P L D 2026 Sindh 65 (PLP)

AMJAD ALI BOHIO, J.

The applicant/defendant, Sabir Hussain son of Nizamuddin (hereinafter referred to as "applicant"), has impugned order dated 16-04-2024 passed in Civil Appeal No. 48/2024 by the learned Additional District Judge-II, Sanghar, whereby the said appeal, filed by the applicant against the judgment and decree dated 18-01-2023 and 19-01-2023 respectively in F.C. Suit No. 29/2018, was dismissed as time-barred.

2. The facts giving rise to the instant revision application are that respondent No. 1/plaintiff (hereinafter referred to as "respondent No. 1") filed suit for declaration, cancellation, possession, and permanent injunction against the applicant and other respondents. In plaint, she stated that her father passed away in the year 2001, and during his lifetime, he served as a Tapedar. Her mother, who was a teacher by profession, suffered ill-treatment and maltreatment at the hands of her paternal relatives, which caused her to lose her mental stability. In this disturbed state, her mother went to Karachi, where she was found wandering and was admitted by the police of P.S. Sir Syed to the Edhi Welfare Centre for treatment. The applicant, who is the cousin of respondent No. 1, later took her back from the Edhi Centre and admitted her into Bilqees Edhi Home, North Karachi, for shelter and treatment as a psychiatric patient. Subsequently, her mother, sister, and son discharged her from the facility and brought her home, where she was allegedly administered intoxicants and injected with substances with the intention to usurp her property, which includes: i. Household articles in Sanghar home, valued at approximately Rs. 300,000/- ii. House No. 40, Model Town, Sanghar iii 10 tolas of gold and documents held in Meezan Bank. iv. Saving certificates worth Rs. 2,322,000/- v. Rs. 500,000/-deposited in Meezan Bank, Sanghar vi. A house located in Kotri City vii. Rs. 300,000/-in National Bank of Pakistan (NBP), Kotri viii. Rs. 46,600/-in NBP, Sanghar Branch. On 12-06-2017, the applicant brought respondent No. 1 to her house in Sanghar, where she found her mother's dead body. It is alleged that the applicant broke open cupboards and took away original documents. On the same day, he took respondent No. 1 to Meezan Bank, got the locker opened, and took away 10 tolas of gold and various documents. Thereafter, he brought her back to Karachi. On 26-07-2017, the applicant allegedly sold respondent No. 1's house constructed on Plot No. 40, C.S. No. 5/40, admeasuring 1500 sq. ft., situated in Ward-A, Housing Society, Model Town, Sanghar, for a sale consideration of Rs. 1,315,000/-, which he received from respondent No.

2. Respondent No. 1 asserted that she never sold the property of her own free will or consent, and the applicant misappropriated the sale proceeds. Eventually, respondent No. 1 managed to escape the unlawful confinement of the applicant and, on 12-01-2018, took shelter in the house of her stepbrother. On 14-01-2018, she narrated the entire story before the members of the Press Club, Sanghar, and approached the S.S.P. Sanghar for registration of an FIR against the applicant, but the same was refused. FIR was later lodged upon the orders of the learned Additional Sessions Judge-I, Sanghar. Consequently, she filed the present suit with the following prayers: i). To declare that the plaintiff is owner of suit property i.e. House No. 5/40 situated in Ward-A Sanghar Town, Taluka and District Sanghar. ii). To declare that sale deed registered at No.847, Book No. SRO Sanghar dated: 26.07.2017, DS: dated 23.08.2017 is null and void ab-initio, creating no right and title in the name of defendant No.01 and entries be cancelled from the record of Sub-Registrar, Sanghar and City Survey Officer's record dated 02.08.2017 from the name of defendant No.01. iii). Delivery of possession of suit property to plaintiff. (iii-A) That, defendant No.02 may be saddled to pay same consideration amount. iv). To grant permanent injunction restraining the defendant No.1 from transferring/alienating suit property in the name of any other person with delivery and possession and restraining Government defendants for issuing sale certificate in respect of suit property. v). That, Cost of the suit be borne by defendants.

3. After service of summons, the applicant and respondent No. 2 appeared before the court and filed separate written statements. In his written statement, respondent No. 2 mostly denied the contents of the plaint. He further stated that respondent No. 1, of her own free will and while in a sound state of mind, sold the suit property to him by executing a registered sale deed. He asserted that the respondent received the entire sale consideration, including a demand draft dated 26-07-2017 in the amount of Rs. 1,200,000/- issued by MCB Bank, as well as cheque No. CA06291847 dated 10-07-2017 in the amount of Rs. 100,000/-, both issued in the name of respondent No.

1. He stated that the total sale consideration was duly paid and deposited into respondent No. 1's bank account, and that she also handed over physical possession of the suit house to him. Lastly, he claimed that the suit has been filed by respondent No. 1 merely to blackmail him and is therefore liable to be dismissed with costs.

4. In his written statement, the applicant mostly denied the contents of the plaint and further submitted that he had taken respondent No. 1 into his care and incurred substantial expenses for her medical treatment. He also alleged that respondent No. 1, along with her brother Shahid Bugti, committed theft of cash amounting to Rs. 3,000,000/- and gold ornaments from his house, for which he lodged FIR No. 53 of 2018 against respondent No. 1 and her brother. He asserted that the present suit has been filed by respondent No. 1 only after lodging of the said FIR, with the sole purpose of pressurizing him. He further stated that respondent No. 1 not only sold the property voluntarily but also filed Succession Application No. 97 of 2018 along with her supporting affidavit before the learned District and Sessions Judge, Sanghar. In conclusion, the applicant prayed for the dismissal of the suit with compensatory costs under Section 35-A of the Code of Civil Procedure.

5. Out of pleadings the Court framed the following amended issues:

1. Whether the suit of the plaintiff is not maintainable?

2. Whether the suit of the plaintiff is time barred?

3. Whether the plaintiff has accrued no cause of action to file present suit?

4. Whether the plaintiff is lawful owner of suit house No.5/40 situated in Ward-A Sanghar Town, Taluka and District Sanghar on the basis of title?

5. Whether the registered sale deed No. 847 dated 26.07.2017, and entries dated 02.08.2017 kept in record of rights in the name of defendant No.01 are illegal and liable to be cancelled?

6. Whether the defendant No.02 Sabir Hussain the brother of plaintiff received/collected sale price of suit property from the account of plaintiff by fraud when she was not in presence of mind?

7. Whether the plaintiff is entitled for the relief claimed?

8. What should the decree be?

6. Thereafter, respondent No. 1 and respondent No. 2 led their respective evidence, and after hearing the arguments of learned counsel for both parties, the trial court decreed the suit of respondent No. 1 against the applicant for recovery, while dismissing the suit against respondent No. 2, vide judgment and decree dated 18-01-2023 and 19-01-2023, respectively. The applicant challenged the said judgment and decree by filing Civil Appeal No. 48/2024, which was dismissed as time-barred by the learned Additional District Judge-II/MCAC, Sanghar, vide order dated 16-04-2024 passed on application under section 5 of the Limitation Act, 1908. Hence, this civil revision.

7. I have heard the learned counsel for the applicant, respondent No. 1, learned counsel for respondent No. 2, and the learned Additional Advocate General, Sindh, for the official respondents.

8. Learned counsel appearing on behalf of the applicant contended that the impugned judgment, decree, and order passed by the courts below are contrary to law, facts, and principles of equity. It was argued that both the trial and appellate courts failed to properly examine the oral and documentary evidence produced by the applicant and did not appreciate the version of the applicant as placed on record. It was further submitted that the trial court failed to frame issues regarding the amount of Rs. 4,600,000/- and 04 tolas of gold: The appellate court also failed to consider the merits of the judgment and decree passed by the trial court and dismissed the appeal solely on the ground of limitation. The appellate court, it was argued, committed a grave illegality by upholding relief that was never prayed for by respondent No. 1 in her plaint. Counsel further contended that there is no limitation period for applying to set aside a void or ex-parte decree, especially when such decree is manifestly void or voidable on the face of the record. It was also argued that the executing court passed the ex-parte order against the applicant without issuing any notice, which is not only against the principles of natural justice but also a violation of Article 10-A of the Constitution of the Islamic Republic of Pakistan. It was further submitted that the findings of the trial court on the framed issues are contrary to law and facts, and that the suit filed by respondent No. 1 is impliedly barred under various laws. Therefore, respondent No. 1 is not entitled to any relief, and her suit is liable to be dismissed. The impugned judgment and decree, being a nullity in the eyes of law, are liable to be set aside.

9. On the other hand, learned counsel for respondent No. 2 supported the contentions raised by the learned counsel for the applicant. However, the learned Assistant Advocate General appearing for the official respondents supported the impugned judgment, decree, and order passed by the learned courts below, and prayed for dismissal of the instant revision application.

10. Learned counsel for respondent No. 1 argued that the impugned order was validly passed by the learned Additional District Judge-II, Sanghar, as the applicant had filed a time-barred civil appeal. It was contended that the decree was passed by the learned Senior Civil Judge on 19-01-2023, whereas the applicant filed the civil appeal on 11-03-2024, beyond the 30-day limitation period prescribed under Article 152 of the Limitation Act, 1908. Furthermore, counsel submitted that although the relief granted by the trial court was not specifically sought in the prayer clause, respondent No. 1 had clearly pleaded in the body of the plaint particularly in paragraph No. 7 that the applicant had usurped the properties in question. Therefore, it was argued that no illegality or irregularity was committed by the trial court in passing the impugned judgment, and the instant revision application is liable to be dismissed.

11. The suit filed by respondent No. 1 is for declaration, cancellation, possession, and permanent injunction. In support of her case, respondent No. 1 produced documentary evidence relating to her bank account and also examined several witnesses, including the Operation Manager of National Bank of Pakistan, Sanghar Branch; the Assistant Vice President (Sales and Services Manager) of NBP, Sanghar, the Branch Manager of Meezan Bank; and a messenger from the Board of Revenue, M.F. Office, Mirpurkhas. Through this oral and documentary evidence, respondent No. 1 successfully established the averments made in her plaint, on the basis of which the learned Senior Civil Judge decreed the suit as prayed, including with respect to the properties mentioned in paragraph No. 7 of the plaint. As to the contention raised by learned counsel for the applicant that the trial court committed illegality by granting relief beyond what was specifically prayed for in the prayer clause of the plaint, it is to be examined whether the trial court erred in this regard, thereby rendering the decision unlawful. In this context, it is pertinent to refer to the provision of Order VII, Rule 7 of the Code of Civil Procedure, which reads as follows: "

7. Relief to be specifically stated.

Every plaint shall state specifically the relief which the plaintiff claims either simply or in the alternative, and it shall not be necessary to ask for general or other relief which may always be given as the Court may think just to the same extent as if it had been asked for. And the same rule shall apply to any relief claimed by the defendant in his written statement."

12. In the present case, it is observed that the prayer clauses of the plaint filed by respondent No. 1 do not specifically mention the relief sought in respect of the properties listed in paragraph No. 7 of the plaint. However, the pleadings of the parties clearly reflect their respective assertions regarding the alleged fraud and the denial thereof. Despite the absence of an express prayer, respondent No. 1 successfully established her claim to the said properties during the course of evidence, as held by the learned Senior Civil Judge. In such circumstances, the courts are empowered to mould the relief in accordance with the scope and spirit of Order VII, Rule 7, of the Code of Civil Procedure, 1908 (C.P.C.), which allows for appropriate relief to be granted even if not specifically prayed for, provided it is supported by the pleadings and evidence on record. This principle is well-settled in the case of Mst. Akhtar Sultana v. Major (R) Muzaffar Khan Malik through his legal heirs and others (PLD 2021 Supreme Court 715), wherein the Hon'ble Supreme Court of Pakistan held as under: "Such an objection has earlier been agitated before, and decided by, the superior Courts of our jurisdiction in several cases. And the judicial consensus that has evolved is that courts are to look at the substance of the plaint not its form. and in appropriate cases the courts can mould the relief within the scope of the provisions of Order VII, Rule 7, Code of Civil Procedure Code, 1908 (C.P.C.). The courts are empowered to grant such relief as the justice of the cave may demand, and for purposes of determining the relief asked for or the relief is which the plaintiff is entitled, the whole of the plaint is to be looked. The provisions of Order VII, Rule 7 of the C.P.C. empowers the courts to grant an effective or ancillary relief even if it has not been specifically prayed for."

13. In these circumstances, the relief granted by the trial court is well within the contemplation of Order VII, Rule 7 of the Code of Civil Procedure, 1908 (C.P.C.). Therefore, the decree passed by the learned Senior Civil Judge does not suffer from any illegality, as it aligns with both the law and principles of substantial justice.

14. Now, turning to the impugned order dated 16.04.2024, through which the civil appeal filed by the applicant on 11.03.2024 was dismissed as being barred by limitation, it is observed that the applicant preferred the appeal against the judgment and decree dated 18.01.2023 and 19.01.2023, respectively, passed by the learned Senior Civil Judge-I, Sanghar. To consider the matter further, it would be pertinent to reproduce Article 152 of the Limitation Act, 1908 as follows: Description of suit Period of Limitation Time from which period begins to run 1 2 3

152. Under the Code of Civil Procedure, (V of 1908), to the Court of a District Judge. Thirty days The date of the decree or order appealed from.

15. The appellate court, while passing the impugned order dated 16.04.2024, considered the grounds mentioned in the application under Section 5 of the Limitation Act, 1908, wherein the appellant contended that he was not intimated by his counsel and was misled. However, the Appellate court held that such a ground does not constitute sufficient cause within the meaning of the law, as was clearly established in the case of Ghulam Sarwar v. Province of Punjab through District Collector, Lodhran (PLD 2025 Supreme Court 60). It is the duty of every litigant to diligently and vigilantly pursue their case, keeping track of the progress at every stage and inquiring about its status from counsel after each hearing. This duty was affirmed in the case of Sheikh Nadeem Rehmat v. Mrs. Zarqa Jahanzeb (PLD 2025 Karachi 202), wherein it was held that a litigant must take proactive steps to ensure timely proceedings. In this case, the applicant has failed to discharge the burden of explaining the delay for each and every day. This principle was reiterated by the Hon'ble Supreme Court in Chief Engineer, Gujranwala Power Company (GEPCO), Gujranwala v. Khalid Mehmood and others (2023 SCMR 291), which emphasized that the burden of explaining the delay lies with the applicant and must be met with clear and full justification, as outlined below: "The law of limitation reduces an effect of extinguishment of a right of a party when significant lapses occur and when no sufficient cause for such lapses, delay or time barred action is shown by the defaulting party, the opposite party is entitled to a right accrued by such lapses. There is no relaxation in law affordable to approach the court of law after deep slumber or inordinate delay under the garb of labeling the order or action void with the articulation that no limitation runs against the void order. If such tendency is not deprecated and a party is allowed to approach the Court of law on his sweet will without taking care of the vital question of limitation, then the doctrine of finality cannot be achieved and everyone will move the Court at any point in time with the plea of void order. Even if the order is considered void, the aggrieved person should approach more cautiously rather than waiting for lapse of limitation and then coming up with the plea of a void order which does not provide any premium of extending limitation period as a vested right or an inflexible rule. The intention of the provisions of the law of limitation is not to give a right where there is none, but to impose a bar after the specified period, authorizing a litigant to enforce his existing right within the period of limitation. The Court is obliged to independently advert to the question of limitation and determine the same and to take cognizance of delay without limitation having been set up as a defence by any party. The omission and negligence of not filing the proceedings within the prescribed limitation period creates a right in favour of the opposite party. In the case of Messrs Blue Star Spinning Mills Lid. v. Collector of Sales Tax and others (2013 SCMR 587), this Court held that the concept that no limitation runs against a void order is not an inflexible rule; that a party cannot sleep over their right to challenge such an order and that it is bound to do so within the stipulated/prescribed period of limitation from the date of knowledge before the proper forum in appropriate proceedings. In the case of Muhammad Iftikhar Abbasi v. Mst. Naheed Begum and others (2022 SCMR 1074), it was held by this Court that the intelligence and perspicacity of the law of Limitation does not impart or divulge a right, but it commands an impediment for enforcing an existing right claimed and entreated after lapse of prescribed period of limitation when the claims are dissuaded by efflux of time. The litmus test is to get the drift of whether the party has vigilantly set the law in motion for the redress or remained indolent. While in the case of Khudadad v. Syed Ghazanfar Ali Shah alias S. Inaam Hussain and others (2022 SCMR 933), it was held that the objective and astuteness of the law of Limitation is not to confer a right, but it ordains and perpetrates an impediment after a certain period to a suit to enforce an existing right. In fact this law has been premeditated to dissuade the claims which have become stale by efflux of time. The litmus test therefore always is whether the party has vigilantly set the law in motion for redress. The Court under Section 3 of the Limitation Act is obligated independently rather as a primary duty to advert the question of limitation and make a decision, whether this question is raised by other party or not. The bar of limitation in an adversarial lawsuit brings forth valuable rights in favour of the other party. In the case of Dr. Muhammad Javaid Shafi v. Syed Rashid Arshad and others (PLD 2015 SC 212), this Court held that the law of limitation requires that a person must approach the Court and take recourse to legal remedies with due diligence, without dilatoriness and negligence and within the time provided by the law, as against choosing his own time for the purpose of bringing forth a legal action at his own whim and desire. Because if that is so permitted to happen, it shall not only result in the misuse of the judicial process of the State, but shall also cause exploitation of the legal system and the society as a whole. This is not permissible in a State which is governed by law and Constitution. It may be relevant to mention here that the law providing for limitation for various causes/reliefs is not a matter of mere technicality but foundationally of the "Law" itself."

16. Having thoroughly examined all the contentions raised on behalf of the applicant in the interest of justice, I find that the present revision application lacks both factual and legal merit. The concurrent findings recorded by the courts below do not warrant any interference by this Court. Consequently, the revision application is dismissed for the reasons set forth above. No order as to costs. UN/S-36/Sindh Revision dismissed.