The first suit had sought the specific performance of the agreement and the second suit also the cancellation of the sale deed. For both these causes of action the prescribed period of limitation is three years as respectively provided under Article 113 and Article 91 of the First Schedule of the Limitation Act, 1908.

 The first suit had sought the specific performance of the agreement and the second suit also the cancellation of the sale deed. For both these causes of action the prescribed period of limitation is three years as respectively provided under Article 113 and Article 91 of the First Schedule of the Limitation Act, 1908. The petitioner’s third suit had sought the specific performance of the agreement, the cancellation of the sale deed, which was executed when there was no suit pending, and a declaration with regard to the ownership of the land. The third suit was filed after three years and was time-barred with regard to seeking the specific performance of the agreement and for the cancellation of the sale deed.

We are now left to consider whether the third suit was saved because it had also sought a declaration of ownership of the land as submitted by the petitioner’s learned counsel for which Article 120 prescribes six years period of limitation. The Privy Council in the case of Janki Kunwar v Ajit Singh7 held that the substance of the relief has to be seen, and if a relief is added for which there is a longer period of limitation it would not save the suit. That was a case in which the plaintiff had added the relief of possession of immovable property, which had 12 year’s limitation, to the relief of setting aside a deed of sale, for which the period of limitation was three years under Article 91. In Muhammad Javaid v Rashid Arshad8 this Court held that, ‘If the main relief is time barred and the bar is not surmounted by the respondent, the incidental and consequential relief has to go away along with it and the suit is liable to be dismissed on account of being time barred’. An examination of the petitioner’s plaint makes it clear that the petitioner had primarily sought the specific performance of the agreement, then the cancellation of the sale deed and had added the declaratory relief to primarily save the third suit from the consequence of having been filed beyond the period of limitation.

Civil Petition No. 1831 of 2017

Syed Athar Hussain Shah. Versus Haji Muhammad Riaz and another.

Announced in open Court

on 2 March 2022 at IslamabadThe first suit had sought the specific performance of the agreement and the second suit also the cancellation of the sale deed. For both these causes of action the prescribed period of limitation is three years as respectively provided under Article 113 and Article 91 of the First Schedule of the Limitation Act, 1908. The petitioner’s third suit had sought the specific performance of the agreement, the cancellation of the sale deed, which was executed when there was no suit pending, and a declaration with regard to the ownership of the land. The third suit was filed after three years and was time-barred with regard to seeking the specific performance of the agreement and for the cancellation of the sale deed.

We are now left to consider whether the third suit was saved because it had also sought a declaration of ownership of the land as submitted by the petitioner’s learned counsel for which Article 120 prescribes six years period of limitation. The Privy Council in the case of Janki Kunwar v Ajit Singh7 held that the substance of the relief has to be seen, and if a relief is added for which there is a longer period of limitation it would not save the suit. That was a case in which the plaintiff had added the relief of possession of immovable property, which had 12 year’s limitation, to the relief of setting aside a deed of sale, for which the period of limitation was three years under Article 91. In Muhammad Javaid v Rashid Arshad8 this Court held that, ‘If the main relief is time barred and the bar is not surmounted by the respondent, the incidental and consequential relief has to go away along with it and the suit is liable to be dismissed on account of being time barred’. An examination of the petitioner’s plaint makes it clear that the petitioner had primarily sought the specific performance of the agreement, then the cancellation of the sale deed and had added the declaratory relief to primarily save the third suit from the consequence of having been filed beyond the period of limitation.

Civil Petition No. 1831 of 2017
Syed Athar Hussain Shah. Versus Haji Muhammad Riaz and another.
Announced in open Court
on 2 March 2022 at Islamabad