The Supreme Court heard an appeal challenging a High Court judgment that reversed a Judge in Chambers' order rejecting a plaint under Order VII, Rule 11. The original suit sought declarations and injunctions regarding property, and the plaint had been rejected on grounds of being time-barred and the suit being non-maintainable under the Evacuee Trust Properties (Management and Disposal) Act, 1975.
The core legal questions before the Court were whether the suit was barred by limitation under Article 120 of the Limitation Act, 1908, and whether the property in question constituted Evacuee Trust Property, thereby ousting civil court jurisdiction under Sections 10 and 14 of the 1975 Act.
The Supreme Court dismissed the appeal. It held that the issue of limitation was a mixed question of law and fact that could not be determined without recording evidence, directing the Judge in Chambers to decide this issue after evidence. Regarding the nature of the property, the Court held that since the respondents' PTD was issued in 1964, prior to the June 1968 cut-off date specified in Section 10 of the 1975 Act for urban evacuee trust properties, the suit property could not be treated as evacuee trust property.
' SARMAD JALAL OSMANY, J.---This Appeal impugns the Judgment of the learned High Court of Sindh in HCA No,1996 filed by the respondents Nos,1 and 2, whereby same was allowed while reversing the order of the learned Judge in ChambeRs,
2. Brief facts of the matter are that the respondents Nos,1 and 2/plaintiffs had filed a suit against the appellants/defendants bearing No,245 of 1995 in the. High Court of Sindh seeking declarations and injunctions regarding the suit property. The appellants had filed an application under Order VII, Rule 11 seeking, rejection of the plaint on the ground that it was both barred by law as well as by limitation which was allowed vide order dated 4-4-1996 passed by the learned Judge in ChambeRs, As stated above the said Judgment was reversed in High Court Appeal and hence the present Appeal.
3. Mr. Abdul Wajid Wayne, learned Advocate Supreme Court appearing for the appellants had firstly submitted that the bone of contention between the parties was as to the authenticity of their PTDs in respect of the suit property. According to respondents Nos,1 and 2, their PTDs were issued on 21-8-1962 and 5-2-1964 to their predecessor-in-interest whereas according to the appellants they were issued PTDs on 9-1-1961 and 28-6-1963. As the respondents had filed the suit against the appellants as to the above controversy on 30-3-1995, this was patently time barred under Article 120 of the Limitation Act; 1908 which provides for outer limits for the purpose of seeking declarations and injunctions as six years counted from date the right to sue occuRs, Learned Advocate Supreme Court has submitted in this regard that the reasoning in the impugned Judgment that the order of cancellation of the PTDs issued by the Deputy Commissioner in 1979 when the settlement laws had been repealed, was void as he was not a notified officer, is incorrect. In this regard he has referred to the reasoning of the learned Judge in Chambers who came to the conclusion that where a void order is. In the knowledge of the party which was affected, then it is his duty to get it set aside by filing appropriate proceedings and where this is not done then he cannot take shelter by pleading that as the order was void therefore no limitation would apply as to the same. In this regard he has referred to the finding of the learned Judge in Chambers that it was on the application of the respondents themselves for a certified copy of their PTD that the said PTD was cancelled and hence it could not be said that the respondents were not aware of the Order of the cancellation passed way back in 1979.
4. Regarding the non-maintainability of the suit, learned Advocate Supreme Court has again referred to the reasoning of the learned Judge in chambers according to which the suit was barred under sections 10 and 14 of the Evacuee Trust Properties (Management and Disposal) Act 1975. Per learned Advocate Supreme Court it was found therein that since the Government had issued two Notifications published in the Gazette of Pakistan in the year 1963 declaring the suit property to be attached to a Religious Trust, therefore in terms of section 14 of the said Act, there is a complete ouster of jurisdiction of the Civil Courts as the Evacuee Trust Board is to deal with all matters pertaining to evacuee trusts.
5. On the other hand, Mr.. Shahenshah Hussain, learned Advocate Supreme Court appearing for the respondents has submitted that insofar as Order VII, Rule 11 is concerned, only the contents of the plaint have to be seen. In this regard he has referred to the averments made in the plaint filed by the private respondents wherein it has been specifically pleaded in Para No,15 thereof that the respondents never received any order of final cancellation regarding their PTD and hence they were deprived from challenging the validity of the said final order of the Deputy Commissioner passed in 1979. Accordingly in the cause of action clause in the plaint it has been mentioned that though the cause of action arose firstly on 29-7-1979 when the respondents' PTD in respect of the suit property was cancelled, however this only came to their knowledge on 12-8-1994 when the appellants had filed an application before the Chairman, Evacuee Board Trust to be joined as a party to the proceedings launched by the respondents regarding the nature of the property.
Consequently per learned Advocate Supreme Court the suit filed within six years of such date is perfectly within time. Learned Advocate Supreme Court has also submitted that in any event after repeal of the settlement laws only the notified officer in terms of section 2(2) of the Act 1975 could adjudicate matters relating to evacuee property. Since the Deputy Commissioner has not been notified as such officer therefore the order passed by him would be considered unlawful in the eyes of law against which no limitation can operate. Insofar as the nature of the suit property is concerned learned Advocate Supreme Court has submitted that per the reasoning of the Division Bench in the. High Court. Appeal, PTDs in favour of the predecessor-in-interest of the respondents was issued in the year 1964 and consequently the subsequent claim of the Evacuee Trust Board was unlawful in view of section 10(1)(b) of the Act 1975 which provided June, 1968 as the cutoff date vis-a-vis valid transfers of immovable evacuee trust properties situated in urban areas and consequently the property in question cannot be deemed to be evacuee trust property.
6. We have heard both the learned ASCs and perused the record with their assistance.
7. Insofar as the issue of limitation is concerned it would be seen that per Article 120 of the Limitation Act, suits for which no period of limitation is prescribed elsewhere, the period of limitation is six years from the date when the right to sue occuRs, In Para-16 of the Plaint it has been averred by the private respondents that after the cancellation of their PTD on 27-9-1979 the said Order was not conveyed to them at all by anyone and neither was any order of final cancellation from the Settlement Commissioner received, despite their written requests and consequently the private respondents were not at all able to challenge the same before any forum. Thereafter the respondent No,9 Evacuee Trust Board passed the order dated 13-5-1984 on an application from Saifur Rehman a tenant in the property to the effect that the disputed property was an Evacuee Trust Property and as such the rent, which was being paid by the tenant to the plaintiffs was ordered to be stopped. The appellants aggrieved from the said order then filed a revision petition on 9-6-1984 to which the respondents for the first time on 8-2-1994 appeared on the scene and filed an application under Order I, rule 10 to challenge it as intervener on the strength of their own PTD. Hence it appears that the same may not be time barred if time is counted from such date as it was filed within six years from the same, Consequently we are of the opinion that the issue of limitation in the matter is a mixed question of law and fact and, without evidence being recorded the same cannot be determined.
8. Insofar as the nature of the suit property is concerned, i,e, whether it is Evacuee Trust Property or not. As per section 10 of the Act 1975, the cutoff date of June 1964 and June 1968 have been provided, prior to which, if urban or rural evacuee trust properties respectively are utilized bonafidely against verified claims i,e, PTDs issued, then they would be treated as having been validly transferred to the Chief Settlement Commissioner. Admittedly, the respondents' PTD was issued. In the year 1964, hence the suit property cannot be treated as evacuee trust property.
' For all the foregoing reasons, this Appeal is dismissed. The issue of limitation shall be decided by the learned Judge in Chambers in C the High Court of Sindh upon evidence produced by the parties.