PLJ 2010 Karachi
Present: Nadeem Azhar Siddiqi, J.
Mst. ROEEBA KHATOON (WIDOW) and others--Petitioners
M.Y. BUTT and another--Respondents
IInd Appeal No. 10 of 2006, decided on 31.3.2009.
Limitation Act, 1908 (IX of 1908)--
----Art. 120--Civil Procedure Code, (V of 1908)--S. 100--Suit for declaration--Starting point of limitation--Under Art. 120 the suit for which no period of limitation is provided elsewhere in the schedule can be filed within six years when the right to sue accrues--When a right to sue accrues in suit for declaration will depend upon the facts and circumstances of each case and right to property is a subsisting right and the right to bring a declaratory suit is a continuing right. [P. 27] A
1995 SCMR 284 & PLD 2000 Lah. 385, ref.
Civil Procedure Code, 1908 (V of 1908)--
----S. 100--Second appeal--Grounds--High Court in second appeal can interfere on the ground of error of law or an error in the procedure--High Court can also interfere if the decision is contrary to law and contrary to usage being force of law. [P. 28] B
Mr. Muhammad Aziz Khan, Advocate for Appellants.
Mr. Saifuddin, Advocate for Respondent No. 2.
Date of hearing: 31.3.2009.
Order
By filing this IInd Appeal the appellants have challenged the Judgments and Decrees passed by the trial Court and Appellate Court, dismissing the suit of the appellants.
In short, the facts of the case are that the appellants are the successors of late Marghoob Ahmed, who has acquired the property in question from the Respondent No. 1 on 9.5.1966 against consideration. The said Marghoob Ahmed expired on 22.4.1986 leaving the appellants as his legal heirs. The Appellant No. 1 submitted an application to the Respondent No. 2 for mutation, but the same was refused on the ground that she has no title document in her favour. The appellants filed suit for declaration and mutation in record of PECR Society. The suit was dismissed. The appellants preferred appeal, which was also dismissed.
Learned counsel for the appellants states that in this matter Article 120 of the Limitation Act is applicable which provides a period of six years from the date when the right to sue accrues. He then submits, that the right to sue accrues to the appellants on the day when the Respondent No. 2 has refused the mutation of their names. He further submits that the learned Trial Court as well as learned Appellate Court without considering the material available on record and without determining the date of start of limitation have come to the erroneous conclusion and thus, failed to exercise the jurisdiction vested under it properly and in accordance with law. Learned counsel has relied upon the following reported cases:--
1. Wali & 10 others Vs Akbar & 5 others (1995 SCMR 284);
2. Mst. Zakia Begum Vs Niaz Ahmad (1999 MLD 3156);
3. Saleem Akhtar Vs Nisar Ahmad (PLD 2000
4.
Learned counsel for the Respondent No. 2 has conceded the above legal position and states that both the Courts below should have discussed the specific article of the Limitation Act under which the suit was barred and has endorsed his no objection for remand of the case to the trial Court for deciding the same afresh on merits after providing the opportunity to the parties to led further evidence if they so desired.
From the perusal of both the judgments it appears that both the Courts below have dismissed the suit on the point of limitation. In the judgment dated 20.7.2004 passed by the learned trial Court it has been observed as under:--
"As it is evident from the record that Margoob Ahmed the father of Plaintiffs No. 2 to 10 and husband of Plaintiff No. 1 allegedly purchased the suit plot on 9-5-1966 and the present suit was filed on 17-12-2002 after lapse of 36 years which clearly shows that present suit is hopelessly time barred and plaintiff side has not been able to advance any plausible explanation for such delay. Hence in my humble view that the present suit is hopelessly time barred and not maintainable."
From the above quoted portion of the judgment it appears that the trial Court has not stated which article of Limitation Act is applicable and what was the starting point of limitation.
The Judgment of the trial Court was upheld, by the learned Appellate Court. While dismissing the appeal, the learned Appellate Court has observed as under:--
"Margoob Ahmed the father of Appellants/Plaintiffs No. 2 to 10 and husband of Appellant/Plaintiff No. 1 allegedly purchased the suit plot on 9-5-1966 and the suit was filed on 17-12-2002 after lapse of 36 years which clearly shows that it is hopelessly time barred and appellants have not been able to advance any plausible explanation for such delay. Hence I am of the opinion that the learned trial Court has rightly held that the suit is not maintainable."
From the above quoted judgment of the learned Appellate Court it is apparent that the same error has been committed by the learned Appellate Court by not dealing, with the specific article of the Limitation Act by which the suit was barred. The Appellate Court has also not discussed the starting point of limitation and has merely stated that the husband of Plaintiff No. 1 allegedly purchased the suit plot on 9.05.1966 and the present suit was filed on 17.12.2002 after lapse of 36 years.
In this matter it appears that Article 120 of First Scheduled of the Limitation Act is applicable. The said article provides that the suit for which no period of limitation is provided elsewhere in the schedule can be filed within six years when the right to sue accrues. The question when a right to sue accrues in suit for declaration will depend upon the facts and circumstances of each case and right to property is a subsisting right and the right to bring a declaratory suit is a continuing right.
In the reported case of Wali Vs Akbar (1995 SCMR 284) the Hon'ble Supreme Court has held as under:--
"In such cases Article 120 of the Schedule to the Limitation Act applies and time runs from the date when the plaintiff feels aggrieved."
In the reported case of Saleem Akhtar Vs Nisar Ahmad (PLD 2000
"Article 120 Limitation Act provided limitation for filing a suit for declaration six years only from the date of right to sue. The right to sue would accrue to the plaintiff when his right was denied by the defendant/respondent. The right of the plaintiff is a continuous right. There can be no right to sue until there is an accrual of right asserted in the suit and its infringement or its clear unequivocal threat to infringe that right by the defendant against whom the suit is instituted."
The High Court in second appeal can interfere on the ground of error of law or an error in the procedure. The High Court can also interfere, if the decision is contrary to law and contrary to usage being force of law. Apparently by not discussing the relevant provisions of the Scheduled of the Limitation Act and by not determining the date from which the limitation starts running both the Courts below have committed error in law and have failed to exercises the jurisdiction vested under them properly and in accordance with law.
In view of the above position, both the judgments of the Courts below are set aside. The case is remanded to the trial Court for deciding the same afresh on merits. The parties are at liberty to lead further evidence and to produce further documents in support of their claims, if they so desired. The learned Trial Court shall proceed with the matter expeditiously and shall dispose of the matter within four months.
In the above circumstances, the parties are left to bear their own cost.
This IInd Appeal is disposed of accordingly.
(S.K.A.) Appeal disposed of.
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