Raja Fayya z Ahmed, J.--This Civil Appeal has been directed against the judgment dated 25.05.2004, passed by the learned Peshawar High Court, Peshawar, whereby Writ Petition No, 1410 of 2003, filed by the appellants against the order of the District Judge/Zila Qazi, Dir Payan dated 06.09.2003 accepting the Civil Revision, has been dismissed.
2. The precise relevant facts of the case are that the appellants alongwith a few villagers filed a Civil Suit against the respondents for declaration and injunction in respect of the suit property but failed before the learned trial Court. The judgment and decree was unsuccessfully assailed by the appellants before the learned Peshawar High Court, Peshawar in RFA No, 76 of 1991. During hearing of the Civil Appeal No, 798 of 2005 before this Court, the learned counsel for the appellants conceded that the plaint filed by them had an inherent defect i,e, the suit should have been filed by them in the representative capacity and for such reason the same was not decided by the Court justly, therefore, the learned counsel for the appellants prayed for withdrawal of the suit with permission to file a fresh suit which request was conceded to by the learned counsel for the respondents. Thus, with the consent of the learned counsel for the parties; the request for withdrawal of the suit was allowed with permission to file a fresh suit in the representative capacity on the same cause of action subject to the payment of cost of Rs,5000/- by the appellants and in consequence, the impugned orders were set aside and the appeal was accordingly disposed of vide order dated 09.05.2001 of this Court.
3. After service of summons of the institutions of the fresh suit; the contesting respondents filed an application for the rejection of the plaint as being barred by limitation, which application was rejected by the learned Illaqa Qazi vide order dated 17.09.2003, challenged through Civil Revision by the respondents before the Zila Qazi Dir Payan. After hearing the parties vide order dated 06.09.2003, this Civil revision was accepted and as a consequence the plaint was rejected being barred by limitation. Appellants challenged the said order of the Revisional Court by filing Writ Petition No, 1410 of 2003 before the learned Peshawar ' High Court, Peshawar, which was dismissed vide impugned judgment. Leave was granted by this Court vide order dated 25.04.2006, which reads as under:-- "After hearing the learned counsel for the parties, we grant leave to appeal to consider, inter alia, the question whether in the event of institution of a fresh suit after its withdrawal by permission of the Supreme Court, the limitation would be reckoned with reference to the institution of the fresh suit or the earlier suit in the light of the Order XXIII, Rule 2 CPC and other provisions of law."
4. The learned ASC for the appellants contended that undoubtedly the new suit was instituted by the appellants after withdrawal of the earlier suit by leave of this Court, which was based on recurring and a new cause of action in view of the new denial of the rights and title of the appellants and thus, was not barred by limitation in view of the statement of facts contained in the suit: In any case in view of the objections raised in the Misc. Application filed on behalf of the 'contesting defendants, under Order VII Rule 11 CPC in the circumstances of the case; issue on the question of limitation to have been essentially framed for resolving the controversy, which involved the facts respectively alleged and denied by the parties to the suit. In support of the former arguments reliance has been placed on the precedent reported cases i,e, Juma Khan and others v.
Muhammad Khan and others (1973 SCM R 289); Riasat Ali v. Iabal Rai and others (AIR 1935 Lahore 827); Pothukutchi Appa Rao and others v. Secretary of State (AIR 1938 Madras 193); & Parjapati and others v. Jot Singh and others (AIR 1934 Allahabad 539). According to the learned counsel, this suit was not dismissed as barred by limitation by the learned trial Court in view of the allegations of facts as contained in the suit and on service of summons, Respondents Nos, 1 to 69 filed contesting written statement and a Misc. Application was also moved for rejection of the plaint under Order VII Rule 11 CPC, which was seriously contested by the appellants and was rejected by the learned trial Court, which order was challenged in Revision before the learned Zila Qazi, Dir Payan and was allowed by rejecting the plaint as barred by limitation. Without prejudice to his above-noted contentions, the learned counsel contended that mis-joinder and non-joinder of the parties or causes of action by virtue of sub-section (3) of Section 14 of the Limitation Act is a cause of like nature with defect of jurisdiction, therefore, the time consumed in -the proceedings being earlier prosecuted in the Court was liable to be excluded in computing the period of limitation on filing of the fresh suit on the same cause of action under sub-section (2) of Section 14 of the Limitation Act read with sub-section (1). On institution of the earlier suit the limitation stopped running against the appellants and consequent upon the permission accorded this Court for filing a fresh suit in the representative capacity on the same cause of action; the new suit was instituted by the appellants in the representative capacity which thus, was not hit by limitation but on wrong assumption and mis-application of law, the appellants were non-suited, vide impugned judgment. The learned counsel to supplement his arguments has also placed reliance on the reported precedent cases i,e, Ghulam Ali v. Asmat Ullah and another (1990 SCM R 1630), Jewan and 7 others v. Federation of Pakistan through Secretary Revenue, Islamabad and 2 others (1994 SCM R 826), Mst.Anwar Bibi and others v. Abdul Hameed (2002 SCM R 144) Parjapati and others v. Jot Singh and others (AIR 1934 Allahabad 539) and Governor-General in Council v. Gouri Shankar Mills Limited (AIR (38) 1951 Patna 382).
5. The learned Sr. ASC for the respondents argued that it was not a case of 'rejection of plaint simplicitor because in the peculiar circumstances of the case, the earlier suit was withdrawn with permission to file a new suit on the same cause of action within the meaning of sub-rule (2) of Rule 1 of Order XXIII CPC, therefore, the law of limitation on institution of fresh suit shall have full application in the same manner, as if the first suit had not been instituted as envisaged by Rule 2 of Order XXIII CPC, hence; Section 14 of the Limitation Act will have no application in the case in hand nor the appellants could satisfactorily show that the time spent in prosecuting the proceedings in the earlier suit can be legitimately excluded in computing the limitation.
6. The impugned judgment, the judgment of the Revisional Court, pleading of the parties, the case law cited by the learned ASC for the appellants and the provisions of Order XXIII Rules 1 & 2 CPC read with Section 14 of the Limitation Act have been perused and considered carefully with the assistance of the learned counsel for the parties. It is an admitted feature of the case that the suit earlier instituted by some of the appellants for declaration and injunction in respect of the suit property, during the hearing of Civil Appeal before this Court was requested to be withdrawn by the learned counsel for the appellants in the said appeal, who conceded that the plaint suffered from inherent defect viz the suit to have been filed in the representative capacity sought for permission to file a fresh suit on the same cause of action, which request was not opposed by the learned counsel for the respondents in the said appeal. Thus, with the consent of the learned counsel for the parties vide order dated 09.05.2001 of this Court, the request for withdrawal of the suit was allowed with permission to file a fresh suit in the representative capacity on the same cause of action subject to the payment of the cost. The fresh suit in respect of the subject matter of the earlier suit in the representative capacity was instituted on 11.07.20Q1 by the appellants in the Court of learned Illaqa Qazi.
In the title of the suit so instituted, the cause of action for instituting the suit was shown to have accrued to the plaintiffs in the year 1986, which stated to have continued and thereafter, on 09.05.2001, when permission was accorded to the plaintiffs for instituting a fresh suit and thereafter, on refusal by the respondents. In the body of the plaint, as regards the accrual of cause of action for instituting a fresh suit about the fresh refusal on the part of respondents to acknowledge the claimed rights of the appellants, nothing has been said and quite contrary to the contention of the learned counsel for the appellants; in Paragraph No, 8 of the suit, it was stated that promptly in respect of the suit property; the suit was earlier instituted, which proceedings came up to this Court when permission was granted for instituting, a fresh suit, therefore, the instant suit has been filed which is within time and; on any ground if the time period had become questionable; the same would be condonable under the law, as the plaintiffs throughout and continuously had been prosecuting the legal proceedings diligently and were never indolent however, contrary to what was stated in Paragraph No, 8 of the plaint; in Paragraph No, 9 of the plaint it was alleged that the defendants are not prepared to accept and acknowledge the rights of the plaintiffs in respect of the suit property/mountain in question hence; this suit. No date or any other detail of accrual of new cause of action was given in the plaint nor the fresh suit in respect of the same subject' matter and cause of action could be said to be maintainable for such reason based on conflicting and contrary pleadings thus, no benefit on such score can be extended in favour of the appellants and were it so; there was no occasion for the plaintiffs to have incorporated the contents of Paragraph No, 8 of the plaint mentioned-above in which it was specifically stated that the fresh suit has been instituted in view of the permission accorded by this Court for withdrawal of the suit, in order to institute a fresh suit on the same cause of action inasmuch as; in the caption of present suit, it has been as above-noted, stated in express terms that initially the cause of action accrued to the plaintiffs in the year 1986 and thereafter, on 09.05.2001, when permission was granted by this Court for instituting a fresh suit, therefore, by no stretch it can be said that the instant suit was filed by the appellants on a new cause of action. The case law i,e, (1973 SCM R 289) supra, (AIR 1938 Madras 193), (AIR 1934 Allahabad 539) and (AIR 1935 Lahore 827) supra for the foregoing reasons render hardly any support to his contention.
7. Respondents Nos, 1 to 69 contestants-defendants in their joint written statement, on various grounds of law and facts resisted the suit. In preliminary Objection No, (IV) and Paragraph No, 8 of the written statement on merits it was specifically contended that the suit was hit by limitation. It appears from the scrutiny of the documents available on the paper-book that subsequent to the filing of the written statement, an application was filed by the said respondents under Order VII Rule 11 CPC seeking for rejection of the plaint as being barred by limitation. Copy of the application has not been filed on the present appeal file. Copy of their reply to the said application is available on the paper-book through which the said Misc. Application was contested by the appellants. In the concluding para of this reply, it was stated that permission was granted by this Court for instituting a fresh suit which is within time. The learned Illaqa Qazi/trial trudge vide order dated 17.09.2003, rejected the application of the respondents seeking for dismissal of the suit as barred by limitation.
This order was challenged by Respondents Nos, 1 to 69 before the Zila Qazi, Dir Payan through Civil Revision No, 19 of 2003, which was accepted by the learned Revisional Court vide judgment dated 06.11.2003 and in consequence the application filed under Order VII Rule 11 CPC was accepted and the suit of the appellants rejected/dismissed as barred by limitation by concluding that the cause of action for instituting the suit had accrued to the appellants in the year 1986, while the present suit has been filed on 11.07.2001, which thus, patently was barred by limitation. The judgment and decree of the learned District Judge has been maintained and upheld vide impugned judgment passed by the learned High Court before which the same was challenged in Writ jurisdiction.
8. Next it was argued on behalf of the appellants that in the circumstances of the case, issue on the question of limitation for resolving the controversy entailing substantial impact, after recording the evidence to have been essentially framed. It may be seen that conflicting contentions were raised/advanced on the question of limitation. It was stated in Paragraph No, 8 of the plaint that the time consumed in the earlier proceedings and in respect of the same cause of action and the subject matter of the earlier suit was liable to exclusion under sub-section (2) of Section 14 of the Limitation Act and on the other hand it was argued that the question of limitation could, only have been resolved after recording evidence of the parties in the light of the issue to have been essentially framed by the learned trial Court. Both such pleas patently are mutually destructive. In so far as the question of framing the issue on the point of limitation is concerned, was not relevant nor required to have been framed for the simple reason that the earlier suit based on the same cause of action was allowed to be withdrawn with permission to file a fresh suit, which thus, was filed. The case law (1994 SCM R 826) supra for the foregoing reasons and being distinguishable on facts has no relevance. The other cited case (1990 SCM R 1630) supra has also no application to the case in hand being distinguishable on facts as it was held by this Court in the cited precedent case that the plaint disclosed sufficient cause of action and to proceed further with the suit and; the lack of proof or weakness of proof in the circumstances of the case did not furnish any justification for coming to conclusion that there was no cause of action shown in the plaint and thus not concurring with the reasoning given by the learned High Court for rejection of the plaint; the remand order passed by the first appellate Court was restored. (AIR 1938 Madras 193) supra has also no application to, the proposition involved in the instant case. It was observed by the-learned Division Bench of the Madras High Court with reference to the pleadings and facts of the case as under:-- "There is nothing in law which says that the moment a person's right is denied, he is bound at his peril to bring a suit for declaration. It would be most unreasonable to hold that a bare repudiation of a person's title, without even an over act, would make it incumbent on him to bring a declaratory suit. A part surely has a right to elect as to when he may bring a suit for vindicating his rights, when there are several or successive denials. True, a mere continuation of a prior cause of action does not give rise to fresh right, for. instance, where property is attached, the procuring of the attachment is the wrongly denial and the cause of action arises when the attachment is effected; in such a case it is wrong to hold that there has been a "continuing wrong" so as to give a fresh starting point during the whole period the attachment subsist. But from this it does not follow that an owner can never ignore an attack against his title, however, causal or trivial, without his right to sue being imperiled in respect of a subsequent invasion. It is for the plaintiff to decide at his option, on which act he chooses to found his cause of action, and when he does so, it is with reference to the particular infringement the alleges that the limitation should be reckoned.:
9. Therefore, the only question requiring consideration would be as to whether the time consumed in the proceedings arising out of the earlier suit was liable to exclusion or otherwise. Admittedly, the earlier suit was allowed to be withdrawn with liberty to institute a fresh suit in respect of same subject matter within the meaning of sub-rule (2) .of Rule 1 of Order XXIII CPC and on institution of the fresh suit by virtue of the provisions of Rule 2 of Order XXIII CPC the plaintiff shall be bound by the law of limitation in the same manner, as if the first suit had not been instituted. During the hearing of the arguments, the learned ASC for the appellants did not make any, submission with regard to the application of the law of limitation above mentioned, which provisions of the law notwithstanding the submission of any argument or otherwise is fully applicable to the fresh suit instituted by the appellants on permission granted by this Court. The cause of action accrued to the plaintiffs in the year 1986, when the earlier suit was instituted by them but the point of distinction would be as to whether the suit subsequently instituted would be thrown out as barred by limitation straight away for such reason without examining the, question with regard to the exclusion of time spent in the earlier proceedings in view of sub-section (2) of Section 14 of the Limitation Act.
10.In the cited case i,e, AIR (38) 1951 Patna 382, (supra) with reference to facts of the case of which the learned Division Bench of the High Court was seized of, observed that plaintiff originally brought the suit on 16.09.1943 with respect to the consignment, on 15.11.1944. The plaintiff withdrew the suit with leave of the Court to sue afresh on the same cause of action and the reason was that suit had been filed within two months of the service of notice under Section 80 CPC and the plaintiff instituted the fresh suit on 16.11.1944 thus, on these facts it was held that under Section 14 of the Limitation Act, the plaintiff was entitled to exclude the period during which the previous suit was pending in the Court.
In the cited precedent case from perusal of the judgment it appears that, the question as to whether the plaintiff in the suit had been prosecuting with due diligence another civil proceedings founded on the same cause of action was not looked into while excluding the period during which the previous suit was pending in the Court. The exclusion of the period essentially is dependent on the factum of prosecuting another civil proceedings with due diligence by the plaintiff or as the case may be to be entitled to such relief within the purview of Section 14 of the Limitation Act.
11.Adverting to the present case in view of the contention raised before us, during the course of arguments, nothing was said by the learned counsel with regard to the diligent prosecution of the case in good faith which for the lack of jurisdiction or other cause of like nature entitled the appellant/plaintiff for the exclusion of the period spent in prosecuting the remedy before the same or other Court. It was, therefore, in view of the provisions of Section 14 of the Act obligatory on the part of the appellants/plaintiffs for discharging the initial onus justifying for exclusion of the period spent in prosecuting the previous proceedings, which factum is completely wanting in the instant case though essentially, it was required on the part of the appellants/plaintiffs to have pleaded material facts in the plaint to justify the grant of relief within the purview of Section 14 of the Limitation Act. It was conceded before this Court in the earlier proceedings that the suit was independently filed and for such defect in the form of the suit, permission was accorded to the appellants/plaintiffs in the said appeal to withdraw the suit in order to file a fresh suit on the same subject matter and cause of action, hence; in such view of the matter, it could not be presumed that the plaintiffs had been diligently prosecuting the previous legal proceedings before the Courts of law; as for the first time before this Court, it was submitted on behalf of the appellants/plaintiffs (in the previous suit) that they may be permitted to withdraw the suit and at no stage of proceedings of the case, up to the level of High Court even the competency of the suit or otherwise was looked into, rather; the conduct of proceedings and prosecuting the suit throughout, abundantly indicates that in a casual and cursory manner the, suit was being prosecuted by the plaintiffs, therefore, the period spent in prosecuting the proceedings in previous suit for want of due diligence on the part of the appellants/plaintiffs could not be allowed to be excluded from, preceding the date on which the fresh suit was instituted. The previous suit in view of the averments, as contained in the, plaint, to have essentially instituted for in a representative capacity after compliance of the required formalities, which was not done and, thus; the provisions of the law governing such kind of suit was disregarded and instead the proceedings were initiated by instituting the simplictor suit without complying with the provisions of Order I Rule 8 CPC, therefore, hardly it could be said that it was a matter in which due diligence was shown in filing the suit and thereafter, the same was prosecuted with good faith. The ignorance of law for having disregarded the mandatory provisions of the law can hardly in the instant case, furnished legitimate and valid basis to exclude the period spent in prosecuting the suit; hence, in such circumstances on the institution of fresh suit by virtue of provisions of Order XXIII Rule 2 CPC, the appellants/plaintiffs shall be bound by the law of limitation in a same manner, as if the first suit has not been instituted, therefore, in view of the averments as contained with regard to the accrual of cause of action referred to herein above, the fresh suit instituted by the appellants was badly barred by limitation.
12. The case of Anwar. Bibi Supra for the foregoing reasons is of no assistance to the contentions put forth on behalf of the appellants by the learned counsel. In this precedent case, it was held by this Court that where the first suit was withdrawn under Order XXIII Rule 1 CPC, the provisions of Section 14 of the Limitation Act, 1908 would not be applicable.
13. In our considered opinion, the beneficial applicability of the provisions of Section 14 of the Limitation Act would not simply be dependent on the withdrawal of the suit with the permission of the Court to institute a fresh suit on the same cause of action; rather, in view of the provisions of Order XXIII Rule 2 CPC on the application of law of limitation as if the previous suit was not instituted, the plaintiff has to show that the suit so instituted was within time but if the same was hit by limitation, the burden would always be on the plaintiff to show that he had been with due diligence prosecuting another civil proceedings founded upon the same cause of action and acted in good faith in a Court which, for the defect of jurisdiction, or other cause of like nature is unable to entertain it read with the explanations to Section 14 of the Limitation Act, to be entitled to the exclusion of the period consumed in such proceedings, which in the instant case is completely lacking, therefore, for the foregoing reasons, this appeal being without any substance is dismissed.
There shall be no order as to the costs.