"MUHAMMAD NOOR MESKANZAI, J.---Learned counsel for petitioner submitted that the appellate Court committed material irregularity in remanding the case, as the remand of the case was not the prayer of either of the parties. Moreover; the scheme of law is also not in favour of remand of the matters, where sufficient material is available on record warranting decision of the case on merits. It was further maintained that the appellate Court was bound to have decided the matter on the basis of available material. As far as the question of limitation is concerned, though specific issue has not been framed, yet, both the parties were conscious of this aspect, of the matter and, the appellate Court itself might have adverted to point of limitation. The learned counsel for the respondents opposed the contentions so put forth and submitted that the limitation is a mixed question of fact and law, since no issue was framed, therefore, the appellate Court rightly awarded an opportunity to both the parties to agitate the point pro and contra to warrant a legal decision on the point of limitation.
2. I have heard the learned counsel for the parties and gone through the record. Perusal of record reflects that the petitioner filed a civil suit for possession mandatory injunction, mesne profit and permanent injunction against the respondent Fida Hussain. It was the case of petitioner that pursuant to execution of sale deed dated 30th July, 1984, the petitioner sold his property bearing Municipal No, 7-20/1884, Khasra No, 1129/1, vide Mutation No,361, measuring 800 Sq.Ft situated in Ward No,45, 'Kappa Urban, Tehsil and District, Quetta against sale consideration of Rs,95,000. Out of sale consideration Rs,25,000 were paid, whereas, rest of the amount was required to be paid within nine months, failing which, the agreement shall stand rescinded and the earnest money forfeited.
According to plaintiff, the respondent failed to make the payment within the stipulated period and thus could not get the mutation effected in his name.
3. The suit was contested by defendant/respondent by way of filing written statement whereby the claim of plaintiff/petitioner was strongly contested on factual as well as legal grounds. The learned trial Court, out of the pleadings of parties framed following issues:-
(i) Whether proper court fee has not been affixed?
(ii) Whether total amount of consideration has been paid to plaintiff by the defendant?
(iii) Whether plaintiff is entitled to relief claimed for?
(iv) Relief.
4.
Thereafter, the parties were directed to adduce evidence. Whereupon the plaintiff/petitioner produced two P. W.S and got recorded his own statement. In rebuttal the respondent/defendant adduced three D. Ws. And himself appeared in the witness box. The learned trial Court after hearing the parties and evaluating the, evidence decreed the suit. Feeling dissatisfied with the judgment and decree passed by the, trial Court, respondent preferred Civil Appeal No, '5 of 2007 before the learned District Judge, Quetta which was later on transferred to the file of learned Additional District Judge-IV, Quetta. The Additional District. Judge-IV, Quetta vide its judgment and, decree dated 22nd March, 2007 accepted the appeal, set aside the judgment and decree dated 29th December, 2006 passed by Senior Civil. Judge-I, Quetta and remanded the case to the trial Court with direction to formulate legal objections in respect of delay in filing the suit and to afford fair opportunity of hearing to both the parties and then to decide the case on its own merits. Feeling dissatisfied with the above referred judgment and decree petitioner has filed instant revision petition.
5. I have considered the arguments advanced by both the counsel for parties and perused the record of the case in the light of submissions so made. Admittedly point of limitation was raised in the written statement; yet, the trial Court did not frame specific issue in this regard. Both the parties too did not take pain to make application or draw the attention of the trial Court to this aspect of the matter. The case of both the parties rests on undisputed agreement dated 30th July, 1984 which itself stipulates period for the payment of rest of the amount, as well as for the transfer of mutation entries. The matter of limitation is not required to be left to the pleading of the parties but a duty is cast/imposed on Court itself in this regard. Limitation being a matter of statute. And provisions being mandatory the same could not be waived and even if waived could be taken by the party waiving it and by the Court itself. The waiver of limitation is not permissible in case where period of limitation is prescribed by special or local law. Reliance is placed on PLD '1985 SC page 153, (titled as Hakim Muhammad 13= and another v. Habib Ahmed and others), wherein it has been held as under:-- "The words of section 3 of the Limitation Act are mandatory in nature in that every suit instituted after the period of limitation shall, subject to the provision of sections 4 to 25 of that Act, be dismissed although limitation has'not been set up as a defence. If from the statement in the plaint the suit appears to be barred by limitation, the plaint shall have to be rejected also under Order'
VII Rule 11, C. P. C. The law, therefore, does not leave the matter of limitation to the pleadings of the parties. It imposes a duty in this regard upon the Court itself. There is a chain of authority, and a detailed discussion of the same is not necessaty, to lay down that limitation being a matter of statute and the provisions being mandatory, it cannot be waived and even if waived can be taken up by the party waiving it and by the Courts themselves. In Sitharama v. Krishnaswami ILR 38 Mad.
374, where the defendants had pleaded the bar of limitation but the trial Court had held that they having admitted their liability for the amount in resisting the plaintiff's application in a previous suit, were estopped on general principles of law and equity from pleading that the suit was barred by limitation. It was ruled that the defendants were not estopped and it was observed that "the bar of limitation cannot be waived, and suits and other proceedings must be dismissed if brought after the prescribed period of limitation" and that "the Judge cannot, on equitable grounds, enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognized by it". The same Court in a subsequent case, Remamurthy v. Gopayya I L R 40 Mad. 701, reiterated that the parties cannot estop themselves from pleading the provisions of the statute of limitation. The Lahore High Court also look a similar view in Kundo Mal v. Firm Daulat Ram AIR 1940 Lah. 75, and held that "there is abundant authority in, support of the proposition that objections regarding limitation cannot lie waived and that even if they are waived they can he taken up again by the parties waiving them or by the Courts themselves."<
6. Legally, the appellate Court was required to have adopted the course as provided by the provisions of Order XLI, Rule 24 C.P.C. By striking out the issue of limitation and hearing the parties.
For the sake of convenience relevant rule is reproduced: "24. Where evidence on record sufficient, Appellate Court may determine case finally --- Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds."
7. Of course, by .Resorting to the provisions of Order XLI Rule 24 C.P.C. Not only the purpose of law would be served rather the parties would be saved from the agony and torture of another round of litigation before the trial Court. By holding the view, I am fortified by the dictum laid down in the judgment titled as Muhammad Mukhiar and others v. Muhammad Sharif and others reported in 2007 .SCMR 1867, wherein it has been held as under:-- "10. As far as the contentions of the learned counsel for the appellants that. After the order of the learned First Appellate Court allowing additional evidence was set aside, the learned High Court should have remanded the case, has not merit. This Court has, on a number of occasions, reiterated that if evidence on record is sufficient, the Court of appeal should finally decide the matter rather than remanding it to the subordinate forum. Such a course is not only permissible under Rule 24 of Order XLI of the Code of Procedure but is desirable as well because by avoiding remand the parties are saved of the torture of another round of litigation."
' In the light of above discussion, impugned judgment and decree dated 22nd March, 2007 passed by Additional District Judge-IV, Quetta are hereby set aside and the case is remanded to the appellate Court with direction to press into service the provisions of Order XLI Rule 24 C.P.C. And to decide the matter afresh in the light of observations made hereinabove. The parties are left to bear their,own costs.