1985Q7 (PLP)

By this revision petition Sahib Dad son of Sher Muhammad has challenged the judgment and decree passed by the Majlis-e-Shoora, Khuzdar on 22-12-1982. By this judgment the decree passed in his favour by Qazi Gawadur on 26-8-1982 has been set aside and the suit filed by him against the defendants/respondents has been dismissed being barred by time.

2. The facts of this case are that on 11-9-1979 the petitioner Sahib Dad had filed a suit in the Court of Nazim Dasht against 9 persons including the present respondents and the averments as contained in the so called plaint (Annexure A to this petition) are that the suit land was claimed by the plaintiff to be his property which was given for "cultivation" to the defendants who had been paying Haqa-i-Malkada to him after some time a flood swept away the "Lath" and thus according to the convention the "Lathbandi" right of the delandants came to an end. In spite thereof the defendants persist in their occupation and have maintained their possession forcibly. It was prayed that the defendants be summoned and the relief be given. It is significant that the material particulars as to when the cause of action arose to the plaintiff has not been mentioned nor it is stated when the suit land was obtained by the defendants from the plaintiffs and when the flood had washed away the lath. (The effect of these omissions would be discussed in this judgment later). The defendants filed separate written statements and denied the rights of the plaintiff and asserted their claim of ownership and stated that they have been in possession since the days of their ancestors. The defendant Habtan specifically mentioned in his written statement filed on 13-11-1980 that the suit land belongs to him and has been in possession of his forefathers. The plaintiff had filed a suit which was dismissed. The suit of the plaintiff is now barred by time. The learned Nazim Turbat after receiving the written statement from the defendants framed the following issues : (1) Whether the suit of the plaintiff is proper ? (2) If so what should be the relief ? and remitted the case to the Qazi Gawadur for disposal according to Shariat as per requirements of the Dasturul Amal Diwani, Kalat. Before the Qazi the parties led evidence and the defendants produced the certified copies of the earlier judgments passed in litigations between the parties which have been noticed by the Qazi in his judgment. However, the learned Kazi vide his judgment, dated 29-8-1982 passed a decree in favour of the plaintiff and against the defendants/respondents. The present respondents filed appeal against this judgment and decree before the Majlis-e-Shoora Khuzdar and repeated the plea of limitation, which plea prevailed and the Majlis-e-Shoora accepting the appeal held that the suit was barred by time and set aside the judgment and decree of the Qazi. Against judgment and decree, dated 22-12-1982 of the Majlis-a Shoora the present revision petition invoking the jurisdiction of this Court under section 115, C. P. C. has been filed.

3. Mr. Tahir Muhammad Khan, Advocate for the petitioner has urged before me only the following three grounds (a) that no issue of limitation was framed by the Court below nor there was any evidence on the record about the limitation hence Majlis-eShcora has taken the plaintiff by surprise. (6) Extraneous evidence like previous litigation has been taken into consideration which was neither available on record nor proved. (c) that the learned Members of the Majlis-s-Shoora have misread the evidence and the finding arrived at is erroneous.

4. Before I discuss the ground taken by the learned counsel I would like to point out that the so-called plaint offends the rule 1(e) of Order VII, P.P.C. The Civil Procedure Code and .the Limitation Act, 19J8 have been extended to and are enforced in Kalat Division by virtue of the statutes Reforms Ordinance, 1960. Order VII, rule 1 of Civil Procedure reads : Order VII, rule l.-The plaint shall contain the following particulars ; (e) the facts constituting the cause of action and when it arose ; The Dasturul Amal Diwani, Kalat, 1952 also in section 3 (d) provides : This provision has been explained by the framers of the Dastur in Appendix B' provided to Dasturul Amal Diwani, Kalat. This appendix is to be taken as the standard of the requisite brevity and as specimen of the pleadings required. The provisions of Dasturul Amal Diwani and that of rule 1 (e) of Order VII, C. P. C. are in pari materia and require that a statement should be made in the plaint that the cause of action arose on such and such date to enable the defendant and the Court to ascertain from the plaint whether in fact or in law the cause of action did arise as alleged or not and is within time. Judging the so-called plaint filed by the plaintiff from this standard it is plain that there is no specific allegation (i) when the land in suit was given for cultivation to the defendants, (ii) upto what period the plaintiffs had received Haqa-i-:vtalkana from the defendants, (iii) when flood had washed away the "lath" and thus when the cause of action arose to the plaintiff. In view of these omissions the plaint was not entertainable. It is always the obligation of the plaintiff to satisfy the Court that his suit is not barred by lapse of time and to discharge that legal obligation it is on him to show when the cause of action arose. In the instant case the plea of limitation contained in the written statement of Haibatan defendant was sufficient to cast upon the plaintiff the duty of showing that his suit is not in any way barred by statute of limitation. The documentary evidence furnished by Haibatan (certified copies of the judgments) did show that a suit was filed in the year 1953 by the present petitioner and was dismissed. The learned Kazi in his judgment has noticed this aspect in these words : Thus, it was proved that the defendants were in possession of the suit land prior to the year 1953 arid had been asserting their rights adverse to the plaintiff. The learned members of the Majlis-e-Shoora have taken notice of this aspect in their judgment and have expressed themselves in these words :

5. I have minutely gone through the evidence produced on behalf of the plaintiff/petitioner and have found that the particulars required to bring the suit within limitation have not been proved. None of the witnesses produced by the plaintiff could say when the suit land was given to any of the defendants and the entire evidence is vague on this material particular. No document either has been produced by the plaintiff, in support of his claim of ownership. The learned counsel for the petitioner is not even aware if in his client had appeared as his own witness before Kazi. No statement has been filed in this Court though practically the entire evidence consisting of the statements of the witnesses produced before the lower Court has been annexed to this petition. I have, therefore, come to the conclusion that the plaintiff/petitioner has failed to establish his case as set up in his pleadings. The law on this point is clear that when a person brings a suit and his claim is denied by the other party, it is his duty to show that the suit was instituted within the prescribed period of limitation.

6. The learned counsel for the petitioner has made a request that an issue be remitted to the Court below (Qazi) on this point. After having given. my best consideration to this request I do not find myself in a position to accede to this request for the reason that the parties had stated their case in their pleadings. The defendant Haibatan has even specifically taken this plea that the suit was barred by time. He produced the certified copies of the judgment thus each party knew what its case was and availed of the opportunity of producing evidence. The facts necessary to support the pled of limitation are apparent on the face of the record and no question of fact has to be enquired into for that purpose. Limitation being a question of law can be raised in appeal even though not raised in pleadings (See P L D 1959 Kar. 760). Thus, the omission 'of the issue does not preclude the defendant to urge the bar of limitation on or the Court holding a proceeding to be barred if it is apparent, in view of section 3 of the Limitation Act. The plea of limitation raised by the defendant/respondents thus has been properly entertained, and the appellate Court (Majlis-e-Shoora) was competent to record a finding on this point, Order XLI, rule 24, C. P. C. lays down that if the evidence upon the record is sufficient to enable the appellate Court to pronounce judgment, the appellate Court may record a finding itself) although the lower Court might have left the point undetermined.

7. The documents produced by the defendants in this case establish that the plaintiff was not in possession of property in suit and the defendants have .been asserting his right even before the year 1953 and this aspect of the matter was being emphasised and asserted by all the defendants in their written statements thus it cannot be reasonably contended that the plaintiff was taken by surprise. This contention is, therefore, repelled.

8. The certified copies produced in the case form part .of the record of judicial proceeding and are public documents as mentioned in section 74 (3)I of the Evidence Act and are admissible in evidence. The plaintiff had admitted the litigation. The certified copies produced by the defendant had been verified by the Kazi from the original record. The content of the record has been proved by the production of certified copies. The stand of the defendants, therefore, stands proved I find no illegality in the exercise of jurisdiction by the Majlis-e-Shoora. The revision has no merit and is accordingly dismissed with costs. nL z. M. Revision petition dismissed.