" in Order II, rule 2, C.P.C. Means the cause of action for which a suit is brought. In order that the cause of action for two suits may be the same, it is necessary not only that the facts which would entitle the plaintiff to the right claimed must be the same but also that the infringement of his right at the hands of the defendants complained against in the two suits, must have arisen in substance out of the same transaction. In considering the application of this bar, regards is to be had to the allegations in the two suits without .reference to the defence that may be set up by the defendants. As laid down by their lordships of the Privy Council in Muhammad Khalil Khan and others v. Mahbub Ali Mian and others (1)"the bar under Order II, rule 2, refers entirely to the grounds set out in the plaint as the cause of action or, in other words, to the media upon which the plaintiff asks the Court to arrive at a conclusion in his favour". A rough test, although not a conclusive one is to see whether the same evidence will sustain both suits which would be the case if both the suits are founded on continuous and inseparable incidents in the same transaction. The question, however, is to be examined in substance and not merely on form as the cause of action in the two suits may be found to be the same, in spite of the facts alleged not being exactly identical in the two cases. It is not open to the plaintiff to split up the parts really constituting the same cause of action anal file different suits in respect of them. In other words, a plaintiff must ask for all his reliefs which flow from the grievance cause to him by the infringement of his rights by the defendant in the course of the same transaction, but he cannot and is under no obligation to add to his grievances which did not occur in that transaction." It is further contended that section 3 of Limitation Act is mandatory in nature and every suit instituted after the period of limitation shall subject to the provision of sections 4 to 25 of that Act be dismissed, although limitation had not been set-up as a defence if the plaint appears to be barred by limitation as is laid down in the case of Muhammad Buta v. Habib Ahmad PLD 1985 SC

153. A duty has been imposed on Court itself in this regard. Mr. Abdul Ghafoor Qureshi, learned counsel for the plaintiff has contended that for interpretation of provision of Order VII, rule 11, C.P.C., plaint explicitly is required to be looked into whether plaint is closed one or more of the causes of action the suit shall proceed in respect thereof. In the prayer clause contained in plaint not only the cancellation of gift deed is sought, it pertains to the adjudication of the income rentals arising out of 50% share of Mst. Gulshan Afroze, which upon her death has devolved upon legal heirs including defendant No.1, therefore, plaint cannot be rejected in part. Adverting to rule 2, Order II, it is contended that every suit must include the whole of the. claim in respect of the cause of action if a plaintiff fails or omits to sue in respect of a claim or a relief arising out of that, cause of action, he shall not afterwards sue for such claim or relief since suit shall proceed as regards causes of action therefore, it will not be appropriate to reject the plaint. In this context reliance is placed on PLD 1993 Lahore 183, (Mst. Iqbal Begum v. Farooq Inayat). It is urged that possession was not delivered under the gift deed to the defendant No.1 and the question of delivery of possession to the donee would require evidence. As the main ingredients of the gift was missing, as the suit property was in possession of the tenants, therefore, gift cannot be given any consideration. I have considered the arguments advanced at bar. Learned counsel for defendant No.1 has contended that plaintiff has sought relief of declaration which is the main basic relief coupled with cancellation of the gift deed which did not confer any right, title or interest in favour of the defendant No.1. Consequently sought relief for cancellation of mutation in society's record. Under the above circumstances, right to sue for declaration of gift deed did not confer any right, title or interest accrued to her on 25th of February 1993, when a Declaration and Confirmation of Oral Gift was registered before sub-Registrar 'T' Division in favour of donee defendant No.1, as a consequence of pronouncement of Oral Gift Deed and acceptance on 1-1-1993 50 % undivided share in the suit property was gifted and title documents were delivered to the defendant No.1, therefore, right to sue had accrued to the plaintiff when the gift deed was executed and subsequently' on such dates when the facts entitling the plaintiff to have the 'instrument cancelled became known. Suit property is alleged to have been occupied by the tenants ex-facie spelled out from the contents of the plaint. A gift under the Muslim Law which is unaccompanied by possession is void ab initio, therefore, plaintiff denying the validity of the gift shall have set aside as the plaintiff is in possession of suit property. The time under Article 91 runs from the date when the facts entitling the plaintiff to have the instrument cancelled become known to her. In this context knowledge would run, in any case of registered deed cause of action of cancellation/revocation of deed would start from the date of its registration. The donor died after the filing of the suit. The question of limitation becomes a question of law if the facts necessary for resolution of the question are available on record. In any case, the plaintiff did not deny the execution of' the gift deed but it is contended to have obtained by practising fraud. The conduct of the plaintiff that after the execution of the gift deed she slept over the matter to invoke the jurisdiction of the Court for nine years after execution of the documents, presumption is always in favour of due performance of acts and duties and thus otherwise has to be pleaded and cogently proved.. I am in respectable agreement with the learned counsel for the defendant No.1 that Article 91 of the Limitation Act is attracted to the facts of the present case, as a cause of action for cancellation of the registration gift deed would start from the date of registration and once period of limitation starts running it would not stop except in an extra-ordinary circumstances attached to plaintiff. Adverting to the second contention raised by-the learned counsel for defendant No.1 that in earlier round in litigation plaintiff has resorted to file Suit No.1488 of 2002, which was dismissed on the point of limitation, no appeal was preferred as spelied out from the contents of the plaint. It appears that in Suit No.1488 of 2002 plaintiff has omitted the relief of t declaration that gift deed dated 25th of February 1993 in favour of defendant No.1 to the extent of the share of the plaintiff was only for the management of the property obtained by fraud and mis representation, .the deed was only a family arrangement for settlement of conflict and not a gift deed therefore, defendant No.1 was liable to be surrendered the same as the plaintiff is still in possession of the suit property. Provision of Order II, rule 2, C.P.C. in clear terms disclosed that the omission or failure to the knowledge of any of relief as relinquishment of such claim, therefore a party instituting proceedings includes all reliefs flowing out of main grievance omission would be fatal. However any relief which flows out of basic grievance is not claimed or omitted then such party stands precluded from agitating those reliefs. Subsequently, therefore, the main object of the above provision- is to avoid splitting of claim and restrict multicipility of rejection. In the case of Mrs. Irene Wahab v. Lahore Diocesan Trust Association 2002 SCMR 300, while dilating on the issue, it has been observed as under:-- "It is settled law that the suit under Order II, rule 2, C.P.C. would be barred only if in a previous suit, a relief which was available in relation to cause of action stated in the said suit but was not claimed." It is admitted fact that previous suit was filed by the plaintiff on the same cause of action, a copy of the plaint of the previous suit rejected under Order VII, rule 11, C.P.C. being barred by law of limitation in between the same parties prima facie established that present suit is hit by section 11 of C.P.C. Learned counsel for the plaintiff was unable to point out any ground suggesting non-applicability of Order II, rule 2, C.P.C. After taking into consideration the facts contained in the plaint and documents relied upon by the plaintiff. I am of the view that the plaint is not sustainable in law and liable to be rejected. Consequently, application is allowed. Plaint stands rejected under Order VII, rule 11, C.P.C. S.A.K./G-13/K Plaint rejected.