2007 PLP 621 (SCMR)

ABDUL HAMEED DOGAR, J

This appeal with leave of the Court is directed against the judgment dated 22-6-2001 of a learned Judge in Chambers of Lahore High Court, Multan Bench, Multan, whereby Civil Revision No.352 of 1998 filed by appellants was dismissed.

2. Briefly, stated the facts of the case are that the property in dispute measuring 2 Kanals was admittedly owned by Khan Bahadur Sheikh Munir Hussain, predecessor-in-interest of the parties. In the year 1933, before the present appellant was born, deceased wrote a letter to the Revenue Authorities to mutate the said property in favour of his son, respondent No.3 and daughter. The present appellant was, however, born in the year 1940. According to appellant, the mother, respondent No.3 and his sister decided that appellant should not be deprived of his right, therefore, a family settlement was agreed in the year 1960 according to which he was also given share in the property equal to the share of respondent No.3. It was decided with a view to give effect to the said family settlement which was got settled by the mother as a sign of respect to her by the parties to file a suit to get the said family settlement incorporated in a consent decree to give it legal form, a suit was filed and the same was got decreed on 1-4-1960. On the basis of this consent decree, Mutation No.1628 was also 'sanctioned. In the year 1967, Mst. Suriya Begum the sister filed a suit for partition of the said property in which both the brothers namely the present appellant and respondent No.3 appeared and consented to the passing of such a decree according to the shares given to them in family settlement as a consequence of which, on 26-10-1967 the said suit was decreed and the property partitioned. Since then, the two brothers and the sister had been enjoying the fruits of the shares allocated to them after partition.

3. Subsequently, respondent No.3 in 1982 filed a suit for declaration that consent decree based on family settlement dated 1-4-1960 was not binding on him having been obtained through misrepresentation etc. This suit was dismissed on 10-12-1983. The appeal filed by respondent No.3 against the said judgment and decree was dismissed by the first Appellate Court on 12-6-1984 against which revision petition filed by him before the High Court was dismissed as withdrawn on 9-12-1984.

4. On 27-1-1986, respondent No.3, filed an application under section 12(2), C.P.C. praying that decree dated 1-4-1960 based on family settlement may be set aside as the same had been procured through concealment of facts and fraud as he had not participated in the proceedings of the suit on the basis of which consent decree had been passed. This application was contested by the appellant on the ground of limitation apart from the other grounds on merits by controverting the plea of fraud, etc. raises' by respondent No.3. It was, however, accepted through order dated 2-3-1993 by the trial Court against which revision petition filed by the appellant was dismissed through judgment dated 6-7-1995 by the learned Additional District Judge. Constitution petition to challenge these orders was filed by the appellant which too has been dismissed vide impugned judgment.

5. Leave to appeal was granted by this Court on 19-3-2002 to consider the contentions raised by the learned counsel for the appellant.

6. We have heard Ch. Muhammad Ashraf, learned Advocate Supreme Court for appellant and Mr. Muhammad Munir Peracha, learned Advocate Supreme Court for respondent No.3 and have gone through the record and the proceedings of the case in minute particulars. Learned counsel for the appellant contended that along with the findings on merits in the constitutional petition, findings of the Courts below on the question of limitation had also been challenged which question the High Court was bound to attend and decide, for in case the appellant had succeeded in establishing that the application made by respondent No.3 under section 12(2), C.P.C. was barred by time and there was no legal justification for giving him benefit of the period spent by him in prosecution of the civil suit up to the High Court or even if benefit of the said period was also given, the said application was still barred by time. The trial Court was bound to dismiss the same under section 3 of the Limitation Act, as no jurisdiction was vested to entertain it and decide the same on merits which question being substantial question relating to assumption of jurisdiction by the trial Court, therefore, was within the scope of Article 199 of the Constitution. The erroneous view taken by the High Court has resulted not only in miscarriage of justice but also failure to exercise jurisdiction vested in the said Court to entertain the writ petition. He further argued that the Courts below have also failed to notice another very substantial question that the respondent did not challenge the aforementioned consent partition decree passed in the year 1967 based on the family settlement according to which the parties had been enjoying their shares since then, therefore, it was a case of non-consideration of this material circumstantial evidence on account of which the judgments passed by the two Courts below were rendered without lawful authority which question fell within the ambit of Article 199 of the constitution as such on this account too, the learned Judge of the High Court has failed to exercise jurisdiction vested in him under the law. According to him the mere fact that decree dated 1-4-1960 based on family settlement had been obtained in one day when the suit was filed, was not a matter between two stranger persons but between the brothers and sister and the suit was filed with previous settlement that the family settlement effected by the mother as agreed between the parties should be honoured, acknowledged and given legal form, therefore, the impugned judgments passed by the two Courts below suffer from acute non-consideration of this material aspect of the case. He contended that the transfer of the property which was situated within the Municipal Limits of Sargodha on the basis of unregistered document in favour of the respondent and the sister did not have the effect of transferring any title in the property in their favour on the one hand and the same also did not have the effect of extinguishing the rights of ownership of Khan Bahadur Sheikh Munir Hussain the original owner on the other hand, therefore, the family settlement brought about with the agreement of all the parties and good office of the mother did not in ally manner offend against the law and also had the effect of doing justice to sons and daughter of Khan Bahadur Sheikh Munir Hussain deceased. He further contended that Mst. Suriya Begum did not support the application of the respondent, for in case of its acceptance, he was also to get benefit as his share would have been enhanced which circumstantial evidence has also not been taken into consideration by the Courts below, as such, it was a case of misreading of evidence which was within the scope of Article 199 of the Constitution, for my judgment based on misreading of evidence was without lawful authority and of no legal effect.

7. On the other hand Mr. Muhammad Munir Peracha, learned Advocate Supreme Court for respondent vehemently controverted the view point as canvassed by learned counsel for appellant and supported the impugned judgment being free from any illegality or serious irregularity.

8. It is worth mentioning that the question of limitation was neither dilated upon nor decided by the learned High Court. In our considered view the question of limitation should have not been left unattended to having a substantial bearing on the `fate of the case. It is bounden duty of the Court to notice the question of limitation irrespective of the fact whether it was agitated or not. In this regard we are fortified by the dictum laid down in case titled Muhammad Buta v. Habib Ahmad PLD 1985 SC

153. There is no cavil with the proposition that any order or judgment passed by trial, appellate or revisional Courts should be indicative of the fact that the Courts concerned were not only aware but conscious regarding the question of limitation dealt with the same with diligent application of mind prior to, dilating upon and deciding the controversy on merit because disposal on merit alone would not be sufficient to presume that the delay was condoned. In this regard reference can be made to case titled Ahsan Ali v. District Judge PLD 1969 SC 167, which still holds the field and relevant portion whereof is reproduced herein below for ready reference. "It has also been held by this Court in several cases that mere disposal of the appeal on merits is not sufficient to lead to the inference that the delay must have been condoned. There must be something in the order or judgment itself to show that the Court concerned was conscious of the fact that the proceeding was out of time and had applied its mind to the question of limitation before dealing with the proceeding on merits."

9. It is an admitted feature of the case that learned Judge in Chambers while exercising constitutional, jurisdiction has reappraised and revaluated the entire evidence which could have been done when finding is based on insufficient evidence, misreading of evidence, non-consideration of material evidence, erroneous assumption of facts and patent errors of law. It has, however, been observed in the same wake of event that the evidence led by the appellant has not been scrutinized vigilantly and no reason has been given for discarding the same.

10. In the light of foregoing discussion we are inclined to accept this appeal by setting aside the impugned order and case is remanded back to the High Court with direction to decide the question of limitation, including any other question as may be deemed fit and proper for just decision of the case after affording proper opportunity of hewing to both the parties. The appeal is accordingly accepted with no order as to costs. M.H./M-206/SC Case remanded.