1970 PLP 623 (SCMR)

WAHIDUDDIN AHMAD, J.‑The dispute in this case is about the use of a lane leading from the Bazar situated to the south of the houses of Ahmad Saeed and Hazrat Shah plaintiffs in village Yar Hussain of the Swabi Tehsil. To the east of this lane is situated the house of Said Wali petitioner. The allegation is that the entrance to the Said Wali petitioner was from the bazar side but he has closed that entrance and has made another entrance from the western side in the lane which leads to the houses of Ahmad Saeed and Hazrat Shah. It appears that when Said Wali petitioner constructed the new entrance to his house and started using the lane, Hazrat Shah submitted an application to the Deputy Commissioner, Mardan, as Deputy Rehabilitation Commissioner, restraining Said Wali from using the lane. On the 28th May 1953, petitioner was restrained from using the lane and the Deputy Commissioner directed the A. S. I., Police Post Yar Hussain to close the door to the house of Said Wali Thereupon, petitioner instituted a suit in the Court of Assistant Custodian for a declaration that he had a right to use the lane which was dismissed on the 9th April 1955. On appeal, the Custodian, by order dated the 17th September 1956, remanded the case back to the Assistant Custodian. The Assistant Custodian again dismissed the suit of the petitioner on the 24th September 1959. On the 26th November 1959, Hazrat Shah and others brought a suit against the petitioner for permanent injunction restraining him from using the lane and directing him to close the door which he had opened towards the lane for using it. The suit was dismissed as barred by time by the learned Civil Judge by order dated the 21st November 1961. The finding of the learned Civil Judge was also upheld by the Additional District Judge, Mardan, by judgment dated the 5th September 1962. The matter was then taken in the High Court. A learned Single Judge of the West Pakistan High Court, Peshawar Bench, by judgment dated the 28th January 1970, accepted the appeal on the ground that there was a continuing wrong and every fresh use of the lane gave the respondents a new cause of action and their suit instituted on the 26th November 1959, was perfectly within time. This finding is challenged in this petition for special leave to appeal. In support of the petition, Mr. Abdul Samad Khan, learned Advocate‑on‑Record, on behalf of the petitioner, has contended that the view of the Subordinate Courts that the suit filed by the respondents was barred under Article 120 of the Limitation Act is correct and the High Court should not have accepted the appeal filed by the respondents. The contention of the learned counsel has not impressed us. In the first place, it will be noticed that the Deputy Commissioner, Mardan, as Deputy Rehabilitation Commissioner, on the 28th May 1953, restrained the petitioner from using the lane and directed the A. S. I., Police Post Yar Hussain to close the door of the house of Said Wali. This position continued till September 1959, when the petitioner's suit was dismissed by the Assistant Custodian. The respondents filed their suit on the 26th November 1959, and it is difficult for us to appreciate how this suit was barred by limitation. In any case, the use of the lane by the petitioner is a continuing wrong and every fresh use of the lane gave the respondents a new cause of action. Therefore, the suit was within time. This is quite clear from section 23 of the Limitation Act. According to it, in the case of a continuing breach of contract and in the case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong, as the case may be, continues. This provision of law is also applicable to cases of easements. The position might have been different if the petitioner had proved the use of the lane for a period of more than 20 years. In these circumstances, there is no force in the petition which is dismissed. Leave refused.