1999 PLP 2467 (YLR)

Plaintiff‑petitioner instituted suit on 4‑4‑1987, seeking declaration in respect of property, details whereof are given in the heading of the plaint and had made six prayers, from (Alit) to (Ray) which included correction of share of defendant No.4, insertion of name of defendant No.10 in column of ownership, wrongly omitted, to declare him first and second mortgagee, correction of entries regarding names of defendants Nos.10 to 13 which were wrongly shown as mortgagees, correcting the omission of words 'Bila Rehen Nisf' recorded with shares of defendants Nos.1 to 13 as their whole shares stood mortgaged to the plaintiff and lastly for declaration that the plaintiff -petitioner has matured his prescriptive title in respect of 9480/28800 shares owned by defendants Nos. l to 13 on the basis of time‑barred mortgage having more than 60 years passed thereon. The defendants contested the suit by filing their written statement. The Trial Court framed 10 issues and the parties were directed to advance evidence in support of their respective pleas. The then learned Senior Civil Judge, Karak dismisses the suit on 15‑1‑1992 but when challenged. in appeal, the learned District Judge, Karak vide order, dated 25‑7‑1993 remanded the case back to the Trial Court with direction to record further evidence.

2. The learned trial Judge in compliance with the order of the Appellate Court recorded further evidence and vide judgment and decree, dated 9‑5‑1994 the suit was partially decreed to the extent of prayers (Alif) to (Zal) while prayer (Ray) was dismissed. Aggrieved of the judgment and decree, the petitioner filed an appeal before the learned District Judge, Karak who vide order, dated 8‑9‑1994 dismissed the appeal in limine.

3. Learned counsel for the petitioner submitted that the finding of the Lower Court' in respect of prayer (Alif) to (Zal) being in favour of the petitioner and prayer (Ray) not only follows the accepted prayers but on the basis of evidence it is stood established but the learned trial Court while dealing with issue No.8 pertaining to prayer (Ray) has summarily dismissed the same by relying on Maqbool Ahmad v. Government of Pakistan (1991 SCMR 2063), where section 28 of the Limitation Act, 1908 was declared to be repugnant to Islam. It was contended that the trial Court should have recorded specific finding based on evidence instead of making mere reference to the judgment (supra).

4. Next, it was argued that the learned Appellate Judge could not have dismissed the appeal in limine being first appeal against the judgment and decree. It was submitted that even the record was not requisitioned by the Appellate Judge, hence the order of the Appellate Court is a nullity. Learned counsel for the petitioner also submitted that the suit property comprises of two parts, one, of which the petitioner is mortgagee since the year 1903/1904 as given in the Revenue Record and the second where mortgagee's rights were sold to others or were purchased from others and as such the sub‑mortgagee would step into the shoes of original mortgagee and the period of prescriptive title is to be reckoned from the date of original mortgage.

5. Highlighting the submissions made by the learned counsel for the petitioner, reference was made to Maqbool Ahmad's case (supra) and submitted that the august Supreme Court in the concluding para. of its judgment has observed that section 28 of the Limitation Act, 1908 is repugnant to Injunctions of Islam so far as it provides for extinguishment of the right in the property at the determination of period prescribed for instituting suit for possession of the said property. It has further held that the decision of the Supreme Court shall take effect from 31st August, 1991, therefore, the application of the law as laid down by the Supreme Court would be prospective and it would not effect proceedings which were pending in any Court before the said judgment. It was argued that in the present case suit was filed on 4‑4‑1987 and enforcement of a right was prayed for much before the same was held extinguished by virtue of judgment in Maqbool Ahmad's case (supra). Reliance was placed on Province of the Punjab and others v. Muhammad Hussain etc. (PLD 1993 SC 147). On the proposition that creation of sub‑mortgage by mutation but not in writing and signed by the mortgagor (original mortgagee), it would not amount to an acknowledgement of the original mortgagee under which period of limitation would start afresh, reliance was placed on Zarif Khan and others v. Muhammad and others (PLD 1983 Pesh. 58) and on the same proposition reliance was placed on Muhammad Zaman and 8 others v. Abdul Malik Khan and 7 others (1991 SC 524) and Nazeef v. Abdul Ghaffar and others (PLD 1966 SC 267).

6. Learned counsel for the respondents on the other hand submitted that the appeal has been validly dismissed by the Appellate Judge in limine, he made reference to Order XLI, Rule 11, C.P.C.:‑‑‑ " 11 Power to dismiss appeal without sending notice to lower Court.‑‑‑(1) The Appellate Court, after sending for the record if it thinks fit so to do, and after fixing a day for hearing the appellant or his pleader and hearing him accordingly if he appears on that day, may dismiss the appeal without sending notice to the Court from whose decree the appeal is preferred and without serving notice on the respondent or his pleader. " It was argued that the power exercised by the Appellate Judge was in accordance with law and that according to the order‑sheet, dated 19‑7‑1994 appended with the revisional file at page 52 (reverse), the record was sent for and the judgment, dated 8‑9‑1994 of the Appellate Judge in the very first line would indicate that the record was placed before him.

7. Learned counsel for the respondents has seriously challenged the contention of the learned counsel for the petitioner with regard to the maturity of title by prescription and stated that, no doubt, that the judgment in Maqbool Ahmad's case (supra) was prospective but that would debar all Courts to grant any decree based on section 28 of the Limitation Act after 31st August, 1991. It was argued that in this case though the suit was instituted on 4‑4‑1987 but the decree was passed on 9‑5‑1994 which would be against the judgment as delivered in Maqbool Ahmad's case (supra). Learned counsel in Support of this submission relied on an unreported judgment in Civil Revision No.298 of 1984 Muhammad Amir Khan v. Mst. Bibi Shah Bana etc., decided on 20‑11‑1994 and another Judgment Muhammad Aslam and another v Malik Muhammad Sarfaraz Khan, etc., (1996 MLD 1216), a judgment from the jurisdiction of Lahore High Court. Learned counsel for the respondents has also referred to revenue record as appended with the petition and submitted that much before the filing of the suit, the property in dispute has been recorded as 'Maqbooza Malikan' and in some of the Jamabandies as 'Ghair Dakhalkar'. It was, therefore, argued that the assertion of the petitioner with regard to his undisturbed possession commencing from 1903/1904 is belied by the Revenue Record.

8. The submission of the learned counsel for the petitioner with respect to dismissal of the appeal in limine and in absence of record, has been rightly repelled by the learned counsel for the respondents with reference to Order XLI, Rule 11, C.P.C. A Court of appeal has got the power and authority to dismiss an appeal at preliminary stage on point of law as well on facts, if after the perusal of the material on file it comes to the conclusion that issuance of notice to the other side is no required as no case is made out.

9. The submissions that were made by learned counsel for the respondents with regard to finding of the trial Judge in respect of relief extended/granted to the petitioner by declaring that reliefs (Alif), (Bay), (Deem), (Dal) and (Zal) of the plaint are genuine and stated proved through record, cannot be challenged on the ground that no appeal was filed by the respondents against such finding which have attained finality and to which the respondent is estopped to raise any adverse plea in the revision that too as respondent.

10. Coming to the main question that is involved in the instant revision petition, is the application of judgment delivered by the august Supreme Court of Pakistan to Maqbool Ahmad's case (supra) where the august Supreme Court while declaring section 28 of the Limitation Act, 1908 held as under:‑‑‑ "For reasons recorded in two separate judgments, the Court is unanimous in holding that section 28 of the Limitation Act, 1908 (Act No.IX of 1908) is repugnant to the Injunctions of Islam in so far as it provides for extinguishment of the right in the property at the determination of the period pres cribed for instituting a suit for possession of the said property. It is further held that this decision shall lake effect from 31st of August, 1991 and on this date section 28 aforesaid shall also cease to have effect." In the unreported judgment of this court, C.R. No.298 of 1994 was dismissed in limine without hearing the other side where a Hon'ble Judge of this Court was of the view that no decree can be granted while title is claimed on prescription beyond 31‑8‑1991.

11. The view point that was taken up by Mr. Justice Jalaluddin Akbarji (as he then was) was given without hearing the other side and it appears that his Lordship was not properly assisted and could not have been assisted by the other side because the case was in limine when judgment reported in Province of Punjab v. Muhammad Hussain (PLD 1993 SC 147) was not brought to his Lordship's notice. The law laid down in the said judgment referring to Maqbool Ahmad's case (supra), it was held that Maqbool Ahmad's case has prospective application and would have its effect on and after 31‑8‑1991. It cannot be invoked in relation to matters pending before 31‑8‑1991. The same view has been followed in case of Abdur Rehman v. Muhammad Akram (1999 SCMR 100) where too, the judgment in Maqbool Ahmad's case (supra) was held to be effective from 31‑8‑1991 and suit that was instituted before such date including the decree passed thereon was held to be not effected by the judgment (supra).

12. In this case, the suit was filed on 4‑4‑1987 though decree was passed on 9‑5‑1994. The sole question that requires determination is whether the Maqbool Ahmad's case would be applicable to pending suits before the trial Judge where no decree was passed before the date as fixed therein. The judgment is undoubtedly prospective and does not contain any saving clause. To my mind, the judgment of Maqbool Ahmad's case having held section 28 of the Limitation Act repugnant to Islamic Injunctions ceased to be on the statute book from the date fixed by the Court. It impliedly stood repealed, therefore, to determine its effect, and in the absence of any saving clause, one is to make reference to section 6 of the General Clauses Act which is reproduced below for convenience:‑‑‑ "

6. Effect of reveal.‑‑‑ Where this Act, or any (Central Act) or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the appeal shall not‑‑‑ (a) revive anything not in force or existing at the time at which the repeal takes effect; or (b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or (c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or (d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or (e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act or Regulation had not been passed."

13. In a case where remedy to enforce an existing right is made barred on a date when the new law comes into force which does not provide even breathing time to a party, then the remedy must be continued to be governed by the old law. The repeal or amendment of Act would not effect the right which is already in existence unless as express contrary intention is spelt out from the amended or repealed law or even by implication. Therefore, unless a contrary intention appears in the repealing enactment, the pending proceedings would continue without being disturbed by the change in law. Where a right to file a suit to obtain a relief had ace rued to a plaintiff he would not loose that right if a subsequent enactment precludes him from filing of such suits.

14. The prescriptive title on the basis of adverse possession or non‑redemption of mortgage for over 60 years would give title to the claimant where section 28 of the Limitation Act would protect it The judgment of the Supreme Court of Pakistan in Maqbool Ahmad's case (supra) being silent on the pending suits, the only in escapable conclusion by relying on section 6 of the General Clauses Act would be that the pending proceedings would be protected and not to be hit by judgment of the Supreme Court. However, it has to be seen and determined on the basis of evidence that prescriptive title stood matured before 31‑8‑1991. In this case the claim of the plaintiff was that he has matured his title on prescription being mortgagee since the year 1903/1904 upto the date of filing of the quit. If this be so, his period of 60 yeas carp stood completed much before filing of the suit as well as judgment of the Supreme Court. 15 The two Courts below and in particular the learned trial Judge 'who has though recorded evidence on issue No.8 which was to the following effect:‑‑‑ "Issue No.8.‑‑‑ Whether the plaintiff has matured his title by way of prescription?" but without reference to evidence led in respect of the issue, decided the same against the petitioner by relying on Maqbool Ahmad's case and as was the case of the Appellate Judge. Without making any comment on the evidence recorded on issue No.8 as no finding of fact is given by the two Courts below, on the said issue, I would accept the instant revision petition and remand the case back to the learned trial Judge to give its finding on merits on issue No.8 in view of the evidence already led but after hearing the parties. The judgments of the two Courts below are set aside to the extent of relief in respect of issue No.8 with further direction to the parties to appear before the learned trial Judge on 3‑5‑1999. In the peculiar circumstances of the case, no order as to costs. Q.M.H./M.A.K./387/P Revision allowed.