PLJ 2023 Lahore 896
Present: Shahid Bilal Hassan, J.
MUHAMMAD YASIN--Petitioner
versus
MUHAMMAD ISMAIL, etc.--Respondents
C.R. No. 62703 of 2023, decided on 26.9.2023.
Civil Procedure Code, 1908 (V of 1908)--
----O.VII, R. 11(d)--Specific Relief Act, (I of 1877), Ss. 39, 42 & 54--Rejection of plaint--Appeal--Dismissed--Suit for declaration, cancellation of documents and perpetual injunction--Application before revenue authorities regarding disputed mutation--Inquiry report--Date of knowledge and source of information was not disclosed regarding fraud--Limitation--Challenge to--The matter remained sub-judice before competent forum and petitioner was well aware of all proceedings but he kept mum after report of inquiry because adverse remarks were passed against him and he did not challenge same before any forum further--The petitioner did not disclose date of knowledge and source of information of alleged fraud, which were essential and necessary to be pleaded in plaint--The suit of petitioner was badly barred by limitation which has rightly been adjudged and petitioner has rightly been non-suited--Both Courts below have accurately rejected plaint--The petitioner did not associate proceedings before revenue hierarchy, he was bound to explicitly plead date of his knowledge of alleged fraud, which is lacking in this case, so it cannot be said that here in this case limitation is a mixed question of law and facts--Reasoning recorded by both Courts below is just in accordance with spirit of law on subject and does not require any interference by High Court, as no illegality and irregularity has been committed--Civil revision dismissed. [Pp. 897, 898, 899 & 900] A, B, C, D, F & G
2016 SCMR 910, 2000 SCMR 305, 2002 SCMR 338 and
2021 SCMR 1158 ref.
Duty of Court--
----It is duty of Court to thoroughly examine plaint at very inception so that parties could be saved from agony of frivolous litigation in order to save precious time of Court because a Court should not behave like a silent observer that a party can capture whole system of justice for an indefinite time in order to rescue prevailing judicial system which is already at prime of criticism. [P. 899] E
1994 CLC 1248 ref.
Mian Shah Abbas, Advocate for Petitioner.
Date of hearing: 26.9.2023.
Order
Precise facts of the case are that the petitioner herein instituted a suit for declaration cum cancellation of documents and perpetual injunction against respondents/defendants. Respondents/ Defendants No. 1 to 4, 6, 8 and 9 appeared before the learned trial Court and contested the suit by filing written statement. The learned trial Court vide impugned order and decree dated 17.12.2022 rejected the plaint of suit under Order VII, Rule 11(d), Code of Civil Procedure, 1908. Appeal preferred by the petitioner against the same was dismissed vide impugned judgment and decree dated 13.07.2023; hence, the instant revision petition.
2. Heard.
3. In this case, admittedly the dispute regarding the disputed mutation has already been raised before the competent forum in 2002 by way of application for inquiry which was concluded in 2003 vide inquiry report dated 01.12.003, wherein it was determined that the disputed mutation was genuinely entered into and executed by the concerned parties; it was further determined in the said inquiry that the present petitioner is a fake person and has no concern with the disputed property. Meaning thereby the matter remained sub-judice before the competent forum and the petitioner was well aware of all the proceedings but he kept mum after report of the above said inquiry because adverse remarks were passed against him and he did not challenge the same before any forum further. Moreover, the petitioner did not disclose the date of knowledge and source of information of alleged fraud, which were essential and necessary to be pleaded in the plaint as required by Order VI, Rule 4, Code of Civil Procedure, 1908. The suit ought to have been filed within six years from the date of arising of cause of action or from the date of knowledge, but it has been instituted after about 21 years of above said inquiry proceedings, which ended in the year 2003. In such scenario, the suit of the petitioner was badly barred by limitation which has rightly been adjudged and the petitioner has rightly been non-suited. A three members Bench of the Apex Court of country while dealing with a case reported as Agha Syed Mushtaque Ali Shah v. Mst. Bibi Gul Jan and others (2016 SCMR 910), has invariably held:
‘22. -------- that the question of limitation being a mixed question of law and facts ought to have been decided after recording evidence, we may observe that it is only in cases where determination as to when the cause of action for the suit arose, is dependent upon a certain factor, situation, happening or occurrence, existence, extent and the nature whereof could only be ascertained after recording evidence, that the question of limitation needs to be determined after such evidence. However, where on the plain reading of the plaint, as in the present case, it can be clearly seen that the suit is patently barred by limitation, no evidence is required. In fact to plead that a plaint cannot be rejected, for the suit being barred by limitation/law, without recording evidence, is to plead against the mandate of law as contained in Order VII, Rule 11 of the Code of Civil Procedure, which essentially requires the Court to reject the plaint which appears from its contents to be barred by limitation.’
Furthermore, in judgment reported as Maulana Nur-ul-Haq Ibrahim Khalil (2000 SCMR 305), the Apex Court of the country held:
‘6. The first point for determination is whether the plaint can be rejected under Order VII, rule 11(d), C.P.C. if the suit is time-barred. The answer is in the affirmative. The contention raised by the learned counsel for the petitioner is too naïve to prevail. The bar of limitation is traceable to the Limitation Act, therefore, it goes without saying that the expression ‘barred by any law’ includes the law of limitation. However, there is no need to discuss this point any further as it stands resolved by the judgment of this Court reported as Mumtaz Khan v. Nawab Khan and 5 others 2000 SCMR 33, wherein it has been held that clause (d) of Order VII, rule 11, C.P.C. is applicable where the suit is time-barred, and Hakim Muhammad Buta and another v. Habib Ahmed and others (PLD 1985 SC 153) wherein it has been observed that if from the statement in the plaint the suit appears to be barred by limitation the plaint shall have to be rejected under Order VII, rule 11, C.P.C.’
4. In this view of the matter, both the Courts below have accurately rejected the plaint under Order VII, Rule 11, C.P.C. The relevant facts need to be looked into for deciding an application under Order VII, Rule 11, C.P.C. are the averments in the plaint, however, besides averments made in the plaint other material available on record which on its own strength is legally sufficient to completely refute the claim of plaintiff can also be pondered into for the purpose of rejection of the plaint. Reliance may be placed on judgment reported as S.M. Sham Ahmad Zaidi through Legal Heirs v. Malik Hassan Ali Khan (Moin) through Legal Heirs (2002 SCMR 338). Moreover, if a party who approaches the Court, with mala fide intention by concealing material facts, which if brought before the Court, the plaintiff would have been out of Court for having no cause of action and also in a situation that defendants brought any such fact in the notice of the Court the same can also be judiciously pondered upon while deciding an application under Order VII, Rule 11, C.P.C. because a plaintiff should not be allowed to grind the other party into a false and frivolous litigation. The basic objective and aim of Order VII, Rule 11, C.P.C. is that an incompetent suit should be laid to rest at its inception so that no further time is allowed to be wasted over what is bound to collapse. A suit may be specifically barred by law and in such an event, the matter would come under the vivid terms of clause (d) of Rule 11, Order VII of the Code of Civil Procedure, 1908 but even in a case where a suit is not permitted by necessary implication of law in the sense that a positive prohibition can be spelt out of legal provisions, the Court has got an inherent jurisdiction to reject the plaint at any stage of trial and in such a situation formalities should be avoided to reject it, thus, Order VII, Rule 11, C.P.C. is not exhaustive. The Court in exercise of inherent jurisdiction can nip the frivolous litigation in the bud. It is the duty of the Court to thoroughly examine the plaint at the very inception so that the parties could be saved from the agony of frivolous litigation in order to save the precious time of the Court because a Court should not behave like a silent observer that a party can capture the whole system of justice for an indefinite time in order to rescue the prevailing judicial system which is already at the prime of criticism. Reliance in this regard is placed on judgment reported as Haji Muhammad and another v. Government of the Punjab through Collector, District Kasur and another (1994 CLC 1248).
5. Besides, it is now settled principle that limitation runs even against a void order and if for the sake of arguments, it is admitted that the petitioner did not associate the proceedings before the revenue hierarchy, he was bound to explicitly plead the date of his knowledge of alleged fraud, which is lacking in this case, so it cannot be said that here in this case the limitation is a mixed question of law and facts. Reliance is placed on judgment reported as Muhammad Sharif and others v. MCB Bank Limited and others (2021 SCMR 1158), wherein it has been held that:
‘5. The law is by now settled that limitation against a void order would run from the date of knowledge which has to be explicitly pleaded. In the instant case, in all the objection petitions that were filed, the petitioners did not state the date when they obtained knowledge of the alleged void order. In these circumstances, the petitioners cannot legally take this stance and that too at this belated stage.’
6. In addition to the above, the learned appellate Court has rightly appreciated the ratio of judgments reported as PLD 2016 Supreme Court 872, PLD 2015 Supreme Court 212, 2011 SCMR 8, 2022 CLC 178-Lahore, PLD 2019 Lahore 717, 2019 CLC 497 and 2018 Law Notes 1256, on the subject because if the limitation is reckoned as mere a technicality, it would amount to deprive the opposite party of a favour which the law has unequivocally extended to it due to prevailing of certain circumstances.
7. The crux of the above discussion is, the reasoning recorded by both the Courts below is just in accordance with the spirit of the law on the subject and does not require any interference by this Court, as no illegality and irregularity has been committed; therefore, finding no adverse occasion in the impugned judgments and decrees, the same are maintainable, consequent whereof the instant revision petition being without any force and substance stands dismissed in limine.
(Y.A.) Civil revision dismissed
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