Mere contention that such plea was not taken in written statement does not liberate the learned trial Court from considering the question of law i.e. limitation, rather the learned trial Court is bound to consider such question at its own.

2. Opening arguments, the learned counsel for the petitioner has submitted that the suit was barred by limitation, but, this aspect of the case was not considered by the learned Courts below; mere contention that such plea was not taken in written statement does not liberate the learned trial Court from considering the question of law i.e. limitation, rather the learned trial Court is bound to consider such question at its own. Reliance in this regard has been placed on Haji Abdullah Khan and others v. Nisar Muhammad Khan and others (PLD 1965 Supreme Court 690), Hakim Muhammad Buta and another v. Habib Ahmad and others (PLD 1985 Supreme Court 153), Haji Muhammad Shah v. Sher Khan and others (PLD 194 Supreme Court 294), Maulana Nur-Ul-Haq v. Ibrahim Khalil (2000 SCMR 1305), Qasim Ali v. Rehmatullah (2005 SCMR 1926), Muhammad Khan v. Muhammad Amin (decd) through L.Rs. and others (2008 PSC 1443), Mst. Kausar Parveen v. Muhammad Iqbal (PLD 2012 Supreme Court 760), Muhammad Zahid v. Dr. Muhammad Ali (PLD 2014 Supreme Court 488) and Noor Din and another v. Additional District Judge, Lahore and others (2014 SCMR 513). He submits that material contradictions in the depositions of the P.Ws. have not been considered and undue weight has been given to the evidence produced by the respondent, thus, gross misreading and non-reading of evidence has been committed which has caused miscarriage of justice. Reliance has been placed on Ghafoor Khan (deceased) through LRs. v. Israr Ahmed (2011 SCMR 1545) and Allah Ditta through L.Rs. and others v. Muhammad Anar (2013 SCMR 866). He contends that the respondent has not proved performance of talbs as per mandate of law because neither the postman nor the A.D. has been produced by the respondent; therefore, the suit ought to have been dismissed instead of decreed as has been done by the learned trial Court and confirmed by the learned appellate Court. Relies on Muhammad Ramzan v. Lal Khan (1995 SCMR 1510), Mian Pir Muhammad and another v. Faqir Muhammad through L.Rs. and others (PLD 2007 Supreme Court 302), Muhammad Bashir and others v. Abbas Ali Shah (2007 SCMR 1105), Muhammad Sharif through Mst. Irshad Bibi and others v. Walayat Khan (2008 SCMR 248), Khan Afsar v. Afsar Khan and others (2015 SCMR 311), Muhammad Iqbal and others v. Muhammad Hanif through L.Rs. (2016 CLC Note 89-Lahore), Muhammad Akbar v. Muhammad Yaqoob and others (2016 CLC 1402-Lahore), Saeeda Ghazala and 3 others v. Tahira Naz and 10 others (2016 CLC 1438- Lahore), Amir Khan v. Muhammad Taj (2017 CLC Note 94), Haji Makhan through Legal Representatives v. Mian Muhammad Zaman (2017 CLC Note 117), Ali Muhammad v. Malka Hussain (2017 CLC 463-Lahore) and Basharat Ali Khan v. Muhammad Akbar (2017 SCMR 309). He, by placing further reliance on Hasil and another v. Karam Hussain Shah and others (1995 SCMR 1385), Nawab Din through L.Rs. v. Faqir Sain (2007 SCMR 401) and Muhammad Akram v. Mst. Zainab Bibi (2007 SCMR 1086), the learned counsel for the petitioner has prayed for setting aside of the impugned judgments and decrees as well as dismissal of the suit.

 Part of Judgment 

LAHORE HIGH COURT, LAHORE JUDICIAL DEPARTMENT

Civil Revision (Against Interim Order) Decree US. 115 C.P.C
1227602.888-11

2017 LHC 4327