P L D 1985 Supreme Court 153 (PLP)

M. S. H. QURAISHI, J.-This appeal, by leave of the Court, arises out of a suit for mandatory injunction instituted by the appellants. A room in Property No. P. 112, Street No. 3, Lakkar Mandi, Lyallpur, had been transferred by the settlement authorities in favour of Rehmat Ullah, father of the appellants, and the contiguous room in the same property to Nizam Din, predecessor-in-interest of respondents Nos. 1 and 2, There were other rooms also which had been transferred to their respective occupants. The open courtyard, appurtenant to the property, had not been transferred to any one and according to the appellants it was meant for the common enjoyment of all the transferees of the property. The appellants, therefore, felt aggrieved by the construction of two rooms and two latrines on a part of the courtyard by respondents Nos. 1 and

2. Accordingly they instituted the suit on 20-3-1970 for a mandatory injunction directing the said respondents to demolish the two rooms and the latrines and thus vacate the nuisance. Other transferees were also impleaded out most of them remained absent and were proceeded against ex parte, while respondents Nos. 20 to 20, who were minors, supported the claim of the appellants.

2. On the question of limitation of the suit which was subject-matter of issue No. 3, the trial Court came to the view that the illegal construction constituted a continuing wrong within the meaning of section 23 of the Limitation Act and that, as such, the suit was within time. On the basis of this finding and the findings on other issues the suit was decreed. The appellate Court did not examine the question of limitation as respondents Nos. 1 and 2 did not challenge the finding on that issue before the appellate Court but confined their arguments to issue No. 6 which related to the question of the legality of the construction raised by the said respondents. The appellate Court held that the courtyard having not been specifically transferred to any one, it could be safely concluded that the same was left for the enjoyment of all the transferees. The appeal was accordingly dismissed and the decree affirmed. The revision filed by respondents Nos. 1 and 2 was, however, accepted by a learned Judge of the Lahore High Court who re-opened the question of limitation, observing that the question could have been considered independently of any concession made thereon by either one or both the parties and held that the suit was barred by time. He also held that the courtyard still vested in the compensation pool and, therefore, the civil Court had no jurisdiction to pass any order concerning the same. Consequently he dismissed the appellants' suit with costs.

3. Leave was granted to consider whether the High Court was justified in re-opening the question of limitation of the suit which had been given up by respondents Nos. 1 and 2 in appeal and whether the respective transfers must be construed to have been made alongwith the appurtenant rights to the common use of the courtyard.

4. The words of section 3 of the Limitation Act are mandatory i nature in that 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 has not been set up as a defence. If from the statement in the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected also under Order VII, rule 11, C. P. C. The law, therefore, does . not leave the matter of limitation to the pleadings of the parties. It imposes a duty in this regard upon the Court itself., There is a chain of authority, and a detailed discussion of the same is not necessary, to lay down that limitation being a matter of statute and the provisions being mandatory, it cannot be waived and even if waived can be taken up by the party waiving it and by the Courts themselves. In Sitharama v. Krishnaswami (I L R 38 Mad. 374), where .the defendants had pleaded the bar of limitation but the trial Court had held that they having admitted their liability for the amount in resisting the plaintiff's application in a previous suit, were estopped on general principles of law and equity from pleading that the suit was barred by limitation. It was ruled that the defendants were not estopped and it was observed that "the bar of limitation cannot be waived, and suits and other proceedings must be dismissed if brought after the prescribed period of limitation" and that "the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognised by it". The same Court in a subsequent case, Ramamurthy v. Gopayya (I L R 40 Mad. 701), reiterated that the parties cannot estop themselves from pleading the provisions of the statute of limitation. The Lahore High Court also took a similar view in Kundo Mal v. Firm Daulat Ram (A I R 1940 Lah. 75), and held that "there is abundant authority :n support of the proposition that.objections regarding limitation cannot be waived and that even if they are waived they can be taken up again by the parties waiving them or by the Courts themselves".

5. However, in exceptional cases, a defendant has been held to be debarred from raising the plea of limitation on the general principle of estoppel arising from his conduct. This will be particularly so if the plea belatedly taken involves an inquiry on facts. A Full Bench of the Allahabad High Court, in its revisional jurisdiction, in Ganda Lai v. Hazari Lal (I L R 58 All. 313) observed : "Now section 3 of the Limitation Act is imperative and it casts a duty upon the Court to dismiss an application which Vas not been made within the period prescribed in the schedule. The duty of the Court is not dependent on an objection being raised by the opposite party. Where, therefore, the application is on the face of it barred by limitation, it is the duty of the Court to dismiss it summarily and there is no occasion for calling upon the judgment debtor to show cause why it should not be admitted. Where, however, the question of limitation depends on a question of fact which cannot be determined without taking evidence, the position would certainly be different." Similar view was expressed in Umar v. Afridal (P L D 1954 Pesh. 96), in the words : "The question of limitation may be one of fact or of law, if former the Court is not bound to go into it unless raised by the parties, and if latter the Court is as a general rule bound to raise and decide it, although not raised by the parties." A Division Bench at Karachi in Agha Mir Ahmad Shah v. Agha Mir Yaqub Shah (P L D 195'. Kar. 258), relying on the Privy Council rulings in Shankar Lal Narayan Das v. The New Mofusail Co. Ltd. (AIR 1946 P C 97), Bhupendra Narain Sinha v. Rafeswar Prasad (A 1 R 1931 P C 162), Mudanna Virayya v. Muddana Adenna (AIR 1930 P C 18) and James Richard, Rannel Skmiro v. Kunwar Naunihal (AIR 1929 P C 158), obversed that though a plea of limitation can be raised in a Court of last resort, but for that 1t is necessary that there must be sufficient material on the record to decide such question and that "if the plea of limitation in a particular case is a mixed question of law and fact, that it will be highly improper to allow the plea to be raised" This was reiterated in Ismail v. Abdullah (P L D 1963 Kar. 161). The same view was also held by the Dacca High Court in Kumudini Welfare Trust v. Pakistan (P L D 1959 Dacca 417). The "plea of limitation" as held by the Sind High Court in Noor Muhammad.v. Abdul Hamid (1984 C L C 23), "can be allowed to be raised even at the revisional stage if on admitted facts a case of limitation is made out".

6. It follows that where the question of limitation is not a mixed question of law and fact or where limitation is apparent on the face of the record, a waiver by the parties would not relieve the Court itself of its duty under section 3 of the Limitation Act and a waiver by the Court of the question of limitation is not contemplated. This Court had in C Ahsan Ali v. District Judge (P L D 1969 S C 167) clearly laid down that it was the duty of the Court to notice the point of limitation, whether the plea of limitation was raised or not, and that a waiver of the question of limitation is not permissible, even where the period of limitation is prescribed by special or a local law.

7. Learned counsel for the appellants, however, urged that the High Court in its limited jurisdiction under section 115, C. P. C. could not suo motu re-open the point abandoned by the respondents in appeal. For this he relied on Venkatagiri v. H. R. E. Board, Madras (P L D 1949 P C 26), which was followed by this Court in Kanwal Nain v. Fateh Khan (P L D 1983 S C 53). But in that cited case, the High Court had interfered on the ground that the subordinate Court had made a serious mistake in the construction of will and it was in that context that the Privy Council had observed "If the High Court is satisfied upon these matiers (enumerated in section 115) it has no power to interfere because it differs, however, profoundly, from the conclusions of the subordinate Court upon questions of fact or law." The ruling, as is apparent, is not on all fours with the present case, because here, the High Court has interfered not because the evidence on record admitted of the possibility of another view, but because the trial Court bad reached a finding not sustainable in law and the appellant Court had omitted to examine the correctness of that finding for the reason of the defendants having chosen to abandon their objection to it. It was held in Tara Sankar Ghosh and others v. Basiruddin and others ((1915) 19 C W N 97), that a wrong decision on limitation will not debar the High Court from revising such decision. The waiver by the respondents before the appellate Court and the omission on the part of that Court to decide the question, will, therefore, not deprive the High Court of its power under section 115, C. P. C. to suo motu go into the question if the material already on record was sufficient to establish that the suit was beyond time. This is supported by the dictum of this Court in Manager, Jammu and Kashmir State Property v. Khuda Yar (P L D 1975 S C 678) "The scope of the revisional powers of the High Court though circumscribed by conditions of excess of jurisdiction, failure to exercise jurisdiction, illegal exercise of jurisdiction, is nevertheless very vast and corresponds to a remedy or certiorari and in fact goes beyond that at least in two respects inasmuch as : Firstly, its discretionary jurisdiction may be invoked by the Court suo motu, and secondly, the Court `may make such order in the case it thinks fit'."

8. The High Court has found that the constructions in dispute in the courtyard had been in existence long before the settlement operations began and as such even if it be assumed that the courtyard had been left for common enjoyment, no such easement could be raised regarding the constructions already made in the courtyard and that if the constructions were already there, before the transfers were ordered, it could not be held that there was any violation of the right of the appellants since on the day they were raised, no such right, as claimed by .the appellants, vested in them. In the circumstance, the High Court held that it was not a case of "continuing" injury within the meaning of section 23 of the Limitation Act. For this, the learned Judge had relied on Khair Muhammad Khan v. Mst. Jannat (A I R 1940 Lah. 359) and Lal Singh v. Hira Singh (A I R 1921 Lah. 242). In the first cited case, which was of encroachment by a joint owner by building chabutra on common land claiming it as his own, it was held that tile encroachment did not constitute a continuing wrong within the meaning of section 23 because it was complete ouster and. a wrong complete at the time the construction is put up and hence the suit would be governed by Article 120 of the Limitation Act. In the second cited case where the defendants being joint owners of a certain courtyard had erected thatched sheds in front of their house, it was held, that a suit for perpetual injunction to issue to them directing them to remove the said chhappars and to restore the courtyard to its former condition did not attract section 23 of the Limitation Act but Article 120 thereof. It is to be noticed that the respondents at the very outset in their written statement asserted that some of the disputed construction had been built by the evacuee owners of the property since before independence and that the remaining portion had also been built in 1947-48. This finds support not only from the evidence led by them but also by the evidence produced by the appellants themselves. Hakim Muhammad Buta, appellant No. 1, appearing as P. W. 1 had stated The view taken by the High Court that the constructions were complete at the time the transfers were made in favour of the parties and that, therefore, the quit was not governed by section 23 of the Limitation Act is thus not open- to exception. The ruling in Nur Muhammad v. Gauri Shankar (56 I C 1003), relied upon by learned counsel for the appellants., is not. attracted because there the question was of discharge of rain water by the defendant on to the roof of the plaintiffs' shop, which, in the view of the High Court, gave a fresh cause of action on each occasion of the discharge of water. On the facts of the present case, the suit instituted in 1970 was thus clearly barred by time.

9. On the other question, whether the appellants had appurtenant right to the common use of the courtyard, the learned Judge had rightly/l held that as the constructions were already existing at the time of transfer of the room in favour of the appellants, they could not claim such right.

10. The appeal must, therefore, fail and is accordingly dismissed, though there shall be no order as to costs. M. Z. M. Appeal dismissed.