' M. TABASSUM AFTAB ALVI, J.---The supra titled appeal has been filed against impugned judgment of Additional District, Judge Poonch at Rawalakot dated 23-1-2009 whereby while setting aside judgment and decree of Senior Civil Judge Rawalakot, dated 8-7-2008, pertaining to dismissal of suit of respondents/plaintiffs on legal issues, the case was remanded back to the trial Court for recording evidence and decision on merit.
2. Precise facts giving rise to the instant appeal are that respondents-plaintiffs filed a suit for declaration before Senior Civil Judge, Rawalakot on 12-5-2005. After summoning, appellants- defendants, filed written statement on 20-12-2005. The trial Court, in view of pleadings of parties, framed 8 issues out of which 1 to 3 were declared as legal issues. The Senior Civil Judge, instead of deciding the above-mentioned legal issues, directed the respondents-plaintiffs to produce evidence vide order dated 20-7-2007. Against the above-mentioned order of Senior Civil Judge, the appellants-defendants filed revision petition before District Judge, Rawalakot for direction to decide firstly legal issues without recording evidence, which was accepted and Senior Civil Judge Rawalakot was directed to decide Issues 1 to 3 without recording evidence vide order dated 12-1- 2008. Feeling aggrieved from the above order of District Judge Rawalakot dated 12-1-2008, the respondents plaintiffs filed an appeal before this Court on 12-3-2008. After hearing the above- mentioned appeal, filed by the respondents-plaintiffs, the same was dismissed and Senior Civil Judge Rawalakot was directed to decide the above-mentioned legal issues within 10 days vide order dated 27-6-2008. The trial Court, in view of above direction, decided Issues 1 to 3 and by declaring suit of respondents-plaintiffs as hopelessly barred by time and having no cause of action due to dismissal of previous suit of predecessor of respondents-plaintiffs dismissed their subsequent suit vide judgment and decree dated 8-7-2008. Against the above-mentioned judgment and decree, the respondents-plaintiffs filed an appeal before District Judge Rawalakot which was made over to Additional District Judge Rawalakot for decision under law. The learned Additional District Judge after hearing accepted the above-mentioned appeal and remanded case back to the trial Court for decision after recording evidence and on merit vide judgment dated 23-11-2009. Feeling aggrieved from the above-mentioned judgment of Additional District Judge Rawalakot, the appellants-defendants have filed the instant appeal before this Court on 19- 3-2009.
3. The learned counsel for appellants-defendants, Sardar Rafique Mehmood. Khan, Advocate, strenuously argued that gift-deed was executed on 3-10-1970 against which respondents-plaintiffs filed suit on 12-5-2005 after about 35 years, which was hopelessly barred by time. The learned counsel submitted that the above-mentioned gift-deed was duly registered which was having presumption of truth as thirty years old document, therefore, no illegality was committed by the trial Court while dismissing suit of respondents plaintiffs. In support of above contention, the learned counsel referred Article 100 of Qanun-e-Shahadat Order, 1984 and also a reported case titled Muhammad Hanif and 16 others v. Muhammad Latif Khan and 10 others 2001 MLD 493.
' In 'the captioned case it was held by the apex Court of Azad Jammu and Kashmir that document being 30 years old, therefore, under section 90 of the Evidence Act now (section 100 of Qanun-e- Shahadat Order, 1984) entitles the Court to presume that it was a genuine document.
4. The learned counsel for appellants defendant's, Sardar Rafique Mehmood Khan, Advocate, further submitted that on the basis of gift-deed dated 3-10-1970 a decree was passed in favour of appellants on 31-5-1986. Against the above mentioned decree an application/suit was filed by father of respondents/plaintiffs on 28-9-1986 for setting aside the same. After framing issues and recording evidence, the above mentioned application/suit was dismissed by Senior Civil Judge Bagh vide order dated 10-10-1992, against which no appeal was filed by respondents-plaintiffs, therefore, fresh suit filed after about 13 years on 12-5-2005 was not maintainable due to bar of estoppel and res judicata. The learned counsel has cited following authorities in support of his above contention:--
(i) Ghulam Nabi v. Noor Ahmed and 12 others 2004 MLD 927.
(ii) Azad Jammu and Kashmir Government and others v. Gohar Rehman and others 1996 CLC 1502.
(iii) Muhammad Ilyas and others v. Aziz-ur-Rehman and others 1995 CLC 1200.
(iv) Ghulam Murtaza v. Qalam Din (2003 SCR 172);
(v) Muhammad Saleem v. Azad Govt. And 4 others (2006 SCR 88).
' In case of Ghulam Nabi v. Noor Ahmed and 12 others 2004 MLD 927, it was held that appellant is estopped to challenge the point on which he failed to succeed in the earlier proceedings.
' In case titled Gohar 'Rehman and others v. Azad Govt. Others 1996 CLC 1502, it was held that respondents filed a writ petition challenging the acquisition proceedings, which was dismissed. The respondents did not raise the ground in that writ petition on which subsequent writ was filed. It was held that subsequent writ was hit by principle of constructive res judicata.
' In case reported as Muhammad Ilyas and others v. Aziz-urRehman and others 1995 CLC 1200, it was held that a defendant_ against whom ex parte decree is passed entitled to seek remedy by moving an application under Order IX Rule 13 of C.P.C. For setting aside such a decree within 30 days from date of the decree or from date of knowledge or by preferring an appeal against the decree or by seeking review or by instituting a suit on the ground of fraud.
' In case reported as Ghulam Murtaza v. Qlam Din [2003 SCR 1721, it was held that petitioner moved an application for appointment of commission which was later on withdrawn. Thereafter, petitioner was estopped to raise the objection on the given point again before the Court.
' In case reported as Muhammad Saleem v. Azad Govt. And others [2006 SCR 88], it was held that party cannot be allowed to blow both hot and cold in the same breath due to bar of estoppel.
5. The learned counsel for respondents-plaintiffs, Sardar Ejaz Ahmed Khan, Advocate, while controverting the arguments of learned counsel for appellants-defendants, submitted that gift- deed dated 3-10-1970 can be challenged even after 35 years on account of fraud. He further submitted that the trial Court failed to appreciate the point regarding filing of earlier suit/application by predecessor of respondents-plaintiffs and its dismissal vide order dated 10-10- 1992 was not raised by appellants-defendants in their written statement, therefore, order passed by Senior Civil Judge, Rawalakot dated 8-7-2008 was contrary to Order VIII, Rule 1 of Civil Procedure Code, hence, no illegality was committed by the Additional District Judge Rawalakot in the impugned judgment dated 23-1-2009. The learned counsel in support of his contention referred to and relied upon a case titled Public Health Engineering Division and another v. Aurangzeb Khan [2008 SCR 590].
' In the captioned case it was held that non-petitioners-appellants have not denied the fact of ownership alleged in the writ petition and absence of denial amounts to admission.
6. After hearing learned counsel for the parties at length, I have ' perused the contents of appeal and have also examined relevant record carefully. It is an admitted fact that gift-deed was executed on 3-10-1970 which was also registered by Sub-Registrar Bagh. Against the above- mentioned gift-deed coupled with ex parte decree, the suit was filed by respondents-plaintiffs after about 35 years on 12-5-2005. The above-mentioned gift-deed being 30 years old document has got presumption of truthfulness. The identical point came under consideration before the apex Court of Azad Jammu and Kashmir in a case reported as Muhammad Hanif and 16 others v.
Muhammad Latif Khan and 10 others 2001 MLD 493. It was held by their lordships at page 325 of the report as under:-- "(5) After hearing the respective contentions of the learned counsel for the parties and perusing the record made available with care, it may be stated, that the document Exh. 'PA' on the basis of which respondents claim the possession and ownership of land in dispute is produced by them in evidence. This document under the normal course of events should have been in possession of the respondents in whose favour it was executed. The above document having been written on a stamped paper of rupee one of Dogra Regime contains no internal evidence of forgery. As the document appears to be perfectly genuine, therefore, section 90 of the Evidence Act entitled the Court to presume that it was a genuine document being 30 years old. Our aforesaid view finds support from the case reported as Tikamdas and another v. Abdul Wali znd 7 others [PLD 1968 SC 241], wherein it was observed in a following manner: "Faced with these difficulties the learned counsel appearing in support of the appeal has endeavoured to get rid of these agreements by contending that they were forgeries and that they should not have been admitted in evidence merely upon the basis of the presumption under section 90 of the Evidence Act. We have carefully examined the original documents on the record.
They appear to have been executed on genuine stamp paper of the relevant period which wore sold by a Hindu stamp vendor to Dhanroopdas himself They contain no internal evidence of forgery. They appear to be perfectly genuine documents. Section 90 of the Evidence Act did, therefore, entitle the Court to presume, once such a document more than 30 years old had been produced from proper custody, that it was a genuine document."
(6) Similarly in a case reported as Khadim Hussain Khan and 9 others v. Mst. Sarwar Jan and 27 others (1999 SCMR 824), it was observed as follows:- "The aforesaid principle clearly enunciates that if a thirty years old document is acted upon and is supported by the possession then the presumption can rightly be drawn in favour of genuineness of document. The sale-deed in question was produced from the proper custody where it should have been and in consequence of this document the possession of the suit land was taken over by the defendant-respondents. Thus, it was acted upon in all respects. Besides documentary evidence; there is a corroborative oral testimony of the witnesses to the effect that after purchasing the land since 1986 Bk. The respondents entered into the possession of the land as owners in their right of ownership and their possession remained uninterrupted uptil tod'ate. Thus, we hold that the possession of respondents on the suit land had become adverse."
Admittedly the gift-deed in question being registered document dated A 3-10-1970 was challenged after about 35 years, therefore, suit filed by respondents-plaintiffs was hopelessly barred by time, which was rightly A buried at initial stage by the trial Court.
7. The point of limitation was specifically raised by appellants-defendants in written statement.
Even otherwise, under section 3 of the Limitation Act, 1908 a Court of law is duty bound to decide the said point suo motu. In this regard section 3 of the above Act is reproduced as under:- "(3) Dismissal of suit, etc., instituted etc., after period of limitation. Subject to the provisions contained in sections 4 to 25 (inclusive), every suit instituted; appeal preferred and application made after the period of limitation prescribed therefor by the First Schedule shall be dismissed, although limitation has not been set up as a defence.
' Explanation. A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer; in the case of a pauper; when his application for leave to sue as a pauper is made; and, in the, case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator."
' The Court, under above section, is obliged to independently advert to the question of limitation and to determine the same, in spite of the fact that it is not raised in pleadings. It is settled principle of law that doors of justice are closed after lapse of prescribed period of limitation and no plea of injustice, hardship or ignorance can be agitated unless the delay so caused is duly justified and each day's delay must be accounted for by the valid reasons. The respondents-plaintiffs failed to explain 35 years inordinate delay pertaining to registered gift-deed dated 3-10-1970, therefore, their suit was rightly turned down by the trial Court on the ground of limitation.
8. The suit of respondents-plaintiffs was also dismissed on another ground that previously ex parte decree dated 31-5-1986 was challenged by predecessor of respondents through application bearing No,66/1986, dated 28-9-1986. The trial Court, after taking objections from appellants- defendants, framed issues, recorded evidence and after hearing dismissed application for cancellation of ex parte decree dated 31-5-1986 vide order dated 10-10-1992. Against the above- mentioned order no appeal was filed by respondents-plaintiffs, which, got, finality under law.,I have perused the contents of paragraphs 1 to 11 of the suit filed by respondents who failed to challenge the above-mentioned order dated 10-10-1992. Even, the trial Court dismissed suit of respondents- plaintiffs, inter alia, that against ex parte decree dated 31-5-1986 father of respondents-plaintiffs filed and application/suit, which was dismissed on merit vide order dated, 10-10-1992 and the, same was not challenged by the respondents-plaintiffs. Against the above-mentioned findings of the trial Court, respondents-plaintiffs, although filed an appeal before District Judge Poonch, however, in memo of appeal nothing was stated about the above-mentioned order dated 10-10- 1992. Therefore, it shall be deemed an admission on the part of respondents-plaintiffs that earlier suit/application; filed by their father Muhammad Saddique, was dismissed. By now, it is settled principle of law that an admitted fact need not to be proved.
9. The learned counsel for respondents-plaintiffs, Sardar Iftikhar Ahmed Khan, Advocate, contended that point of dismissal of earlier suit/application vide order dated 10-10-1992 was not raised by appellant-defendants in written statement, however, the trial Court decided case against, the principle of pleadings, which was rightly set aside by the Additional District Judge Rawalakot on appeal and a facsimile of order dated 10-10-1992, which was produced at the time of arguments, could not be taken into consideration. In view of the above contention I constrained to send for record of application, bearing No,66/86, dated 28-9-1986, titled Muhammad Alam Khan and 2 others v. Muhammad Latif Khan and another, decided on 10-10-1992, from record room of Senior Civil Judge Bagh. After examining the original file, I am satisfied that against ex parte decree dated 31-5-1986 an application filed by father of contesting respondents-plaintiffs was dismissed after taking objections, framing issues and hearing on merit vide order dated 10-101992. Therefore, subsequent suit filed by respondents-plaintiffs was hit by principle of res judicata. I might have allowed the parties to prosecute their case before the trial Court, however, this will be futile exercise and wastage of precious time of Court and parties as in view of original record of earlier proceedings fate of the case will be dismissal of suit even after recording evidence due to principle of res judicata. The main object of the doctrine of res judicata is to prevent multiplicity of suit and to support the public policy that there should be an end of litigation.
10. As per Article 54 of Qanun-e-Shahadat Order, 1984 a previous judgment is relevant to bar second suit or trial as it bars a second suit. A previous judgment and order can be taken into consideration without referring the same in pleadings. In this regard Article 54 of Qanun- eShahadat Order, 1984 is reproduced mutatis mutandis as below:- "54. Previous judgments relevant to bar a second suit or trial. The existence of any judgment, order or decree which by law prevents any Court from taking cognizance of a suit or holding a trial, is a relevant fact which is whether such Court ought to take cognizance or to hold such trial."
' Therefore, the contention of the learned counsel for respondents-plaintiffs that earlier order of Senior Civil Judge Bagh, dated 10-10-1992 could not be taken into consideration without recording evidence and exhibition thereof is hereby repelled.
11. Even otherwise, the trial court, after framing 8 issues out of which issues 1 to 3 were legal, directed the respondents-plaintiffs to produce evidence vide order dated 20-7-2007. Against the above- mentioned order, the appellants-defendants filed revision petition before District Judge Poonch at Rawalakot for direction to decide legal issues, firstly, therefore, the learned District Judge while accepting revision of appellants-defendants directed to decide issues 1 to 3 without recording evidence vide order dated 12-1-2008. Feeling aggrieved from the above order of the learned District Judge Rawalakot, the respondents-plaintiffs filed an appeal before this Court on 12-3-2008, which was also dismissed and Senior Civil Judge Rawalakot was directed to decide the above- mentioned, legal issues within 10 days vide order dated 27-6(2008. Against the above-mentioned orders of District Judge Rawalakot and this Court no appeal was filed by respondents-plaintiffs, which order got finality under law. Therefore, the impugned judgment of Additional District Judge Poonch at Rawalakot dated 28-1-2009 is contrary to earlier order of District Judge Rawalakot dated 12-1-2008 and order of this Court dated 27-6-2008.
12. As per law it was legal obligation of respondents-plaintiffs to challenge order/decree dated 10- 10-1992 before the competent court of law. They cannot got rid of from the above decree, which has got finality under law. It is settled principle of law that even void order must be challenged within reasonable time if it is intended to absolve from its effects as held in the following precedents of the apex court of the country:--Muhammad Naseer Jahangiri and 13 others v. Abdus Sami Khan and another 1997 PLC (C.S.) 1115, Chaudhry Muhammad Zaman v. Azad Govt. And 4 others 1996 PLC (C.S.) 901, Mirza Lal Hussain v. Custodian of Evacuee Property and others (1992 SCR 214) and Muhammadilyas Khan and 5 others v. Muhammad Hafeez Khan and 4 others 2002 PLC (C.S.) 1282.
12(sic) The nub of above discussion is that appeal filed by the appellants-defendants is hereby accepted, the impugned judgment passed by Additional District Judge Poonch at Rawalakot dated 23-1-2009 is set aside consequently judgment and decree of trial court dated 8-7-2008 are restored.
' The costs shall follow the eventuality.