2024 PLP 485 (MLD)

CH. MUHAMMAD IQBAL, J.

Through this Civil Revision, the petitioner has challenged the vires of order and decree dated 30.06.2017 passed by the learned Civil Judge, Lahore whereby application under Order XXIII, Rule 2, C.P.C., filed by respondent /defendant No.4 Shaukat Ali was accepted and plaint of suit filed by the petitioner was rejected under Order VII, Rule 11, C.P.C. and also assailed the judgment and decree dated 05.01.2019 passed by the learned Addl. District Judge, Lahore who dismissed the appeal of the petitioner.

2. Brief facts of the case are that the petitioner / plaintiff filed suit for specific performance of agreement to sell dated 05.01.2005 with permanent injunction against the respondents / defendants contending therein that the petitioner purchased plot No.44 measuring 16-Marlas situated in Ghee Corporation Employees Cooperative Housing Society, Lahore from respondent No.4 against consideration of Rs.15,00,000/- which was totally paid and transfer order and original papers were also handed over to the petitioner. Petitioner approached respondents Nos.2 and 3 for the transfer of the said plot but the original documents including the agreement to sell were misplaced by the petitioner. Respondent No.1 then executed fresh agreement to sell dated 05.01.2005 in favour of the petitioner. Again the petitioner approached the respondents Nos.2 and 3 for transfer of said plot and matter was in process. Petitioner filed suit for permanent injunction against the respondents with the prayer to restrain the respondents Nos.1 and 2 from transferring the plot in question in favour of respondent No.4. Thereafter said suit was dismissed as withdrawn by the petitioner on 03.03.2010 with permission to file fresh one. The plot was transferred in favour of respondent No.4 Shaukat Ali. Then the petitioner filed suit for specific performance against the respondents in which respondent / defendant No.4 filed application under Order XXIII, Rule 2, C.P.C., which was accepted by the learned trial court vide order and decree dated 30.06.2017 and plaint of the suit filed by the petitioner was rejected under Order VII, Rule 11, C.P.C. The appeal of the petitioner was also dismissed by the learned appellate court on 05.01.2019. Hence, this civil revision.

3. I have heard the arguments advanced by the learned counsel for the parties at full length and gone through the record with their able assistance.

4. The main contention of the learned counsel for the petitioner is that as the petitioner/plaintiff withdrew the earlier suit with permission to file the fresh one, thus, the second suit cannot be dismissed mere on the ground of limitation, as it is a mix question of law and facts and can only be decided after recording evidence of the parties. This argument of the learned counsel lacks any force as under Section 9 of the Limitation Act, 1908 once time/limitation has begun to run, the subsequent disability or inability does not stop it. For ready reference, Section 9 of the Act ibid is reproduced as under:- "

9. Continuous running of time. Where once time has begun to run, no subsequent disability or inability to sue stops it: Provided that where letters of administration to the estate of a creditor have been granted to his debtor, the running of the time prescribed for a suit to recover the debt shall be suspended while the administration continues." Further, under Order XXIII, Rule 2, C.P.C. when first suit was dismissed as withdrawn and second suit was filed either permission was granted that would not help the party to escape from applicability of limitation as prescribed in Rule 2 of Order XXIII, C.P.C, as under:- "

2. Limitation law not affected by first suit.

In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit has not been instituted." Alike controversy has been resolved by the Hon'ble Supreme Court of Pakistan in a case titled as Syed Athar Hussain Shah v. Haji Muhammad Riaz and another (2022 SCMR 778) wherein it is held that:- "

10. The petitioner's conduct in filing the first suit, not paying requisite court fee, which resulted in the rejection of the plaint, filing the second suit, withdrawing it, and then filing the third suit is inexplicable. However, what requires determination is whether the third suit was filed within the prescribed period of limitation. It needs consideration whether once the period of limitation commences it can be stopped or be avoided by introducing another cause of action or relief in the suit or by reformulating them. The answer is provided by section 9 of the Limitation Act, 1908, reproduced hereunder: '

9. Continuous running of time: Where once time has begun to run, no subsequent disability or inability to sue stops it.' The rejection of plaint in the first suit and the withdrawal of the second suit would not help avoid the period of limitation as is made clear from Rule (2) of Order XXIII of the Code, reproduced here: '

2. Limitation law not affected by first suit. In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted.'

11. We now proceed to consider the applicable period of limitation. The first suit had sought the specific performance of the agreement and the second suit also the cancellation of the sale deed. For both these causes of action the prescribed period of limitation is three years as respectively provided under Article 113 and Article 91 of the First Schedule of the Limitation Act, 1908. The petitioner's third suit had sought the specific performance of the agreement, the cancellation of the sale deed, which was executed when there was no suit pending, and a declaration with regard to the ownership of the land. The third suit was filed after three years and was time-barred with regard to seeking the specific performance of the agreement and for the cancellation of the sale deed. We are now left to consider whether the third suit was saved because it had also sought a declaration of ownership of the land as submitted by the petitioner's learned counsel for which Article 120 prescribes six years period of limitation. The Privy Council in the case of Janki Kunwar v. Ajit Singh held that the substance of the relief has to be seen, and if a relief is added for which there is a longer period of limitation it would not save the suit. That was a case in which the plaintiff had added the relief of possession of immovable property, which had 12 year's limitation, to the relief of setting aside a deed of sale, for which the period of limitation was three years under Article

91. In Muhammad Javaid v. Rashid Arshad this Court held that, 'If the main relief is time barred and the bar is not surmounted by the respondent, the incidental and consequential relief has to go away along with it and the suit is liable to be dismissed on account of being time barred'. An examination of the petitioner's plaint makes it clear that the petitioner had primarily sought the specific performance of the agreement, then the cancellation of the sale deed and had added the declaratory relief to primarily save the third suit from the consequence of having been filed beyond the period of limitation." Reliance is also placed on the case titled as Mst. Anwar Bibi and others v Abdul Hameed (2002 SCMR 144).

5. Admittedly, the petitioner firstly filed suit on 25.07.2005 for permanent injunction against the respondents/defendants in respect of the suit property. He withdrew the said suit on 03.03.2010 with permission to file fresh one. Thereafter, on 16.03.2010 the petitioner/plaintiff filed suit for specific performance of agreement to sell dated 05.01.2005 in respect of the suit property after lapse of 05-years, 02-month and 11-days whereas under Article 113 of the Limitation Act, 1908, the prescribed period of limitation to file a suit of specific performance of an agreement to sell is 03 years, as such, the suit of the petitioner / plaintiff was barred by time. The said provision of law is reproduced as under:- Description of suit property Period of limitation Time for which period begins to run 113 For Specific performance of a contract Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused. With regard to the question of limitation the Hon'ble Supreme Court of Pakistan in its latest judgment titled as "Muhammad Sadiq and others v. Muhammad Mansha and others" (PLD 2018 SC 692) held as under:- "Therefore in the ordinary course it is the first limb of Article 113 of the First Schedule to the Limitation Act, 1908 that would have applied and the suit would have become barred by limitation after 28.5.1986. However, the learned High Court took the view that since the property was mortgaged limitation did not begin to run till such time as it was redeemed which came about around 28.11.1988. On such basis it was held that the suit was within time. In our view, with respect, the reasoning and the conclusion of the learned High Court proceeded on a fundamental misconception of the law. As is well known, when a property is mortgaged by one person to another the interest that is left in the hands of the mortgager is called the equity of redemption. Now, the equity of redemption is itself immovable property which can be dealt with as such by the mortgager, whether by way of sale, subsequent mortgage, gift or transfer but subject always to the rights and interests of the mortgagee. In other words the existence of a mortgage on immoveable property does not in or itself constitute a bar to subsequent dealing by the mortgager as regards the equity of redemption."

6. Under Section 3 of the Limitation Act, it is the duty of the Court to take cognizance regarding question of the limitation at any stage of trial either the objection is raised by any party or otherwise and it should have to decide the point of limitation at the first instance and then proceed further with the trial of the case. Reliance is placed on the case titled as Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others (2022 SCMR 933) wherein it is held as under:- "9 ..The Court under section 3 of the Limitation Act is obligated independently rather as a primary duty to advert the question of limitation and make a decision, whether this question is raised by other party or not .." In view of the aforesaid facts and circumstances of the case, the learned trial Court rightly accepted the application of the respondent/defendant under Order XXIII, Rule 2, C.P.C and rejected the plaint of the suit filed by the petitioner/plaintiff which just decision was rightly upheld by the learned appellate Court.

7. Learned counsel for the petitioner has not been able to point out any illegality or material irregularity in the impugned order / judgment and decrees passed by the learned Courts below and has also not identified any jurisdictional defect. The concurrent findings of fact are against the petitioner which do not call for any interference by this Court in exercise of its revisional jurisdiction in absence of any illegality or any other error of jurisdiction. Reliance is placed on the case titled as Mst. Zaitoon Begum v. Nazar Hussain and another (2014 SCMR 1469).

8. In view of above, this Civil Revision is dismissed being devoid of any merits with no order as to cost. JK/J-9/L Revision dismissed.