1998 PLP 1425 (CLC)

share therein. In the instant case, it is an admitted position that the predecessor in interest of the parties to the suit expired in 1957. The plaintiffs have been able tote demonstrate that after the death of their father the defendant No. l initially permitted the plaintiffs to participate in the business and was sharing its profits with the plaintiffs. The point blank refusal to share the assets of late Dr. Muhammad Habib Effandi was made by the defendant No. l in the year 1993 when the mother of the parties expired. It will be pertinent to mention here that while dealing with an application under Order 7, Rule 11, C.P.C. the Court can only look into the contents of the plaint and nothing else. I am of the considered view that from the contents of the plaint refusal to share the assets of late Dr., Muhammad Habib Effandi on the part of defendant No. l can be deduced only ink the year 1993. Accordingly, the period of limitation for filing the suit shall start running from such refusal as provided under Article 127 of Limitation Act, I 1908. Now, I proceed to deal with the contentions advanced and case‑law relied upon by Mr. Khalil‑ur‑Rehman to convass the proposition that the suit is barred by limitation. As stated above, contention of Mr. Khalil ur Rehman is that the predecessor‑in‑interest of the parties died in the year 1957 and the suit having been filed in 1994 is hopelessly time‑barred. Further, contention of the learned counsel is that Article 127 of the Limitation Act is applicable to a case of joint Hindu family property only and the said Article is not applicable in the suit filed by a member of Muslim family for claiming a share in the estate left by deceased ancestor. In support of his contention the learned counsel has relied upon the case of S.K. Muhammad Zafeer v. S.K. Amiruddin and others reported in AIR 1963 Patna 108 and Jeevanbai Nadirshaw Golwalla v. Darab Burjorji Godwalla and others reported in 1981 CLC

503. In the first case relied upon by the learned counsel for the defendant No. l it had not been held that Article 127 of the Limitation Act is not applicable to a suit by members of Muslim family for recovery of shares in the estate left by a deceased Muhammad ancestor but, in view of my under given reasoning, I am unable to persuade myself to agree with the dicta laid down in the said judgment. Prior to promulgation of the Limitation Act, 1908, Limitation Act, 1871 was in force in the sub‑continent. Article ‑127 of the Limitation Act, 1871 reads as under:‑‑‑ "

127. By a Hindu excluded Twelve years When the plaintiff from joint‑family claims and is refused property to enforce a his share." right to share. A perusal of Article 127 as enacted in the Limitation Act, 1871, would reveal that word "Hindu" has been specifically mentioned in it but in the subsequent Limitation Act, 1908 the word "Hindu" has been omitted from the Article. This deliberate exclusion of the word "Hindu" from Article 127 of Limitation Act, 1908, in my view, connotes that the said Article was made applicable to persons of all faith. Furthermore, the case cited by the learned counsel being an Indian Court Judge is not binding on me. In order to appreciate the dicta laid down by his Lordship Mr. Justice Saeed‑uz‑Zaman Siddiqui (as his Lordship was) in the cited case Jeenvakbai Nadirshaw Golwalla v. Darab Burjorji Colwalla, relied upon by the learned counsel for the defendant No. 1, I feel it appropriate to reproduce hereinbelow the relevant portion of the said judgment:‑‑‑

"This issue relates to limitation. The present suit was filed on 25‑2‑1967. The cause of action is‑alleged in paragraph 36 of the plaint as having arisen to the deceased plaintiff on 16‑9‑1958. The suit is for declaration and permanent injunction and accounts. The right claimed by the deceased plaintiff is based upon the right as a heir of the deceased who admittedly died in the year 1934. The learned counsel for the deceased plaintiff was unable to show as to how the suit is within time. The deceased plaintiff according to her showing became entitled to this share upon the demise of the deceased in the year 1934. The evidence on the record show that the deceased plaintiff never received any share out of the income of the two mines after the death of the deceased. It is on the record that the deceased plaintiff never participated in management, control or in the income of the two mines which were exclusively run, managed and controlled by the two sons of the deceased and their successor in title until filing of the suit. Even if I presume that the two mines were joint family property and that the deceased plaintiff was entitled to a share in it as an heir, even then the, period of limitation will be 12 years under Article 127 of the Limitation Act from the date when the exclusion became known to the plaintiff. The plaintiff has not been able to show that the deceased plaintiff became aware of her exclusion from the joint property only within 12 years of the filing of present suit. There is ample evidence on record to show that the plaintiff was aware that she was not given her due share in the two mines left by the deceased and in any case on the death of Nariman she was specifically made known about her exclusion from the joint family property when late Nariman's will was communicated to her. I accordingly, hold that the plaintiff have failed to show that the suit is within time." A perusal of the aforesaid extract from the judgment sufficiently demonstrates that the deceased plaintiff never received any share out of the income the two mines. It was on the record that the deceased plaintiff never participated in management, control or in the income of the two mines which were exclusively run, managed and controlled by the two sons and their successor in title until filing of the suit. The facts of the cited case are altogether distinguishable from the facts of the case in hand and as such I am of the considered view that the judgment cited by the learned counsel for defendant No. l is of no help to the case of defendant No.

1. It may, however, be observed that in the cited case it has been held by his Lordship that period of limitation for filing a suit of the nature in hand is 12 years udder Article 127 of the Limitation Act and such period of limitation shall run from the date when the exclusion became known to the plaintiffs. In this view of the matter, contention of learned counsel for defendant No. l that Article 127 of the Limitation Act, 1908, is not applicable in the instant suit is also misconceived and liable to be repelled. It may further be stated that Mr. Faisal Arab learned counsel for the plaintiffs has contended that bar of limitation would not stand amongst co‑heirs and their successors in a suit filed by a co‑heir inheriting under the Muhammadan Law. Reliance in this connection has been placed by the learned counsel on the case of Mst. Amina Bi v. Mst. Bivi and others reported in 1993 MLD 1207. The findings of the learned Judge in the cited case is based on the case of Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 4) and such being the position I am bound by the rule laid down in the said judgment. This brings me now to the second leg of ground urged by the learned counsel for the defendant No. l for rejection of plaint under Order 7, Rule 11, C.P.C. As stated above, the second ground urged by the learned counsel for the defendant No.l for rejection of plaint relates to alleged multifariousness of causes of action. Before proceeding further to discuss the provisions of Order 2, C.P.C. I deem it proper to see as to what is the dictionary meaning of the word "multifariousness". In Aiyar's Judicial Dictionary, 10th Edition at page 694 the word "multifariousness" has been defined in the following terms: "Multifariousness is the name given to misjoinder of parties and causes of action. Under Order II, Rule 3 of the First Schedule of C.P.C. where it is found that a suit is multifarious, the Court may return the plaint for amendment or the plaintiff may be permitted to withdraw the suit with liberty to bring a fresh suit properly framed. Where the plaintiff declines to withdraw and insists that there is no multifariousness, the Court will frame an issue on the question of multifariousness and if it finds that it is multifarious, dismiss the suit entirely. Any objection by the defendant should under Rule 7 be taken at the earliest possible opportunity and, in all cases where issues are settled, at or before such settlement, and any objection not so taken shall be deemed to have been waived. " In Earl Jowitt's Dictionary of English Law, Vol. 2, page 1198 "multifariousness" is defined as under: "Multifariousness. Under the practice of the old Court of Chancery, a bill of complaint was open to a demurrer for multifariousness when it attempted to embrace too many objection or causes of suit." In Ballentine's Law Dictionary, third Edition at page 820, the word "multifariousness" is defined as: "Multifariousness. The joining or uniting‑in a declaration, bill or complaint of two or more matters which are independent of, or unconnected with, one another. A term loosely applied to the joinder as defendants or plaintiffs of persons without a common interest in the litigation. The joining in a statute of dissimilar and discordant subjects. " From .the aforesaid definitions of word "multifariousness" it is apparent that multifariousness implies joining of two or more dissimilar and distinct causes of action in one suit. A perusal of the plaint in this would, however, manifest that dissimilar and discordant causes of action have not been joined and as such it cannot be said that the suit suffers from multifariousness of causes of action. Order 2, Rule 2, C.P.C., inter alia, enjoins upon a plaintiff to include the whole of the claim which the plaintiff is entitled to make in respect of the causes of action. Order 2, Rule 3, C.P.C. permits a plaintiff to unite in one suit several causes of action against the same defendant or same defendants jointly and any plaintiffs having causes of action in which they are jointly interested against the same defendants. The relevant rule for the purposes of deciding the objection raised by the learned counsel for the defendant No. 1 is Order 2, Rule 6, C.P.C. which empowers a Court to order separate trials in a case where it considers that many causes of action joined in one suit cannot be conveniently tried or disposed of together. As stated above, the reliefs claimed in this suit arise out of one and the same basic cause of action i.e., entitlement of the plaintiffs to claim their share in the estate left by the deceased arrestor of the parties and as such in my view separate and distinct causes of action have not been joined by plaintiffs in this suit and all the causes of action claimed in the suit can be conveniently disposed of by one and single trial. Such being the position, in case of multifariousness of causes of action the only power which has been enjoined upon the Court is to order separate trial. In case the Court comes to the conclusion‑ that the suit suffers from multifariousness of causes of action it shall give an option to the plaintiff to pursue particular cause of action in the suit and if the plaintiff fails to exercise such option then alone a plaint can be rejected under Order 7, Rule 11, C.P.C. It may be stated that under Order 2, Rule 7, C.P.C. all objections in respect of misjoinder of causes of action are required to be taken at the earliest possible opportunity and any objection not so taken shall be deemed to have been waived. In the case in hand, the suit was filed by the plaintiffs on 15‑9‑1994 and written statement was filed by the defendant No.l on 7‑5‑1997. The instant application under Order 7, Rule 11, C.P.C. was filed by the defendant No. l on 7‑5‑1997 with a delay of more than 21/x years and as such in my opinion on account of inordinate delay in filing the instant application, the' objection in respect of multifariousness of causes of action was waived by the defendant No.

1. In view of the aforesaid discussion, I am of the considered view that this application is misconceived and not maintainable. Accordingly Civil Miscellaneous Application 3192 of 1997 is dismissed. Since the dispute in this suit is between real brothers and sisters, prolongment of litigation between the parties shall create further bad blood amongst the parties and as such the parties are directed to' file their proposed issues within 15 days and upon settlement of issues the suit shall be listed for evidence within two months. A.A./G‑57/K Application dismissed.