SH. HAKIM ALI, J.--- A mother, brother and sister namely, Begum Catherine Abbasi, Prince Haroon Ahmad Abbasi and Princess Naseem Abbasi, widow, son and daughter of Prince Haroon-ur- Rasheed Abbasi, respectively, are the plaintiffs, who are pitted against Prince Aziz-urRasheed Abbasi (defendant No. 1/petitioner of the instant revision), who is also son of Prince Haroon-ur- Rasheed Abbasi. Prince Aziz-ur-Rasheed (defendant No. 1/present petitioner) is the real contestant and opponent in a suit filed by plaintiffs to seek declaration that plaintiffs and one Princess Nasreen Abbasi (defendant No. 3/respondent No. 4, the other daughter of Prince Haroon-ur- Rasheed Abbasi, residing in England), were the co-sharers/co-owners and possessors of the agricultural lands alongwith a constructed bungalow "Al-Aman", situated in Mauza Sadiq Garh Palace (Dera Nawab Sahib), Tehsil Ahmadpur East, but their shares were shown to have been transferred/alienated.Through gifts. Negating the factum of gift, it was stated that plaintiffs or defendant No. 3 had never gifted away the above-noted property to Princess Rafiqa Abbasi (defendant No. 2/respondent No. 5, daughter of Al-Haj Nawab Sir Sadiq Muhammad Khan).
Denying the authority and instructions, it was narrated in the plaint that defendant No. 1 was never conferred any power or imparted any instruction to gift away their properties to defendant No. 2.
Challenging the correctness and legality of registered gift deeds dated 24.4.1997, 14.4.1997, and the subsequent mutations sanctioned on their basis, in favour of Princess Rafiqa Abbasi, defendant No. 2 and thereafter further alienation through registered gift deeds dated 5.5.1997, 21.5.1997 from her in favour of defendant No. 1, Prince Aziz-ur-Rasheed Abbasi and incorporation of those gifts in the revenue'record through Mutations Nos. 661 and 667, dated 8.5.1997 and 22.5.1997 were against facts, illegal and without power. It was also prayed that these transactions be declared ineffective upon the rights of the plaintiffs. In the above-noted plaint, grant of permanent injunction was also sought by the aforesaid plaintiffs. Defendant No. 1 appeared in the suit, and without submitting his written statement, filed an application under Order VII, Rule 11 of the CPC read with Section 151 of the CPC, for the rejection of the plaint. Learned Civil Judge, who was seized of the case, instead of rejecting the plaint, ordered the return of it under Order VII, Rule 10 of the CPC, considering the President's Order No. 12 of 1961, Acceding State (Property) Order, 1961 to be a bar in the way of the Court to entertain such suits. Aggrieved from this order dated 2.10.2004, passed by the learned Civil Judge, an appeal was filed before the learned Additional District Judge, Ahmadpur East by the plaintiffs while Prince Aziz-ur-Rasheed Abbasi also filed a cross-objection under Order XLI, Rule 22 of the CPC in that appeal. Both the appeal and the cross-objections. Were decided by learned Additional District Judge, Ahmadpur East on 10.2.2005 through his single order/judgment, which has been assailed through the instant civil revision. The learned 'Additional District Judge was of the view that the cross-objection under' Order XLI, Rule 22 of the CPC Could not be filed because there was no judgment and decree passed by the learned Civil Judge at which the cross-objection could be filed. The learned Additional District Judge has also opined that a separate appeal could competently be filed by Prince Azizur-Rasheed Abbasi.
So, he convered that cross-objection into an appeal but dismissed that appeal, holding it to be hopelessly barred by time. The appeal filed by Begum Catherine Abbasi and others was, however, accepted. The order for return of the plaint was set aside while prayer for rejection of the plaint was declined and the suit was remanded to the learned Trial Court with a direction to proceed with the suit and decide it in accordance with law on its own merits. Dissatisfied with this judgment/order, the present revision petition has been filed by Prince Aziz-urRasheed Abbasi.
2. Putting up his case, the learned counsel for the petitioner has submitted that the suit was barred due to the provision of Article 90 of the Limitation Act, 1908. Therefore, the plaint was to be rejected at its inception. As per learned counsel, the suit was filed against gift, after a passage of a period of six years, six months and nineteen days while from cancellation/revocation of registered power-of- attorney deed one year and nine months had passed. But it has been admitted by the learned counsel that this was self-owned property of Prince Haroon-ur-Rasheed Abbasi and not of the Ex- State of Bahawalpur. Therefore, order of learned Civil Judge was not correct. As per learned counsel, plaint should have been rejected. Argumenting the arguments, it has been submitted by the learned counsel that the learned Additional District Judge was bound to remand the case, if he was of the view that the order of return of plaint was illegal by directing the learned Civil Judge to- reconsider and redecide the application filed by the petitioner. In other words, learned counsel states that the petitioner has been deprived of one step of adjudication, by deciding the appeal as well as cross-objection and application of the petitioner, filed under Order VII, Rule 11,. CPC, by the learned Additional District Judge himself.
3. As regards applicability of Order VII, Rule 11, CPC for rejection of plaint, it has been stated by the learned counsel that the suit was barred by time as Article 90 of the Limitation Act, 1908 was clearly applicable to the instant case. Referring to PLD 1960 (W.P.) Karachi 484 (Muhammad Akram through his Heirs and Legal Representatives Vs. The Habib Bank Ltd., Karachi), learned counsel argues that suit by principal of compensation, for the negligence of agent or the agent acting gratuitously, the I limitation is to be governed by applying Article 90 of the Limitation Act, 1908. According to learned counsel, as the plaintiffs have alleged misconduct of their general attorney (defendant No. 1/petitioner), so commencement of limitation had begun from the date when the contract of agency was allegedly broken. In other words, limitation is to commence when the injury results therefrom. He has referred to AIR 1938 Rangoon 258 (S.A.A. Anamalai Chettyar Vs. N.M. Cowasjee and others).. Prince Aziz-ur-Rasheed Abbasi had transferred through gift the property as a general attorney, to Prince Rafiqa Abbasi (defendant No. 2-respondent No. 5). As the gift deeds were registered documents, so the registration of instruments had to be presumed to be a notice to all the persons. To support this contention, he has referred to 1995 CLC 1977 (Kar.) (Ghulam All Shah and another Vs. Abbas Ali and 5 others). The suit, which is apparently barred by limitation, must be buried at its inception and plaint should be rejected at its initial stage. For that he relies upon 1998 SCMR 1223 (Nazar Gui Vs. Islam and 3 others) and PLD 2003 SC 628 (Sheikh Muhammad Saleem Vs. Faiz Ahmad). The attestation of mutation has to be treated the date of cause of action and the Court is duty bound to see whether the suit is barred by time or not, even if objection has not been raised by the opposite party. For this, he has cited 2004 CLC 269 (Nawab Din Vs. Muhammad Hussain). Revocation of general power-ofattorney deed cannot render invalid the deeds already executed by the general attorney. Quotes 1975 SCMR 64 (Ahmad Khan Vs. Settlement Commissioner and others).
4. Syed Muhammad Ibrahim Shah Bukhari, learned Advocate, appearing on behalf of respondents Nos. 1 to 3/plaintiffs, accompanied by Syed Muhammad Arshad Bukhari, Advocate, has replied by making his submissions that after filing of suit on 3.11:2003 and after the elapse of one year and nine months from the filing of the suit, the petitioner-defendant No. 1 had not filed the written statement. As no written statement was filed by him, so legally speaking, the averments in the plaint are to be considered correct and true, till those are controverted by lawful manner and method. The impugned order of learned Trial Court, which was passed under Order VII, Rule 10 of the CPC, was not filed with the civil revision. Therefore, the revision is not competent. It has also been argued with vehemence that for the applicability of limitation, paras of the plaint are to be examined. Paras Nos. 4 and 8 are reflecting the period, from which the limitation has to be reckoned. The ascertions contained in those paras are to be accepted correct till rebutted. The limitation being a mixed question .Of law and facts, it cannot be decided at the initial stage of the case. He has also presented a long list of cases in support of his contentions, which is as follows:--
(i) 1995 SCMR 459 (Haji Allah Bakhsh Vs. Abdul Rehman and others);
(ii) 2001 SCMR 953 (Muhammad Altaf and others Vs. Abdul Rehman Khan and others);
(iii) 2001 CLC 899 (Cotecna Inspection SA and another Vs. Messrs Ismail & Co. And 6 others);
(iv) 2002 CLC 634 (Kar.) (Kanwar Qutubuddin Khan Vs. Karachi Development Authority through Director-General);
(v) PLD 2002 Pesh. 45 (Muhammad Zaman and others Vs. Shah Wazir Khan);
(vi) 2003 YLR 879 (Shipyard K. Damen International, Karachi Vs. Karachi Shipyard and Engineering Works Ltd., Karachi);
(vii) 2003 CLC 224 (Gulshan-e-Faisal Cooperative Housing Society Limited Vs. Muhammad Arif and others);
(viii) 2003 CLC 335 (Muhammad Tariq Mahmood anci 2 others Vs. Anjuman Kashmiri Brandari Khisht Faroshan through President Abdul Ashfaq and 21 others);
(ix) 2003 YLR 712 (Anwar Khan Vs. Abbas Khan);
(x) 2003 CLJ 147 (Ehsan All Alibhoy, etc. Vs.' Industrial Development Bank of Pakistan);
(xi) 2004 YLR 353 (Pak Sports Writer Federation Vs. Sardar Khan Ranor);
(xii) PLJ 2004 Lah. 560 (Mst. Siraj Zamani Vs. Kh. Azhar lqbal and 9 others);
(xiii) 2004 YLR 1180 (Muhammad Vs. Shahbaz and 21 others);
(xiv) 2004 MLD 337 (Mst. Siraj Zamani Vs. Kh. Azhar lqbal and 9 others); v) 2005 SCJ 260 (Muhammad Hanif Bukhari Vs. President, National Bank of Pakistan, etc.);
(xvi) 2005 MLD 307 (Muhammad Khan and another Vs. Muhammad Khaliq and another); and
(xvii) 2005 CLJ 49 (Khairat Masih, etc. Vs. Aziz Sadiq).
5. Before proceeding further with the discussion, I have noted a material and important fact that petitioner, the general attorney of the plaintiffs has been found the sole beneficiary of all the above-noted transactions. In other words, the property of plaintiffs has ultimately come into the hands of general attorney (the petitioner) due to all these gifts deeds/transactions.
6. As per learned counsel for the respondents, Article 90 of the Limitation. Act, 1908 is not applicable.
It is a case where general attorney has acted beyond the scope of his authority. Prince Aziz-ur- Rasheed Abbasi was never conferred the power to transfer the property of the plaintiffs to anyone through the relied upon deed of general power-ofattorney. Therefore, Article 120 of the Limitation Act was to govern the situation. As the point of limitation was raised before the learned Additional District Judge, so, the aforesaid learned Judge had correctly passed the impugned order, deciding the application under Order VII, Rule 11 of the CPC. There was no need of remand of the case for reconsideration as the aim of the petitioner was to prolong the suit. The provisions of Section 115 of the CPC are not attracted to the case as the impugned judgment/order of learned Additional District Judge is perfectly legal and valid in the eye of law. He has also prayed for issuance of a direction to the learned Trial Court to conclude the suit within a specific period, as the petitioner is trying to protract the suit. Giving the instance of prolongation, he has stated that after passing of one and a half year, still written statement has not successfully been filed by the petitioner.
7. There is no denying to the legal proposition that incompetent, illegal, vexatious and frivolous suits must be buried at their provenience, as the birth of those suits would not only prolong the agony of the parties but the wastage of precious time of the Courts as well. Fruitless and useless litigation must not be encouraged. But the care and caution has also to be kept in view, while deciding the application under Order VII, Rule 11 of the CPC. Because no party should be deprived of his lawful rights, by this summary manner of the disposal of a suit by rejection of plaint under Order VII, Rule 11 of the CPC. When the suit of a party has got sound footing on factual as well as on legal plane, it should not be rejected. Order VII, Rule 11(d), CPC, has to be applied when the averments contained in the plaint are clearly indicative of applicability of any legal provision. The sole question raised in this Court for rejection of the' plaint is the applicability of Article 90 of the Limitation Act. In the head note of the 'plaint, it has been found by me that power of defendant No. 1 to gift out the property has also been challenged. In Para No. 2 of the plaint, it has clearly been mentioned that general power-of-attorney, conferred upon defendant No. 1 was never granted power to sell out or gift away the property in dispute to anyone. Photostat of general power-of-attorney deed was attached with the plaint by the plaintiffs, while defendant No. 1/petitioner has also appended it with this revision. From its perusal, I have not been able to locate the power to make gift of the property of the plaintiffs, in the above-noted general power-of-attorney deed. The assertion/averments contained in the plaint unless proved otherwise, are to be presumed to be correct for the purpose of decision of application under Order VII, Rule 11, CPC, is the old settled law of this judicial system.
Clause (d) of Rule 11 of Order VII of the CPC contains such provision of law , where it has been stated that "...................... (d) where the suit appears from the statement in the plaint to be barred by any law". The words "appears from the statement in the plaint" are of vital significance for the decision of the application filed under Order VII, Rule 11, CPC. The words have limited the scope of the Court.
No doubt, the Hon'ble Supreme Court and the superior Courts have laid down that the other material can also be seen/examined at that stage, but this is not the largement of the provision but the supportive material for reaching to a true conclusion, as to whether the suit is barred by law or not? The words in the plaint are the basis and foundation stone, upon which the edifice for conclusion has to be constructed.
8. ID the above-noted narrated and stated circumstances, the suit requires continuance and adjudication on merits. As indicated above power of general attorney having been disputed and brought into challenge, it requires evidence from both the parties to prove their viewpoint and assertions. There are many factual questions and controversies, which are found in the case and are to be resolved by and through eliciting of evidence, .Examining/analyzing of the record and hearing of parties on merits of the case. I have knowingly avoided to give any finding upon the paint of limitation, lest it prejudice the case of either party at the trial. Article 90 or Article 120 of the Limitation Act, 1908, which is applicable has still to be seen through deep examination of the case.
9. As regards the prayer of the plaintiffs- respondents that the suit is being protracted by these efforts, I deem it necessary that the learned Civil Judge, seized of the suit shall proceed with the suit expeditiously to decide the same within six months from the date of receipt of order of this Court.
10 Accordingly, I do not see that the impugned judgment /order of the learned Additional District Judge has got any jurisdictional defect, attracting the exercise of jurisdiction of this Court under Section 115 of the. CPC. Therefore, revision petition is dismissed with no order as to costs.
Civil. Revision .