1998CLC371 (PLP)

SARDAR SAID MUHAMMAD KHAN, C.J.‑‑‑This appeal has been directed against the judgment and decree of the High Court dated 16‑5‑1996, whereby the appeal filed by the appellant, herein, was dismissed.

2. The brief facts giving rise to the present appeal are that a suit for possession on the basis of pre‑emption was filed by the plaintiff‑appellant in the Court of Sub‑Judge, Bhimber, on September 21, 1993, the suit was subsequently transferred for trial to Sub‑Judge, Samahni. An application was moved by the defendants‑respondents on February 11, 1995 praying that the suit may be dismissed because after the amendment in the Limitation Act whereby the limitation for filing a suit for pre‑emption has been reduced from one year to four months. The suit was time‑barred. The trial Court dismissed the suit as being time‑barred; the appeals against the order of dismissal before the District Judge and High Court also failed.

3. Ch. Muhammad Riaz Alain, Advocate, the learned counsel for the appellant, has argued that the trial Court has committed error in holding the suit filed by the appellant was time‑barred. He has argued that the trial Court committed an error in dismissing the suit without framing the issues. The learned counsel submitted that in any case, the suit could not be dismissed but only the plaint could be rejected under Order 7, rule 11, C.P.C. When the learned counsel was asked as to how the plaintiff would be benefited if instead of dismissing the suit, the plaint would have been rejected, the learned counsel replied that had the trial Court decided the matter after filing the written statement and framing issues, the appellant‑plaintiff would have taken the plea that the limitation starts from the date of delivery of possession and not from the date of the registration of the sale‑deed.

4. It may be pointed out that the learned counsel did not controvert the proposition that if the limitation is reckoned from the date of registration of the sale‑deed, the suit filed by the plaintiff‑appellant is hopelessly time‑barred, particularly as has been held by this Court in case entitled Fazal Dad v. Mst. Sakina Bibi' (Civil Appeal No. 19 of 1996, decided on 31‑3‑1997).

5. In reply, Ch. Muhammad Siddique, Advocate, the learned counsel for the respondents, has submitted that in the instant case the amendment in the relevant law, whereby the period of limitation was reduced from one year to four months was introduced on 10‑8‑1992 whereas the sale‑deed was registered on 3‑10‑1992. Thus, the plaintiff‑appellant could file the suit within four months but that he waited much beyond the aforesaid period and did not file the suit as was necessitated by the amendment in the law. The learned counsel further submitted that the trial Court was not debarred from deciding the question of limitation before framing the issues especially so when the suit was time‑barred on the face of it in view of the relevant amendment. He has further argued that the point with regard to the limitation is a law point and there was no necessity of framing any issue or recording the evidence. The learned counsel has argued that in the plaint it has been clearly averred by the plaintiff‑appellant that the cause of action arose to him when the sale‑deed was registered and he has not taken any plea whatsoever that " it arose subsequently and, thus, the limitation would start from the date when the possession of the land was delivered to the respondents after the execution of the sale‑deed. Thus, according to the learned counsel for the respondents, there is no force in the contention that it was necessary for the trial Court to frame an issue and that any such issue on the point of limitation would have helped the case of the appellant.

6. We have given one consideration to the matter. After the dictum by this Court in Fazal Dad's case, referred to above, the suit in hand is hopelessly time barred. The contention of the learned counsel for the appellant that the limitation in his case would start from the date when he had taken the possession is not tenable because no averment has been made in the plaint that the possession was handed over to the respondent some time after the execution of the sale‑deed.

7. So far as the argument that the plaint in the instant case could only be rejected under Order 7, rule 11, C.P.C., instead of dismissing the suit is concerned, we are of the view that the arguments advanced by the learned counsel for the appellant has force. However, in any such eventuality, the suit of the appellant could not be saved from the mischief of the limitation. In the light of what has been stated above, we partly accept the appeal only to the extent that in the instant case instead of dismissal of the suit, the plaint of the appellant would be deemed to have been rejected as being time barred. Consequently, the judgments and decrees of the Courts below stand amended to that extent. The appeal stands disposed of as indicated above. A.A./228/SC/(AJ&K) Appeal partly accepted