2006 PLP 1758 (MLD)

MUNIB AHMED KHAN, J.

Through this miscellaneous appeal, the Appellant has challenged the judgment, dated 29-10-2005 passed by the IInd Additional District Judge in Appeal No.90/04 by which it has set aside the order of the Civil Judge, dated 28-2-2004 passed on application under Order VII, rule 11, C.P.C. and has reman ded the case back to trial Court with direction to decide it on merits. According to facts, the respondent is Welfare Society registered with the Assistant Registrar Joint Stock Companies. The respondent purchased one acre land from Survey No. 655/02 and four acres land from Survey No.655 in Deh Nareji, Taluka Tando Allahyar through registered sale-deed, dated 4-6-1988 from Ghulam Ali. Since the said land was in possession of the applicant, therefore, to protract his possession, he filed suit No.55188 for specific performance, cancellation of sale-deed and permanent injunction against the applicant and obtained temporary injunction. Anyhow the suit was dismissed in 1990, Appeal No.3 of 1991 was also filed in the High Court, which, subsequently, was transferred to the District Court due to amendment in pecuniary jurisdiction. The said appeal, ultimately was assigned No.91 of 2000, was dismissed vide judgment, dated 25-10-2001. The respondent in its suit has prayed for possession, mesne profit at the rate of Rs.30,000 per acre or as may be determined, by the Court. The learned Civil Judge after hearing, entertained the objection in respect to the competency of the plaintiff to file the suit as well as objection on the limitation and observed that the suit property prior to the purchase by the respondent in the year, 1988 is in possession of the applicant while the suit has been filed in the year, 2001 hence it has rejected the plaint on the ground of limitation. According to the Civil Judge, Article 142 of the Limitation Act provides 12 years period for filing or suit for possession and since the applicant acquired the land on 4-6-1988, therefore, the suit on 13-3-2002, after more than 14 years, was time-barred. The said order was set aside by the learned Additional Judge by his order, dated 27-10-2005 and the case was remanded back for decision on merits. The learned Additional District Judge has observed that suit was within time as the respondent could not rile the suit, as in respect to the said property, injunction order was operating in the suit filed by the applicant and the said stay remained pending till the appeal was dismissed on 25-10-2001.'He has further observed that since the factual position was mixed up with the legal position, therefore, for determination of the limitation question, evidence was necessary and that the learned Civil Judge failed to consider the provision of section 15 of the Limitation Act. Learned Judge further observed that since injunction was in operation regarding the suit-land hence the said period is to be excluded from the period of limitation and that the applicant had lost his case on merits which he filed against the respondent after it purchased the suit-land, therefore, the issue of possession is to be decided on merits. Now the applicant has challenged that order of remand on the ground that the appeal before the District Judge was time-barred and was wrongly entertained which would have been dismissed on that count and secondly the learned Additional District Judge has wrongly interpreted section 15 of the Limitation Act and that the suit could be filed by the respondent immediately after purchase of the property as there was no bar by the language of section 15 of the Limitation Act. He has further stated that even the court-fee was not paid and application under section 149, C.P.C. as well as application for condonation of delay of 12 days in filing the appeal- was still pending, therefore, the suit was barred by about two years while the appeal before the Additional District Judge was barred by 14 days, therefore, Additional District Judge would have dismissed the appeal on those accounts. Mr. Jhamat Jethanand has relied upon PLD 1991 SC 957 in respect to condonation of delay in filing of the appeal as well as filing of the suit very late but that authority is not of any help as it laid down as follows:-- "Under section 5 of the Limitation Act, delay can be condoned if Appellant satisfies the Court that he had sufficient cause for not preferring the appeal within the period prescribed therefore, section 14 of the Limitation Act envisages that in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court for first instance or in a Court of Appeal, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court, which from defect of jurisdiction or other cause of like nature is unable to entertain it." He has relied upon 1985 SCMR 1003 on the ground of condonation of delay but that authority is not relevant as it is counsel's negligence in filing of appeal before wrong forum. Another authority PLD 1998 Peshawar 47 is also not relevant to the facts of this case. On the other hand learned counsel Mr. Hassan Mehmood Baig has argued that although the appeal was filed after delay of some days but the delay was condoned on the application of the respondent under section 5 of the Limitation Act. He has pointed out para. 5 of the judgment of the learned Additional District Judge wherein he has observed that there is delay of only 12 days after deduction of time spent in obtaining the copies and since medical certificates issued by a medical officer of a hospital were filed, therefore, delay was condoned. He has further stated that due to urgency, appeal was filed without court-fee but proper application under section 149, C.P.C. was moved and extension was granted and thereafter within the time, the court-fee was submitted. Mr. Baig has argued that the condonation of limitation as well as extension of time for filing of court-fee was purely discretionary order of learned Additional District Judge and that discretion, which has properly been exercised for which reasons have been given, cannot be questioned nor there is any illegality. He has relied upon PLD 1984 SC

289. Mr. Baig went on arguing that the basic purpose of this miscellaneous appeal is nothing but to. drag on the illegal possession of the applicant as immediately after purchasing of the suit-land, the applicant filed a frivolous suit which was dismissed even to the extent of High Court in a revision and now he wants to avail last remedy by way of technicalities which law never permits and since the appeal is misconceived is to be dismissed with cost. Learned counsel has argued that section 15 of the Limitation Act is very clear as it provides that time during which stay is in operation in respect to the institution of suit is to be deducted. He has slated that the applicant obtained injunction in his Suit No.55/88 and that was continued till 25-10-2000 when the revision was finally dismissed by the High Court and thereafter the respondent filed suit in 2002. He has further submitted that it was on record that the respondent was all along contesting the matter and asserting its right hence the learned Additional District Judge has rightly remanded the case to be decided on merits. He has further argued that although the case of the respondent is not hit by limitation but without prejudice, it is to be seen that Article 142 of the Limitation Act providing 12 years of limitation for an action on behalf of the plaintiff in respect to the possession of immovable property to be counted from the date of dispossession or discontinuance, therefore, the said Article is not applicable as neither the respondent was dispossessed nor possession was discontinued as he was not put into possession. He has further argued that all the Articles of Limitation are 'subject to sections of Limitation Act and after repeal of section 28, Article 142 has no force although it is not applicable in the case of the respondent. After hearing the arguments, it is evident that the applicant initiated his action against the respondent by filing a Suit No.55 of 1988 in respect to the suit property but lost in appeal and in revision before this Court and during the pendency, enjoyed the injunction order. The respondent, all along was contesting the suit and that every pleading filed and steps taken by the Court amounts to contest by the respondent which shows that it was awaking and was contesting the case but did not file its suit due to pendency of injunction as well as continuous contest in respect to same property between one and the same parties. Although there was no bar in filing of the suit as the injunction does not bar legal Action but even then deletion of section 28 shows that right of a person to a property cannot be extinguished on technical ground. It is further noted that Article 142 is not specifically applicable in the case of the respondent as there was no juncture in calculation of the time period as neither the respondent was dispossessed nor ever he was in possession, therefore, learned District Judge has passed a right order by remanding the case for decision on merits keeping in view the previous contest between the same parties. As far as the argument of Mr. Jhamat in respect of condonation of limitation in filing the appeal or supplying of the court-fee at later stage is concerned, it is to be pointed out that the discretion, in respect to grant of extension and filing the court-fee or condoning the delay was within the discretion of Additional District Judge and since it has been exercised in favour of the respondent, and no illegality has been pointed out, hence, it cannot be disturbed. In the above circumstances, this civil miscellaneous appeal has no force, hence, dismissed. H.B.T./I-16/K Appeal dismissed.