2012 PLP 999 (MLD)

RAUF AHMAD SHEIKH, J.

The petitioner has assailed the vires of judgment and decree dated 13-9-2011 passed by the learned Additional District Judge, Fatehjang District Attock whereby an appeal filed by him against the judgment and decree dated 15-4-2010 for recovery of Rs.24,000 as damages passed by the learned Civil Judge, Fatehjang District Attock was dismissed.

2. The facts in brief as emerge on perusal of record are that the plaintiffs/respondents filed a suit for recovery of Rs.24,000 as damages with the contention that the petitioner/defendant had filed a suit for recovery of Rs.25,000 for causing loss of trees and wheat crop to him which was dismissed after three years. It was contended that the respondents/plaintiffs belong to a respectable family. The plaintiff/ respondents Nos.1 and 4 are school teachers, plaintiff/ respondent No.2 is an army personnel and plaintiff/respondent No.3 is a police employee, who have been involved in the false, against the facts and without foundation litigation illegally so the defendant/respondent caused them mental and financial loses. With these averments a decree for sum of Rs.24,000 was prayed for.

3. The defendant/petitioner contested the suit and contended that the plaintiffs/respondents had cut the trees and crops standing on his land and have involved him in the false cases. It is contended that plaintiff No.3 is a police employee and he has filed the false suit to put pressure on him.

4. After recording the evidence and hearing the arguments, the learned trial court passed a decree for recovery of Rs.24,000 as damages in favour of the respondents and against the petitioner. The appeal filed by the petitioner was dismissed by the learned Additional District Judge.

5. The learned counsel for the petitioner has contended that the civil court had dismissed the suit for damages filed by him on 18-4-2005 whereas the appeal filed by him was dismissed on 23-2-2006 and the suit for damages was filed by the plaintiffs/respondents on 12-6-2008 and as such the same was hopelessly barred by time. It is contended that even if an objection as to limitation was not raised, it was the duty of the learned trial court and the learned Additional District Judge to determine the question of law at the first instance.

6. Controverting these arguments, the learned counsel for the respondents has contended that no objection was raised regarding limitation and as such the petitioner is estopped to agitate the same at this stage.

7. Admittedly, the appeal filed by the respondent against the judgment and decree of the civil court was decided on 23-2-2006 and the suit for damages was filed on 12-6-2008. The limitation for filing of suit for damages would commence from the date of decision of the appeal and same is one year under Article 23 of the first schedule of Limitation Act, 1908. The suit was therefore barred by time. Section 3 of the Limitation Act, 1908 clearly provides that a time barred suit would be dismissed although limitation has not been set up as a defence. This is the duty of the court to see if the suit instituted, appeal preferred and application made before it is within the prescribed period of limitation. The mere fact that this plea was not raised in the written statement was neither sufficient to overlook this important aspect of the matter nor to condone the delay. The learned Civil Judge and the learned Additional District Judge both failed to take notice of the fact that the suit was barred by time. They have committed material irregularity causing gross miscarriage of justice. Notwith-standing the concurrent findings on merits, this court has ample powers to interfere with the judgments which were passed in a time barred suit. The impugned judgments and decrees are not sustainable under the law.

8. For the reasons supra, revision petition is accepted and the impugned judgments and decrees are set aside. Resultantly, the suit filed by the respondents stands dismissed. However, the parties are left to bear their own expenses. K.M.Z./M-89/L Petition accepted.