' NISAR MUHAMMAD SHAIKH, J.--- Through this Intra-Court Appeal, the appellant has impugned the order dated 12-4-2007 passed by learned Single Judge in Suit No,280 of 2003 Re-Mst. Gulshan Afroze v. Muhammad Jamal and others, whereby the plaint was rejected under Order VII, Rule 11, C.P.C. On the ground that the suit is barred by time under Article 91 of Limitation Act and also barred by law under Order II, Rule 2, C.P.C.
2. Relevant facts of the case, in brief, are that the property bearing Plot No,15-A, Block No,6, PECHS, Shahrah-e-Faisal, Karachi with construction thereon, was jointly purchased by the Plaintiff/Appellant Mrs. Gulshan Afroze and her husband Muhammad Yousuf, in equal share of 50% each, through a conveyance deed registered on 30-8-1975. The said property is a commercial building consisting of three storeys comprised of the shops, office, Bank etc.
3. The said Muhammad Yousuf died on 7-4-1992 and his 50% share in the said property was devolved upon his legal heirs i,e, his widow (Plaintiff/Appellant), sons and daughters, who (except a daughter Mst. Shahnaz Begum, who was out of country and a son Muhammad Jamal, the respondent No,1), executed a Relinquishment Deed dated .4-4-1993, registered on. 13-4-1993, in favour of defendant No, 1/respondent No,1 Muhammad Jamal, while remaining legal heir Mst.
Shahnaz Begum executed a separate Relinquishment Deed on 6-12-1993 to the extent of her share and it was registered on the same day in favour of the said Muhammad Jamal, who himself was also the co-sharer out of the said 50% share left behind by his deceased father Muhammad Yousuf. Subsequently, both these Relinquishment Deeds were challenged in a Suit No,1488 of 2002 filed by Mrs. Gulshan Afroze and others against Muhammad Jamal and others on 16-11-2002 before VIIth Senior Civil Judge, Karachi East, for declaration, cancellation and injunction but its plaint was rejected on 21-12-2002 on the ground that such suit was barred under Article 91 of Limitation Act.
The appeal filed thereon was also dismissed.
4. However, the impugned order of rejection of plaint dated 12-4-2007, was passed in another Suit No, 280 of 2003 which was filed on 15-3-2003 by the same Mrs. Gulshan Afroze against her same son Muhammad Jamal for declaration, cancellation, accounts and injunction, in respect of a registered gift deed executed by her in his favour on 25-2-1993 for her own share of 50% in the said property. On rejection of such plaint, the present appeal has been preferred by legal heirs of the plaintiff/appellant Mrs. Gu1shan Afroze who died on 17-6-2004 during the pendency of her suit.
5. We have heard learned Counsel for the contesting parties and perused the relevant record including R & Ps of the suit.
6. Mr. Abdul Ghafoor Qureshi learned counsel for the appellant, at the very outset, contended that the impugned order of rejection of plaint passed by learned Single Judge on 12-4-2007, on the application under Order VII, Rule 11, C.P.C. (C.M.A. No,2511 of 2003), could not be passed as no such application was lying pending since after the consent order dated 30-1-2004 passed on the oral compromise of the parties, which amounts to settling the controversy between the parties and such order of compromise was also found valid and legal in the order dated 30-5-2005 passed on the application moved under section 12(2), C.P.C. (J.M No,19 of 2004) challenging the compromise on the ground of fraud and misrepresentation. He further contended that such order dated 30-5- 2005 was never set aside and the same still holds the field but such material fact was ignored by learned Single Judge while rejecting the plaint. In this connection, Mr. Habib-ur-Rehman learned counsel for respondent No,1, contended on the other hand, and is rightly so, that the question relating to the alleged compromise and pendency of the application under Order VII, Rule 1I, C.P.C.
(C.M.A. No,2511 of 2003) stood determined by this Court in its earlier order dated 28-9-2009 already passed in the present High Court Appeal and such order having not been challenged in the Apex Court, has attained its finality. Accordingly, such question, of course, is no more pending to be determined by this Court.
7. Learned Counsel for the Appellant, next argued that for rejection of plaint under Order VII, Rule 11, C.P.C., only the averments made in the plaint and the admitted documents, could be considered and accordingly, it was very clearly mentioned in the plaint that the cause of action for filing the second Suit No,280 of. 2003 for cancellation of Gift-Deed dated 25-2-1993 was accrued to the plaintiff/appellant only when she came to know for the first time on 18-12-2002 that her 50% share has already been mutated on 3-5-1995 in favour of defendant No,1/respondent No,1 on the basis of the gift deed dated 25-2-1993, which 'as a result of family settlement and arrangement was executed by Mrs. Gulshan Afroze simply for the purpose of management of the property and not for its transfer in the name of her son Muhammad Jamal, but he then used such document claiming to be the owner of the property. Learned Counsel further argued that though the Suit filed on 15-3- 2003, on the basis of such cause of action accrued on 18-12-2002, was well, within time but the same was wrongly held to be barred by time though, even otherwise, the question of limitation was purely a mixed question of law and fact and any finding on it, could only be given after recording the evidence of the parties on their factual controversy.
8. On the other hand, the contention of learned counsel for respondent No,1 was that the Article 91 of the Limitation Act specifically provides a fixed period of three years only, for filing a suit for cancellation of the registered document but the suit of plaintiff/appellant was hopelessly barred by time of 10 years as the registered, Gift Deed in question was admittedly executed by plaintiff/appellant long ago on 25-2-1993 while she filed suit for its cancellation on 15-3-2003 after lapse of 10 years' period, therefore, the plaint was rightly rejected on the ground that the suit is time-barred.
9. As per the relevant Article 91 of the Limitation Act, the plaintiff/appellant could file a suit for cancellation of an instrument i,e, Gift Deed dated 25-2-1993, within three years from the period when the facts entitling her to have the instrument cancelled, became known to her. Now, the execution of a registered document of Gift Deed on 25-2-1993 by the plaintiff/appellant Mrs. Gulshan Afroze, was admitted by her as appears from her plaint itself. However, the time of limitation as per the claim of respondent No,1, did not begin to run automatically from the date of the instrument admittedly executed and registered on 25-2-1993, nor it starts as per the claim of appellant, from the date of 18-12-2002 when she allegedly came to know about the mutation of the property in question, effected on 3-5-1995 in the name of respondent No,1 on the basis of gift deed dated 25-2-1993. But, contrary to these contentions of the parties, such limitation starts as per the relevant provision of law, only from the period when the facts entitling the plaintiff/appellant to have the instrument cancelled, became known to her. However, the said mutation cannot be termed in .Any way to be an instrument.
10. In this regard, it appears from the averments made in the plaint, that the alleged facts became known to plaintiff/appellant without any delay as it was her own claim that the defendant No,1 was liable to render accounts in respect of the rent, profits and other, income. In this connection, in para.7 of the plaint of Suit No,280 of 2003, she had stated as under:-- "That after obtaining signatures of the plaintiff on the deed of relinquishment, the defendant No,1 started claiming himself to be the owner of the suit property. All the rents, income and profits were received by the defendant to the complete exclusion of the plaintiff and other legal heirs, and the same were never distributed amongst the plaintiff and the other legal heirs, according to their respective shares
11. It will not be out of place to mention here that the plaint of earlier Suit No, 1488 of 2002 filed by the plaintiff/appellant in respect of the said relinquishment deed dated 4-4-1993 and 6-12-1993, was rejected on 21-12-2002 on the ground that it was barred by time and the appeal preferred against it by the plaintiff/appellant was also dismissed. Likewise, the gift deed in question was also executed in the same year on 25-2-1993 with the same objecte/purpose as is claimed/alleged by the plaintiff/appellant herself. In para.23 of the same plaint of Suit No,280 of 2003 she also sated as under:-- "The cause of action accrued to the plaintiff for the first time when signatures of plaintiff were obtained by defendant No,1 on the gift deed, then on each and every date when amounts were received by defendant No,1 from tenants/occupants and the same were not distributed....."
12. Thus, it is clear from the above statement of the plaintiff/ appellant itself, that she slept over her alleged right for a long period of about 10 years though the defendant No,1, allegedly, started claiming to be the owner of the suit property after obtaining signatures in the same year 1993 on the aforesaid documents including the gift deed in question and he allegedly, received all rents, income and profits and never distributed anything amongst ,the plaintiff party. All this goes to show that the alleged facts as mentioned above, were known to her in the same year 1993 soon after the execution of document in question. Thus, in view of the above admitted facts appearing from the averments bf plaint itself, as well as the legal position as discussed above, the suit was rightly found by learned Single Judge to be barred by limitation as, not only the substantial relief of cancellation governed by Article 91 of Limitation Act but the premier relief of declaration covered, by Article 120 of Limitation Act, was also barred by time in a similar manner, while the remaining reliefs of accounts, permanent and mandatory injunction were merely ancillary to the above main reliefs.
13. Apart from above, the suit was also held to be barred under Order 2, Rule 2, C.P.C. And in this regard, the contention of learned counsel for appellant was that the earlier Suit No,1488 of 2002 was in respect .Of 50% share involved in Relinquishment Deeds dated 4-4-1993 and 6-12-1993 while the present Suit No,280 of 2003 was in respect of remaining 50% share involved in the Gift Deed dated 25-2-1993 and the plaintiff/appellant had a separate cause of action accrued for the second suit during the pendency of first suit, therefore, these two suits could not be connected in one suit and as such, the bar of Order II, Rule 2, C.P.C. Was not attracted at all. Whereas, the contention of learned counsel for respondent No,1 was that the provisions of Order II, Rule 2, C.P.C.
Are fully attracted to the second suit as the cause of action in both suits being the same, was available to plaintiff/appellant at the same time of filing the first suit but she totally concealed all the facts relating to the Gift Deed, from her first suit though such document was earlier than the Relinquishment Deeds and last Relinquishment Deed was admittedly executed' on 6-12- 1993,meaning thereby, there was nothing wrong in respect of Gift Deed dated 25-2-1993, at least upto 6-12-1993 when the last document was executed.
14. For convenience sake, the relevant provisions of Rule 2, Order II, are reproduced below: "2. Suit to include the whole claim.--- (1) Every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the cause of action; but a plaintiff may relinquish any portion of his claim in order to bring the suit within the jurisdiction of any Court.
Relinquishment of part of claim.--- (2) Where a plaintiff omits to sue in respect of, or intentionally relinquishes, any portion of his claim, he shall not afterwards sue in respect of the portion so omitted or relinquished.
Omission to sue for one of several reliefs.--- (3) A person entitled to more than one relief in respect of the same cause of action may sue for all or any of such reliefs; but if he omits, except with the leave of the Court, to sue for all such reliefs, he shall not afterwards sue for any relief so omitted.
'Explanation.--- For the purposes of this rule an obligation and a collateral security for its performance and successive claims arising under the same obligation shall be deemed respectively to constitute but one cause of action."
15. In order to appreciate as to whether the appellant had only one claim or two separate, and there was only one cause of action or two different, it appears from the averments of the plaints of two Suits Nos.1488 of 2002 and 280 of 2003, admittedly filed by the plaintiff/ appellant, that initially the gift deed was executed on 25-2-1993 for the half share and thereafter, the two Relinquishment Deeds were executed on 4-4-1993 and 6-12-1993 respectively for the remaining half share in the joint property in, question. It is the case of plaintiff/appellant herself that all these three documents, which were admittedly executed in favour-of defendant No,I/respondent No,1 and were registered in the same year of 1993 in respect of the joint property of the parties, were the result of a family settlement/arrangement for management of such entire property through defendant No,1/respondent No,1 who, according to the plaintiff/appellant, was liable to render the accounts and pay due share of income to other co-sharers but he never distributed and paid the same since after the execution of the said documents in his favour.
16. It is evident from the plaints of both suits themselves that the object/purpose of execution of all the three documents was the same as mentioned above, therefore, the alleged violation or infringement of such understanding, no doubt, constituted one and the same cause of action in respect of whole of the claim and any portion of which, could not be omitted but the plaintiff/appellant in her earlier Suit No,1488 of 2002, mentioned nothing about the portion of her claim relating to the first document of Gift Deed dated 25-2-1993 and while omitting the same, she made claim in respect of subsequent documents of Relinquishment Deeds dated 4-4-1993 and 6- 12-1993 therefore, the portion of the claim so omitted from earlier suit, could not be claimed afterwards by way of second suit specially when it is not the case of plaintiff/appellant that at the time of filing her first/earlier suit she was not aware of her alleged right to the portion of the claim so omitted by her. Accordingly, the second/subsequent suit was rightly found to be hit by Order II, Rule 2, C P C .
17. In view of the above, we find that the Suit No,280 of 2003 of the plaintiff/appellant Mrs. Gulshan Afroze was rightly held by learned Single Judge to be barred by law under Order II, Rule 2, C.P.C. As well as barred by limitation under Article 91 of Limitation Act and accordingly, the impugned order of rejection of plaint of such suit, calls for no interference in this appeal which is therefore dismissed, with no order as to cost.