--Art. 148--Determination of period--Cause of action for a mortgagor to redeem mortgage and recover possession of mortgaged property would commence from point when mortgagor can, under terms of mortgage, redeem mortgage property or recover possession thereof--

 PLJ 2023 SC 456
[Appellate Jurisdiction]
Present: Yahya Afridi and Syed Hasan Azhar Rizvi, JJ.
KHAN AFSAR--Petitioner
versus
Mst. QUDRAT JAN widow and others--Respondents
C.Ps. No. 3573 and 3574 of 2020, decided on 10.3.2023.
(Against the judgment dated 14.09.2020, passed by the Peshawar High Court, Abbottabad Bench in Civil Revision No. 105-A of 2017 and Writ Petition No. 166-A of 2010)

Limitation Act, 1908 (IX of 1908)--

----Art. 148--Commencement of period of limitation--Redemption of property--Concurrent findings--It is an admitted fact that mortgage of disputed property was entered on 21.07.1935, and that term of mortgage was agreed and fixed for a term of twenty years--This being position, cause of action of respondents to redeem mortgage of disputed property would accrue from date of expiry of fixed term period of 20 years, and thereafter limitation period of sixty years would commence--Thus, term of twenty years of mortgage would expire on 21.07.1955, and thereafter, period of limitation of sixty years would commence, and respondents could file a suit for redemption of mortgage property until 21.07.2015--Respondents filed their claim on 21.06.2010, same was well within stipulated period of limitation provided under Article 148 of Schedule to Act--Petition dismissed.  [P. 458] C

Limitation Act, 1908 (IX of 1908)--

----Art. 148--Cause of action--Determination of period--Cause of action for a mortgagor to redeem mortgage and recover possession of mortgaged property would commence from point when mortgagor can, under terms of mortgage, redeem mortgage property or recover possession thereof--Crucial determining factor for commencement of period of limitation would depend on terms of mortgage agreement entered into between parties.    [P. 457] A & B

Mr. Muhammad Shuaib Abbasi, ASC and Syed Rifaqat Hussain Shah, AOR for Petitioner (in both cases).

N.R for Respondents.

Date of Hearing: 10.3.2023.

Order

Yahya Afridi, J.--Khan Afsar, the petitioner in both cases, has challenged the concurrent findings of all three Courts below, which had maintained the findings of all four rungs of adjudicatory hierarchy provided under revenue law.

2. Despite being handicapped with adverse findings on questions of fact, the learned counsel for the petitioner insisted on raising issues already determined by the fora below, and thus was cautioned that such factual issues, in the circumstances of the present case, could not be reagitated and disturbed, and that too by this Court at this stage.

3. The issue relating to the commencement of the period of limitation for a mortgagor to redeem the mortgaged property was the crucial contested point between the parties. The learned counsel for the petitioner contended that in the present case, the sixty years period of limitation for the respondents to file their suit for redemption of the disputed mortgaged property would commence from the date of creation vide mutation no. 9395 dated 21.07.1935, and not from the date of expiry of the term of the mortgage, as was determined by the three Courts and the revenue authorities below.

4. Article 148 of the Schedule to The Limitation Act, 1908 (‘Act’) provides for the period of limitation for a mortgagor to redeem the mortgage, it stipulates in terms that:

Against a mortgagee to redeem or to recover possession of immovable property mortgaged.

Sixty years

When the right to redeem or to recovery possession accrues:

Given the above clear provision, we note that the cause of action for a mortgagor to redeem the mortgage and recover the possession of the mortgaged property would commence from the point when the mortgagor can, under the terms of the mortgage, redeem the mortgage property or recover the possession thereof. Thus, the crucial determining factor for commencement of the period of limitation would depend on the terms of the mortgage agreement entered into between the parties. The situations that may arise include the following scenarios, summarized as under:

I.       Where, under the terms of the agreement, a specific date has been fixed for Payment of mortgage debt. In such a case, the money can only be payable after the expiry of that period and no right to redeem the mortgaged property can legally be entertained before the said date.[1] A suit for redemption of the mortgaged property can be instituted by the mortgagor against the mortgagee within sixty years, and the limitation would start running from the date so agreed to redeem the mortgage or recover possession of immovable property mortgaged under Article 148 of the Limitation Act.[2]

II.      Where, under the terms of the agreement, the mortgage is for a fixed period but without a specific date of expiry of the term. In such a case, the right of redemption can only arise on the expiration of a specified period and not before. A suit for redemption of the mortgaged property can be instituted by the mortgagor against the mortgagee within sixty years, and the limitation would commence from the expiry of the period so fixed.[3]

III.     Where, under the terms of the agreement, neither any specific date nor any term is fixed. In such a case, a suit for redemption of the mortgaged property can be instituted by the mortgagor against the mortgagee within sixty years, and the limitation would run from the date of the agreement of mortgage.[4]

5. In the present case, it is an admitted fact that the mortgage of the disputed property was entered on 21.07.1935, and that the term of the mortgage was agreed and fixed for a term of twenty years. This being the position, the cause of action of the respondents/mortgagors to redeem the mortgage of the disputed property would accrue from the date of the expiry of the fixed term period of 20 years, and thereafter the limitation period of sixty years would commence. Thus, the term of twenty years of the mortgage would expire on 21.07.1955, and thereafter, the period of limitation of sixty years would commence, and the respondents/mortgagors could file a suit for redemption of the mortgage property until 21.07.2015. As in the present case, the respondents/mortgagors filed their claim on 21.06.2010, the same was well within the stipulated period of limitation provided under Article 148 of the Schedule to the Act.

6. Accordingly, for the reasons stated herein above, we find no illegality or infirmity in the impugned judgment, so as to warrant interference by this Court. These petitions are thus dismissed, and leave is refused.

(Y.A.)  Petitions dismissed

---

[1].      Nazeef v. Abdul Ghaffar, PLD 1966 SC 267 (Page-273).

[2].      Mohabat Khan v. Hazrat Jan, PLD 1988 SC 102 (Page-108)

[3].      Sher Muhammad v. Amanat Khan, 1991 MLD 1267 (Page-1270), Habibullah v. Mahmood (1984 CLC 309 [SC (A J & K)].

[4].      Abdul Hanan v. Kapoor Khan (1970 SCMR 633), Karam Elahi v. Member, Board of Revenue, N.-W.F.P. (1996 SCMR 1215), & Muhammad Luqman v. Allah Diwaya (2006 SCMR 718).

Read More

S. 42--Suits for declaration--Rejection of plaints--Barred by law--Appeal--Allowed--Benami owners--Actual owner--Entitlement for inheritance--Suit property was not fall within ambit of benami property-

 PLJ 2023 Lahore (Note) 114
[Multan Bench, Multan]
Present: Ahmad Nadeem Arshad, J.
SADIQ RASHEED and another--Petitioners
versus
Mst. UZMA RIZWAN and 10 others--Respondents
C.R. No. 1242 of 2019, decided on 27.9.2021.

Civil Procedure Code, 1908 (V of 1908)--

----O.VII, R.11--Benami Transactions (Prohibition) Act, (V of 2017),
S. 43--Specific Relief Act, (I of 1877), S. 42--Suits for declaration--Rejection of plaints--Barred by law--Appeal--Allowed--Benami owners--Actual owner--Entitlement for inheritance--Suit property was not fall within ambit of benami property--One party claims ownership of house in dispute whereas opposite party denies said claim based on registered documents, which means, property in dispute is not an un-attended and title-less property--When such controversy arises between parties regarding ownership of house, exclusive jurisdiction vests in Civil Courts to decide title and ownership of such property after recording of evidence of parties--Respondent No. 1 rightly instituted a suit for declaration in order to get declare her rights with regard to suit property before Civil Court--The appellate Court has rightly observed that property in dispute does not fall within ambit of Benami property as defined in Act, and Civil Court has jurisdiction to conduct trial and decide lis regarding title and ownership in accordance with law and Benami Transactions (Prohibition) Act, 2017 is not applicable upon instant case--Counsel for petitioners has failed to point out any error in impugned judgment and decree, which is based upon p correct appraisal of law--Civil revision dismissed.                                                  [Para 8 & 9] C, D, E & F

Benami Transactions (Prohibition) Act, 2017 (V of 2017)--

----S. 43--Jurisdiction of Civil Court--Civil Courts shall have no jurisdiction to entertain any suit or proceedings in respect of any matter to which any of authorities or tribunal is empowered by or under Act to determine.  [P. 4] A

Benami Transactions (Prohibition) Act, 2017 (V of 2017)--

----S. 22--Benami property--Intent & object of benami--Intent and object of Act, 2017 is very much clear--According to which, if a property was purchased in name of a person who according to his social status unable to have purchased any property by his own means, if found such property in his name then Act will come into play and will act upon procedure as laid down in Section 22 of Act and such property shall be considered as “Benami property” and would be subject to confiscation in favour of State.                          [Para 5] B

Mr. Imran Shahzad Bhatti, Advocate for Petitioners.

M/s. Muhammad Suleman Bhatti, Syed Tajamal Hussain Bukhari, Mr. Bilal Amin and Malik Nazir Hussain Advocates for Respondents.

Date of hearing: 27.9.2021.

Judgment

Through this single judgment, I intend to decide the instant civil revision as well as connected civil revisions Bearing No. 1305-D of 2019 & 1306-D of 2019 as common question of law is involved in all these civil revisions. The petitioners have challenged the validity, legality and propriety of impugned judgment and decree dated 24.07.2019 passed by learned Additional District Judge, Multan, whereby while setting aside the judgment and decree dated 04.10.2018 passed by learned Civil Judge, Multan, remanded the case to the learned trial Court to decide the same afresh.

2. Facts in brevity are that Respondent No. 1/plaintiff instituted three suite for declaration by seeking declaration to the effect that suit property belongs to her predecessor namely Ghulam Yasin son of Mian Muhammad Maskeen and defendants are only Benami owners, while actual owner was her predecessor, therefore, Respondent No. 1/plaintiff along with all other legal heirs are entitled to get inherit the suit property being legal heirs of Ghulam Yasin. The defendants contested the suits. The learned trial Court, while dealing with the ground of maintainability, rejected the plaints under Order VII Rule 11 C.P.C., being barred by law under Section 43 of Benami Transactions (Prohibition) Act, 2017 vide judgments/orders and decrees dated 04.10.2018. Feeling aggrieved, Respondent No. 1 preferred three separate appeals, which were allowed by the learned appellate Court, vide judgments and decrees dated 24.07.2019. The petitioners assailed the impugned judgments and decrees dated 24.07.2019 through these civil revisions.

3. I have heard the arguments advanced by the learned counsel for the parties and perused the record and relevant law with their able assistance.

4. The learned trial Court rejected the plaints being barred by law by declaring that all the plaints are hit by Section 43 of the Benami Transactions (Prohibition) Act, 2017 which barred the jurisdiction of Civil Courts. Before proceedings further, it is appropriate to read Section 43 of the Act ibid which is hereby reproduced as under:

43--Bar of jurisdiction of Civil Courts.--No Civil Court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which any of the authorities, or the Tribunal is empowered by or under this Act to determine, and no injunction shall be granted by any Court or other forum in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.”

From the reading of above-mentioned provision of law, it is manifestly clear that Civil Courts shall have no jurisdiction to entertain any suit or proceedings in respect of any matter to which any of the authorities or the tribunal is empowered by or under the Act to determine. The question, which requires determination, is whether Respondent No. 1/plaintiff had instituted the suit to challenge any matter regarding Benami Transaction (Prohibition) Act, 2017 and any act of the authorities or proceedings conducted by the tribunal under the Act ibid.

5. Intent and object of Benami Transaction, (Prohibition) Act, 2017 is very much clear. According to which, if a property was purchased in the name of a person who according to his social status unable to have purchased any property by his own means, if found such property in his name then the Act ibid will come into play and will act upon the procedure as laid down in Section 22 of the Act ibid and such property shall be considered as “Benami property” and would be subject to confiscation in favour of the State. Section 22 provides that when the Initiating Officer has reason to believe on the basis of material in his possession that any person is a Benamidar in respect of a property, he may issue a notice of show-cause that why should not be treated such property as a Benami property and after making inquiry and calling for evidence draw up a statement of case and refer it to the Adjudicating Authority. After receipt of the reference proceedings for adjudication of Benami property shall start by the adjudicating authority under Section 24 of the Act, ibid. It is manifest from the reading of above mentioned provision of law that Civil Court shall have no jurisdiction to entertain any suit or proceedings in respect of any matter to which any of the authorities or the tribunal is empowered by or under the Act to determine.

6. The Respondent No. 1 neither impugned any proceedings initiated or conducted by the authorities under the Benami transaction Act nor claimed any other relief regarding such acts or deeds, therefore, Section 43 of the Act ibid is not applicable in the instant case. Furthermore, there is nowhere mentioned that any private person has remedial step or has any remedy under the provisions to get redress the grievance. Hence, Section 43 of the Benami Transaction (Prohibition) Act, 2017 does not apply in suit filed by Respondent No. 1 in which no act of authority or tribunal had been challenged.

7. Units (i) & (ii) of Clause 8(b) of Section 2 of the Act ibid, excludes those properties from the purview of the Act, which suggests that the properties of the individuals are exempted from the meaning of Benami properties upon which the Act is exclusively inapplicable. Sub-section (8) of Section 2 of Benami Transactions (Prohibition) Act, 2017 defines Benami transaction as under:

(8) “benami transaction” means.--(A) a transaction or arrangement--

(a)      Where a property is transferred to, or is held by a person and the consideration for such property has been provided or paid by, another person; and

(b)      the property is held for the immediate or future benefit, direct or indirect of the person who has Provided the consideration, except which the property is held by--

(i)       a person standing in a fiduciary capacity for the benefit of another person towards whom he stands in such capacity and includes a trustee, executor, partner, director of a company, agent or legal adviser, and any other person as may, be notified by the Federal Government for this purpose; or

(ii)      Any person being an individual in the name of his spouse or in the name of any child or in the name of his brother and sister or lineal ascendant or descendant and the individual appearing as joint owner in any document of such individual and the consideration for such property has been provided or paid out of known resources of income of the individual; or

(B)     a transaction arrangement in respect of a property carried out or made in a fictitious name; or

(C)     a transaction or arrangement in respect of a property where the owner of the property is not aware of, or denies knowledge of, such ownership; or

(D)     a transaction, or arrangement in respect of a property where the person providing the consideration is not traceable or is fictitious.”

8. Admittedly, in the instant matter, one party claims the ownership of the house in dispute whereas the opposite party denies the said claim based on registered documents, which means, the property in dispute is not an un-attended and title-less property. The same has been duly registered in the office of Sub-Registrar, Multan, after payment of all the charges, however, Respondent No. 1 finds fault with the claim of ownership of the same on the ground that the said property was basically purchased by her late father in the name of Mst. Humaira Haroon widow of Haroon Rasheed when such controversy arises between the parties regarding the ownership of the house, exclusive jurisdiction vests in the Civil Courts to decide the title and ownership of such property after recording of evidence of the parties. The Civil Courts have the exclusive and ultimate jurisdiction to declare the rights, title and status of a person or property. Respondent No. 1 rightly instituted a suit for declaration in order to get declare her rights with regard to the suit property before the Civil Court. The learned appellate Court has rightly observed that the property in dispute does not fall within the ambit of Benami property as defined in the Act, ibid and the learned Civil Court has jurisdiction to conduct the trial and decide the lis regarding title and ownership in accordance with law and the Benami Transactions (Prohibition) Act, 2017 is not applicable upon the instant case.

9. Learned counsel for the petitioners has failed to point out any error in the impugned judgment and decree, which is based upon  correct appraisal of law. The same is maintained and upheld. Resultantly, all the three revision petitions are, hereby, dismissed with no order as to costs.

(J.K.)   Civil revision dismissed

Read More

Terms of the agreement to sell immoveable property showed that time was essence of the contract when date for performance and consequences for non performance by the plaintiff -

 2023 SCMR 1371

Pleadings-- Scope --- Plaintiff cannot lead evidence beyond the pleadings .

S . 55 --- Specific Relief Act ( I of 1877 ) , S. 12 --- Suit for specific performance of agreement to sell - Time " essence of the contract --- Scope- Terms of the agreement to sell immoveable property showed that time was essence of the contract when date for performance and consequences for non performance by the plaintiff - vendee were specifically mentioned , and it was provided that the agreement shall be cancelled and earnest money will be confiscated --- Plaintiff admitted that he could not arrange the remaining consideration amount even on the date of performance and even three months thereafter and further he dishonestly pleaded that he approached the legal heirs of the vendor as he had passed away before the date of performance which was factually incorrect , and his own evidence as well as the evidence of his witnesses contradicted his pleadings --- In the present case time was essence of contract , and the consequence was to be in accordance with the agreement --- When fault was with the vendee - plaintiff he was absolutely not entitled for the discretionary relief in the shape of a decree for specific performance - Appeal was allowed , the judgments and decrees passed by the three fora below were set aside , and as a result suit filed by the plaintiff - respondent was dismissed with costs .

Read More

دیوانی مقدمہ میں دستاویزات پیش کرنے کا طریقہ کار

 2002 C L C 655

Civil Procedure Code (V of 1908)---

----O. VII, R.14, O. XI, Rr. 1 & 12, O.XIII, R.1 & O.XIV, R.4--­Production of document in a civil suit---Procedure.

Code of Civil Procedure lays down elaborate procedure where ­under documents sought to be relied upon may be produced or caused to be produced by a party to the proceedings.

First stage in a suit for production of documents for the plaintiff is at the time of filing of suit or presentation of plaint (Order 7, rule 14, C.P.C.) and for the defendant is at, the time of filing of written statement (see also 1991 SCMR 1935) if first stage is not availed of and a party considers that a document he seeks to rely upon in support of its claim or defense is in possession or control of other, then recourse to Order XI, rule 1, C.P.C. may be had whereby a party may be called upon to deliver interrogatories and in case it is not followed then a party to the proceedings may take recourse to Order XI, rule 12, C.P.C. and call upon other party to disclose all the documents in his possession relating to the question in issue. On disclosure of such documents same can be sought to be produced and inspected under the order of the Court. On the first date of hearing i.e. date of framing of issues, parties to the suit are required to produce all the documentary evidence of every description in their possession or power on which they intend to rely and which has not already been filed in Court (Order XIII, rule 1, C.P.C.) or where the Court is of opinion that issues cannot be correctly framed without inspection of some documents not produced in suit Court may compel the production of any ,such document by the person in whose possession or power it is (Order XIV, rule 4, C.P.C.), such exercise was neither undertaken by the defendant No. 1 nor necessity was felt by the Court at the time , of framing of issues to call for any such document.

Read More

Closing of right of cross - examination --- Effect -- Accused was charged for committing rape with complainant - During the course of trial , examination -

 PLD 2023 Lahore 300

Closing of right of cross - examination --- Effect -- Accused was charged for committing rape with complainant - During the course of trial , examination - in - chief of two prosecution witnesses were opportunities were provided to petitioner ( accused ) to cross examine the said witnesses but upon his failure , his right to cross - examine was struck off --- Validity --- Right of cross examination was a statutory right recognized and provided under Art . 133 , Qanun - e - Shahadat , 1984 --- In a criminal case , it was obligatory upon the court to fulfill such statutory requirement in its true spirit --- Right to fair trial , which is now enshrined in Constitution under Art . 10 - A of the Constitution , included right of an accused to confront his accuser --- Despite that fact , the accused could not be allowed to hijack the trial proceedings in garb of safeguarding the right to fair trial --- Accused at times attempted to linger on the trial proceedings with nefarious designs to tamper with the prosecution evidence or avoid his expected conviction and penal consequences , which should not be permitted by the Trial Court --- Trial Court was not helpless to proceed further without violating the right to fair trial , especially right to confront one's accuser --- Under R. 1 , Part C , Vol . 3 , Chap . 24 of the High Court ( Lahore ) Rules and Orders , if an accused was unrepresented in a Sessions case and he could not afford to engage a counsel , the Sessions Judge / Additional Sessions Judge was bound to make arrangement to employ a counsel at government expense for the said accused --- Keeping in view the literal meaning of term ' unrepresented as used in R. 1 , Part C , Vol . 3 , Chap . 24 of the High Court ( Lahore ) Rules and Orders , an accused , who although had arranged a counsel , who also filed his power of attorney on his behalf , would deem to be ' unrepresented if his counsel did not appear before the court and unnecessary delay was caused in early conclusion of trial --- Whenever a Trial Court was confronted with such situation , there would be two options available to such court , first was to adjourn the case for a future date or if Trial Court did not deem it appropriate to adjourn the case , then to provide a capable and skilled counsel to the accused on state expenses to carry out cross - examination on prosecution witnesses or court witnesses , if any --- In the present case defence counsel gave an undertaking on behalf of petitioner that prosecution witnesses would be cross - examined at the first date of hearing High Court observed and directed that if the same was not done , Trial Court should appoint counsel on State expense as envisaged under R. 1. Part C , Vol . 3 , Chap . 24 of the High Court ( Lahore ) Rules Orders and should proceed with the trial expeditiously without letting petitioner / accused abuse the process of law any further.

Read More

--S. 15--Limitation--Section 15 of Limitation Act has been expressly made applicable to an application for execution of a decree and it controls Section 48 of Code of Civil Procedure and Section 48 prescribes a period of limitation of six years.

 PLJ 2023 Peshawar 49
[D.I. Khan Bench]
Present: Muhammad Faheem Wali, J.
RABNAWAZ--Petitioner
versus
Mst. SABU BIBI and others--Petitioners
C.R. No. 224-D of 2015 with CM No. 272-D of 2015,
decided on 21.9.2022.

Arbitration Act, 1940 (X of 194)--

----S. 31--Limitation Act, (IX of 1908), Art. 181 & 183--Suit for making arbitration decision as rule of Court--Decree--Decree was upheld upto Supreme Court--Application for execution of decree--Filing of objection petition--Dismissed--Concurrent findings--Doctrine of merger--Doctrine of constructive res-judicata--Challenge to--It is well-settled that Limitation Act and Civil Procedure Code are to be read together, because both are statutes relating to procedure and they are in Pari Materia and, to be considered and construed together as one system explanatory of each other--Petitioner assailed judgment of this Court in Civil Petition before august Supreme Court and same stood dismissed where final decision has been made by worthy Supreme Court, limitation for filing of execution petition shall be reckoned by dint of Article 183 of Limitation Act, 1908, which provides six-years limitation for filing of execution petition from any order of Supreme Court--Petitioner invoked jurisdiction of august Supreme Court within contemplation of Article 185(3) of Constitution leave was declined to him thus provisions of Article 183 of Limitation Act, will operate to provide limitation of six years to respondents, from date of order of worthy Supreme Court, to file petition for execution of decree--Plea of limitation as contended in present objection petition, was not agitated in previous petition of like nature-- Present objection petition is hit by doctrine of constructive res-judicata--Petitioner has failed to point out any illegality or infirmity committed by Trial Court as well as Appellate Court while passing impugned judgments, which do not call for any interference by this Court--Consequently, concurrent finding passed by both Courts below are maintained. [Pp. 52, 54 & 55] A, F, G, H & I

1997 SCMR 1796, PLD 1990 SC 778 and 2007 SCMR 1929,
1996 SCMR 759.

Limitation Act, 1908 (IX of 1908)--

----S. 15--Limitation--Section 15 of Limitation Act has been expressly made applicable to an application for execution of a decree and it controls Section 48 of Code of Civil Procedure and Section 48 prescribes a period of limitation of six years.                                                                                 [P. 52] B

AIR 1939 All. 403 and AIR 1943 Bom 164 ref.

Civil Procedure Code, 1908 (V of 1908)--

----S. 2(2)--Decree--A decree is defined in Section 2(2) CPC, 1908 to mean formal expression of an adjudication which, so far as regards Court expressing it, conclusively determines rights of parties with regard to all or any of matters in controversy in suit and may be either preliminary or final. [Pp. 53 & 54] C

Doctrine of merger--

----When a higher forum entertains an appeal or revision and passes an order on merit, doctrine of merger would apply--The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by appellate and revisional Courts. [P. 54] D & E

1992 SCMR 241 ref.

Haji Muhammad Shakeel Advocate for Petitioner.

Mr. Muhammad Sajid Shahzad Advocate for Respondents.

Date of hearing: 21.9.2022.

Judgment

The petitioner, aggrieved of the concurrent findings of the Courts below whereby his objection petition and then appeal met with the fate of dismissal vide order dated 08.06.2015 of learned Civil Judge-I Paharpur and 12.11.2015 of learned Additional District Judge Paharpur, has preferred this revision petition under Section 115 of the Code of Civil Procedure 1908 (Act-V 1908).

2. Before adverting to the merits of instant petition, it would be appropriate to briefly refer the facts of the case. Respondents filed a suit for making the arbitration decision as rule of the Court, stood decreed by the learned trial Court, vide Judgment & Decree dated 12.01.2010, which decree remained consistently upheld up-to august Supreme Court of Pakistan; and thereafter, they filed a petition for the execution of decree on 09.04.2014 which was objected upon by the petitioner (then judgment debtor), on the ground, that the same was barred by limitation, being filed beyond period of three years, from the date of decree by the trial Court. Objection petition was replied by respondents and having heard the parties, the same was dismissed vide order dated 08.06.2015 by the learned Civil Judge-I Paharpur, D.I.Khan, Petitioner discontented with the order dated 08.06.2015, preferred an appeal before the learned Additional District Judge Paharpur, D.I.Khan, however, the same too was dismissed vide order dated 12.11.2015; hence, the petitioner/judgment debtor has preferred the instant petition against concurrent findings of the Courts below as to dismissal of his objection petition.

3. Arguments of the learned counsel for parties heard and record gone through with their valuable assistance but for the sake of brevity, without reproducing the arguments of the counsels, same will be adequately dealt with at appropriate stages in this judgment.

4. There can be no denial of the fact that initially the decree was passed by the learned Civil Judge Paharpur vide order dated 12.01.2010; however, the said decree was assailed in the appeal which was decided vide Judgment & Decree dated 03.10.2011. Thereafter petitioner preferred a Civil Revision No. 556/2011 before this Court, which too was dismissed vide Judgment dated 06.12.2013, and finally, petitioner approached the worthy Apex Court through a Civil Petition No. 44 of 2014, which too met with the fate of dismissal vide Judgment dated 11.03.2014 and thereby leave was declined to the petitioner. The present execution petition, for the first time, was preferred by decree holders i.e. respondents herein, on 09.04.2014, which has been objected upon by petitioner/judgment debtor being time barred, owing the date of decree dated 12.01.2010 passed by the learned Court of trial.

5. Now, the only question raised by the learned counsel for the petitioner in this petition is that the execution petition instituted on 09.04.2014 is barred by limitation inasmuch as the same was not filed within three years, from the date of the judgment of the Trial Court i.e. dated 12.01.2010. The contention of petitioner is that the execution petition ought to have been filed within three years from the date of the judgment of the Trial Court, without waiting for the decision of the Appellate Court or the Revisory Court or the Apex Court. He has also submitted that there is no interim order granted by all such Courts, therefore, there was no hurdle for the petitioner to file the execution petition within the prescribed period of limitation after the judgment of the Trial Court. As against this, learned counsel for respondents was of the view that, after omission of Article 182 of the Limitation Act, 1908, Article 181 of Limitation Act cannot be made applicable to the execution petitions and therefore, Section 48 of the Code of Civil Procedure is applicable which provides six years limitation for filing of execution petition.

6. It is well-settled that the Limitation Act and the Civil Procedure Code are to be read together, because both are statutes relating to procedure and they are in Pari Materia and, therefore, to be considered and construed together as one system explanatory of each other (Tribeni Prasad v. Ram Asray Prasad, AIR 1931 Pat 241). Section 15 of the Limitation Act has been expressly made applicable to an application for the execution of a decree and it controls Section 48 of the Code of Civil Procedure and Section 48 prescribes a period of limitation of six years. (Durag Pal Singh vs. Pancham Singh, AIR 1939 All403 and Firm Ramgopal Bhutada vs. Sidram Aunayya, AIR 1943 Bom 164). That is why Section 48 of the Code is referred to in Articles 181 of the Limitation Act. Article 181 refers to applications for which no period of limitation is provided elsewhere in the schedule to the Limitation Act or by Section 48 of the Civil Procedure Code of 1908. Thus, the period during which the decree of trial Court remained suspended through any injunctive order, must be excluded in computing the period of limitation under Section 48 of the CPC.

7. As regard the contention of learned counsel for respondents that limitation for filing of execution petition is only covered by Section 48 CPC, suffice it to say that the same has amply been answered by the worthy Supreme Court of Pakistan in the case of “Mehboob Khan vs. Hassan Durrani” (PLD 1990 Supreme Court 778) where in the Honourable Supreme Court held that:

“The position that emerges from the above discussion is that, as already stated, the first application for execution of a decree would be governed by the residuary Article 181 and the rest of the applications made, thereafter, will be governed by the six years’ time limit prescribed by Section 48. Although the original purpose underlying section 48, read along with Articles 181 and 182 of the Limitation Act, before the amendment of the law was to provide maximum limit of time for execution of a decree. But in the changed position as a result of Law Reforms Ordinance, the only effect of section 48 would be to provide limitation for subsequent execution applications after the first one. The result would be that if no application at all is made within the period prescribed by Article 181, the execution application made, thereafter, would be barred under the said Article and as such there would be no occasion to avail of the benefits of the extended time provide by section 48, CPC. In other words once an application for execution is made within time so prescribed, any number of applications for execution can be presented within the six years period from the date of decree. This construction, in my opinion is the only construction that can be placed on the consequent legal position arising out of the amendments made by the omission of Article 182 and substitution of six years period in section 48 CPC. Otherwise the provisions for repeated applications every three years or taking steps in aid of execution provided for in Article 182 having disappeared section 48 would be become redundant and ineffective.”

8. This view was reiterated in case of “House Building Finance Corporation of Pakistan vs. Rana Muhammad Iqbal through L.Rs” (2007 SCMR 1929). Further guidance in this regard may also be sought from the reported case titled “National Bank of Pakistan V. Mian Aziz-ud-din and 7 others” (1996 SCMR 759), wherein it was held:

“It was consequently held that the first application for execution of a decree would be governed by residuary Article 181 of the Limitation Act and rest of the applications made, thereafter would be governed by the six years period of limitation prescribed by section 48 CPC. As would appear from the above observations, the expression ‘‘fresh application “ occurring in section 48 CPC was also interpreted as not including the first execution application but any subsequent application, after the first application, that was presented before the Court. It, therefore, clearly follows that if no application for execution of a decree was made within the period of three years prescribed by Article 181, any application made thereafter would be barred under the said Article and no benefit under Section 48 CPC can be availed by the applicant in such a case. It is only after the first application is made within the period prescribed by Article 181 of the Limitation Act, that subsequent applications can be filed within the period provided by Section 48 CPC. Consequently, the view taken by the High Court and the Special Court that the execution application filed by the petitioners beyond the period of three years was time barred, is not open to exception”.

9. In this view of the matter there remains no cavil with the proposition that limitation for the filing of first execution petition is governed by Article 181 of the Limitation Act, 1908, and not by the Section 48 of CPC. It is, however, not in dispute that the execution petition has been filed within time from the date of the judgment of the High Court. The High Court dismissed the revision petition on 06.12.2013. The execution petition was filed 09.04.2014. A decree is defined in Section 2(2) CPC, 1908 to mean the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. A decree within the meaning of Section 2(2) of the CPC would be enforceable irrespective of the fact whether it is passed by the Trial Court, the Appellate Court, or the Revisional Court. When appeal and revision are prescribed under a statute and the appellate & revisional forums are invoked and entertained, for all intents and purposes, the lis continues. When a higher forum entertains an appeal or revision and passes an order on merit, the doctrine of merger would apply. The doctrine of merger is based on the principles of the propriety in the hierarchy of the justice delivery system. The doctrine of merger does not make a distinction between an order of reversal, modification or an order of confirmation passed by the appellate and revisional Courts. The said doctrine postulates that there cannot be more than one operative decrees governing the same subject matter at a given point of time. Guidance pertaining to the doctrine of merger has been derived from the reported case titled “Maulvi Abdul Qayyum vs. Syed Ali Asghar Shah and 5 others” (1992 SCMR 241), wherein the august Court was pleased to observe:

“9. These judicial announcements leave no room for doubt that for the purpose of execution the. rule of merger equally applies to the decree passed in exercise of revisional jurisdiction. This issue may also be examined from another angle. Take the case of a suit, which is dismissed by the trial Court and with this dismissal the First Appellate Court does not interfere, but it is decreed by the revisional Court. There should be no doubt that the decree of the Court of revision can well be executed.”

10. It is also very important to note that in the instant case, petitioner assailed the judgment of this Court in Civil Petition No. 44 of 2014 before august Supreme Court of Pakistan and the same stood dismissed vide Judgment dated 11.03.2014. In such an eventuality, where final decision has been made by the worthy Supreme Court, the limitation for filing of execution petition shall be reckoned by dint of Article 183 of the Limitation Act, 1908, which provides six-years limitation for filing of execution petition from any order of the Supreme Court.

11. The nutshell of above discussion is that, limitation for filing of first petition for execution of decree is to be governed under Article 181 of the Limitation Act, 1908, coupled with the doctrine of merger, if any of the parties invoked the appellate or revisional jurisdiction under the CPC. Whereas, in the instant case, the petitioner invoked the jurisdiction of august Supreme Court within the contemplation of Article 185(3) of the Constitution of Pakistan,

however, leave was declined to him vide Judgment dated 11.03.2014, thus provisions of Article 183 of the Limitation Act, 1908, will operate to provide limitation of six years to respondents, from the date of order of worthy Supreme Court, to file petition for the execution of decree.

12. Apart from the above, admittedly, prior to the instant objection petition, the petitioners had preferred another objection petition which was dismissed vide order dated 28.01.2015 and that order was upheld by the appellate Court vide Judgment dated 11.02.02015; however, the plea of limitation as contended in the present objection petition, was not agitated in the previous petition of the like nature. Hence, the present objection petition is hit by the doctrine of constructive res-judicata. In the case of “Ms. Shahzad Bibi and another vs. Gulzar Khan” (1997 SCMR 1796) it was held by the worthy Apex Court:

“the principle that a party is not to be vexed out for the same course is acknowledged in section 10 and 11 of the code of Civil procedure and even where section 11 does not in term apply, the general principle of Res Judicata have always been invoked by Courts of Law to achieve finality in litigation. An issue decided in one way at an earlier stage is not allowed to be recanvassed at a subsequent stage.”

13. Considering the above facts and circumstances, petitioner has failed to point out any illegality or infirmity committed by the learned Trial Court as well as learned Appellate Court while passing impugned judgments, which do not call for any interference by this Court. Consequently, concurrent finding passed by both the Courts below are maintained and instant Civil Revision stand dismissed with no order as to cost.

(Y.A.)  Civil revision dismissed

Read More

-S. 10--Violation of Act--It is mandatory for any landlord to comply with provisions of act and in case of any violation of said act, penal clause has also been incorporated.

PLJ 2023 Quetta 103
Present: Muhammad Aamir Nawaz Rana, J.
QUDRATULLAH (RAISANI) and another--Appellants
versus
ABDULLAH--Respondent
F.A.O No. 4 of 2022, decided on 15.8.2022.

Balochistan Urban Rent Restriction Ordinance, 1959 (VI of 1959)--

----Ss. 13 & 15--Eviction petition--Allowed--Denial of relationship of landlord and tenant--No written tenancy agreement--Mutation entry of property in favour of Appellant No. 1--Some portion of property was in name of Appellant No. 1--Question of whether there is relationship of landlord and tenant between parties-- Despite categorical denial of relationship of landlord and tenant taken by Appellant No. 1 and in spite of framing issue in this regard Rent Controller had not dilate upon same--It is settled principle of law that relationship of landlord and tenant is denied then this issue as preliminary issue has to be decided first without dilating upon other issues--Issue was framed in this regard but no effort was made by Rent Controller to consider stance taken by Appellant No. 1 who had taken specific plea to effect that there exist no relationship of tenant and landlord between parties and property in question is in fact in name of Appellant No. 1 and respondent has no concerned with said property--Considering mutation entry of property in question in favour of Appellant No. 1 which is admitted by counsel of Respondent No. 1 and in absence of any written tenancy agreement and all considering fact that Respondent No. 1 is seeking eviction of Appellant No. 1 from property in such view of matter relationship of landlord and tenant has not been established, between parties--Appeal allowed.                                                   

                                                                      [Pp. 106 & 107] A, B & C

2000 SCMR 632 ref.

Balochistan Restrictions of Rented Building (Security) Act, 2015 (X of 2015)--

----S. 10--Violation of Act--It is mandatory for any landlord to comply with provisions of act and in case of any violation of said act, penal clause has also been incorporated.            [P. 107] D

Mr. Agha Faisal Shah, Advocate for Appellants.

Mr.Rehmatullah Khan Mandokhail, Advocate for Respondent.

Date of hearing: 11.8.2022.

Order

The appellant has called in question the order dated 07.12.2021 whereby the learned Rent Controller/Civil Judge-VI, Quetta allowed the Eviction Application No. 08/2019 so filed by respondent and appellants are directed to vacate the house/Flat No. 506, Gulshan-e-Hassan Colony, Near Hazara Town, Quetta bearing Khasra No. 4417/182 measuring about 720 sq. ft. Mahal Karkhassa, Mouza Kirani, Tappa Shadenzai-I, Tehsil City, District Quetta and pay rent from May, 2019 till date to the appellants.

The necessary facts for decision of this appeal are that
in eviction application so filed by Respondent No. 1 the detail of property in question has been given in Para No. 1 which is reproduced as under:

“1. That the applicant is lawful owner and land lord of the house/Flat No. 506, Gulshan-e-Hassan Colony, Near Hazara Town, Quetta bearing Khasra No. 4417/182 measuring about 720 sq. ft. Mahal Karkhassa, Mouza Kirani, Tappa Shadenzai-I, Tehsil City, District Quetta with reference to Mutation No. 11863. Copy of mutation is annexed herewith “.

2. That it was alleged by Respondent No. 1 that initially the property in question bearing No. 506 was rented by Respondent No. 1 in January, 2019 against the rent of rupees five thousand (Rs.5000/-) per month on the basis of trust and faith through oral agreement but subsequently after paying four (04) month’s rent till May, 2019 the Appellant No. 1 stopped the payment of rent, so apart from ground of default; ground of personal bona fide requirement and ground of subletting has also been taken by Respondent No. 1, in his eviction application while on the contrary; the Appellant No. 1, contested the eviction application and denied categorically relationship of landlord and tenant between the parties and asserted that Appellant No. 1 being recorded owner in revenue record is in possession of property in dispute as exclusive owner of the same; that out of pleadings the learned trial Court framed following issues:

1.       Whether there exists relationship as landlord and tenant between applicant and respondent?

2.       Whether the respondent is bad paymaster and made default in payment of rent @ Rs. 5000/-from May, 2019?

3.       Whether the Respondent No. 1 has subletted the said house/flat in question to Respondent No. 2 without permission of the applicant?

4.       Whether the house/flat in question is required to applicant for his personal bonafide use?

5.       Whether the applicant is entitled for the reliefs, he has claimed?

6.       Relief?

3. That subsequently without discussing the issues separately and without dilating upon available material in haphazard manner the learned trial Court allowed the eviction application.

Arguments heard. Record perused.

4. It is very strange aspect of the matter that despite categorical denial of relationship of landlord and tenant taken by Appellant No. 1 and in spite of framing issue in this regard the learned Rent Controller had not dilate upon the same. It is settled principle of law that when relationship of landlord and tenant is denied then this issue as the preliminary issue has to be decided first without dilating upon other issues; in the case in hand issue was framed in this regard but no effort was made by the learned Rent Controller to consider the stance taken by the Appellant No. 1 who had taken specific plea to the effect that there exist no relationship of tenant and landlord between the parties and the property in question is in fact in the name of the Appellant No. 1 and the respondent has no concerned with the said property. Reliance is placed in this context in case titled as Ghulam Rasool v. Mian Khursheed Ahmed 2000 SCMR 632 relevant para is reproduced:

“Be that as it may, there is no cavil with the proposition that when the relationship of landlord and tenant is denied, the Rent Controller in the first instance decide this issue before directing the tenant to deposit the arrears of rent, if any or future rent”.

5. The revenue record vis-a-via suit property was perused and the counsel of Respondent No. 1 was confronted with this aspect of the matter who candidly conceded that some portion of said Khasra No. 4417/182 measuring about 720 sq. ft. Mahal Karkhassa, Mouza Kirani, Tappa Shadenzai-I, Tehsil City, District Quetta is in the name of Appellant No. 1 and remaining portion of Said Khasra number is in favour of Respondent No. 1 which was rented out.

As explained above, this issue should have been decided by trial Court as preliminary issue but since the trial Court ignored this aspect and through non-speaking order without dialing upon the issues, allowed the eviction application so filed by Respondent No. 1, therefore, at appellate stage this issue being crux of the controversy between the parties is to be resolved.

Whether there is relationship of landlord and tenant between the parties?

Considering the mutation entry of property in question as mentioned above in favour of Appellant No. 1 which is admitted by the counsel of Respondent No. 1 and in absence of any written tenancy agreement and above all considering the fact that Respondent No. 1 is seeking eviction of Appellant No. 1 from property falling under Khasra No. 4417/182 measuring about 720 sq. ft. Mahal Karkhassa, Mouza Kirani, Tappa Shadenzai-I, Tehsil City, District Quetta (which in fact is in the name of Appellant No. 1) so in such view of matter the relationship of landlord and tenant has not been established, between the parties.

Apart from that another very relevant aspect of the matter which could not escaped my intention is; non-compliance of the Balochistan Restriction of Rented Buildings (Security) Act, 2015, which was promulgated with effect from 19th August, 2015 and has made it mandatory for any landlord to comply with the provisions of the same and in case of any violation of the said Act, the penal clause has also been incorporated, which envisages imprisonment which may extend to one year or with fine or with both; being mandatory provisions of ibid Act same cannot be ignored and for the purpose of this appeal, since no compliance of said law has been done so on this score also it can be inferred that relationship of landlord and tenant does not exist between the parties; otherwise the compliance of said Act would have been done since it contains penal clauses in case of violation of the same; the relevant provisions of the ibid Act are reproduced:

“THE BALOCHISTAN RESTRICTIONS OF RENTED BUILDINGS (SECURITY) ACT,2015

Act No X of 2015.

Preamble.

          WHEREAS it is expedient to provide mechanism for monitoring the business of rented buildings for the purpose of counter terrorism and effectively combating crime in the Balochistan and the matters connected therewith or ancillary thereto;

It is hereby enacted as follows:-

1. Short title, extent and commencement. (1) This Act may be called the Balochistan Restrictions of Rented Buildings (Security) Act, 2015.

(2) It shall extend to the whole of Balochistan except Tribal Areas.

(3) It shall come into force at once.

2. Definitions. In this Act, unless there is anything repugnant in the subject or context--

(a)      “Act” means the Balochistan Restriction of Rented Buildings (Security) Act, 2015;

(b)      “Government” means the Government of the Balochistan;

(c)      “landlord” means a person or body on whose name the building stands registered in Government records;

(d)      --------------

(e)      --------------

(f)       --------------

(g)      --------------

(h)      --------------

(i)       --------------

o)       --------------

(k)      “rented building” means any building which is given or rented and include private hostels and student hostels;

(i)       --------------

(m)     --------------

(n)      --------------

(o)      --------------

(p)      --------------

3. Rent agreement. (1) Whenever the landlord, the lessee or the manager, as the case may be, agrees to allow any person other than his legal heirs to occupy his rented building, he shall reduce the agreement in writing on legal document which shall be signed by the landlord, the lessee or the manager and the property dealer in case the rented building is given through him, as the case may be, and the tenant. The agreement should contain meaningful information about the tenant through which the identity of the tenant could be verified.

(2) The landlord, the lessee or the manager, as the case may be, shall exercise due care and prudence in verification of the credentials of the tenant so that the rented building may not be used for any illegal or terrorist activities.

(3) The landlord, the lessee or the manager, as the case may be, shall get minimum two references of known persons who shall verify the credentials of the tenant. The complete particulars of the reference in the form of Computerized National Identity Card and contact number shall be obtained and reference shall be given in the rent agreement.

(4) The rent agreement shall be further attested by a Magistrate, Notary Public or the Oath Commissioner.

4. Information with regard to rent agreement. (1) The landlord, the lessee or the manager, as the case may be, and the property dealer where the rented building is given through such property dealer, shall provide following information to the Officer Incharge within three days of signing of the agreement on Form-I of the schedule:-

a)       attested copy of the rent agreement;

b)       attested copy of the National Identity Card of tenant;

c)       name and copies of the National Identity Cards with contact number of two references, who identify the tenant; and

d)       particulars of the male members above the age of fourteen years living or residing with the tenant.

(2) After being satisfied, officer Incharge shall issue “tenant acknowledgment receipt” to the landlord, the lessee or the manger, as the case may be, on the submission of the requisite information on Form-II of the schedule. He shall also incorporate the entry in the Daily Diary, maintained in such Police Station/Levies Thana.

(3) The landlord, the lessee or the manager, as the may be, shall provide one attested copy of the tenant acknowledgment receipt to the tenant.

(4) Any concerned police officer, not below the rank of Assistant Sub-Inspector and Levies officer not below the rank of Risaldar with approval of the Officer Incharge may inspect any rented building along with the landlord, the lessee or the manager, as the case may be. The landlord, the lessee or the manager, as the case may be, shall facilitate the police during inspection.

--------------

--------------

--------------

10. Penalties. (1) Whoever contravenes the provision of Sections 3 to 6 of this Act shall be punished with imprisonment, which may extend to one year or with fine or with both.

(2) In case of the reasonable grounds, the police find that the landlord, the lessee, the manger or the property dealer, as the

case may be, was aware of the criminal designs of the tenant or he has not exercised due care in verification of the credentials of the tenant, he may be charged for the abetment of the offence committed by the tenant.

-------------------

12. The offence under this Act shall be cognizable, non-bail able and shall be tried by a Judicial Magistrate of First Class having territorial jurisdiction over the area of offences.

13. The provision of this Act shall be in addition to and not in derogation of any other law for the time being in force.”

Apart from that Article 5(2) of the Constitution of Islamic Republic of Pakistan, 1973 also leaves no room for speculation as for as compliance of law is concerned rather it considers obedience to law as the inviolable obligation of every citizen wherever, he may be and it is a settled principle of law that ignorance of law is no excuse, the said Article is also reproduced:

“5. (1) Loyalty to the State is the basic duty of every citizen.

(2) Obedience to the Constitution and law is the [inviolable] obligation of every citizen wherever he may be and of every other person for the time being within Pakistan.”

Emphasis provided.

Since, the pivotal issue of relationship of landlord and tenant between the parties is decided against the Respondent No. 1; in view of above discussion and deliberation, therefore, the impugned order is not sustainable same is hereby set aside and the eviction application so filed by Respondent No. 1 stands dismissed, however, the Respondent No. 1 is at liberty to approach the competent Court of civil jurisdiction for redfessal of his grievance, if any.

Consequently this appeal is allowed with no order as to cost.

(Y.A.)  Appeal allowed

Read More