2019 PLP 840 (CLC)

MAMOON RASHID SHEIKH, J.

The instant petition is directed against the judgment, dated 01.03.2012, passed by the learned Civil Judge 1st Class, Pasrur and the judgment and decree, dated 26.10.2015, passed by the learned Addl. District Judge, Pasrur.

2. The facts relevant for the present purposes are to the effect that, on 04.10.2005, respondent No.1 filed a suit against the petitioners and the pro forma respondents Nos.2 to 4 and one Noor Fatima, the deceased mother of petitioners Nos.2 to 5 and the pro forma respondents Nos.2 and 3, for declaration and perpetual injunction in respect of the property in dispute, which is fully described in Para-3 of the petition. The suit was brought on the premise that respondent No.1 was the owner in possession of the property in dispute, however, in the month of May, 1993, a case bearing FIR No.127/1993, offence under section 11/7/79 was registered with P.S. Saddar, Pasrur, by one Allah Rakha, against respondent No.1. As a consequence, in the month of May, 1993, respondent No.1 and his brother were arrested. They were acquitted in the said case after 2/3 years. Subsequently, in the year, 2005, when respondent No.1 had gone to the local Courts in connection with an execution petition filed against him by one Muhammad Ismail, an associate of the afore-referred parties, respondent No.1 learned that while he was in jail, petitioner No.1 and one Muhammad Bashir (the predecessor-in-interest of petitioners Nos.2 to 5, the deceased Noor Fatima and the pro forma respondents Nos.2 and 3) and the pro forma respondent No.4 had managed to transfer the property in dispute in their names on the basis of alleged oral sales, which were given effect to in the revenue record through mutations Nos.117 and 118, dated 17.05.1993. Respondent No.1, therefore, sought setting aside of Mutations Nos.117 and 118 on the ground that they had been effected/entered into the revenue record through fraud, forgery and misrepresentation. The petitioners, Noor Fatima and the pro forma respondents Nos.2 to 4 are stated to have not entered appearance despite service through proclamation in the daily Jurrat. As a consequence, ex parte proceedings were initiated against them on 30.03.2006. It is further stated that, on 10.01.2007, the petitioners, Noor Fatima and the pro forma respondents Nos.2 to 4 filed an application for setting aside the order, dated 30.03.2006. The application was resisted by respondent No.1, however, the learned trial Court through the order, dated 24.05.2007, accepted the application. It is further stated that thereafter the petitioners, Noor Fatima and the pro forma respondents Nos.2 to 4 failed to file their written statements despite obtaining several adjournments. Finally, on 30.11.2007, they went unrepresented, hence, they were once again proceeded against ex parte. Thereafter, respondent No.1's ex parte evidence was recorded and ultimately the suit was decreed ex parte in respondent No.l's favour on 25.02.2010. On 03.04.2010, the petitioners, Noor Fatima and the pro forma respondents Nos.2 to 4 moved an application for setting aside the ex parte judgment and decree, dated 25.02.2010, passed in favour of respondent No.1. The application was resisted by respondent No.1. Issues were framed, including additional Issue No.1-A on the question of limitation vis-a-vis the application. Evidence was recorded, however, through the impugned judgment, dated 01.03.2012, the learned trial Court dismissed the application. Feeling aggrieved the petitioners, Noor Fatima and the pro forma respondents Nos.2 to 4 filed an appeal; which was dismissed by the learned Addl. District Judge, Pasrur, through the impugned judgment and decree, dated 26.10.2015.

3. The learned counsel for the petitioners submits that the impugned judgments have been passed illegally and with material irregularity. Contends that the learned Courts below failed to appreciate that the suit of respondent No.1 was hopelessly time barred, therefore, the ex parte decree, dated 25.02.2010, could not have been passed in favour of respondent No.1.

4. Further submits that under Section 3 of the Limitation Act, 1908, a duty was cast upon the learned trial Court to look into the point of limitation, even if, there was no objection raised in this respect by the petitioners, Noor Fatima and the pro forma respondents Nos.2 to 4, due to their having been proceeded against ex parte. Contends that the impugned decree, dated 01.03.2012, is, therefore, a nullity in the eye of the law. The learned trial Court erred in law in passing the impugned decree. Further submits that as respondent No.1 's suit was time barred then the ex parte decree against the petitioners, Noor Fatima and the pro forma respondents Nos.2 to 4 becomes irrelevant and is, therefore, liable to be set aside.

5. Relies on the judgments reported as "Assistant Controller of Imports and Exports and 2 others v. Muhammad Iqbal Bhirviya" (1989 CLC 398),"Government of N.W.F.P. and others v. Akbar Shah and others" (2010 SCMR 1408), "Muhammad Islam v. Inspector-General of Police Islamabad and others "(2011 SCMR 8) and "United Bank Limited and others v. Noor-un-Nisa and others"(2015 SCMR 380).

6. The learned counsel for respondent No.1 submits that the petitioners, Noor Fatima and the pro forma respondents Nos.2 to 4 were proceeded against ex parte for the first time on 30.03.2006, on their failure to enter appearance despite publication of notice. They moved an application for setting aside the order, dated 30.03.2006, which application was accepted through the order, dated 24.05.2007, subject to costs. The petitioners, Noor Fatima and the pro forma respondents Nos.2 to 4, however, did not file their written statements despite obtaining several adjournments. On 30.11.2007, they failed to appear before the learned trial Court and were, therefore, once again proceeded against ex parte. Thereafter respondent No.1's ex parte evidence was recorded and on the basis thereof the learned trial Court passed the ex parte decree, in respondent No.1's favour, on 25.02.2010.

7. Submits that the petitioners', Noor Fatima's and the pro forma respondents Nos.2 to 4's application for setting aside the ex parte decree was admittedly barred by time and was dismissed in accordance with the law. Further submits that similarly the petitioners', Noor Fatima's and the pro forma respondents Nos.2 to 4's appeal was also dismissed in accordance with the law.

8. Further submits that the contention of the learned counsel for the petitioners that respondent No.1 's suit was time barred, therefore, the ex parte decree could not have been passed is misconceived. Submits that respondent No. 1 's suit was based on the premise of fraud, forgery and misrepresentation. In view thereof the question of limitation becomes irrelevant. Contends that it was brought on the record that when mutations Nos.117 and 118 were effected respondent No.1 was in Jail in connection with the case bearing FIR No.127/1993, offence under section 11/7/79 registered with P.S. Saddar, Pasrur. The said mutations were, therefore, not entered into by respondent No.1. The learned trial Court, therefore, set aside the mutations in accordance with the law.

9. Relies on the judgments reported as "Hakim Khan v. Nazeer Ahmad Lughmani and 10 others" (1992 SCMR 1832), "Munazah Parveen v. Bashir Ahmad and 6 others" (2003 SCMR 1300), "Zafar and 2 others v. Ghulam Muhammad and 9 others" (2005 CLC 525) and "Government of N.-W.F.P. through Secretary C&W and others v. Rehman construction Company" (2005 CLC 1179).

10. Heard. Record perused.

11. The facts of the case have been set out in quite some detail in Para-1 above. I, therefore, do not propose to repeat them for the sake of brevity.

12. I find from the record that the petitioners, Noor Fatima and the pro forma respondents Nos.2 to 4 were initially proceeded against ex parte by the learned trial Court on the basis of the proclamation appearing in the daily "Jurrat". The perusal of the orders preceding the order, dated 06.03.2006, when the order for service of the petitioners, Noor Fatima and the pro forma respondents Nos.2 to 4 through proclamation was passed, reveals that there is no conscious order of the learned trial Court stating that the petitioners, Noor Fatima and the pro forma respondents Nos.2 to 4 have been served in person or they have deliberately avoided service or they could not be served. The learned trial Court merely kept on repeating summonses/notices in routine without recording any of the above facts. The record further reflects that there is also a report to the effect that Noor Fatima (deceased) was not served at any time. In such circumstances, I do not feel that the learned trial Court was justified under the law to order service of the petitioners, Noor Fatima and the pro forma respondents Nos.2 to 4 through substituted service/proclamation. The judgment reported as "Syed Muhammad Anwar Advocate v. Sheikh Abdul Haq" (1985 SCMR 1228) refers.

13. As to whether the petitioners, Noor Fatima and the pro forma respondents Nos.2 to 4 were aware about the pendency of respondent No.1's suit and / or the ex parte decree, the evidence led by the parties in this behalf is not of much help. The reasons therefor are manifold. One of the reasons being that the evidence was recorded through a Local Commissioner who committed illegalities/irregularities whilst recording evidence. He omitted to write the name of one of the witness whose evidence he recorded, moreover, the evidence is unsigned by him. The evidence has, therefore, been recorded in violation of the law. Reliance in this regard is placed on the judgment reported as "Ghulam Mustafa v. Abdul Malik"(PLD 2008 Lahore 4). This aspect of the case has been overlooked by the learned Courts below.

14. I further note that respondent No.1 recorded his ex parte evidence on 15.01.2010. However, through the said evidence respondent No.1 does not appear to have brought any material on the record to establish that he was actually behind bars when Mutations Nos.117 and 118 were effected and / or entered into the revenue record. Indeed, respondent No.1 has not tendered any documentary evidence through his statement. It is further observed that certified copies of mutations Nos.117 and 118 were submitted by him through the statement of his counsel, who also submitted a copy of FIR No.127/1993, and some ancillary documents. However, the FIR and its supporting documents were not admitted into evidence as exhibits but were only marked as Mark-A and Mark-B. In such circumstances, to my mind the factum as to whether the respondent No.1 was indeed behind bars at the relevant time becomes questionable.

15. I find force in the contention of the learned counsel for the petitioners that the question of limitation was pivotal in determining the maintainability of respondent No.1 's suit. It is settled law that the point of limitation has to be determined by a Court, whether trial or appellate, seized of a lis, even though, the point of limitation is not raised by way of defence. Section 3 of the Limitation Act and the judgments cited at the bar by the learned counsel for the petitioners refer.

16. As observed above, the question as to whether respondent No.1's suit was within time or not, was of great importance. In view of the provisions of Section 3 of the Limitation Act, respondent No.1's suit could not have been decreed without determining the question of limitation. Respondent No.1 chose not to lead any evidence in this respect. One may say that since the petitioners, Noor Fatima and the pro forma respondents Nos.2 to 4 had been proceeded against ex parte, therefore, no objection had been raised in this respect, hence, there was no requirement for respondent No.1 to lead any evidence in this respect. However, the fact remains that under section 3 of the Limitation Act, a duty is cast upon Courts both at the trial as well as the appellate stage to examine the question of limitation, even if, it is not raised. Indeed, it is the bounden duty of every Court to take notice of the question/point of limitation, even if, it is not set up as a defence by the contesting party. It is further settled law that it is the duty and obligation of the Courts to apply the correct law on the basis of the well-known maxim that a judge must wear all the laws of the country on the sleeves of his robes. And the failure of counsel to properly advise the Court is not an excuse in this respect. "Muhammad Sarwar v. The State" (PLD 1969 SC 278), refers.

17. In view thereof, I feel that, even if, it is assumed that the petitioners, Noor Fatima and the pro forma respondents Nos.2 to 4 were initially served, they were proceeded against ex parte, the order, dated 30.03.2006, initiating ex parte proceedings against them was recalled through the order, dated 24.05.2007, subject to costs, and that thereafter they failed to file their written statements and then disappeared from the proceedings, therefore, the ex parte decree was passed against them in accordance with the law, the fact still remains that Noor Fatima does not appear to have been served in accordance with law, moreover, and more importantly in absence of the determination of the question/point of limitation whether the decree could have been passed in respondent No.1's favour.

18. In view of the above, whilst respectfully following the judgment rendered by Ajmal Mian, J. in the "Assistant Controller of Imports and Exports case (supra), I, in exercise of my revisional jurisdiction feel that the ex parte judgment and decree, dated 01.03.2012 and the appellate decree, dated 26.10.2015, can be set aside on the above legal grounds.

19. Under the circumstances the ex parte judgment and decree, dated 01.03.2012, passed by the trial Court and the appellate judgment and decree, dated 26.10.2015, are set aside and the case is remanded to the learned trial Court for decision afresh. Respondent No.1's suit shall be deemed to be pending before the learned trial Court. The petitioners and the pro forma respondents Nos.2 to 4 shall be provided with the opportunity of filing their written statement(s) whereafter Issues shall be framed including an Issue on the point of limitation and respondent No.1's suit shall be decided in accordance with the law on the basis of the evidence led by the parties for and against the Issues so framed.

20. The petition is accordingly allowed in the above terms. There is no order as to costs. MWA/M-54/L Revision allowed.