PLJ 2025 SC 94
[Appellate Jurisdiction]
Present: Sardar Tariq Masood and Mazhar Alam Khan Miankhel, JJ.
versus
HUKAM KHAN (decd) through L.Rs--Respondents
C.A. No. 176-P/2013, decided on 6.11.2024.
(Against the judgment dated 09.09.2013 passed by Peshawar High Court, Peshawar in C.R. No. 832-P/2002 with C.M. No. 739-P/2012)
Khyber Pakhtunkhwa Pre-emption Act, 1987 (X of 1987)--
----Ss. 13 & 31--Limitation Act, (IX of 1908), Ss. 18 & 29-
دھوکہ دہی کا مقدمہ شروع سے ہی دھوکہ دہی کی مکمل تفصیلات کے ساتھ پیش کیا جانا چاہیے اور پھر ثبوت وں کے ذریعے ثابت کیا جانا چاہیے- دفعہ 18 سے فائدہ اٹھانے کے لیے ابتدائی مرحلے سے ہی اس کی مکمل تفصیلات کے ساتھ الزام لگایا جانا چاہیے۔ درخواست گزار نے مقدمہ دائر کرتے وقت درخواست کی تھی اور اسے اپنے کیس میں شامل حدود کے سوال کا بھی علم نہیں تھا- اب تک یہ طے ہو چکا ہے کہ ایک نئی بنیاد، جو نیچے کی عدالتوں، خاص طور پر ٹرائل کورٹ کے سامنے نہیں اٹھائی گئی تھی، پہلی بار نہیں اٹھایا جا سکتا تھا، اور وہ بھی ہائی کورٹ کے سامنے، سوائے قانون کے سوال کے جو کسی بھی مرحلے پر اٹھایا جا سکتا تھا- اس کیس کو صرف حد بندی اور ہائی کورٹ کے چیمبروں میں جج نے روک دیا تھا۔ عدالت نے سول نظرثانی کو قبول کرتے ہوئے ٹھوس اور معقول وجوہات کے ساتھ معاملے کو نمٹایا تھا - اپیل خارج کردی گئی تھی۔
-Suit for pre-emption--Concurrently decreed--Civil revision--Accepted--Barred by time--Question of fraud--Concurrent findings--Challenge to--Question of fraud needs to be pleaded from beginning with full particulars of fraud and then should be established through evidence--For getting benefit of Section 18, it should be alleged with its full particulars as a ground of attack or defence, as case may be, from initial stage and then be proved accordingly-- Though question of fraud was never pleaded by appellant at time of filing of suit and he even was not aware of question of limitation involved in his case--It is settled by now that a fresh ground, not raised before Courts below, especially Trial Court, could not be raised for first time, and that too, before High Court except question of Law which could be raised at any stage--That case was simply barred by limitation and Judge in chambers of High Court had dealt with matter with sound and valid reasons by accepting civil revision--Appeal dismissed.
[Pp. 96 & 97] A, B, C & D
Mr. Zia-ur-Rehman, ASC for Appellant.
Nema for Respondents.
Date of hearing: 6.11.2024.
Judgment
Mazhar Alam Khan Miankhel, J.--The appellant through instant Civil Appeal has questioned the judgment and decree dated 09.09.2013 of the Peshawar High Court, Peshawar whereby the learned Judge in Chambers accepted the Revision Petition dismissing the pre-emption suit, concurrently decreed by the Trial and the Appellate Court.
2. The learned counsel for the appellant at the very outset submitted that his senior counsel namely Muhammad Arif Khan, Sr. ASC in this appeal has almost left the practice because of his old age and multiple ailments. He requested for appearance on his behalf, was accordingly allowed.
3. We have heard the learned counsel for the appellant and have gone through the available record. The record of the case would reflect that the pre-emption suit filed by the appellant was decreed by the Trial Court and appeal thereagainst of the respondent vendee was dismissed. The respondent still feeling himself aggrieved filed a civil revision before the Peshawar High Court, Peshawar and the learned Judge in Chambers while accepting the Civil Revision, dismissed the suit of present appellant being barred by time under Section 31 of the Khyber Pakhtunkhwa Pre-emption Act, 1987 “The Act of 1987. If the time period for filing of the suit from the date of attestation of mutation i.e 04.11.2008 till filing of the present suit on 04.11.2008 is calculated, that comes to 122 days whereas the limitation period provided for the filing of a pre-emption suit, as provided under Section 31 of The Act ibid is 120 days. This clearly shows that the pre-emption suit of the appellant was barred by time and the learned Judge in chambers has very aptly held so. Learned counsel while referring to the savings as provided in Section 29 of The Limitation Act, 1908 tried to develop an argument that the impugned sale was kept secret and no notice of sale as required under Section 32 of The Act, 1987 was given to him and as such the sale was fraudulently concealed and kept secret and for that matter, the period of limitation against the appellant would start running from the date of his knowledge i.e 03.11.2008 as provided in Section 18 of The Act of 1908 and if seen in this backdrop, his suit falls well within the time.
4. The learned counsel appearing on behalf of his senior is a young lawyer of this Court and we must appreciate that he has made a good attempt to make out a case for appellant but the legal requirement for such an argument is that this should have been pleaded from the very start, at the time of filing of the suit. Had that been so, he might have made a case for interference. The record shows that the appellant was not aware of this aspect of the case and no such plea was raised by him in his plaint. He simply filed his suit under the impression as if the same is within time. He just pleaded that no notice under Section 32 of The Act 1987 was given to him. If seen in this context, the requirements of Section 32 ibid are somewhat different. For that matter, he should have made up his case from the very start in the light of Section 32 of The Act 1987. For ready reference Section 32 of The Act 1987 is reproduced herein below:
32. Notice.--(1) The Registrar registering the sale-deed or the Revenue Officer attesting the mutation of a sale shall, within two weeks of the registration of attestation, as the case may be, give public notice in respect of such registration or attestation.
(2) The notice under sub-section (1) shall be deemed sufficiently given if it be stuck up on the main entrance of a mosque and on any other public place of the village, city or place where the property is situated:
Provided, that if the property is situated in a city, the notice shall also be given through a newspaper having large circulation in such city.
(3) The charges for the notice under sub-section (2) shall be recovered from the vendee by the Registrar or the Revenue Officer, as the case may be, at the time of registration or attestation of mutation.
5. The evidence and record of the case would show that the appellant has not developed his case as per provision of law noted above. Mere assertion in the pleadings is not beneficial at all unless established through evidence in the light of pleadings. As far as question of fraud is concerned, that too needs to be pleaded from the beginning with full particulars of fraud and then should be established through evidence. Just to clarify the legal position, we would also like to reproduce the provisions of Section 18 and Section 29 of The Limitation Act, 1908.
18. Effect of fraud. Where any person having a right to institute a suit or make an application has, by means of fraud been kept from the knowledge of such right or of the title on which it is founded,
or where any document necessary to establish such right has been fraudulently concealed from him, the time limited for instituting a suit or making an application:-
(a) thereto, or against the person guilty of the fraud or accessory
(b) against any person claiming through him otherwise than in good faith and for a valuable consideration,
shall be computed from time when the fraud first became known to the person injuriously affected thereby, or, in the case of the concealed document, when the first had the means of producing it or compelling its production.
29. Saving. (1) .....
(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed therefor by the First Schedule, the provisions of Section 3 shall apply, as if such period were prescribed therefor in that Schedule, and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law:
(a) the provisions contained in section 4, sections 9 to 18, and Section 22 shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law; and
(b) ............
(3) ............
(4) ............
A look at the above provisions of law would make it clear that for getting benefit of Section 18, it should be alleged with its full particulars as a ground of attack or defence, as the case may be, from the initial stage and then be proved accordingly.
5. Though the question of fraud was never pleaded by the appellant at the time of filing of his suit and he even was not aware of the question of limitation involved in his case but as a last resort, the above attempt has been made. It is settled by now that a fresh ground/plea, not raised/developed before the Courts below, especially the Trial Court, cannot be raised for the first time, and that too, before this Court except the question of Law which can be raised at any stage. We, despite this fact, heard him for two reasons; firstly, it was a mixed question of law and fact requiring appreciation which can be raised and heard at any time, secondly, a good attempt was made by the learned counsel. This case was simply barred by limitation and the learned Judge in chambers of the High Court has dealt with the matter with sound and valid reasons by accepting the civil revision, setting aside the concurrent findings of the two Court below. We find no merits in this appeal and the same is dismissed as such with no order as to costs.
(Y.A.) Appeal dismissed
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