2022 PLP 81 (CLC)

ABDUL HAMEED BALOCH J.

The petitioner/ defendant assailed judgments and decrees dated 29th October, 1999 and 9th April, 2013 (impugned judgments and decrees) passed by learned Qazi Lasbella at Uthal and learned Majlis-e-Shoora Lasbella at Hub (trial and appellate court), whereby the suit filed by the respondent / plaintiff was decreed and the appeal filed by the petitioner/ defendant was partly allowed.

2. Concise facts of the case are that the respondent/ plaintiff filed a suit for specific performance and restoration of Mutation No. 188 in respect of land falling under Khasra Nos. 470, 471, 472 and 473, measuring 10 acres, 0 rod, 33 poles situated at Mouza Bhagiari Tehsil Bela, description whereof mentioned in para-1 of the plaint, against the petitioner/ defendant in the court of learned Qazi Lasbella at Uthal, which was contested by the respondent/ plaintiff on legal as well as factual grounds by filing written statement. The trial court out of the pleadings of the parties framed issues, on which both the parties to the lis produced pro and contra evidence. On culmination of trial the learned trial court heard arguments and thereafter vide impugned judgment and decree dated 29th October, 1999 decreed the suit. Being aggrieved the petitioner/defendant preferred appeal before learned appellate Court, who vide judgment and decree dated 14th March, 2001 dismissed the same. The petitioner/ defendant assailed both the judgments and decrees before this court and this court vide judgment dated 15th May, 2006 set aside the judgment and decree of the appellate court and remanded the matter to the trial court for decision afresh. After remand the learned appellate court vide judgment and decree dated 22nd August, 2006 modified the judgment and decree dated 29th October, 1999 of the trial court. The petitioner/ defendant being aggrieved of both the judgments and decrees of the trial and appellate court filed Civil Revision Petition No. 340 of 2006 before this court, while the respondent/ plaintiff being aggrieved of the judgment and decree of the appellate court also filed Civil Revision No. 264 of 2006. This court vide common judgment dated 31st December, 2012 remanded the matter to the learned appellate Court. Meanwhile Muhammad Siddique filed review Applications Nos. 1 of 2013 and 2 of 2013 in Civil Revision Petitions Nos. 264 of 2006 and 340 of 2006 before this court, but during pendency of the review applications the learned appellate court decided the matter vide impugned judgment and decree dated 9th April, 2013 dismissed the appeal, hence the petitioner/ defendant is before this court.

3. The learned counsel for the petitioner/ defendant stated that the evidence respondent/plaintiff is self contradictory from the evidence of the respondent/plaintiff, his contention has not been proved. There is no evidence in regard of payment of consideration made to the petitioner / defendant. The respondent / plaintiff had tried his luck in revenue hierarchy. The matter went up to Honorable Supreme Court, whereafter, the respondent/ plaintiff filed instant suit. The suit of the respondent/ plaintiff was barred by time, but the courts below have overlooked the limitation on flimsy grounds and decided the issue of limitation in favour of the respondent/ plaintiff. Under Article 113 of the Limitation Act, 1908 (Act, 1908) the period provided for filing suit for specific performance is three years. The concurrent finding is based on misreading and non reading of evidence.

4. Conversely the learned counsel for the respondent/ plaintiff strongly opposed the contention of the petitioner/defendant and stated that such delay was satisfactorily proved through evidence. The sale consideration was made to her. The respondent/plaintiff approached the revenue hierarchy for cancellation of mutation. The entries were made in the name of respondent/ plaintiff by the revenue authority. The Collector cancelled it, whereafter, the respondent/plaintiff assailed the impugned order before Honorable Supreme Court of Pakistan. On direction of Apex court filed civil suit. As per Section 14 of the Act, 1908 the time shall be excluded where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature is unable to entertain it. The learned counsel placed reliance on following case laws: Sherin v. Fazal Muhammad 1995 SCMR 584 2013 SCMR 171 2012 MLD 1607

5. Heard and perused the record with the assistance of learned counsel for the parties. The record reflects that the respondent/plaintiff filed a suit for specific performance and restoration of mutation in respect of land bearing Khasras Nos. 470, 471, 472, 473, measuring 10 acres, 0 rod, 33 poles situated at Mouza Bhagiari Tehsil Bela, stating that the petitioner/defendant entered into sale agreement with respondent/ plaintiff against sale consideration of Rs.3,15,000/-, out of which Rs.15,000/- cash, tractor along with instruments worth Rs.200,000/-, one she camel worth Rs.40,000/-, one camel worth Rs.20,000/- and one cow worth Rs.40,000/- were received by the petitioner/defendant and possession of the land was handed over to the respondent/plaintiff. In this regard on 2-3-1991 an agreement was also executed between the parties. Whereafter, the petitioner/ defendant backed out. On 24th November, 1994 the respondent/ plaintiff deposited mutation fee, whereof mutation No. 188 was effected upon the name of respondent/ plaintiff. The petitioner/ defendant filed appeal before Collector, who cancelled mutation No.

188. The respondent/ plaintiff assailed the order of Collector before Commissioner Kalat Division which was accepted on 16th October, 1995 and declared mutation No. 188 was valid. The petitioner/ defendant challenged the order of Commissioner before Member Board of Revenue by way of appeal which was allowed. The respondent/ plaintiff approached before this court as well as Honorable Supreme Court but could not succeed, then filed the referred to civil suit. The petitioner/defendant did appear, filed written statement wherein raised legal as well as factual objections and repudiated the claim of the respondent/plaintiff. The parties led evidence in pro and contra. The trial court decreed the suit vide judgment and decree dated 29th October, 1999. The appellate court dismissed the appeal vide judgment and decree dated 14th March, 2001. The petitioner assailed both the judgments and decrees before this court which was accepted by this court vide judgment dated 15th May, 2006 whereby the judgment and decree of Majlis-e-Shoora dated 14th March, 2001 was set aside and matter was remanded to the appellate court for decision afresh. After remand the appellate court vide judgment and decree dated 22nd August, 2006 modified the decree of the trial court to the effect that the respondent/ plaintiff has to pay Rs.200,000/- to the petitioner/ defendant. Again the petitioner/defendant assailed the judgment and decree by filing Civil Revision No. 340/2006, while the respondent/ plaintiff also filed Civil Revision No. 264/2006 before this court. This court vide judgment dated 31st December, 2012 accepted both the revision petitions and remanded the matter to the learned appellate court with observation that the issue of limitation has to be deal properly. After remand the learned appellate court vide judgment and decree dated 9th April, 2013 dismissed the appeal of petitioner/ defendant.

6. Before dilating upon evidence it would be appropriate to reproduce Section 14 of the Limitation Act, 1908 for ready reference: "

14. Exclusion of time of proceeding Bona fide in Court without jurisdiction.

(1) In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. (2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it. Explanation I.

In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted. Explanation II.

For the purposes of this section, a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding. Explanation III.

For the purposes of this section misjoinder of parties or of cause of action shall be deemed to be a cause of a like nature with defect of jurisdiction"

7. The requirement of referred to section is that the party/parties initiated proceeding in good faith in the wrong forum and after coming to know that he has stalled proceeding in wrong forum came to the court where actually the suit was filed. Admittedly the previous proceeding was initiated by the respondent/plaintiff in revenue hierarchy under Land Revenue Act, 1967. The record reveals that the respondent/ plaintiff has been directed by the Member Board of Revenue to approach civil court for redressal of his grievance, but instead of approaching proper forum assailed the order/judgment of Member Board of Revenue before this court which was dismissed. The judgment of this court was also assailed before Honorable Supreme Court which too was dismissed meaning thereby that the respondent/plaintiff willfully did not approach the proper forum within time. The benefit of Section 14 of the Act, 1908 can only be sought if proceedings are initiated in wrong forum in good faith. Reliance is placed on case Muhammad Ashraf v. Jaffar, PLD 2016 Lahore 487, wherein it was held: "

6. I have heard the learned counsel for the parties and gone through the record. The agreement is dated 09.01.1989 between plaintiffs and defendant No.1 which is Exh.P.1 and the suit has been filed on 29.08.1994. Limitation for filing a suit for specific performance is provided under Article 113 of the Limitation Act, 1908 for three years from the date fixed for performance and in agreement to sell Exh.P.1 the date fixed for performance was 20.01.1994 and filing of suit on 20.08.1994 was certainly barred by limitation. In the light of the case law referred by the learned counsel for the petitioners benefit of Section 14 of the Limitation Act cannot be given to the petitioners/ plaintiffs. A person claiming benefit of section 14 of the Limitation Act, 1908 is required to prove that he initiated the proceedings in good faith in the wrong Court and after coming to know that he has started proceedings the wrong Court comes to the Court where actually the suit was to be filed then only he can take the benefit of section 14 ibid. In the case in hand, previous proceedings initiated by the plaintiffs/petitioners were under Arbitration Act on the basis of some Award for making the same Rule of the Court when the learned Court refused to make the Award Rule of the Court the suit in hand for specific performance on the basis of agreement to sell has been filed. In this way both the proceedings i.e. the Arbitration proceedings and the instant suit are absolutely independent proceedings and further on the basis of separate cause of action. Therefore, plaintiffs/petitioners cannot claim the benefit of Section 14 of the Limitation Act. The suit was certainly barred by limitation and learned lower appellate Court has rightly accepted the appeal and dismissed the suit." Reliance is also placed on case Bashir Ahmed v. Muhammad Ashraf, PLD 2001 SC 228, in which it was observed: "

9. Adverting to the plea that as the petitioner was illiterate and unaware of legal complications he should not be made to suffer for the act of his counsel on account of pendency of his appeal before the District Court, suffice it to say that ignorance of law has never been considered by the Courts as a valid excuse. As to the brief placed in the hands of the counsel it was equally important to ensure that the counsel acted with due diligence and did not demonstrate lack of care and prudence. Since the mistake in approaching the wrong forum was committed by his counsel due to gross negligence and it does not appear on the face of record that he had shown due diligence and caution before moving the wrong forum only remedy for the unlucky client appears to be to sue him for damages for the loss suffered due to his gross negligence: There is string of authorities that Courts could show indulgence and condone delay where time has been lost by pursuing remedy before wrong forum on account of bona fide mistake of counsel which a reasonable and prudent man exercising due diligence and caution might have committed. A reference may be made to Muhammad Saeed v. Shahabuddin PLD 1983 SC 385, Nek Muhammad v. Assistant Commissioner, Jhelum 1986 SCMR 1493, Ghulam Ali v. Akbar PLD 1991 SC 957 as well as Sherin v. Fazal Muhammad (supra) relied upon by the petitioner himself. To our mind, petitioner's case does. not appear to be a case of bona fide mistake with due diligence."

8. The limitation for filing suit for specific performance is governed by Article 113 of the Act, 1908, which reads as under: 113 For Specific performance Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused

9. The above referred Article has prescribed limitation period of three years for filing suit for specific performance of agreement and further made provision for two categories viz where in the agreement the date was fixed for performance of agreement and where no date of agreement was fixed. In first case the period commence from the date fixed in the agreement, while in the second case the period would commence from the date of refusal. In the present case the respondent/plaintiff filed suit after more than ten years of refusal to perform the agreement despite the direction was made by Board of Revenue to approach civil court but instead of approaching civil court assailed the orders/judgments up to this Court and Honorable Supreme Court. The Honorable Supreme Court only upheld the judgment of Board of Revenue and this court did not condone the delay of intervening period of litigation before revenue hierarchy. Reliance is placed on case Muhammad Sadiq v. Muhammad Mansha, PLD 2018 SC 692, wherein it was held: "

7. As is clear from the above, the existence of the mortgage has no bearing on the question of limitation for the specific enforcement of the agreement to sell. That proceeds independently and on its own footing, and as presently relevant is covered by Article 113 of the Limitation Act. Therefore, in our view, with respect, the learned High Court erred materially in concluding that limitation did not begin to run till the property was redeemed. Limitation in cases similar to the one at hand begins to run from the date of performance as given in the agreement, as stipulated by the first limb of Article

113. In the present case therefore the suit ought to have been brought by or before 28.05.1986. Since it was admittedly instituted on a much later date, it was hopelessly time barred and liable to be dismissed as such. Accordingly, we hold that the learned appellate Court below came to the right conclusion in dismissing the suit filed by Mr. Muhammad Ali and that the contrary decision of the learned High Court cannot be sustained. That decision is therefore set aside and it is declared that the suit stands dismissed."

10. Though the scope of revisional jurisdiction of this court is limited. The concurrent findings of courts below cannot be set aside on the ground that on re-appraisal of evidence different view is possible. But where the concurrent findings are not in accordance with the law, there is glaring illegality, non reading or misreading of evidence then this court can interfere in concurrent findings of the courts. If the concurrent findings are perverse, arbitrary or fanciful the same cannot be termed as sacrosanct and can be interfered with. Reliance is made to the case of Samar Gul v. Mohabat Khan, 2000 SCMR 974, wherein it was observed: "

It is trite law that if the concurrent findings of the Courts below are the result of misreading of evidence on the record, it becomes the duty of the High Court/revisional forum to set the wrong right in accord with its jurisdiction under section 115, C.P.C.

" The citations relied by the learned counsel for the respondent / plaintiff are distinguished. In view of what has been discussed above the revision petition is accepted. The judgments and decrees dated 29th October, 1999 and 9th April, 2013 passed by learned Qazi Lasbella at Uthal and learned Majlis-e-Shoora Lasbella at Hub are set aside. The suit of the respondent / plaintiff is dismissed being barred by time. No orders as to costs. MH/120/Bal. Revision allowed.