P L D 2008 Lahore 233 (PLP)

MAULVI ANWARUL HAQ, J.

On 27-10-2006 the petitioners filed a suit against the respondents. The contents of the plaint will be referred to in the later part of this judgment. The plaint was rejected vide order dated 8-11-2006 by the learned trial Court. A first appeal filed by the petitioners was dismissed by the learned District Judge, Nankana Sahib on 4-4-2007 in limine.

2. Learned counsel for the petitioners contends that the contents of the plaint have not been properly read by both the learned courts below. According to him the petitioners continued to remain in possession of the suit land and mere fact that they can be said to have the knowledge of the fraud committed would not make the limitation to run. No one has turned up for the respondents who have already been proceeded against ex parte vide order dated 9-1-2008.

3. Before I proceed further, I may note here that it appear; that the plaint was rejected at a point of time even before the summoning of the defendants in the case and so was the case with the first appeal which was dismissed in limine.

4. I have examined the plaint Para. 1 narrates that the petitioners are owners of the land described therein and also the manner in which the title was acquired. They have also referred to the land stated to have been acquired by them vide the impugned exchange deed dated 1-11-1995. In para. 2 they have categorically stated that they are not owners of the land mentioned in the exchange deed to have been given to them. The plaint further narrates that the petitioners as well as Bashir Ahmed their predecessor were illiterate. The respondent No.1 was Lrusted friend. He persuaded the petitioners to enter into exchange agreement by declaring that he is owner of valuable land mentioned in para. 6 of the plaint. Consequently, a document of exchange was got registered on 1-11-1995. In para. 8 it was categorically stated that the petitioners continued to remain in possession of their land. They also appended copies of Khasra Girdawari. It was then stated that they came to know about the exchange in the year 1995 and filed a declaratory suit. It was dismissed on 21-11-2000. However, in appeal the case was remanded vide order dated 8-11-2000. The learned trial Court directed them to pay court-fee of Rs.15,000 and on their failure to do so rejected the plaint on 13-5-2005. A first appeal was also dismissed on the same ground on 8-9-2005.the Revenue Officer, with reference to the said decision dated 13-5-2005 proceeded to attest the mutation on 21-5-2005 on the basis of the said exchange deed. On the same day some other mutations were also entered. The exchange deed was questioned on several grounds mentioned in the plaint in detail. It was also stated that later respondent No.1 transferred the land stated to have been given to the petitioners under the said exchange deed to his son on 27-5-2005. Appeals were filed in the revenue hierarchy which were dismissed on 9-5-2006 directing the petitioners to seek remedy in civil Court. It was further stated that orders rejecting the plaint in fact were made the basis for changing the entries in the revenue record. In para. 35 it was stated that cause of action accrued on 1-11-1995 i.e. the date of exchange deed, then on 5-11-1995 when they came to know about the said fraud and lastly on 9-5-2006.

5. Learned trial Court after examining the plaint and documents appended therewith came to the conclusion that although there was no bar upon presentation of a fresh plaint after rejection of plaint by virtue of Order VII, Rule 13, C.P.C. yet the suit was found to be barred by time. According to the learned trial Court the limitation is to be reckoned from 8-11-1995 when the earlier suit was instituted and it expired on 9-11-2001 and the suit filed on 27-10-2006 is barred by time. The learned District Judge has affirmed the said findings of the learned trial Court.

6. I find that both the learned courts below have completely ignored the categorical statement in the plaint that the petitioners had never given the possession and remained in possession of their land alleged to have been given in exchange to respondent No.1. Needless to state that for the purposes of Order VII, Rule 11, C.P.C. contents of the plaint are to be assumed to be correct. In case it is found at the trial that the petitioners continued in possession then date of said impugned exchange or even its knowledge would be of no relevance. The cause of action will, thus, be continuous and the option is with the petitioners to wait till such time that an actual threat to their possession became real. As held by the Hon'ble Supreme Court in the case of Mst. Izzat v. Allah Ditta PLD 1991 SC

165. The revision petition is accordingly allowed. Both the impugned orders passed by the learned courts below are set aside. The result would be that the suit shall be deemed to be pending. The petitioners to appear before the learned Senior Civil Judge, Nankana Sahib on 2-4-2008. The learned Senior Civil Judge shall requisition the record, summon the defendants and proceed further to decide the suit on its merit in accordance with law. No order as to costs.

7. A copy of this judgment be immediately remitted to the learned Senior Civil Judge, Nanakana Sahib. M.H./Y-2/L Case remanded.