' MUHAMMAD SAIR ALI, J.-- Through this civil revision, the petitioners i.e. Defendants of the original suit, have called in question judgment and decree, dated 10-10-2001 of the learned Additional District Judge, Khushab. Through the impugned judgment and decree of the learned first appellate Court, the suit of the respondents serially mentioned at Nos. 1 to 6 was decreed upon their appeal setting aside the judgment and decree of dismissal, dated 23-4-2001 of the learned trial Judge.
Hence the present civil revision.
2. The learned counsel for the petitioners, at the very outset, objected to the impugned judgment and decree of the learned Additional District Judge by stating that the most important issue of suit's limitation was neither adverted to nor referred nor discussed and dealt with by the learned first appellate Court despite the sacrosanct duty thereupon under section 3 of the Limitation Act.
Further stated that although the learned trial Judge had decided Issue No.3 in favour of the respondent plaintiffs but the suit of the respondent plaintiffs had been dismissed wherefor the petitioners were not obligated to file an appeal on issues like limitation as the burden thereof under the law was upon the respondent plaintiffs to show that their suit was within time. Further contended that this issue after the evidence by the parties assumed the dimension of a legal issue wherefor the learned Additional District Judge should have himself examined as to whether the suit was within limitation or not. And that the learned Additional District Judge not only failed to perform his duty but also failed to record the objections, arguments and defence pleas on the question of limitation and other questions as were raised before him by the petitioners. And thus stated that the suit's maintainability and sustenance being fundamental should have been decided and the learned first appellate Court decided the entire case under the influence that the suit was within time, hence the impugned judgment and decree is liable to be revised.
3. In the contrary arguments, Hafiz Khalil Ahmad, Advocate for the respondent plaintiffs (serially stated at Nos. 1 to 6) did not deny that it was that basic duty of the learned first appellate Court to examine the question of limitation particularly when the same had been raised by the petitioners before the learned first appellate Court. He however contended that on the facts, the case had properly been decided by the learned Additional District Judge. And that the petitioners failed to file any appeal or cross-objections on the issues decided by the learned trial Judge against the petitioners (defendants in the suit).
4. The respondents mentioned at Serial Nos. 7 to 9 were admittedly the proforma defendants.
However, no-one appeared to defend this civil revision on their behalf. They were thus proceeded against ex parte.
5. Having heard the learned counsel for the parties, I find a lot of substance in the submissions made by the learned counsel for the petitioners. The respondents have not denied that the petitioners while making their submissions before the learned first appellate Court as the respondents in the appeal had raised the question of limitation of the suit. The learned first appellate Court overlooked to decide the basic fundamental question to the sustenance of the plaintiff respondents suit on the question of limitation, the burden whereof was on the plaintiffs.
Even otherwise, admittedly it was the duty of the learned first appellate Court in terms of section 3 of the Limitation Act, 1908 to consider, deal with and decide Issue No.3 framed by the learned trial Court on the limitation of the suit.
6. The learned counsel for the petitioners validly relied upon the judgment of the Hon'ble Supreme Court of Pakistan passed in the case of "Haji Rehmdil v. The Province of Balochistan and another"
(1999 SCM R 1060) wherein the case of "Muhammad Buta v. Habib Ahmad" (PLD 1985 SC 153) was relied upon and the educative part of the judgment was quoted as under:-- ' It follows that where the question of limitation is not a mixed question of law and fact or where limitation is apparent on the face of the record, a waiver by the parties would not relieve the Court itself of its duty under section 3 of the Limitation Act and a waiver by the Court of the question of limitation is not contemplated. This Court had in Ahsan Ail v. District Judge (PLD 1969 SC 167) clearly laid down that it was the duty of the Court to notice the point of limitation, whether the plea of limitation was raised or not, and that a waiver of the question of limitation is not permissible, even where the period of limitation is prescribed by special or local law."
7. This Court is thus of the considered opinion that the learned first appellate Court rendered the impugned judgment and decree with material irregularity in failing to decide as to whether the suit of the respondent plaintiffs were within time or not.
8. It goes without saying that the learned first appellate Court oblivious of the question of limitation decided the issues on merits whereof in order to provide a level field to both the parties, the impugned judgment and decree, dated 10-10-2001 is set aside. The case is remanded to the learned first appellate Court for re-hearing the parties and re-deciding the appeal in accordance with law. The appeal shall be deemed to be pending before the learned first appellate Court. The parties shall be allowed full opportunity of hearing. It is directed that the parties shall appear before the learned first appellate Court on 20-12-2005.
9. This civil revision is accepted with no order as to the costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.