2009 PLP 39 (CLC)
Dr. KHUSRO KAMAL ZIA — Plaintiff Versus Dr. ZEHRA — Defendant
| Citation | 2009 PLP 39 (CLC) |
| Forum / Court | Karachi |
| Bench Members | N/A |
| Parties | Dr. KHUSRO KAMAL ZIA — Plaintiff Versus Dr. ZEHRA — Defendant |
| Primary Law | Specific Relief Act (I of 1877) |
Q1: What are the key laws and sections cited in 2009 PLP 39 (CLC)?
This judgment primarily cites: Specific Relief Act (I of 1877) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2009 PLP 39 (CLC)?
The case was heard and decided by the Karachi bench comprising: N/A.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2009 PLP 39 (CLC) (Dr. KHUSRO KAMAL ZIA — Plaintiff Versus Dr. ZEHRA — Defendant). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Headnotes / Summary
S. 42
Limitation Act (IX of 1908), Arts.91 & 120
Suit was objected to on the ground of limitation
Objection was that suit was barred under Art.91 of Limitation Act, 1908 as same was filed after lapse of three years
Said objection was resisted by the plaintiff on the ground that documents pertaining to the suit property having been sought to be declared as Benamidar, Art.120 of Limitation Act, 1908 would be applicable in the case
Limitation being a mixed question of law and fact, required evidence
Objection was ruled out by High Court subject to all just exceptions and case was directed to be admitted for hearing the objection.
Judgment & Decree
MRS. QAISER IQBAL, J.
The plaintiff has filed suit for declaration to the effect that the defendant is Benamidar of Property bearing No.A-1/B, measuring 249.50 square yards situated at Block No.4, Gulshan-e-Iqbal, Karachi and has sought further declaration that he is ostensible owner of the subject property, therefore, transfer of the property in the name of the defendant is illegal, void ab initio and physical possession of the property be ordered to be delivered by the defendant to the plaintiff. The office has raised objection that in view of the prayer clause (b) of the plaint suit is barred under Article 91 of the Limitation Act as admittedly sale-deed was executed on 18-11-2002 and instant suit has been filed after the lapse of three years, objection has been resisted by the learned counsel for the plaintiff on the ground that documents pertaining to the subject property are sought to be declared as Benamidar, therefore, Article 120 of the Limitation Act would be applicable. The document was executed on 18-11-2002, whereas the suit has been presented on 3-2-2007, which manifestly suggest that the suit has been filed after 4 years 3 months within the period of provided under Article 120 of Limitation Act. In support of the above contention reliance is placed on the case of Nazir Ahmed Serang v. Benoya Bhusan Saha PLD 1957 Dacca 575 at page No.585, it has been observed that Article 91 does not apply where the document is sought to be declared to be Benami as was observed by their Lordships of the Privy Council in the case of T.P. Petherpermal Chetty v. R. Muniandi Servai and others "As to the point raised on the India Limitation Act, 1877, their Lordship are of opinion in that the conveyance of June 11, 1895, being an inoperative instrument, as in effect it has been found does not bar the plaintiffs' right to recover possession of his land, and that it is unnecessary fee him to have it set aside as a preliminary to his obtaining the relief he claims. The 144th, and not 91st Article in the second Schedule to the Act is, therefore, that which applies to the case, and the suit has consequently been instituted in time". While dilating of the point of the limitation for filing of such suit for declaration within six years in terms of Article 120, Limitation Act, 1908, the reliance has been placed on the case of Abdul Rashid Velmi v. Habib-ur-Rehman and 2 others reported in 1995 MLD page 397, in any view of the matter, limitation is a mix question of law and fact which requires evidence, however, at this juncture. The office objection is overruled subject to all just exceptions and the case is directed to be admitted for hearing. Objection is accordingly decided. H.B.T./K-30/K Order accordingly.