1. This appeal is directed against the judgment and decree of District Judge Mirpur dated 12.8.2006, whereby the judgment and decree of Senior Civil Judge Mirpur dated 26.7.2006 was maintained.
2. Brief facts giving rise to the instant appeal are that appellant/plaintiff filed a declaratory suit in the Court of Senior Civil Judge Mirpur on 12.04.2006. It was alleged in the suit that appellant moved an application to Mirpur Development Authority for allotment of plot on 15.03.1988 and deposited amount of Rs, 16,500/- with the application. She was informed vide letter dated 22.09.1988 that Plot No 11, measuring 40 x 95, situated at sub-sector D/4 (East) Mirpur has been allotted to her. It is alleged that appellant approached the authority for depositing of remaining amount/price of the allotted plot, for issuance of the allotment chit in her favour and for delivery of possession of the plot to her but the authority took no notice about the matter. The appellant deposited the remaining consideration money of the plot on 18.08.2004 in the name of authority in its Bank account but the Estate Officer of MDA returned the draft deposited to the appellant with the observation that, due to controversy between the previous owners of the land, amount of plot cannot be received. The plaintiff was refused for allotment of plot and deposited amount was returned vide order dated 07.10.1995' (10.10.1995) and notification was issued by the Govt. of Azad Kashmir on 21.3.1988 de-awarding the land measuring 06 kanals & 06 marlas. Plaintiff challenged the notification and order of MDA by filing a writ before this Court which was dismissed. Plaintiff preferred petition for special leave to appeal before the Apex Court which was also dismissed on 09.03.2006. The plaintiff filed a civil suit in the Court of Senior Civil Judge Mirpur on 12.04.2006. It was prayed in the suit that a decree in favour of plaintiff may be passed and the defendants- may be directed to receive the remaining amount of the disputed Plot No,
11. It was also prayed in the suit that possession chit may be issued. It was further prayed that the order dated 10.10.1995 and notification dated 21.03.1988 being illegal and without jurisdiction were liable to be set aside. An application for injunction was moved by the plaintiff, which was allowed and status-quo order was issued against the defendants. Defendant No, 1 appeared before the trial Court and submitted objections on application for interim relief. The learned trial Court, after hearing the parties, rejected the suit for not disclosing cause of action and status-quo order issued by him was vacated on 26.07.2006. Appellant herein preferred an appeal against the said judgment and decree of Civil Judge Mirpur before District Judge Mirpur, which was also dismissed on 12.08.2006, hence this appeal.
3. The learned counsel for the appellant reiterated the grounds of the appeal and further contended that both the Courts below had fell in error to reject the original suit of the appellant. He further contended that the appellant has filed the suit in the light of judgments of this Court and the Apex Court dated 28.10.2005 and 09.03.2006, respectively. The learned counsel for the appellant further contended that the orders dated 21.03.1988, 10.10.1995 and letter dated 27.08.2004 are illegal and without jurisdiction which are liable to be set aside. He further contended that the allotment cannot be cancelled only for this reason that price has not been deposited. He further contended that the appellant moved an application for depositing the price of plot which was turned down by the respondents, which is at Page 12 as PD on the file. He further contended that the land, which was de-notified by the competent authority, was in the name of Mst. Shahraz Ejaz and Mutation No, 107 was sanctioned in her favour, which is at Page 62 of the file. He further contended that Civil Court vested jurisdiction to entertain the suit. He further contended that the writ was filed against two orders dated 10.10.1995 and 31.3.1988, respectively and the allotment of appellant was not disputed in any way. In support of his version, he cited following case law:- [1993 SCR 333], [2000 SCR 302], [PLJ 2006 SC AJ&K 87] & [1998 SCR 38].
4. The learned counsels for the respondents defended the impugned judgment & decree and further argued that both the Courts below have committed no illegality while rejecting the suit of the appellant herein. They further contended that the allotment has not been existed in the record and the appellant has no cause of action. They further contended that the writ has been translated and filed the suit by the appellant with malafide intention. They further argued that it is a case of concurrent findings of fact recorded by the Courts below which cannot be disturbed under Section.
5. 100 of CPC by this Court. They further contended that father of the appellant was Estate Officer in Mirpur Development Authority at that time who prepared a fictitious letter relating to the allotment of the plot .to afford undue favour/advantage to his daughter. In support of their version, they cited following case law:-[2003 SCR 28], & [1999 SCR 495]. I have heard the learned counsels for the parties and gone through the record carefully. Before parting with the case, I would 'like to deal with the question of limitation. The suit has been filed in the Court of Civil Judge Mirpur on 12.04.2006 through which the validity of order of Chairman Development Authority Mirpur dated 10.10.1995 and Govt. notification dated 21.03.1988, respectively, were challenged by the plaintiff. The plaintiff has challenged the order of Chairman MDA after the period of 11 years and the Government notification after the period of 18 years. The plaintiff has not pleaded any ground under Order 7 Rule 6 for exemption from limitation law in the suit. The Court is bound to reject time barred suit under Section 3 of Limitation Act. Here I would like to reproduce Section 3 of Limitation Act, which reads as under:-- "3. Dismissal of suit, etc., Instituted, etc., after period of limitation. Subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made after the period of limitation prescribed therefor by the First Schedule shall be dismissed although limitation has not been set up as a defence."
6. It is evident from the bare reading of above cited provision of law that suit filed after the period of limitation shall be dismissed. The word "shall" has been used in the above referred provision of law.
7. It is correct that point of limitation has not been agitated before the lower Courts but, according to above cited provision of law, the Courts are bound to act suo-motu whenever the suit is filed beyond the limitation and this question is immaterial that the parties have not noticed this matter.
8. It was held in case titled Muhammad Buta & another Vrs. Habib Ahmed & others, reported in [NLR 1985 AC SC Pak 551], which reads as under:-- "(a) Limitation Act. --Ss. 3, 4 to 25--Matter of limitation is not left to pleadings of parties--It imposes a duty in this regard upon Court itself--As such if from statement in plaint suit appears to be barred by limitation, Court is obliged to reject plaint u/R. 11, Order VII, CPC--Similarly, limitation plea cannot be waived and even if waived it can be taken up by party waiving it and by Courts themselves--In exceptional cases, a defendant would, however, be debarred from raising plea of limitation--This would be a general principle of estoppel arising from defendant's conduct and would be particularly so if plea belatedly taken involves an inquiry on facts." It is pertinent to note that plaintiff has not moved any application for condonation of delay under Section 14 of the Limitation Act; therefore, it is held that plaintiff's suit is hopelessly time barred. Coming to the next point that what is legal character of appellant? The plaintiff who files a suit, it is necessary for him to show this matter that he should have a legal right to maintain the suit under section 42 of the Specific Relief Act. The. word legal character has been defined by Dacca High Court in a DB case titled Burmah Eastern Ltd. Vrs. Burmah Eastern Employees' Union & others, reported in PLD 1967 Dacca 190, which reads as under:-- "The expression "legal character" or "status" denotes a character or status conferred by law on an individual of a number of individuals, viewed as a unit of society and not shared by the generality of the community but only by individuals, placed in the same category of character. The character itself must be conferred by law on persons viewed from the standpoint of membership of the community. It is a "status" or "character" conferred by law. It is not a creature of contract but of law.
9. Indeed, in most cases one cannot contract out of the "status" with which the law clothes one. For example, a minor cannot contract into majority nor can one, who has attained majority, under law, contract himself into minority." It is evident from the above cited case law that a person can seek declaration only if he is entitled to some legal character or any right as to any property, otherwise, the Court will refuse to give any declaration under Section 42 of Specific Relief Act. Coming to the facts of the case in hand, it is evident from the I record that first notice was issued to appellant on 22.09.1988, wherein she (appellant) was directed to deposit the remaining amount within three months but she failed to do so. Now, it is admitted on the record that disputed plot was not allotted in favour of the appellant by the competent authority and it is also admitted on the record that no possession chit was delivered to the appellant regarding the disputed plot. If I suppose that the disputed plot was allotted to the appellant then question arises that why she did not get the possession chit from the competent authority or why she kept herself silent for such a long time/period? When it is established that plaintiff has no legal right regarding disputed plot then she has no locus standi to file a civil suit. The version of the learned counsel for the appellant that judgments of superior Courts are not obstacle in her way to file civil suit is not tenable because the Apex Court has given its observation regarding allotment which is at Page-5 & Para No, 9 of its judgment in following manner:-- "9. The argument that as Plot No, 10 is given to the other allottee from the same land by the Supreme Court, hence the petitioner cannot be denied the same relief is equally not tenable for the reason that the allottee in that case pursued his case well in time and got the matter settled without inordinate delay, while the petitioner is indolent and her allotment is also alleged as illegal by the respondents and it not so, at least doubtful, who has first to establish its genuineness."
10. It is crystal clear that the Apex Court has made its observation regarding the allotment of plaintiff which has attained finality. If plaintiff was aggrieved from the said judgment then she was in position to seek her remedy by filing review petition before the Apex Court but she has failed to do so. This matter relates to past and close transaction. It was held in case titled University of AJ&K Muzaffarabad & 6 others Vrs. Engineer Muhammad Khalid, reported in 2004 SCR 84, which reads as under:-- "(a) Past and closed transaction ----The finding which has attained finality by the- lapse of time or on account of conduct of the parties cannot be re-opened as that finding become past and closed transaction."
11. The matter has been finally adjudicated by the Apex Court and relief claimed by the appellant herein is refused, she is not in position to claim the same relief in another way. It was held in case titled Muhammad Azam Vrs. Toqeer Ahmed, decided by the Apex Court on 08.03.2006, (which is at page 55 of the file of this Court) which reads as under:-- "Once the relief is refused by all the Courts and the same is confirmed by the Supreme Court, it was not open to the petitioner to again re-agitate the matter which stands closed by the Supreme Court."
12. Now coming to the conduct of the appellant, she (appellant) invoked the extra-ordinary jurisdiction of this Court by filing a writ petition in the hope that she might succeed but being unsuccessful; feeling aggrieved by the judgment of this Court, she went in appeal before the Apex Court which was also dismissed. All the legal points raised before me by the learned counsel for the appellant, were agitated before the Apex Court, which have been finally adjudicated by the Apex Court in its judgment. How a Civil Court is in a position to entertain a suit regarding the same points which have already been adjudicated by the Apex Court. The appellant herself came at the proper time in the hope that she might achieve a favourable result. Reliance in this regard is placed on a Full Bench Judgment of Lahore High Court, in case titled Malik Muhammad Din Vrs.
13. Babu Fazal Karim & others, reported in PLD 1968 Lah. 544, which reads as under:-- "There is substance in Raja Said Akbar's contention that the ' petitioner participated in the election in the hope of being elected, and is aggrieved by the alleged irregularity in procedure only because he has not succeeded. The learned counsel for the respondent referred us to Haji Ghulam Nabi v. Settlement and Rehabilitation Commissioner, Karachi and others, Ghulam Mohy-ud-Din v.
14. Chief Settlement Commissioner, Lahore and others and Aziz-ur-Rehman Chaudhary v. Nasiruddin, etc. In support of his submission that before granting any relief to the petitioner we must take note of his own conduct in participating in the election without objecting to the irregularity in the candidature of the contesting respondent. The authorities cited by Raja Said Akbar, although not relating directly to election matters, do lend support to his contention that in the matter of discretionary relief under Article 98 of the Constitution the Court is entitled to look at the conduct of the petitioner and to refuse this relief if it finds that the petitioner himself stood by at the proper time in the hope that he might achieve a favourable result by participating in the alleged irregular proceedings." The version of the learned counsel for the appellant that this Court has declared vide its judgment dated 28.10.2005 that matter cannot be resolved in writ jurisdiction as this question requires thorough probe and due to this reason the appellant has filed the civil suit. The said version is not acceptably because the appellant has assailed the said judgment of this Court before the Apex Court who has finally adjudicated the matter. According to law, theory of merger applies on this case. It was held in case titled Land Acquisition Collector etc. Vrs. Said Muhammad etc, reported in [NLR 1998 Civil page-50], which reads as under:-- "(b) Judgment---- Merger of judgment. According to theory of merger, when a Court passes a judgment, decree or order and in appeal the Appellate Court affirms, reverses, varies or modifies the said judgment, decree or order, the said judgment, decree or order of lower Court merges into judgment, decree or order of Appellate Court. Under this theory, judgment of High Court passed in appeal would stand merged into judgment of Supreme Court when Supreme Court on appeal to it modifies judgment of High Court: In such case, it would be the Supreme Court which passed the final judgment and not the High Court."
15. In view of above, the Courts below have committed no illegality by rejecting the plaint of the appellant herein. I have no reason to differ with their judgments and decrees; therefore, this appeal is hereby dismissed, by up holding the judgments & decrees impugned before this Court.