' SHAHID ANWAR BAJWA, suit for declaration, possession, recovery of damages, injunction and mesue profits was filed by the respondent No.1 (hereinafter referred to as the Plaintiff) against Federation of Pakistan and Pakistan Tele communication Corporation (hereinafter referred to as the Defendant). In the suit it was claimed that the Plaintiff was lawful owner of 100 acres of land in Deh Gharo Taluka Mirpur Sakro District Thatta.
' In para-7 of under.--
(7) That during 1985 the defendants illegally and forcibly encroached upon an area of acres of the frontage portion of the land from National Highway side and unauthorisedly constructed a building thereon which they are using for the purpose of Telephone Exchange and residential accommodation etc:."
2. It was further stated that earlier the Plaintiff filed Suit No. 20 of 1985 against Defendant it: the Court of Civil a Judge at Thatta but on 9-8-1988 cut' Was dismissed for non-prosecution. The following prayers were made in that earlier suit:-
(A) This Horeble Court may hold and declare that the defendants without any lawful a ithority occupied a piece of 2 acres of the and of the plaintiff having also raised construction thereon and dispossess' them from the same.
(B) The defendant should pay mesne profit of Rs.1,42,80,000 fcr the past years till filing of this suit and for future at the rate of Rs:10,000 per month till vacant possession of the suit-land is handed over to the plaintiff.
(C) To hold and declare that through their illegal acts, the defendants caused great injury to the plaintiff and their Directors both mental and to their reputation and are thereby liable to pay Rs.50 Lacs towards damages to the plaintiff.
(D) The defendants should also pay the profit as per National Bank Rate on the entire mesne profits including the damages as decreed, to the plaintiff.
(E) A mandatory injunction for dispossessing the defendants and removal of construction and debris from the suit-land.
(F) A prohibitory injunction against raising any further construction.
(G) The defendants should pay the cost of the suit.
(H) Any other relief which this Hon'ble Court may deem fit and proper to grant."
3. Written statement was filed by the defendant. Ownership of the plaintiff was specifically denied.
Evidence was recorded. No witness was produced by the defendant., Vide judgment dated 29-7- 2008, the suit was decreed as prayed. Being aggrieved by such judgment an appeal was filed and the Appellate Court dismissed the appeal vide judgment dated 8-1-2010. This Second Appeal has been filed to challenge and impugn the judgment of the Appellate Court and the Civil Court.
4. Learned counsel for the appellant submitted that for about 30 years Dhabeji (Exchange) has been established at the site in question. Learned counsel referred to various documents which according to him established that in 1974 Deputy Secretary, Land Utilization, Board of Revenue Sindh agreed to sell this land to T & T Department, payment was made and due entry was made in all Revenue Records, possession was given, building was constructed and exchange was set up. On creation of the defendant through statutory notifications properties of T&T Department were transferred to the defendant-company.
' Learned counsel made the following-submissions:--
(1) As is evident from para 9 of the plaint first suit was filed by plaintiff in 1985 and it was dismissed for non-prosecution on 9-8-1988. No application for restoration of that suit was filed and therefore the second suit was barred.
(2) Learned counsel submitted that a perusal of para 7 (quoted above) indicates that dispossession took place in 1985 and present suit was filed in 2001. He submitted that applicable article is Article 142 of the Limitation Act, under which period of limitation prescribed is 12 years and such period expired in 1997 and therefore the suit is hopelessly barred by. Time. Learned counsel relied upon Allah Baksh and 4 others v. Dr. Abdul Waheed and another PLD 1996 Karachi 458, PLD 1983 SC 5, Kazim Imam Jan v. Muhammad Jawaid and 4 others, 2003 CLC 200 and Mst. Sarwat Ara and 3 others v. Mst. Sabra Khatoon, 1993 CLC 1682.
(3) Learned counsel referred to the sale-deed under which plaintiff had claimed that it had purchased 100 acres of land and submitted that no schedule of property has been enclosed with the sale-deed.
(4) Learned counsel submitted that new jurisprudence has been created by the Court below which has awarded damages for mental torture and agony to a company and his submission was that company is not a natural person and therefore though there can be damages for loss of money, reputation etc., but there could not be damages for mental torture.
(5) He submitted that there is no evidence that the plaintiff at any time was owner of the land.
(6) The learned counsel also submitted that there was no evidence before the Court below on the question of mesne profits and yet huge amount has been granted as mesne profit.
5. Mr. Naeem lqbal learned counsel for the plaintiff made the following submissions:--
(1) After filing written statement the defendant did not produce any witness and therefore contents of the written statement could not have been taken into consideration in any case.
(2) After judgment and decree was passed by the Civil Court it was only the defendant company which filed the appeal. Federation of Pakistan did not file appeal and Federation of Pakistan was not joined as respondent in appeal. Therefore appeal was not competent.
(3) On the question of limitation, learned counsel relied upon Nooruddin v. Pakistan, 1997 CLC 1971 to contend that applicable article is Article 144 of the Limitation Act and it was recurring cause of action and therefore every day created new cause of action for the purpose of limitation.
(4) No documents whatsoever had been produced by the defendant to establish as to how the Sindh Government acquired this land. Regarding dismissal for non-prosecution of the earlier suit, learned counsel submitted that it was dismissed under Order IX Rule 2, C.P.C. And not under Order IX Rule 8, C ,P.C. And therefore plaintiff was entitled to bring fresh suit in accordance with the law.
6. Mr. Muhammad Qasim, Standing Counsel supported the arguments of the defendant.
7. I have considered the submissions made by the learned counsel for the parties and have also gone through the record.
8. As far as first contention of the learned counsel for the defendant that earlier suit filed by the plaintiff in 1986 was dismissed for non-prosecution on 9-8-1988 and therefore the plaintiff could not have filed fresh suit, learned counsel for the plaintiff referred to page 327 of the R&Ps of the Court below. Diary 'sheet of 9-8-1988 stated as under:- "Plaintiff and their counsel called absent. Defendant not yet served The cost is not paid. The suit is dismissed under Order IX, Rule 2 C.P.C."
9. Order IX Rule 2 C.P.C., provide as under:-- "(2) Dismissal of suit where summons not served in consequence of the plaintiff's failure to pay costs.-- Where on the day so fixed it is found that the summons has not been served upon the defendant in consequence of the failure of the plaintiff to pay the court-fee or postal charges' (if any) chargeable for such service, the Court may make an order that the suit be dismissed: ' Provided that no such order shall be made, although the summons has not been served upon the defendant, if on the day fixed for him to appear and answer he attends in person or by agent when he is allowed to appear by agent."
10. Thereafter Rule 4 of Order IX provides as, under-- "4. Plaintiff may bring fresh suit or Court may restore suit to file.-- Where a suit is dismissed under rule 2 or rule 3, the plaintiff may (subject to the law of limitation) bring a fresh suit, or he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his not paying the court-fee and postal charges (if any) required within the time fixed before the issue of the summons, or for his non-appearance, as the case may be, the Court shall make an order setting aside the dismissal and shall appoint a day for proceeding with the suit."
11. Very simple reading of Rule 4 indicates that if the suit is dismissed under Rule 2 then the plaintiff, subject to the law of limitation, can bring a fresh suit; or he may apply for an order to set aside the order of dismissal and in this regard option has been given to the plaintiff. Therefore the option can be exercised by the plaintiff to adopt either of the courses; he may file fresh suit, subject to law of limitation or he may file an application for setting aside the dismissal order and satisfy the Court that there was sufficient cause for his not paying the Court-fee and postal charges, if any. The first suit by the plaintiff was dismissed under Order IX Rule 2 and therefore the subsequent suit was not barred as it would have barred had the suit been dismissed under Order IX Rule 8, C.P.C. Therefore, first contention of the learned counsel for the defendant has no merits.
12. Contention of the learned counsel for the plaintiff was that after filing written statement no witness was brought forward by the defendant and therefore the written statement could not have been taken into consideration. This contention of the learned counsel for the plaintiff has substantial force. It is well-settled law by now that a party which files written statement, if it does not bring forth any witness in support of written statement cannot rely on contents of that written statement and the written statement has to be taken out of consideration. However, that does not mean that such defendant has IA no right to put up his defence. It is the written statement which is taken out of consideration and not that defence of the defendant is struck of. He may be able to put up defence through cross-examining the witnesses of the plaintiff and by relying upon evidence adduced by the plaintiff. However, the documents to which Mr. Aijaz Ahmed has referred since these documents were not produced through any witness in the Courts below, obviously there cannot be relied upon at this stage as also written statement has to be taken out of consideration. On this score learned counsel for the plaintiff is perfectly correct.
13. But the key contention of the learned counsel for the defendant was that the suit was barred by limitation. He referred to para 7 of the plaint where it is stated (quoted above) that it was during 1985 that defendants illegally and forcibly encroached upon an area of 2 acres of frontage portion of the land. Thus, it is admitted that the possession was taken by the defendant, and according to the plaintiff illegally, in 1985. On the question of limitation issue was framed by the trial. Court and it observed as under: "ISSUE NO.9 ' This issue is mixed issue of law and fact, burden to prove which issue is upon the defendant. The defendant has failed to produce any evidence law or case-law on this issue beside the plaintiff attorney Abdul Qadoos strongly with stands to test of cross-examination. The Advocate for the defendant failed to produce any favourable evidence from the plaintiff's mouth. He Advocate for the plaintiff during course of arguments pointed out the plaintiff was raising construction of boundary wall upon which- the defendant issued illegal notice to the plaintiff to stop the construction over the suit-land which notice was duly replied to the defendant was as had to withdrawn the said legal notice upon which the defendant has become silent. The plaintiff has also served with the notice of plaintiff dated 24th October, 1995 whereby they were called to make payment of mesne profit at the rate of Rs.85,0000 per month so also payment of damages 15,00000 to the plaintiff for causing monetary losses, impairing the value of land and injury to the reputation of plaintiff in the business so also causing mental torturers and agony to the plaintiff.
The defendant failed to respond. The plea of Limitation claim by the defendant is not entertain able according to the -section 23 of Limitation Act which is re-produced as under.
(23) continuing breaches and wrong: In the case of continuing breach 'of contract and in the case of a continuing wrong independent of contract, a fresh period of limitation begins to run at every moment of the time during which the breach or the wrong as the case may be, continues.
' In the light of above discussion I am fully satisfied that the suit of plaintiff is not hit as time-barred hence issued No. 9 is answered in negative.
14. Appellate Court did not directly deal with he issue but it observed as under:-- "It proved that the defendant has acquired 2-0 acres land from the plaintiff land has government witness summoned by the defendant in rebuttal also failed to bring any record to prove that the defendant has not acquired 2-0 acres land from plaintiff land and the same admittedly in the possession of defendants since 1974,"
15. Learned counsel for the plaintiff relied upon Syed Niamat Ali and 4 others v. Dewan Jairam Dass and another, PLD 1983 SC 5. Facts of the case were that one Khiluram entered into an agreement with appellant for sale of agricultural lands in dispute comprising several acres in 1963 and received part consideration while balance was agreed to be paid at the time of execution and registration of the conveyance deed. Thereafter another document was executed where another substantial part of the sale consideration was admitted as having been received and the balance Rs.10,000 was left to be paid at the time of registration of the conveyance deed. Before that could be done, another agreement was entered into between the parties whereby the appellants were authorized to invest Rs.80,000 in the said land for the purpose of developing and cultivating it and they also came into possession of the land in dispute. 7 years later Khiluram filed a suit seeking declaration that the agreements being without consideration were void. In the meantime Khiluram died. Since an application for impleading legal heirs was filed with inordinate delay, the suit was dismissed. Appeal did not succeed and the Civil Revision met the same fate on 31-7-1977. In the meanwhile the appellant had filed a separate suit against a son of Khiluram and his widow.. Suit was dismissed as barred by time so was also dismissed counter claim of the respondent. Appeal was filed before Appellate Court which maintained judgment of the Civil Court. It was ultimately challenged in the Supreme Court and on the question of limitation Supreme Court observed as under:-- "In the case of a continuing wrong each successive invasion of the plaintiffs' right or the continuing invasion resulting in the continuous injury, furnishes a recurring cause of action, so that even if a suit filed in respect of such wrong is once abated, the subsequent suit is not filed on the same cause of action stricto sensu although it may be filed on a similar cause of action. But if the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. Guidance in this matter may well be sought from the provisions of section 23 of the Limitation Act which, inter alia, provides that in the case of a continuing wrong, a fresh period of limitation begins to run at every moment of the time during which the wrong continues. In this connection it has, however, been laid down that if a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. But distinction- must be drawn between the injury caused by the wrongful act and what may be described as the effect of such injury. Thus it was observed in Khair Muhammad Khan v. Mt. Jannat (1)(sic): "In considering whether the particular act complained of constitutes a "continuing wrong" within the meaning of section 23 for which the cause of action arises de die in diem it is necessary to keep in mind the distinction between an "injury" and the "effects of that injury". Where the injury complained of is complete on a certain date, there is no "continuing wrong" even though the damage caused by that injury might continue. In such a case the cause of action to the person injured arises, once and for all at the time when the injury is inflicted, and the fat that the effects of the injury are 'felt up by the aggrieved person on subsequent occasions, intermittently or , even continuously, does not make the injury a " continuing wrong" so as to give him a fresh cause of action on each such occasion. If however the act is such that the injury itself is continuous then there is a "continuing wrong" and the case is governed by S.21."
' The question in this case was whether the encroachment upon common property of the residents of the neighbourhood by erecting a chabutra by the defendants constituted a continuing wrong so that that suit was governed by section 23 of the Limitation Act. The learned Judges held that the injury was complete at the time of the construction as it amounted to a complete dispossession and ouster of the plaintiffs. It was, therefore, held that this was not a case of a continuing wrong but a wrong, which was completed at the time the construction was put up. The learned Judges were of the view that the cause of action to the aggrieved party arose once and for all at the date of the ouster and that it did not arise afresh every day that the structure exists. In the present case similarly, the case of Khiluram in his plaint was that consequent to the agreement, dated 6-1-1964, half share of the property in dispute was transferred in the name of the appellants in the record- of-rights. But in breach of contract, the appellants failed to invest any part of the fully stipulated amount of Rs.80,000 on the development of the land and "unlawfully took possession of the entire land and water; i.e. One-half share of the plaintiff as well". The prayer in the suit was for a declaration that agreements, dated 20-8-1963 and 6-1-1964 were unlawful and without consideration; and for possession of the suit-lands and water. In his written statement, respondent No.2 in the subsequent suit filed by the appellants, set up substantially the same pleas and sought a decree for possession by way of counter claim.
' Applying the test laid down above it is clear that this is also a case of forcible dispossession or ouster and therefore, the injury was complete when Khiluram was dispossessed or ousted from possession. There is, therefore, no question of a continuing wrong although the effect of his dispossession resulted in depriving the lawful owners of the right to their possession. Accordingly, no fresh suit could be filed by the legal representatives of Khiluram on the abatement of his suit."
(Underlining supplied.)
16. In Allah Baksh's case (Supra) defendants were shown to be in continuous possession of barracks from 1968 and plaintiff filed suit in 1987. A Single Judge of this Court observed as under:-- "Plaintiffs' suit filed on 12-2-1987 was brought long after the date of dispossession and thus hit by the provisions of Article 142. Article 142 of the Limitation Act provides a period of 12 years from the date of dispossession or discontinuance for filing a suit for possession of immovable property when the plaintiff while in possession of the property has been disposed or has discontinued the possession. No doubt defendants have not asserted adverse possession of the property in suit they have specifically pleaded the bar of limitation and as pointed out hereinabove a suit for possession of immovable property ought to be filed within 12 years of the date of dispossession or discontinuance. Both the defendants have claimed possession of the property in suit in their own rights peacefully and continuously."
17. In Habibullah's case it was held that the suit containing prayer for cancellation of documents were governed by Article 91 of the Limitation Act. In Kazim Imam Jan's case (Supra) it was held that suit for recovery of possession of immovable property is governed by Article 142 of the Limitation Act and if filed after 12 years it would be barred by time. Same was the findings in Mst. Sarwat Ara's case (Supra).
18. On the other hand learned counsel for the plaintiff relied upon Nooruddin and others v. Pakistan and others, 1997 CLC 1971. Facts of this case were that suit for declaration of title and specific relief was filed by Nooruddin against Abdullah and his three brothers. According to plaintiff' the then Post and Telegraph Department illegally obtained possession of 14 acres of land out of plaintiff land on 1-11-1971 without obtaining permission from and without notice to the plaintiffs and without acquiring the land on payment of compensation. Plaintiff served a legal notice upon defendants in 1975, few meetings were held in 1977 and seeing no result the suit was filed. Issue of limitation was examined and on this issue it was held as under:-- "22. Issue Nos. 3 and 4. Both these issues relate to the question of limitation, the former premised on mixed questions of law and fact and the latter upon a pure question of fact. It may be convenient to take up the latter issue first i.e. Whether the plaintiffs have been dispossessed within a period of twelve years from the filing of the present suit. On this aspect of the case the plaintiffs have alleged that the defendant encroached upon the land in 1971 the only evidence in support of this contention is the plaintiff Nooruddin's oral testimony. On the other hand the defendants' witnesses asserted that the construction of the wireless station was commenced in 1957-58 And completed in 1960. Documentary evidence also lends support to the defendants' version. The first notification under section 4 of the Land Acquisition Act, as mentioned earlier was issued on 510-1956. Documents produced as Exhs. 10-11, suggest that proceedings for building a wireless station were initiated in 1955. Exh.12 indicates that the Transmission Station had already been constructed in 1956 in view of the above I am not inclined to accept the plaintiff's version and am of the view that the defendant came into possession of the property before 1966 though without proper legal authority and acknowledging the owners' right to compensation. The defendants have not pleaded that they dispossessed the plaintiff nor shown how they came into possession.
(23) The matter, however, does not conclude here. To successfully plead the bar of limitation, the defendants were required to show that the plaintiffs were in possession and such dispossession occurred prior to 12 years of the filing of the suit. The plaintiffs' case is not founded upon their right to possession. But upon title. The defendants, however, have flatly denied the factum of having dispossessed the plaintiff both in the written statement as well as in the written arguments. In the written arguments it has been reiterated that "the defendant is continuously in possession of the suit land and the plaintiffs never dispossessed because they were not in possession of the land at any time during the period from 1956 to the date of these presents".
(24) In view of such categorical position taken up by the defendants, no finding can be recorded on the question of dispossession. Even otherwise such finding may not be necessary as discussed hereinafter for determining the question of limitation.
(25) Unfortunately, on the question of limitation, I have received legal assistance at the Bar. In this written arguments Mr. M.G. Dastgir did not refer to any specific provision which, in his opinion. Was applicable in the circumstances. Mr. Usman Ghani Rashid, despite issues on the question of limitation having been framed, did not advert to this aspect either in his address not filed any written argument in rebuttal.
(26) Nevertheless, in order to determine which provision of law would be attracted for deciding the question of limitation, it may be pertinent to reproduce Articles 142 and 144 of the First Schedule to the Limitation Act, which read as under:-- 142.For possession of Immovable property when The plaintiff while in Possession of the property, has been dispossessed orhas dis-continued the possession.(Twelve years)The date of the disposses- sion of dis-continuance.
144.For possession of immovable property or any interest therein not hereby otherwise specifically provided for.(Twelve years)When the possession of the defendant becomes adverse to the plaintiff
(23) It may be observed that dispossession of the plaintiff is a condition precedent for the application of Article 142. Irrespective of the sketchy evidence on record. If the plaintiffs' version is to be believed, the suit is within time. If the defendants' position is to be accepted, Article 142 could not apply as the basic precondition for its application i.e. Dispossession of the plaintiff cannot be assumed to have accrued. I am fortified in this view by a judgment of Patna High Court in the case of Kanchan Teli v. Mogo Mahton (AIR 1934 Patna 593), wherein Wort, J. Held:-- "If the defendant admitted that he had dispossessed the plaintiff, then quite clearly Article 142 would apply; but if as in this case, he asserted that the plaintiff had never been in possession, ,that he (defendant) had been there and had been prescribing against him (plaintiff) if seems to me abundantly clear that the case does not come under any of the authorities holding on the facts of particular cases that Article 142 ,applied. It is a case which is otherwise provided for by the Limitation Act and, therefore, Article 144 applies."
(28) Coming to Article 144 it may be seen that limitation starts running from the 'date when possession of the defendant becomes hostile to the plaintiffs. In the above matter, however, it is established that the defendants never asserted title to the land in question even on the basis of the Land Acquisition Act, prior to the filing of the suit. It is established on record that till June, 1997 the defendants were attending meetings for determination of compensation payable to the plaintiffs/owner. Even the last notice dated 8-12-1977 sent by the plaintiffs was passed on to another officer in the circumstances Article 144 too could not be held applicable.
(29) Evidently till the filing of the suit the defendants never claimed any right or interest in the land in question or set up title hostile to the plaintiffs. Even in the original written statement filed in 1980 they did not attempt to justify their possession but only disputed the plaintiffs' right to obtain compensation and contended that question of payment of compensation could only arise after proceedings under the Land Acquisition Act, relating to demarcation of property etc. Their claim to possession was never hostile to or inconsistent with the rights of the real owner and it has been established on the basis of evidence including evidence adduced by the defendant that the plaintiffs were the real owners. Only when they were bale to lay their hands on the Notification published in 1956 they started claiming that the land had been acquired. This contention has been found to be untenable on facts and law. The possession of the defendants does not appear to be better than that of a trespasser and I am inclined to think that such trespass amounts to a continuing wrong in terms of section 23 of the Limitation Act. Moreover, admittedly negotiations for payment of compensation were being carried out till June, 1977. As such the suit filed in April, 1978 cannot be held to be barred by limitation. In this context I may refer once again to the observations made in Barkat Bibi's case, cited above, to the following effect:-- "Nor, it is open to a public authority to enter into negotiation for settlement of dispute with a citizen for a number of years and after failure thereof when the private citizen asks for relief through Court to turn round and say that the claim is barred by time. The limitation would not start unless a case of action has arisen to a party and in the case in hand the cause of action arose to the appellant in February, 1984 when the respondent finally refused to settle the dispute. From this date the suit is clearly within limitation having been filed in the end of May, 1984."
' In view of the above I am clearly of the opinion that the suit is not barred by limitation."
19. Reading of the judgment in Nooruddin's case indicates that what pursued the Court to come to the conclusion that the issue was not of possession but of title was that the parties were still negotiating compensation. In the present case, there is no any iota of evidence that at any stage right from 1985 till filing of suit the defendant at any time contacted the plaintiff and conceded his title to it and agreed for compensation for transfer of title. Therefore, the present case is not transfer of title but for recovery of possession, simplicitor. As has been held by the Supreme Court conclusively in Syed Niamat Ali's case (supra),. The act of dispossession was complete when Plaintiff was dispossessed by the was done in 1985. Dispossession in such-like situation is not a process that continuous and is not a continuing cause of action but an event which occurs at one single, fleeting moment of time and that, moment in the present case was in 1985. The present suit was brought in 2001 and therefore it was hopelessly barred by time. No application for condonation of delay has been made.
20. Contention of Mr. Naeem Iqbal was that jurisdiction of this Court in second appeal is limited in terms of section 100, C.P.C. That section specifically provides that appeal is available when the decision is contrary to law. The Civil Court has not appreciated correctly the provisions of Article 142 of the Limitation Act as also section 23 of that Act. It has not cited ay single case in its judgment and has failed to take into consideration the mandate of Supreme Court in Niamat Ali's case (supra). Therefore, it is a decision contrary to law and it can be corrected in second appeal.
21. In view of the conclusion that I have reached -that suit of the plaintiff was barred by time and since it is settled law that limitation bars the remedy, and the Court is not required to go into merits if the suit is barred by limitation. Reference may be made to Wali Muhammad Khokhar v.
Government of Sindh and others, 2001 SCMR 912 and Collector Land Acquisition, Chashma Right Bank Canal Project, WAPDA, D.I.Khan and others v. Ghulam Sidiq and others, 2002 SCMR 677. In view of my such conclusion, I do not think it is necessary to advert to other contentions made by the parties.
22. Result of the above discussion is that this appeal is allowed, both judgments and decrees of Courts below are set aside and suit filed by the plaintiff before the Civil Court is dismissed.
Second .