1. ' MUHAMMAD AFZAL SOOMRO, C.J.---By this order I intend to dispose of the above 2nd Appeal filed by appellant against the judgment dated 5-10-2007 and decree dated 10-10-2007 passed by the learned IV Additional District Judge, Karachi East in Civil Appeal No,96 of 2006 filed by the appellant against the judgment dated 20-3-2006 and decree dated 31-3-2006 passed by the learned VIII Senior Civil Judge Karachi (East) in Civil Suit No,1386 of 2002(filed by respondents Nos.1 and 2 against the appellant and the respondent No,3), on an application submitted by the respondent No,1 and 2 under Order XII, Rule 6, C.P.C. Whereby the said application was allowed and suit of respondents Nos.1 and 2 was decreed.
2. ' The facts of the case in brief are that respondents 1 and 2 filed a civil suit No,1386 of 2002 against the appellant and respondent No,3, for specific performance (By Executing Registered Sub-Lease) and damages, by averring therein that they are representing the allottees/owners of flats and shops of Dawood Apartments, situated in Building No,187/3-A, Block-2 PECHS, Karachi which was constructed by Messrs Dawood Associates and the appellants are the legal heirs of original allottee namely (late) M.A. Aziz Khan, of Plot No,187/3-A. It has also been stated that the respondent No,3 entered into an agreement dated 24-4-1983 with the said deceased allottee to purchase said plot for a sale consideration of Rs,28 Lac only. Thereafter the respondent No,3 constructed the building thereon and put the allottees/ owners of shops and flats therein. After the death of said deceased allottee on or about 4-9-1984, the respondent No,3 further entered into an agreement with his legal heirs through the appellant dated 9-2-1992 for execution and registration of relevant sub-leases in favour of allottees. The appellant did not notify the allottees of his obtaining commercial lease from PECHS and Ministry of Works due to which the matter of execution of leases/sub-leases was being delayed and thereby the allottees are suffering financial losses in spite of the fact that they are regularly paying electric and other amenity charges to the concerned departments.
3. ' The respondents Nos.1 and 2 while filing the suit had prayed for the following relief:--
(a) Specific performance, of the agreements between the defendant No,2 and the allottees of the flats and shops in Dawood Apartments constructed by the said defendant on Plot No,187/3-A, Block No,2, PECHS Karachi, by executing registered leases/sub-leases in favour of the allottees or their legal representatives, liability whereof was accepted by defendant No, 1 through an agreement dated 9-2-1922 executed inter se between the said defendants Nos.1 and 2 specially in view of the fact that the allottees have paid full costs of construction of flats/shops and other charges and are ready to bear the expenses of execution of registered leases/ sub-leases in their favour.
(b) Alternatively in case of failure of defendants Nos.1 and 2 to execute such registered lease/sub- lease to get the same executed and registered through the Nazir of this Honourable Court.
(c) Damages in the sum of Rs,15,00,000 as compensation of losses suffered by the allottees due to non-execution and registration of leases/sub-leases in their favour and or delaying the same for more than a decade or so, inspite of their preparedness to pay the relevant charges of the same.
4. ' Upon filing of the said suit notices were issued to the appellant and respondent No,3 who on receipt of the said notices, filed their respective written statements and denied the averments made by the respondents Nos.1 and 2 in the plaint of the above suit.
5. ' The respondents Nos.1 and 2 filed an application under Order XII Rule 6, C.P.C. Praying therein to decree the suit on the basis of averments/admission in written statement by the defendants. The appellant filed his counter affidavit to the said application. Consequently the learned trial Court accepted such application 'and decreed the suit by passing the impugned judgment and decree dated 20-3-2006 and 31-3-2006. The appellant being aggrieved and dis-satisfied with the judgment and decree of the learned trial Court preferred an appeal being No,96 of 2006 before the learned District Judge Karachi East who transferred the same to the court of learned Additional District Judge Karachi East who vide his judgment and decree, dismissed the appeal, which have been impugned in the present appeal before this court.
6. ' It has been contended by the learned counsel for the appellant that the impugned judgments and decrees passed by both learned lower courts on application under Order XII, Rule 6, C.P.C. Are bad in law as well as on facts as such are not sustainable in the eyes of law. It has further been contended that both the lower courts have committed serious error in law by wrongly considering the replies of paras. Nos.3 to 6 given by respondent No,3 in his written statement as its admissions because the respondents Nos.1 and 2 have not made any claim in Paras.3 to 6 of their plaint therefore, under the law no admission is made by the respondent No,3 in his written statement. It has also been contended the learned lower court has failed to consider the paras. 11, 12 and 14 of respondent No,3's written statement in which not only cause of action but reliefs claimed in suit by respondents Nos.1 and 2 have been denied vehemently, furthermore the learned lower court for the reason best known to it has not discussed the written statement filed by the appellant and has decreed the suit without considering/ understanding the object/aim of Order XII, Rule 6, C.P.C.
7. Learned counsel argued that the material facts which touched to the root of the dispute, have been denied by the appellant as such there is no admission from the part of the appellant even then both the learned lower courts erroneously decreed the suit filed by the respondents Nos.1 and
2. Learned counsel also added that paras. Nos.3 to 6 of the suit plaint only disclosed undisputed facts of the case in which no dispute between plaintiffs and defendants has been alleged therefore, mere admission of such facts does not mean to decree the suit filed by the respondents Nos.1 and 2 by invoking the provision of Order XII, Rule 6, C.P.C. Learned counsel also added that so- called admissions as made in paras.Nos.3 to 6 by the respondent No,3 in his written statement have no nexus/ bearing with the controversy/issues involved in the suit and such admissions cannot be termed "Unequivocal" or "tacit" admissions by the respondent No,3 which are the necessary ingredients of Order XII, Rule 6, C.P.C. Learned counsel stressed upon his arguments that under the law, no suit can be decreed under Order XII, Rule 6, C.P.C. Against a contesting defendant (appellant) who has denied the case of respondents Nos.1 and 2 (Plaintiffs) by filing his written statement which written statement has not been discussed/considered by both the learned lower courts while passing the impugned judgments and decrees. Learned counsel also submitted that the learned lower court has wrongly and illegally placed reliance upon the judgments reported in 2004 SCMR 1611, 2002 SCMR 134, 2001 SCMR 159, 2001 SCMR 424, and 2000 SCMR 440, which deal with the principles of "Act of the Court' and "Administration of Justice", said principles have no bearing with the controversy involved in the suit. Learned counsel pointed out that the learned lower courts have overlooked the fact that the suit filed by respondents Nos.1 and 2 before the learned trial court was not only barred by Limitation Act because both the reliefs viz specific performance and damages are barred by Limitation Act so also same is causeless despite such fact, the learned trial Court decreed the suit without advancing the judicious reasons. It was the next contention of learned counsel for the appellant that the learned trial Court has also committed grave illegality by decreeing the suit under Order XII, Rule 6, C.P.C., as in application under Order XII Rule 6, of C.P.C., nowhere it is stated that in which para of written statement filed by the appellant and respondent No,3, the material points have been admitted, as such it seems that the learned trial Court has passed the impugned judgment and decree by ignoring the law in a haphazard manner. Learned counsel has given the weight to his arguments that the learned appellate court failed to discuss the case laws relied by the appellant which are duly mentioned on page No,5 of impugned judgment viz. 1999 CLC 1905, PLD 2003 Karachi 253, 1996 SCMR 696, 2003 SCMR 1261, 2001 MLD 1615 and PLD 2006 Karachi 593, which prove that learned appellate court did not bother to go through the case laws cited before him particularly for invoking the provision of Order XII, Rule 6, C.P.C. In a suit as such by not considering such case laws, the learned appellate court failed to do justice with the appellant in accordance with law and dismissed the appeal by ignoring the principle laid down in case reported as Messrs Matin Corporation v. Messrs Plastic Rafters (Pvt.) Ltd. (PLD 2006 SC 621) wherein it has been held that "after expiry of limitation prescribed by law there could be no revival of cause of action afresh." The counsel lastly argued that the learned lower appellate court illegally and wrongly discussed the agreement executed between the appellant and the respondent No,3 in the year 1992 which requires the enforcement of the agreement dated 9-2-1992 within a period of 12 months which expires on 9-2-1993 whereas the suit was filed on 1-3-2002 as such the suit of the respondents Nos.1 and 2 was hopelessly barred by limitation which point has not been considered by the learned lower appellate court while exercising its jurisdiction in illegal and colourful manner by granting the relief regarding the execution of lease/sub-lease within 30 days in favour of the allottees or their nominees which relief is against the prayer clause of the suit and the same has been opposed by the appellant in his written statement.
8. ' On the other hand learned counsel for the respondents 1 and 2 argued in favour of the impugned judgments and decrees by stating that the agreements between the appellant and respondent No,3 have not been denied. It has also been argued by the respondents 1 and 2's counsel that the cost of the construction has been fully paid in respect of all shops and flats and are in possession of respective allottees and it is only due to the ravenous nature of the appellant that he has disinclined to execute lease in favour of allottees. He further argued that only documentary charges are required to pay and respondents never refused to pay the same but it should not be exorbitant.
9. ' I have heard the learned counsel for the respective parties and perused the record made available before me.
10. ' From the perusal of record it appears that learned counsel pointed out that the learned lower courts have overlooked the fact that the suit filed by , respondents Nos.1 and 2 before the learned trial court was not only barred by Limitation Act because both the reliefs viz specific performance and damages are barred by Limitation Act so also same is causeless despite such fact, the learned trial Court decreed the suit without advancing the judicious reasons. The record further reveals that the learned trial Court has also committed grave illegality by decreeing the suit under Order XII, Rule 6, C.P.C., as in application under Order XII rule 6, of C.P.C., nowhere it is stated that in which para. Of written statement filed by the appellant and respondent No,3, the material points have been admitted, as such it seems that the learned trial Court has passed the impugned judgment and decree by ignoring the law in a haphazard manner. From the perusal of written statement it shows that the respondents Nos.1 and 2 have not made any claim in paras. Nos.3 to 6 of their plaint therefore under the law no admission is made by the respondent No,3 in his written statement. It is pertinent to mention here that the learned lower appellate court illegally and wrongly discussed the agreement executed between the appellant and the respondent No,3 in the year 1992 which requires the enforcement of the agreement dated 9-2-1992 within a period of 12 months which expires on 9-2-1993 whereas the suit was filed on 1-3-2002 as such the suit of the respondents Nos.1 and 2 was hopelessly barred by limitation which point has not been considered by the learned lower appellate court while exercising its jurisdiction in illegal and colourful manner by granting the relief regarding the execution of lease/sub-lease within 30 days in favour of the allottees or their nominees which relief is against the prayer clause of the suit and the same has been opposed by the appellant in his written statement. Bare reading of record further reveals that the learned appellate court failed to do justice with the appellant in accordance with law and dismissed the appeal by ignoring the principle laid down in case reported as Messrs Matin Corporation v. Messrs Plastic Rafters (Pvt.) Ltd. (PLD 2006 SC 621) wherein it has been held that "after expiry of limitation prescribed by law there could be no revival of cause of action afresh".
11. ' For the foregoing reasons I am of the opinion that both the learned lower courts have committed grave illegality in passing the impugned judgments and decrees. Resultantly I allow the present IInd Appeal and set aside the impugned judgments and decrees passed by both the learned courts below and dismiss the application of respondents Nos.1 and 2 filed under Order XII, rule 6, C.P.C. Since the suit filed by respondents 1 and 2, from the face of it is barred by Limitation Act, therefore pendency of suit No,1386 of 2002 will amount abuse of process of law as such plaint of suit No,1386 of 2002 is rejected under Order VII, Rule 11, of C.P.C.
12. ' IInd Appeal No,36 of 2007 stands disposed of along with the listed applications.