MUNIB AKHTAR, J. - The facts necessary to dispose of the present application, whereby the Defendant No.1 seeks rejection of the plaint, are as follows.
2. According to the plaintiff he is and was at all material times, and remains, the absolute owner of the immovable property described in para 1 of the plaint, being a shop. The plaintiff contends that in 2003, he needed a loan and for this purpose met with defendant No. 1 (who has since passed away and is represented in the present suit through his legal heir. According to the plaintiff, the defendant No.1 got his signatures on some papers and documents and assured him that he, the said Defendant No.1, would soon arrange for a loan to the plaintiff. The plaintiff contends that in this regard he was also taken to the office of the registrar of properties, and he placed his signatures on some papers there as well. The case of the plaintiff is that thereafter he, kept approaching the defendant No.1 for the loan that had been promised but in the end, all that was forthcoming were two cheques in total amounting to Rs. 1,50,000/- which the defendant No.1 claimed was part of the loan that had been arranged for the benefit of the plaintiff. However, according to the plaintiff, when the cheques were presented for encashment, the same were dishonoured.
3. The plaintiff stated that on account of his friendship and good relations with the defendant No.1 he did not take any action against him and that the said defendant passed away on 27.4.2005. A few months after his death, the plaintiff was shocked when on 16.9.2005 the SHO of Eid Gah Police Station summoned him at the police station and stated that the legal heirs of the defendant No.1 had complained that the plaintiff was the tenant of their predecessor in interest, but that after the latter's death he had stopped paying rent to them. According to the plaintiff, he explained what, according to him, was the correct position, at which the SHO came to the conclusion that the matter was of a civil nature and no criminal proceedings were warranted. The plaintiff further stated in the plaint that thereafter the legal heirs of defendant No.1 instituted Rent Case No. 401/2006 before the concerned Rent Controller seeking ejectment of the plaintiff from the suit property on account of non-payment of rent. The plaintiff denied the relationship of landlord dismissal failed. However, when the matter was taken to this Court in a constitutional petition (C.P.S-78/2010), the petition was allowed, and ejectment was ordered. The plaintiff sought leave to appeal from the Supreme Court, but the Supreme Court refused to grant such leave by its order dated 15.4.2011.
4. The case of the plaintiff, as made out in the plaint on the basis of foregoing facts, is that the defendant No.1 had played a fraud on him and had wrongfully obtained his signatures on various documents, including in particular the registered conveyance deed dated 18.8.2003 whereby the property was transferred by the plaintiff to the defendant No.1. In para 16 of the plaint, the plaintiff has expressly stated that the cause of action accrued in favour of the plaintiff and against the defendants firstly on 5.2.2005 when the plaintiff was summoned to the Eid Gah Police Station as aforesaid, and lastly when the ejectment petition No. 401/2006 was filed against him by the legal heirs of the defendant No.1. On this basis, the plaintiff has sought certain reliefs in the present suit, of which the following two are relevant for present purposes:-
(a) To declare that the conveyance deed dated 18.8.2003, registration at No. 2893, by Sub- Registrar T-Division, i-B, Karachi, in respect of shop No.3 Ground Floor, Al-Mustafa fride, Survey No.31 Sheet No. TL-2, Khatri Jammat Khana Road, Tahalram Quarter Krrachi, is null and void document.
(b) To direct the defendant No. 4, to cancel the entries from the register of defendant No.4, or record of rights of conveyance deed dated 18.8.2003, registration at No. 2893, in respect of shop No.3 Ground Floor, Al-Mustafa Pride, Survey no.31 Sheet No. TL-2, Khatri Jammat Khana Road, Tahalram Quarter Krrachi.
5. Learned counsel for defendant No.1 stated that it is well settled that in an application seeking rejection of plaint all the factual averments made in the plaint have to be accepted as true and correct. He submitted that on this basis it was at once obvious that the plaintiff admittedly got to know of the alleged fraud that had been played on him when he was summoned on 16.9.2005 by the SHO of the Eid Gah Police Station. He submitted that in the present case the plaint was presented on 15.7.2009, Learned counsel submitted that the relief sought by the plaintiff was for cancellation of the registered sale deed dated 18.8.2003, and in the facts and Circumstances of the present case, it was Article 91 of the First Schedule to the Limitation Act,. 1908 that was applicable.
According to this Article, the period of limitation begins to run from the date "when the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him". On this basis, learned counsel submitted that the suit ought to have been filed at the latest by 15.9.2008 and since the plaint had been presented after that date, the suit was hopelessly time barred and liable to be dismissed.
6. Learned counsel for the plaintiff on the other hand, contended that the relief sought by him was for a declaration and thus the matter was not covered by Article 91 as contended by learned counsel for Defendant No.1. Learned counsel for plaintiff submitted that it was the residuary Article 120 that was applicable and since in terms thereof the period of limitation was six years, the suit, on the basis of the clear averments that had been made in the plaint, was well within time. Learned counsel for defendant No.1', exercising his right of reply, submitted that it was well settled that the residuary Article 120 was applicable only if none of the specific articles of the First Schedule was attracted to the facts and circumstances of the case. Since according to him, the present suit was clearly covered by Article 91, he submitted that Article 120 could not possibly have any application.
7. I have heard learned counsel for parties and have gone through the record with their assistance.
As pointed out by learned counsel for defendant No.1, the basic rule that governs consideration of an application under Order VII Rule 11, CPC is that all the factual averments made in the plaint have to be accepted as true and relevant factual averments made therein, as stated herein, above, clearly establishes that the plaintiff according to him, had full knowledge of the relevant facts on or about 16.9,2005 (if not earlier). It is also to be noted that in para 16 of the plaint, the plaintiff has, in fact, averred that the cause of action arise in his favour even earlier, i.e. On 05.2.2005. In my view, when the plaint is read as whole, it is clear that the case made out by the plaintiff against the defendant No.1 is that the latter played a fraud on him and in consequence of that fraud, obtained his signatures on the contract between the vendor and vendee and is obviously a written instrument which is covered by and comes within the ambit of section 39 of the Specific Relief Act, 1877, which provides in material part as follows:-- "39. When cancellation may be ordered. Any person against whom a written instrument is void or voidable, who has reasonable apprehension that such instrument, if left outstanding, may cause him serious injury, may sue to have it adjudged void or voidable, and the Court may, in its discretion, so adjudge, it to be delivered up and cancelled."
8. Although the relief sought in the prayer clause of the plaint has been couched in terms of a declaration, in my view, that cannot alter the substance of the legal grievance of the plaintiff nor the legal remedy that would be available to him. The "declaration" sought by the plaintiff, when read in the light of the plaint, and the other relief sought in the suit, amounts to nothing other than a prayer for the cancellation of the registered conveyance deed. It should also be kept in mind that if the first prayer clause is to be read, literally, as contended by learned counsel for plaintiff, that would be tantamount to a declaration that a contract (i.e. The contract of sale of the suit property) is no longer subsisting between the parties and it is well settled that a bare declaration as to whether a contract is subsisting or not is not made by the Court. In my view, therefore, the proper and natural relief and remedy of the plaintiff, on the basis of the facts set forth in the plaint (which must for present purposes be deemed to be true), is the cancellation of the registered conveyance deed, and that is, in fact, the substance of the relief actually sought by him. It therefore, necessarily follows that it is Article 91, and not Article 120 that is applicable in the facts and circumstances of the present case. As correctly noted by learned counsel for defendant No.1; Article 120 is a residuary Article which applies only if no other specific Article is found to be applicable, and Article 91 deals specifically with cancellation of instrument not otherwise provided for in the First Schedule to the Limitation Act.
9. Learned counsel for the plaintiff placed reliance on Mst. Bano and others v Begum Dilshad Alam and others (2011 CLC 88) (SHC'SB). In that case, the learned single Judge, after carefully considering the contentions of the parties, and the case law relied on by them, came to the conclusion (at pg. 105) that there was a substantial dispute involving mixed questions of law and fact, which required the recording of evidence, without which the dispute could not be resolved.
The application seeking rejection of plaint was accordingly dismissed. In the present case however, as noted above, the case put forward by learned counsel for defendant No.1 for rejection of the plaint turns exclusively on the averments made in the plaint itself, and on the basis that such averments be regarded as true and correct. The situation in the case at hand is therefore quite different from the cited decision. Learned counsel for the defendant No.1 relied on Mst. Ferozi v.
Muhammad Aslam and another (2004 CLC 1133) and Mahmood Ali v. Abdul Latif and another (2006 YLR 1090), three single Bench decisions of the Lahore High Court, in support of his submission. On account of the view that I have taken in the matter, it is not necessary to consider these decisions in any detail.
10. In view of the foregoing, since the plaintiff, on the basis of the facts as stated in the plaint, had knowledge of the relevant facts more than three years prior to the presentation of the plaint, and on those facts seeks cancellation of the relevant written instrument (i.e. The registered conveyance deed dated 18.8.2003) the suit is barred by limitation under Article 91 of the First Schedule to the Limitation Act. Accordingly, this application is allowed and the plaint is rejected as being barred by limitation.