1. This revision petition is filed against the orders of the learned Senior Civil Judge, Muzaffarabad dated 8.3.2010 and 18.3.2010.
2. Facts forming the background of the instant revision petition are that Sharaf Din, plaintiff/respondent, herein, filed a suit for declaration, perpetual injunction and cancellation of gift-deed allegedly executed on 11.4.1998 by him in favour of Defendant No. 1, in respect of the suit land comprising Khasra No. 832 measuring 12 marlas 06 sarsai, alongwith the house situated in village Gulshan Peer Alao Din, Muzaffarabad. It is alleged that gift deed had got executed by Defendant No. 1 by practicing fraud and deception. It was further alleged that the gift deed is also illegal for want of delivery of possession. It was prayed by him that defendants No. 1 and 2 may be prohibited from dispossessing the plaintiff/respondent, herein, by force from the suit land: It is also claimed that Defendant No. 1 is a Peer and is respected in the locality in that capacity. He used to visit the plaintiff's home from time to time. The plaintiff was suffering from an ailment and Defendant No. 1 used to treat him by dam-darood. He got the gift deed executed in his favour through fraud and deception on 11.4.1998 on the pretext that he needs surety for a contract with the forest and got the stamp papers signed by the plaintiff. The plaintiff being illiterate could not understand the transaction which came to his knowledge some time before when it was disclosed by some employee of the Revenue Department to him. Defendant No. 1 has also transferred the land through an agreement to sell on 25.7.2005 in favour of Defendant No. 2 which document is also fraudulent and without lawful' authority.
3. The defendants/petitioners, herein, filed written statement wherein they have raised various objections to the maintainability of the suit including the bar of limitation. It is pleaded by them that gift deed was executed on 11.4.1998 in presence of Sheikh Abdul Aziz, senior Advocate, Muzaffarabad and the possession was also delivered to Defendant No. 1 who obtained N.O.C. from M.D.A. for construction of boundary wall and house but due to earthquake of Oct. 8, 2005, the construction and boundary wall stood damaged and two tents were fixed on the suit land. As the plaintiff was also affected badly and he was temporarily allowed to utilize the tents but later on he started claiming ownership of the suit land. Fact of the matter is that the suit land is in possession of Defendant No. 1 which was transferred by him to his wife and after earthquake she obtained the compensation amount from the Government in view of MOU form executed with Government which fact indicates about the possession and reconstruction of the house. A separate application was filed by the defendants on 6.1.2010 for 'rejection of the suit under Order VII Rule 11 of C.P.C. This application was objected to by the other side.
4. After hearing the parties, the learned Senior Civil Judge Muzaffarabad observed that questions raised in the application are of factual nature, hence, suit shall be disposed of after recording the evidence.
5. Mr. Asghar Ali Malik, the learned Advocate for the petitioners, herein, contended that execution of the gift deed is admitted by the plaintiff/respondent, herein. However, he has challenged the same on two grounds. Firstly it is claimed that the gift-deed has been obtained fraudulently but no details of fraud have been listed on the plaint and the pleas taken in Para Nos. 3 and 5 of the plaint are vague and uncertain. Secondly, suit is time-barred because the disputed document was executed on 11.4.1998 and the suit has been filed on 4.9.2009. No explanation has been given in the suit that how the plaintiff came to know about the fraud. He argued that where document is registered, limitation to challenge the same runs from the date of its registration and ignorance cannot be pleaded without giving cogent reasons. He submitted that a bare statement of the plaintiff that he came to know about execution of the gift deed from some employee of the Revenue Department, is not tenable and on the basis of the same the period of limitation cannot be condoned. He submitted that an incompetent suit is liable to be buried from very its inception so that the parties can be saved from further botheration. The learned Advocate contended that question of non-delivery of the possession in presence of the registered document, con of Jamabandi, and Khasra Girdawari, stands negated. Moreover after the earthquake Defendant No. 2 has been paid compensation for reconstruction of the house;etc. The payment has been received and the MOU form was signed on 23.8.2006 which could have been done after the verification on the spot, therefore, it is unbelievable that any fraud was committed with the plaintiff or the possession of the suit land was not delivered to the donee. The learned Advocate further submitted that neither the said MOU has been challenged nor at any stage the recovery of compensation was objected to. In support of his submissions the learned Advocate placed reliance on the following cases:-- (i)Pak American Commercial (Pvt.) Ltd. through Director v. Humayoun Latif and 7 others [PLJ 2008 Kar. 138] (ii)Ghulam Asghar v. Muhammad Aziz and 2 others [2008 SCR 78] (iii)Muhammad Shafi v. Punjab Province through Collector, Vehari and another [1982 CLC 55] (iv)Liaquatabad Super Co-operative Market Ltd. v. The Mayor of Karachi and another [PLD 1981 SC 613] (v)Mahmood Ali v. Abdul Latif and another [2006 YLR 1090]
(vi) Abdul Rehman v. Sher Zaman and others [2004 SCR 129] In Pak American Commercial (Pvt.) Ltd.'s case, cancellation of a registered document was sought after the prescribed period of limitation i.e. 03 years visualized by Article 91 of the Limitation Act, 1908, from the date when facts had become known to the plaintiff. It was held that execution and registration of the document was within the knowledge of the plaintiff and the plaint filed on 29.9.2002, was filed after the expiry of limitation. The plaint was rejected for being filed after the prescribed statutory period.
6. In Ghulam Asghar's case, the apex Court of Azad Jammu and Kashmir observed that limitation for declaring an instrument null and void is 3 years. The amendment was not allowed in that case on the ground that the suit itself is bared, therefore, grant of amendment will serve no purpose.
7. In Muhammad Shaft's case, a suit was rejected under Order VII of Rule 11 of C.P.C., while hearing an application of interim injunction and it was observed that the Court has wide powers to reject the plaint at any stage of the proceedings if the suit is bared by any provision of law.
8. In Liaquatabad Super Co-operative Market Ltd.'s case, it was held that suit on the face of it incompetent under law, held not to be allowed to further encumber legal proceedings.
9. In Mahmood Ali's case, it was observed that as the plaintiff himself has admitted the execution of document, in question, 06 or 07 years prior to the filing of the suit, hence, it was enjoined upon him to file suit within the period of limitation.
10. In Abdul Rehman's case, plaint was rejected on the ground that the same does not disclose any cause of action.
11. Kh. Maqbool Ahmed Waar, the learned counsel for the other side, contended that allegations levelled in the plaint are of factual nature and the same cannot be resolved without recording the evidence and the plaint in the circumstances of this case cannot be rejected under Order VII Rule 11 of C.P.C. He argued that law favours adjudication on merits, therefore, the plaintiff has a right to prove his case at trial. The learned counsel also submitted that question of fraud and forgery cannot be decided without allowing the parties and opportunity to prove their case. In support of his submissions the learned counsel placed reliance on the following precedents:--
(i) Alam Ali and another v. District Judge Multan and 3 others [PLD 1983 Lah. 278]
(ii) Masooda Abdul Haque v. Messrs Shan-e-Mustafa Productions, Lahore and another [PLJ 1985 Lah., 91] (iii)Abdul Mannan Umar v. Industrial Development Bank of Pakistan through Zahid Ahmad, Manager and 2 others [1987 CLC 1214] (iv)Noorul Hassan v. Abdul Hameed and others [1997 MLD 432] Alam Ali's case, referred to and relied upon by the learned Advocate for the respondents, does not support his stand, hence, facts stated and rule of law laid down therein needs not to be discussed.
12. However, in Masooda Abdul Haque's case, it was observed that while rejecting a plaint on account of none disclosure of cause of action, reference to be made to averments in the plaint only and no other material including the defence set up by the defendant to be brought under consideration.
13. In Abdul Mannan Umar's case, a Division Bench of Lahore High Court observed that trial Court would not be justified in throwing out the suit straightforward by rejecting plaint without holding factual inquiry.
14. In Noorul Hassan's case, it was concluded that question of misrepresentation, fraud and forgery, alleged by the plaintiff in his plaint could not be adequately answered without examining the evidence which has already been brought on the record.
15. I have taken into consideration the respective arguments of the learned Advocates representing the parties and perused the record of the case.
16. It may be stated that rules of 'pleadings laid down in Order VI, VII & VIII of the Code of Civil Procedure are not mere formalities but have purpose behind them. The object of law of pleadings is that the whole case of the parties should be placed before the Court with clarity so that each of them could be confined to a definite stand. That is why a party is not allowed to change its position, by amending, inserting or deleting the pleaded facts at its own, except with leave of the Court.
17. Order VI Rule 4 enjoined upon a party that in all cases in which misrepresentation, fraud, breach of trust, willful default or undue influence is alleged, the pleadings should contain full particulars by giving the details thereof.
18. By now law is well settled that forgery, fraud and misrepresentation cannot be taken into consideration unless particulars are set out. Law protects dignity of everyone by not allowing to plead fraud and forgery against any person in a casual manner. The rule of commonsense and fairplay also demands that charge of fraud should not be allowed to be levelled unless precise information is supplied to the person against whom it is levelled so that he may not be taken by surprise. In Ghulam Shabbir's case [PLD 1977 SC 75], Mr. Justice Muhammad Akram (as his lordship then was) while speaking for the Court at page 92 of the report observed as under:-- "....In her written statement the contesting defendant Respondent No. 1, inter alia pleaded that at any rate the Waqtdeed was executed fictitiously with the intention to defeat the creditors and was never acted upon. This plea, to say the least, was highly vague. The written statement did not contain any particulars-of the alleged creditors and the circumstances which led to the making of the fictitious deal. As a rule the pleadings must contain material facts on which a party relies for his claim or defence. In particular, rule 4 of Order VI of the Civil Procedure Code lays down that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust willful default or undue influence and in all other cases in which particulars may be necessary beyond such as are in the form exemplified aforesaid, particulars (with dates and items if necessary) shall be stated in the pleadings. In Bal Gangadhar Tilk and others u. Shrinivas Pandi and others, it was held that in pleadings general allegation, however, strong may be the words in which they are stated are insufficient even to amount to an averment of fraud of which any Court ought to take notice. In this case the vague allegations taken by the defendants in her written statement could have resulted in prejudice to the plaintiff at the trial." (underlining is mine)
19. Similar view is taken in Mir Ghaus Bakhsh's case [PLD 19.69 Kar. 662], wherein at page 679 of the report it was observed as under:-- "..The reason is that in civil law forgery is a category of fraud and is a graver charge than misrepresentation; therefore, it is a rule of commonsense and fairplay that the charge of forgery should not be allowed to be levelled against anybody unless precise information is supplied to the person against whom it is levelled, in order to enable him to understand with reasonable accuracy those facts, which are intended to be proved against him. Precision demands this, and this is uniformly recognized to be a general principle of the law of pleadings. Civil Procedure Code embodies it in Order VI, Rule 4 as follows: "In all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default or undue influence, and in all other case in which particular may be necessary beyond such as are exemplified in the forms aforesaid, particulars (with dates and items if necessary) shall be stated in the pleadings."
20. The word "shall" should be noted. Since the object of the rule is precision, it follows from it that if the particulars which are supplied are not proved, then a different set cannot be allowed to be proved nor taken into consideration (see Abdool Hoosein Zenial Abadin v. Charles Agnew (1) Gunga Narain Gupta v. Tiluckram Chowdhry (2) ; Purushottam Daji Mandlik v. Pandurang Chintaman Diwalkar (3)
21. Ullah & Sons v. Rawalpindi Club Ltd. (4) and Dr, Indramani Pyarelal Gupta v. W.R. Natu (5) unless the pleadings are allowed to be amended as contemplated by Order VI Rule' 17 C.P.C. and a fresh chance of defence is granted. Thus Haflz Muhammad Habibullah having failed to prove the forgery that was pleaded by him in paragraph 3 of his Election petition he could not be allowed to substitute another forgery for it."
22. A perusal of Para Nos. 3 and 5 of the plaint reveals that no particulars of fraud have been given.
23. Order VI Rule 4 as held in Mir Ghaus Bakhsh's case is mandatory and its non-compliance entails dismissal of the plaint. It is noticed that gift was executed on 11.4.1998. The suit was filed on 4.9.2009.
24. It is astonishing that plaintiff has not bothered to claim exemption contemplated by Order VII Rule 6 which again makes, it obligatory for a plaintiff to plead exemption in order to satisfy the Court that why the suit has been filed after the prescribed period of limitation. For proper appreciation of the matter Order VII Rule 6 is reproduced as under:- "Grounds of after the expiration of the period prescribed by the law of limitation, the plain,t shall show the ground upon which exemption from such law is claimed."
25. The above provision of law is mandatory and without claiming exemption or filing application for condonation of delay, the suit filed after the prescribed period of limitation is liable to be dismissed.
26. As stated above in the case in hand the plaintiff has simply pleaded in Para No. 5 of the plaint that he has come to know about the execution of fraudulent document some time before on being told by some employee of the Revenue Department.
27. This statement is vague and cannot be believed even for the purpose of condonation of limitation from any angle. As rioted above the gift deed was executed on 11.4.1998 and the suit has been filed after 11 `years. A vague and general statement of allegation as a rule cannot be accepted and the same view has been approved in civil petition for leave to Appeal No. 77 of 1955, titled Muhammad Mehrban v. Abdul Majeed, decided on 21.3.1995, wherein it was observed as under:-- ".......However, the petitioner chose only to aver in the writ petition that he came to know about the issuance of State Subject Certificate 'recently'. The dictionary meanings of the word 'recently' are 'not long past; that happened, appeared, began to exist, or existed lately". Obviously, the word 'recent' is an ambiguous term and is not helpful in ascertaining the period of the knowledge of the petitioner about the certificate in question."
28. In a case titled Muhammad Yasin Khan and 4 others v. Azad Govt. and others [1991 MLD 2295] again this Court observed that parties coming before Court were required to place before it all facts necessary for the disposal of the claim. Where Court was made aware, whether through an application, written statement or otherwise that the plaintiff had suppressed the facts which if pleaded in the plaint, he would have been out of Court for having no- cause of action, facts so brought to the notice of the Court would be deemed to be part of the plaint being already in existence and plaintiff being bound to have pleaded those in plaint .... Plaintiff's mischief in not placing those tree facts could not exonerate him from the operation of law. Finally the plaint was rejected. In Para No. 11 of the report the Court observed as under:-- "11. It was for e appellants/plaintiffs to know the full facts and plead them as whole before the Court, if they have failed to do so, the other party cannot be made to suffer for their mistake. The contention of the learnd counsel for the appellants that the rejection of plaint under Order VII, Rule 11, C.P.C. cannot be ordered unless the suit is regularly tried is devoid of force, as if the Court is satisfied on the basis of material placed before it that the suit is ultimately to fail, why should the Court drag the parties just for the reason that formalities of written statements, issues and evidence should be completed.....?
29. It cannot be believed that after registration of the document, the plaintiff was unaware about its registration. Firstly, the plaintiff, has not challenged the legality of the document that he has not appeared before the Registration Officer or somebody else got the same registered. In absence of the averment to the effect it can hardly be said that the plaintiff has cause of action and the suit has been filed within the prescribed period of limitation.
30. In Rahim Dad's case, [1992 MLD 2111], this Court has held that registration is a notice to the general public-at-large and ignorance without any plausible explanation cannot be allowed to be pleaded. The Courts are duty bound to lay at rest an incompetent suit at an initial stage and for that purpose besides the provisions contained in Order VII Rule 11 of CPC, Section 3 of Limitation Act can also be invoked though it is pleaded or not.
31. In Hakim Muhammad Buta's case [PLD 1985 SC 153], it was observed that "where 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."
32. In view of above, it was enjoined upon the trial Court to exercise jurisdiction vested in it under Order VII Rule 11 of C.P.C. and Section 3 of the Limitation Act. This revision is, therefore, accepted and the impugned orders passed by the learned trial Court whereby application for rejection of the plaint is dismissed, is recalled. The suit is hereby rejected for having been filed after the statutory period of limitation.