P L D 1965 (W (PLP)

Issue No. 8.‑What is the effect of dismissal of plaintiff's previous suit?

3. The learned trial Court found all the aforesaid three issues in favour of the plaintiff and granted a decree for declara tion as prayed for, but left the parties to bear their own costs.

4. The respondent went up in appeal against the judgment and decree of the trial Court. Mr. Muhammad Ayub Khan, District Judge, Campbellpur, by his order dated 17th December, 1962, while affirming the findings on issues 1 and 8, non‑suited the appellant as a result of decision in Issue No. 7 against him, holding that the suit was governed by residuary Article 120 of the Limitation Act. The operative part of the order of the learned District Judge reads thus "In the present case, it is in evidence that the plaintiff respondent exercised her option by filing a suit earlier in 1954 vide P.

1. The date of institution of the earlier suit purports to be 9‑7‑

54. Thus the cause of action first came into existence in 1954. Had the present suit been brought on or before 9‑7‑60, it would have been well within time; but it was brought on 24‑4‑61 and is prima facie statute barred. Lower Court's finding on the question of limitation is, therefore, reversed."

5. Mr. Abdul Samad Khan, learned counsel for the appellant strenuously argued that the learned Appellate Court had not appreciated the correct legal position and fallen into error in holding that the suit was time‑barred. It was complained that the learned Appellate Court had assumed without holding that the causes of action in both the suits were the same and not distinct. To put it differently, it was argued that cause of action giving rise to the present suit was distinct and quite independent of the first suit and therefore, the dismissal of the suit could not be sustained.

6. Sheikh Abdul Majid Advocate, learned counsel for the respondent, on the other hand, argued that admittedly the residuary Article 120 of the Limitation Act governs the present suit and that the present suit was a continuation of the previous suit which had been dismissed in default and that the plaintiff had no fresh cause of action to bring the present suit, and therefore the suit had rightly been held beyond time.

7. The decision of the appeal, wholly turns on the decision of the question whether the present suit proceeds on the same cause of action as the previous suit which was dismissed in default. To put it differently, whether there is anything in the averments in the plaint of the present suit which can be construed that the plaintiff had founded her claim on causes of action different from the one in the previous suit. Before I proceed to tackle this question, it will be convenient here to state briefly, some of the principles which govern the doctrine of option of puberty so fair as they are relevant to the points raised in this appeal. One of the most important principles is that a minor girl contracted in. marriage retains the option up to the age of 18 years until she expresses her consent or disapprobation in express terms. In other words, the right of annulment continues until she express ratifies it say by express words or by cohabiting with the husband, or by asking for her dower or maintenance. I am fortified in this view by the following passage which occurs in the Ham: Hedaya (Grady's), page 38:‑ "The right of option in a virgin after maturity is done away with by the same circumstance, nor until he expresses his approbation by word or by deed, cohabiting with her and so forth; and in like manner, the right of option of the female after maturity (in a case where the husband has enjoyed her before she attained to that state), is not annulled until ,he expresses her consent or disapprobation in express tern;, has if she were to say I approve or I disapprove or until her consent, be virtually shown by her conduct in admitting the husband to carnal connection and so forth". The same view was approved in Abdul Karim v. Mst. Amina Bibi (157 I C 694), wherein, it was held that "if she (the wife), is living with her husband when she arrives at puberty, her option is not determined unless she assents explicitly or by implication to the marriage. Nor is mere consummation sufficient. There must be consummation with the wife's consent. Moreover, all the necessary facts must be proved by the husband to the satisfac tion of the Court. The Court leans in such cases in favour of the wife". I may also borrow the words of the Privy Council in Malka Jehan Sahiba v. Mohammad Askaree Khan (1873 L R I A (Supp. Vol.), p.192), wherein their Lordships of the Privy Council laid down that "where a minor girl has been contracted in marriage, the matter ought to be propounded her on her attaining majority so that she may advisedly give or withhold her assent". The withholding of assent maybe expressed in a variety of ways. It may be dedicated by the fact that without having recourse to institution of suit for the dissolution of marriage the girl may, where there has been no consummation and provided also that she is not more than 18 years, get remarried, as held in Muhammad v Emperor (140 I C 617). It may be indicated by serving a notice on the husband through an e attorney or publishing a notice in Newspaper that the option of puberty has been exercised. It may be manifested by tile mere institution of a suit for dissolution of marriage which may eventually be dismissed in default under Order IX, rule 3, C. P. C. In the instant case there is the categorical averment in the plaint that the option of puberty has been exercised. That in my view is an unequivocal expression of renunciation of the marriage. I may borrow the words of Mr. Justice Johnstone in Mst. Hasan Bibi v. Fazal Elahi(121 I C 381): "The bringing of the suit is in itself an exercise of that option and it cannot be held that there has been any unreasonable delay."

8. It follows from the last quoted authority that b instituting the previous suit which was dismissed in default on c 20‑10‑54 the marriage of the plaintiff with the respondent stood automatically annulled, in that it is a common ground between the parties and there is concurrent finding of the Courts that the marriage has not been consummated and that she was below 18 years of age at the time of instituting the first suit.

9. Reverting to the question as to whether the finding of the learned District Judge that the suit was time‑barred can be sustained. As already indicated earlier, the decision of this question tutus on the decision of the question whether the cause of action in the previous suit and the cause of action in the suit giving rise to the present appeal are the same. The answer to this question is to be found by the perusal of the plaints in the previous snit and the suit giving rise to the present appeal and it will be at once manifest that the causes of action in the two suits are not the same, but quite distinct. In the previous suits, as stated earlier, the appellant sought declaration. The plaint concludes with the following prayer m vernacular:‑ The basis of the suit was that she having been given in marriage during her minority and having attained puberty and the marriage having not been consummated it may be declared as cancelled. In para. 7 of the plaint in the previous suit there is, however, averment that the appellant had exercised the right of puberty at Rawalpindi. The fact, however, remains that on reading of the plaint as a whole the plaintiff sought the aid of the Court in annulling the marriage in exercise of the right of option of puberty. The reading of the plaint of the second suit reveals that the appellant sought two reliefs as against one relief sought in the earlier suit and none of the two reliefs was identical with the relief claimed in the first suit, in that the appellant in the first instance sought declaration that her marriage with the defendant stood cancelled and in the alternative she sought cancellation of her marriage under section 2 of the Dissolution of Muslim Marriages Act, 1939. The reading of the plaint further reveals that in para. 1, clause (1) the plaintiff reiterated the story as to how she had brought the previous suit for cancellation of the marriage which was dismissed in default. In para. 1, clause (2) it was stated that on account of the exercise of the option of puberty the marriage stood annulled. In the alternative the plaintiff sought cancellation of the marriage, on the ground that after the marriage the defendant failed to consummate the marriage and that for a period of ever ten years he had failed to provide her maintenance. Reading the plaint of the subsequent suit in the proper context it will be noticed that the plaintiff in the first instance prayed that her marriage had already been dissolved, but the respondent was still persisting in not admitting it and in the alternative she sought to annul the marriage on the grounds referred to above.

10. The respondent, among other pleas, refused to admit that the marriage of the plaintiff with the defendant stood dis solved as a result of the institution of the suit which was dismissed in default, and his denial in my view furnishes a fresh cause of action, in that the denial puts into jeopardy the claim of the plaintiff that her marriage with the respondent stood annulled as a result of institution of the previous suit. Be that as it is, the fact remains that the previous suit and the suit giving rise to the present appeal are based on different and distinct causes of action. It is general principle of law that limitation applies only to the particular cause of action on which a suit is based and where such cause of action is not barred by limitation, the fact that the period of limitation has expired with reference to another suit of a similar nature in respect of the same subject‑matter but based on a different cause of action does not affect the suit based on the former cause of action. Hence, where the plaintiff is entitled to successive causes of action in regard to the same matter, he will be entitled to an independent period of limitation in respect of each such cause of action. In Bolo v. Koklan (A I R 1930 P C 270) their Lordships of the Privy Council held that under Article 120, Limitation Act, the right to sue accrues only when the defendant infringes or at least has clearly and unequivocally threatened infringe the right asserted by the plaintiff in the suit. There is another aspect of the case and it is that in the plaint giving rise to the present appeal the plaintiff in para. 3 stated that the defendant was asked several times to admit the claim of the plaintiff and about two months back he for the last time denied the right of the plaintiff. In other words, the denial of the defendant to admit that his marriage stood automatically annulled as a result of the institution of the previous suit which had been dismissed in default, tantamounts to invasion of the plaintiff's right which would furnish her a fresh cause of action, and from that date the suit is admittedly within time. I am fortified in this view by the decision in Ghulam Rasul and others v. Rahim Bakhsh and others (A I R 1930 Lah. 284). The same view was approved in:‑ (1) Hakim Singh v. Waryaman 140 P R 1907. (2) Khem Singh v. Kesar Singh 122 P L R 1910. (3) Jahana v. Wali 98 P R 1919, and (4) Muhammad Hanif v. Ratan Chand A I R 1922 Lah. 94.

11. There is another aspect of the case and it is than Muslim Law prescribes no limitation for obtaining a judicial decree on the ground of option of puberty (See Fatawa‑i -Alamgiri I P 267 (Egypt Edn.) ). All that is required is that the minor should exercise the right as soon as she attains puberty or becomes acquainted with her possession of a right. The Dissolution of Muslim Marriages Act, too, does not provide any period of limitation within which such a suit should be brought. All that Clause VII, section 2 of the Act says is that the minor should have been married by the guardian before the age of fifteen and should have exercised the option of puberty before the age of eighteen. Otherwise she can bring a suit to get a judicial recognition of her having exercised the right at any time after she has become eighteen. Of course, delay in bringing the suit will create difficulties in the way of proving that the right was exercised before the minor attained the age of eighteen but the decision in each case will depend upon its circumstances.

12. For all the foregoing reasons, I accept the appeal, set aside the judgment and decree of the appellate Court and restore that of the trial Court, but in view of the peculiar circumstances of the case, I make no order as to costs. K.B.A. Appeal accepted.