2005 PLP 285 (CLC)

(1) 1988 MLD 1980, (2) 1988 CLC 169 and 412. (3) 1987 CLC 240 and 242, (4) 2001 MLD 1142 and (5) PLD 2002 SC 526.

7. Mr. Masood Noorani, Additional Advocate‑General, Sindh, on behalf of respondents Nos.1 to 4 adopting the arguments of Mr. Hassan Mehmood Baig supported the, impunged judgments and made reference to the case of Additional Commissioner‑II "K" Division v. Shahid Raza and others 1997 MLD 2444. In this case it was held that bar to maintainability of suit in terms of Article.14 of the Limitation Act will only apply in cases where act or order sought to be set aside was shown as having validly been passed and not where allegations were regarding practising fraud.

8. In the background of above noted undisputed facts and submissions made by the learned counsel. I have carefully examined the case‑law cited by them at the bar as well as Article 14 of the First Schedule to Limitation Act, 1908 (hereinafter referred to as the Act). For convenience sake same is reproduced as under:‑‑

14. To set aside any act or order of an officer of The date of the act Government in his official [One year] or order. capacity, not herein otherwise expressly provided for.

9. A plain reading of the above provision of law shows that period of one year limitation provided in Column No.11 starts from the date of the act or order passed by an Officer of Government in his official capacity, which a party seeks to get set aside. To say it in other words, bar to maintainability in terms of Article 14 of the Act will be applicable to a suit where the relief sought in the plaint is to get an order of the nature mentioned in column I, "set aside" and not to a suit where the relief sought is declaratory in nature, the impugned act or order is void, without jurisdiction or mala fide. This view of the matter is fortified from the following cases:‑‑ (A) F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 In this case it was held by the apex Court that a declaratory suit, contesting dismissal, filed by a Government servant will be governed by Article 120 of the Limitation Act and such period will start from the date of dismissal, but, where there is an appeal, from the date of the appellate order upholding dismissal. (B) Rashid Inayat v. The Federation of Pakistan PLD 1957 (W.P.) Lah.

378. In this case it was held that Article 14 of the First Schedule to the Limitation Act applies to a suit to set aside any act or order of an officer of Government in his official capacity not herein otherwise expressly provided for and not to a suit which is on for declaration. (C) Province of East Pakistan v. AKN Raza Karim and another PLD 1969 Dacca

280. In this case a Division Bench of Dacca High Court made compression of Articles 14 and 120 of the Limitation Act and held that where the prayer made in the suit is for setting aside an order then Article 14 of the Limitation Act will apply and in case a suit is purely for declaratory relief that the impugned order is illegal, void and without jurisdiction then it will be governed by Article 120 of the Limitation Act providing six years limitation for filing of such suit. (D) Hussain Bukhsh and others v. Settlement Commissioner and another PLD 1969 Lah. 1039 In this case a Division Bench of Lahore High Court viewed that bar of limitation cannot be raised when impugned order is void and without jurisdiction.

10. As against above, cases referred by Mr. Hassan Mehmood Baig are based on different premises and not applicable to the facts of present case.

11. Moreover, it is well‑settled principle of interpretation of statute that every word used in a statute/provision of law is to be given its literal meaning, in case of penal provision same is to be construed/ interpreted strictly and further in case of any doubt, benefit of such doubt is to be who could be deprived of his right on such technical ground.

12. Referring to the reliefs sought the applicant in the plaint of his First Class Suit No.172 of 1980, it will be seen that the applicant has not prayed for any relief to get the judgments passed by respondents Nos.2 and 3 set aside, but declaration and consequential relief of permanent and mandatory injunction in the lowing form:‑‑ "

12. That the plaintiff prays for a judgment and a decree as under: ‑‑ (i) That it be declared that the order of defendant No.3 dated 13‑2‑1975 granting S.Nos.282/2, 5 of Deh Murad Ali Rind Taluka Shahdadpur to Khamiso the defendant No.5 and granting S‑No‑262/3 of same Deh to Kareem Bux the defendant No.6 and also the orders of the defendant No.2, dated 3‑12‑1975 and 5‑2‑1976 respectively upholding the order of defendant No.3 mentioned above, are illegal void, mala fide, inoperative and not binding on the plaintiff; (ii) That as a consequential relief, a mandatory injunction be issued against the defendants Nos. 1 to 4 directing them to grant the suit‑land viz. S.Nos.282/2, 5 and 262/3 of Deh Murad Ali Rind Taluka Shahdadpur to the plaintiff on full rate grant basis and to order for the issuance of necessary documents in favour of the plaintiff; (iii) That as a consequential relief, the defendants Nos.5 and 6 be restrained by a perpetual injunction from interfering with the possession of plaintiff over the suit‑land and its irrigation water etc. by themselves or through their agents servants, relatives etc. in any manner whatsoever; (iv) That the costs of this suit be borne by the defendants Nos.5 and 6 jointly and severally; and (v) Any other relief which this Honourable Court deems fit and proper may also be granted to the plaintiff."

13. Keeping in view the above legal position, I am of the considered view that both the Courts below misdirected themselves in deciding the issue of limitation against the applicant themselves overlooking the nature of relief claimed by the applicant in the suit, and the fact that the suit, looking to the nature of reliefs sought was governed by. Article 120 of the Limitation Act, which provided six years period of limitation.

14. It may be observed here that whether the applicant could maintain and will succeed in his declaratory suit without seeking specific relief that the impugned order passed by the respondents Nos.2 and 3 were liable to be set aside will be a different proposition of law, which will be examined by the lower Court when the suit proceeds before it on merits.

15. In view of the above discussion and for the foregoing reasons, the judgments/orders passed by the two Courts below, being illegal, are set aside. Since the suit pertains to the year, 1980, the lower Court is directed to proceed with it day to day and dispose of positively within four months time from the date of receipt of this judgment: M.B.A./M‑156/K Revision allowed.