' Applicant Malhar son of Miandad Dahri, now represented through his son Chhuttu, has preferred this civil revision application to impugn the judgment and decree, dated 23-2-1982 and 3-3-1982 respectively in F.C. Suit No,172 of 1980 passed by Senior Civil Judge, Sanghar, whereby suit of the applicant was dismissed as time-barred and the other judgment and decree, dated 21-1-1983 and 28-11-1983 respectively, in C.A. No,10 of 1982 passed by District Judge, Sanghar, whereby his appeal was dismissed and consequently findings of the lower Court on the issue of limitation were maintained.
2. The simple facts relevant for the disposal of this revision application are that on 17-9-1980 applicant instituted a suit for declaration and perpetual/mandatory injunction against the respondents asserting his rights in respect of agricultural lands bearing Survey Nos.1282/2, 5 and 262/3 total admeasuring 11.2 acres situated in Deh Murad Ali Rind Taluka Shahdadpur (hereinafter referred to as suit-land). He challenged the order, dated 13-2-1975 passed by respondent No,3, and orders dated 3-12-1975 and 5-2-1976 passed by respondent No,2. By first order, appeal preferred by respondents Khamiso and Karim Bakhsh. In respect of suit-land was allowed with the directions that Survey No,282/2, 5 should be granted to Khamiso (respondent No,5) and Survey No,262/3 should be granted to Karim Bakhsh (respondent No,6) and grant of applicant in respect of these survey numbers was cancelled. By other order, dated 3-12-1975 revision application preferred by the applicant against the above referred order of respondent No,3 was dismissed, and by third order dated 5-2-1976 the review application in respect of last order, dated 3-12-1975 was also dismissed by respondent No,2. Before the institution of F.C. Suit No,172 of 1980 the applicant had instituted F.C. Suit No,13 of 1976 in respect of same dispute and for challenging the same orders but plaint in that suit was returned by the Senior Civil Judge, Sanghar vide its order, dated 5-4-1976 and later on such suit, after further proceedings was dismissed by Civil Judge, Shandadpur.
3. In the written statement dated 5-3-1981 jointly filed by respondents Nos.5 and 6 they denied and disputed the claim of applicant over the suit-land and also challenged the maintainability of the suit being time-barred, not maintainable under the law, res judicata, and hit by the proviso to section 42 of the Specific Relief Act. Other defendants Nos.1 to 4 did not contest the suit, therefore, they were declared ex parte vide order, dated 5-12-1981, and following preliminary issues were framed in the suit on same date:-- "(1) Whether suit is time-barred?
(2) Whether suit is not maintainable in law?"
4. It appears that though after framing of preliminary issues case was set for evidence but none of the parties led any evidence, therefore, after hearing arguments of learned counsel for the parties the lower Court decided both the issues on the basis of material available on record and came to the conclusion that for the purpose of limitation suit of the applicant was governed by Article 14 of the Limitation Act and not Article 120 of the Limitation Act. Thus, the issues of limitation was answered in the affirmative and suit was dismissed. In the appeal preferred by the applicant the Appellate Court also came to the same conclusion, therefore, the appeal was also dismissed.
5. Mr. Jhamat Jethanand, learned counsel for the applicant vehemently contended that both the Courts below, for the purpose of limitation, have misunderstood the case of the applicant as it was not a suit with the prayer that the impugned orders passed by the respondents Nos.2 and 3 be set aside but the prayer made in the plaint was for declaration that such orders were illegal, void, mala fide, inoperative and not binding on the applicant. He contended that looking to the prayer clause in the plaint the suit was governed by Article 120 of the Limitation Act as held in the following cases:--
(1) PLD 1964 SC 520, (2) PLD 1969 Lah. 1039, (3) PLD 1990 Lah. 153 (4) PLD 1957 Lah. (W.P.) 378, (5)
2000 CLC 942 and (6) PLD 1969 Dacca 280.
6. Conversely, to the short point of limitation involved in the present proceedings with reference to the applicability of Article 14 of the Limitation Act or Article 120 of the Limitation Act, Mr. Hassan Mehmood Baig, learned counsel for respondents Nos.5 and 6 contended that for all practical purposes the relief sought by the applicant in the suit was that the impugned order passed by respondents Nos.2 and 3 be set aside therefore, the suit was governed by Article 14 of the Limitation Act which provides only one years' time for this purpose. In support of his contentions learned counsel placed reliance on the following cases:--
(1) 1988 MLD 1980, (2) 1988 CLC 169 and 412, (3) 1987 CLC 240 and 242, (4) 2001 MLD 1142 and (5) PLD 2002 SC 526.
7. Mr. Masood Noorani, Additional Advocate-General, Sindh, on behalf of respondents Nos.1 to 4 adopting the arguments of Mr. Hassan Mehmood Baig supported the impunged judgments and made reference to the case of Additional Commissioner-II "K" Division v. Shahid Raza and others 1997 MLD 2444. In this case it was held that bar to maintainability of suit in terms of Article 14 of the Limitation Act will only apply in cases where act or order sought to be set aside was shown as having validly been passed and not where allegations were regarding practising fraud.
8. In the background of above noted undisputed facts and submissions made by the learned counsel. I have carefully examined the case-law cited by them at the bar as well as Article 14 of the First Schedule to Limitation Act, 1908 (hereinafter referred to as the Act). For convenience sake same is reproduced as under:-- {{TABLE}}
14. To set aside any act or order of an officer of Government in his official capacity, not herein otherwise expressly provided for. [One year] The date of the act or order. {{TABLE}}
9. A plain reading of the above provision of law shows that period of one year limitation provided in Column No,II starts from the date of the act or order passed by an Officer of Government in his official capacity, which a party seeks to get set aside. To say it in other words, bar to maintainability in terms of Article 14 of the Act will be applicable to a suit where the relief sought in the plaint is to get an order of the nature mentioned in column I, "set aside" and not to a suit where the relief sought is declaratory in nature, the impugned act or 'order is void, without jurisdiction or mala fide.
This view of the matter is fortified from the following cases:--
(A) F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 ' In this case it was held by the apex Court that a declaratory suit, contesting dismissal, filed by a Government servant will be governed by Article 120 of the Limitation Act and such period will start from the date of dismissal, but, where there is an appeal, from the date of the appellate order upholding dismissal.
(B) Rashid Inayat v. The Federation of Pakistan PLD 1957 (W.P.) Lah. 378 ' In this case it was held that Article 14 of the First Schedule to the Limitation Act applies to a suit to set aside any act or order of an officer of Government in his official capacity not herein otherwise expressly provided for and not to a suit which is one for declaration.
(C) Province of East Pakistan v. AKN Raza Karim and another PLD 1969.Dacca 280.
' In this case a Division Bench of Dacca High Court made compression of Articles 14 and 120 of the Limitation Act and held that where the prayer made in the suit is for setting aside an order then Article 14 of the Limitation Act will apply and in case a suit is purely for declaratory relief that the impugned order is illegal, void and without jurisdiction then it will be governed by Article 120 of the Limitation Act providing six years limitation for filing of such suit.
(D) Hussain Bukhsh and others v. Settlement Commissioner and another PLD 1969 Lah. 1039 ' In this case a Division Bench of Lahore High Court viewed that bar of limitation cannot be raised when impugned order is void and without jurisdiction.
10. As against above, cases referred by Mr. Hassan Mehmood Baig are based on different premises and not applicable to the facts of present case.
11. Moreover, it is well-settled principle of interpretation of statute that every word used in a statute/provision of law is to be given its literal meaning, in case of penal provision same is to be construed/interpreted strictly and further in case of any doubt, benefit of such doubt is to be given to the subject, who could be deprived of his right on such technical ground.
12. Referring to the reliefs sought by the applicant in the plaint of his First Class Suit No,172 of 1980, it will be seen that the applicant has not prayed for any relief to get the judgments passed by respondents Nos.2 and 3 set aside, but declaration and consequential relief of permanent and mandatory injunction in the following form:- "12. That the plaintiff prays for a judgment and a decree as under:-
(i) That it be declared that the order of defendant No,3 dated 13-2-1975 granting S.Nos.282/2, 5 of Deh Murad All Rind Taluka Shandadpur to Khamiso the defendant No,5 and granting S.No,262/3 of same Deh to Kareem Bux the defendant No,6 and also the orders of the defendant No,2, dated 3- 12-1975 and 5-2-1976 respectively upholding the order of defendant No,3 mentioned above, are illegal void, mala fide, inoperative and not binding on the plaintiff;
(ii) That as a consequential relief, a mandatory injunction be issued against the defendants Nos.1 to 4 directing them to grant the suit-land viz. S.Nos.282/2, 5 and 262/3 of Deh Murad Ali Rind Taluka Shandadpur to the plaintiff on full rate grant basis and to order for the issuance of necessary documents in favour of the plaintiff;
(iii) That as a consequential relief, the defendants Nos.5 and 6 be restrained by a perpetual injunction from interfering with the possession of plaintiff over the suit-land and its irrigation water etc. By themselves or through their agents servants, relatives etc. In any manner whatsoever;
(iv) That the costs of this suit be borne by the defendants Nos.5 and 6 jointly and severally; and
(v) Any other relief which this Honourable Court deems fit and proper may also be granted to the plaintiff."
13. Keeping in view the above legal position, I am of the considered view that both the Courts below misdirected themselves in deciding the issue of limitation against the applicant themselves overlooking the nature of relief claimed by the applicant in the suit, and the fact that the suit, looking to the nature of reliefs sought was governed by Article 120 of the Limitation Act, which provided six years period of limitation.
14. It may be observed here that whether the applicant could maintain and will succeed in his declaratory suit without seeking specific relief that the impugned order passed by the respondents Nos.2 and 3 were liable to be set aside, will be a different proposition of law, which will be examined by the lower Court when the suit proceeds before it on merits.
15. In view of the above discussion and for the foregoing reasons, the judgments/orders passed by the two Courts below, being illegal, are set aside. Since the suit pertains to the year, 1980, the lower Court is directed to proceed with it day to day and dispose of positively within four months time from the date of receipt of this judgment.