2015 PLP 2559 (YLR)

HAIDER ALI KHAN, J.

This writ petition is directed against the judgment/order and decree dated 18-4-2000 of the learned Additional District Judge/ Izafi Zilla Qazi, Dir Upper, whereby appeal of the respondents against the order dated 8-4-1999 has been accepted.

2. Precise and relevant facts of the case are that the petitioners/plaintiffs initially filed a suit for declaration against the respondents/defendants in the year 1989 in the Court of Assistant Commissioner. Dir which was later on transferred to Civil Court. The respondents/ defendants were summoned who in turn moved an application under Order VII Rule 11 of the Code of Civil Procedure. The trial Court vide order dated 8-4-1999 dismissed the application of the respondents/defendants. Being, aggrieved, they preferred appeal against the order of the trial Court which was accepted by the learned appellate Court vide judgment and decree dated 18-4-2000, order of the trial Court was set aside and resultantly suit of the petitioners/ plaintiffs was dismissed on the point of limitation. Feeling dissatisfied, the petitioners/plaintiffs invoked the jurisdiction of this Court through revision petition bearing C.R. No. 302-A of 2000. This Court vide judgment dated 28-11-2002 held that order of the trial Court was not appealable rather the same was revisable and the petition before the High Court, being second revision and not maintainable, stood dismissed. Still dissatisfied, the petitioners/ plaintiffs filed leave to appeal before the august Supreme Court which was allowed and the case was remanded back to the High Court with the direction that the Civil Revision No. 302-A of 2000 be decided, after hearing the same on merits and after treating the same as writ petition, which is now going to be decided through this judgment.

3. We have heard learned counsel for the parties and gone through the record.

4. Perusal of the available record would reveal that the initial suit was filed in 1989 but later on the PATA Regulation was abolished and the case was transferred to the Civil Court. The petitioners/plaintiffs withdrew the former suit on 21-1-1995 with permission to file a fresh one and they filed the present suit on 22-1-1998 which was dismissed by the appellate Court on the point of limitation. Thus, limitation is the only point involved in the present writ petition which is to be adjudicated upon by this Court. Record shows that the petitioners/plaintiffs filed their earlier suit in 1989 which was withdrawn on 21-12-1995 and the fresh suit was filed on 22-1-1998. According to law, in case of filing a fresh suit the time will run against the petitioners/plaintiffs from 1989 and institution of fresh suit will not affect the limitation law, Order XXIII, Rule 2, C.P.C. which is the relevant Rule on the subject, reads as under:-- "

2. Limitation law not affected by first suit

In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted." In other words, according to the above referred Rule, the plaintiff' will be responsible for the time he consumed in the former suit as the same period shall be counted against him. In a judgment reported in 2001 YLR (Karachi) 331, it was held that the plaintiff is bound by the law of limitation in the manner as if the first suit had not been instituted. The relevant portion of the above referred judgment is reproduced herein below for convenience sake. "In case of institution of fresh suit on the basis of permission granted under Rule 1 of Order XXIII, C.P.C. the plaintiff is bound by the law of limitation in the manner as if the first suit had not been instituted. Thus, it will be seen that not only the time consumed in litigation in the form of earlier suit instituted by the plaintiffs is to be counted and not to be excluded for the purpose of limitation but applicability of section 14 of the Limitation Act has also been excluded as it is to be deemed that no first suit had been instituted earlier." The same view was taken by a single bench of Quetta High Court in a judgment reported as 2010 CLC 642 wherein it was held that:-- "There is no cavil with the legal proposition that after withdrawal of first suit, limitation is to be reckoned from the date of filing of earlier proceedings, as once limitation starts on same cause of action, then it does not stop." Yet in another judgment reported in 1989 CLC 1625, a single bench of the Quetta High Court held that:-- "It may be noted that the object of the permission to file a fresh suit is that the technicalities of law may not stand in way of the plaintiff to defeat ends of justice. But in no case the Rule gives protection to plaintiff from running of limitation against him."

5. Admittedly, the petitioners/ plaintiffs had filed their earlier suit in 1989 and after getting permission filed the fresh suit after lapse of nine years i.e. in 1998 whereas the period of limitation prescribed under Article 120 of the Limitation Act, 1908 is six years. Thus, Keeping in view the provisions of the relevant law on the subject and the above cited case-law, it becomes crystal clear the suit of the petitioners/plaintiffs is totally time-barred.

6. In view of what has been discussed above, the impugned judgment of the learned appellate Court is correct and in accordance with law which warrants no interference by this Court in exercise of its Constitutional jurisdiction, therefore, the same is maintained and the present writ petition being devoid of merit, stands dismissed. SL/317/P Petition dismissed.