1. ' SYED SAEEDUDDIN NASIR, J.---This order will dispose of C.M.A. No,6153 of 2014 which is an application under Order VII, Rule 11 read with section 151, C.P.C. Filed by defendant No,5 in this Suit.
2. Khawaja Shamsul Islam, learned counsel for defendant No,5, has addressed the Court on the following points in support of this application.
3. ' The suit as framed is not maintainable, besides the same is filed without any cause of action, which is evident from the body of plaint itself, more particularly, the so-called-Plots Nos.C-6, C-7, C-8 and C-9, Scheme No,5, Block-9, Clifton, Karachi, are non-existent and have no concern whatsoever with the Commercial Plot of land of the answering defendant No,5, which is plot bearing No,GC-1, Block-9, Clifton, Karachi, admeasuring 244.22 Sq. Yards, which was allotted to defendant No,5 by the then Karachi Development Authority (KDA), in terms of allotment order dated 5-3-1977 and the lease of the same plot was also executed in favour of defendant No,5 on 5- 4-2006. It is next contended by learned counsel for defendant No,5 that this suit jointly filed by four plaintiffs in respect of their so called alleged separate four plots, is also barred under the Court Fees Act, as the plaintiffs have to pay separate Court Fee for each plot. The plaint itself discloses that the suit of the plaintiffs is hopelessly time barred as well as barred by law. The plaintiffs have approached this Court with unclean hands on the basis of forged documents and allotment orders dated 28-5-1982 (Aimexures `E' and 'F1' to 'F3' of the plaint at pages 93 to 99 of the file) allegedly issued under the orders of Chief Minister of Sindh, whereas it is a matter of record and history of Sindh that from 1977 to 1985 there was no Chief Minister in the Province of Sindh, as it was a martial law regime and the affairs of Province of Sindh were being run by Martial Law Administrator, Zone 'C'. It is further pointed out that the date shown for issuance of so-called alleged allotment orders dated 28-5-1982 was a Friday, which was a closed weekly holiday at that time, hence forgery committed by the plaintiffs is apparent on record and the plaintiffs are liable to be prosecuted for committing perjury and producing forged documents before the Court. It is next contended by learned counsel for defendant No,5 that the entire plaint is based on conjecture and surmises and the plaintiffs are guilty of deliberate concealing the material facts as well as documents malafidely and dishonestly. The suit filed against defendant No,1 is patently misconceived and it has been unnecessarily dragged into the present litigation without any cause of action inasmuch as the defendant No,1 is only a security providing agency whose services have. Been engaged by defendant No,5 in order to thwart repeated attempts by the plaintiffs and other land grabbers to encroach upon the plot of defendant No,5. The defendant No,1 has deployed security guards on the plot of defendant No,5 on the proper Chowki/ observation posts since June 2006, hence the suit against defendant No,1 is also liable to be dismissed. The learned counsel for defendant No,5 has also reiterated the contents of written-statement in his application, under Order VII, Rule 11, C.P.C.
4. Learned counsel for defendant No,5 has referred to Annexure `B/4' of his written-statement appears at page 245 of the file and is a copy of C.P. No,D-1749 of 2009 presented before this Court on 19-8-2009 wherein the present plaintiffs are petitioners and vide order dated 17-12-2013 the learned Division Bench of this Court has observed as under:-- ' The case of the petitioners is that as domestic and International players they on 28-5-1982 were allotted plots bearing No, (i) C-6, Block-9, Category "C", measuring 600 square yards, (ii) C-7, Block-9, Category "C", measuring 600 square yards, C-8, Block-9, Category "C", measuring 600 square yards and C-9, Block-9, Category "C", measuring 600 square yards respectively. It is also claimed that the petitioners paid all charges and the possession of the plots was also handed over to them. However, subsequently the said plots were occupied by some land grabbers which prompted the petitioners to file the instant petition praying that after ascertaining the ownership and physical possession of the plots, in question they may be declared to be lawful owners and given legal protection.
3. In response to the claim of the petitioners, counter affidavit to the petition has been filed on behalf of CDGK. In paragraph 5 of the counter affidavit it is stated that as per their record and the approved plan of Scheme No,5, the plots in question do not exist in Block-9 of the said Scheme, hence the question of allotment of the said plots to the petitioners never arose. It is also stated that the MPGO, CDGK in its letter dated 23-5-2005 has also confirmed that the said plots do not exist in the approved plan of Scheme No,5, Karachi. In paragraph 6 of the counter affidavit it is further stated that the allotment order and possession order claimed by the petitioners are forged and fabricated and contain bogus signatures of one Shamsuddin Siddiqi, the then Administrative Officer, Chief Minister Secretariat; whereas on that date i,e, 28-5-1982 there was no Chief Minister's Secretary as there was Martial law in the country that was effective from 5-7-1977 and the province was being run by the Martial Law Administrator Zone "C". It is stated that this very fact establishes that the documents, on the basis of which title is being claimed, are forged and fabricated.
5. Counsel for CDGK has also shown a lay out plan in order to establish that the plots in question do not exist in Scheme-5. We have seen such plan. In such lay out plan the plots claimed by the petitioners do not exist."
6. ' Thereafter, learned counsel for defendant No,5 referred to Annexure 'D' to his written-statement appearing at page 379 of the file, which is minutes of meeting of Reconstitution Committee for the Missing Files wherein the Committee has given the following observations with regard to the plot of defendant No,5 Junaid Khan:-- "(i) Commercial plot No,GC-1, Block-9, Scheme-5.
7. ' The then DG, KDA had allowed reconstitution of record file on 17-3-2001 and later on withdraw his order on 26-4-2001 with the advice to place the matter in the reconstitution' Committee appointed by the Governing Body. Accordingly, the case was placed in the Committee wherein Mr. Junaid Khan allottee appeared before the Committee and produced the original documents which were compared with the office record and found in order. The Addl. DO (W&S) Clifton Division, CDGK has also confirmed the possession in his custody. The District Officer (Recovery) has verified the payment and MPGO Department has also confirmed the existence of plot in layout plan of Scheme-5, hence reconstitution of record file was allowed."
8. ' Learned counsel for defendant No,5 has relied upon Annexure 'E' to the written-statement, which is an Indenture of Lease between KDA and Junaid Khan, the defendant No,5, which is duly registered on 5-4-2006 at the Office of Sub-Registrar-II, Clifton Town, Karachi. The next document relied upon by the counsel for defendant No,5 is Annexure 'G/23' of the written-statement at page 461 of the file, which is a letter of verification of defendant No,5's Plot No,GC-1, Block-9, Clifton Scheme-5, Karachi, issued by the Deputy District Officer-H (Commercial Cell), Land Management, CDGK, which states as under:- "With reference to your letter No, Nil dated 30-5-2006 on the above noted subject, it is intimated that according to record of this office commercial plot No,GC-1, Block-9, measuring 2442 sq. Yds, Clifton, Karachi was originally allotted to Mr. Junaid Khan son of Mr. S.A.M. Khan vide allotment order dated 5-3-1977 and still stands allotted in his name. Moreover the said plot was also leased out in the name of Mr. Junaid Khan on 5-4-2006."
9. ' Thereafter, learned counsel for defendant No,5 has referred to Annexures 'H/1', 'I' and 'I/1' to the written-statement appearing at pages 469, 471 and 473 of the file, which are electricity bill and two payments challans of CDGK respectively in the name of defendant No,5. In order to substantiate his arguments the learned counsel for defendant No,5 has relied upon the following case-law on the point of limitation:-
(1) National Bank of Pakistan v. Jalib Saeed (PLD 2007 Quetta 1)
(2) Noor Muhammad and others v. Additional District Judge, Gojra and others (2004 MLD 1321)
(3) Nazir Ahmad v. Imdad Hussain and others (2005 YLR 1096)
(4) Muhammad Sami v. Additional District Judge, Sargodha and others (2007 SCMR 621)
(5) Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited Karachi (2009 YLR 451)
(6) Muhammad Anwar v. Pak Arab Refinery Limited (2007 CLC 1821).
10. ' Learned counsel for defendant No,5 contends that the period prescribed for filing of a suit for cancellation of document is governed by Article 91 of the Limitation Act 1908, which is three years of the execution of the document sought to be cancelled or three years from the date of knowledge of the execution of such document. For the sake of convenience article 91 of the Limitation Act 1908 is reproduced as under:-- {{TABLE}} Description of suit Period of limitation Time from which period begins to run 1 2 3
91. To cancel or set aside an instrument not otherwise provided for. Three years When the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him. {{TABLE}} ' The learned counsel for defendant No,5 further contends that under section 3 of the Limitation Act every suit, appeal preferred an application made after the period of limitation prescribed therefrom for the first schedule shall be dismissed, although limitation has not been setup as a defence. The learned counsel further argued that as per Section 54 of the Transfer of Property Act, 1882, the sale in respect of the plot in question has been completed between the defendant No,5 and the CDGK defendant No,2. Learned counsel for defendant No,5 has further placed reliance upon Article 100 of the Qanun-e-Shahadat Order 1984, which is reproduced as under:-- "100. Presumption as to documents thirty years old.---Where any document, purporting or proved to be thirty years old, is produced from any custody which the Court in the particular case considers proper, the court may presume that the signature and every other part of such document, which purports to be in the handwriting of any particular person, is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.
11. ' Explanation. For the purposes of this Article and Article 92, documents are (said) to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render such an origin probable."
12. ' The learned counsel for defendant No,5 has further relied upon the following case-law:--
(1) Bolan Beverages (Pvt.) Limited v. Pepsico. Inc. And others (PLD 2004 SC 860)
(2) Raja Ali Shan v. Messrs Essem Hotel Limited and others (2007 SCMR 741)
(3) Mir Sahib Jan v. Janan (2011 SCMR 27)
(4) Abdur Rahman Mobashir and others v. Syed Amir All Shah Bokhari and others (PLD 1978 Lahore 113)
13. ' Turning now to the arguments of learned counsel for the plaintiffs, Ms. Humaira Aftab; it is argued in rebuttal that the cause of action arose to the plaintiffs for filing the present suit when on 17-12- 2013 C.P. No,D-1749 of 2009 was dismissed by a learned Division Bench of this Court with an observation "that the disputed questions of facts involved in the case can only be decided after evidence is recorded which exercise cannot be conducted in the constitutional jurisdiction of this Court."
14. ' The learned counsel appearing for the plaintiffs has not been able to extend any further argument in support of the maintainability of the suit on the point of limitation.
15. ' I have heard the learned counsel for the parties, perused the material available on the record of the case and have appreciated the case-law relied upon as aforesaid.
16. ' It is on admitted position that the plaintiffs have filed the allotment order dated 5-3-1977 issued by the Karachi Development Authority in favour of defendant No,5 (Annexure 'A' at page 21 of the file to the plaint), possession order dated 19-2-1987 in favour of defendant No,5. (Annexure 'Al' at page 23 of the file to the plaint), acknowledge of possession order dated 19-2-1987 in favour of defendant No,5 (Annexure 'A/2' at page 27 of the file to the plaint), letter dated 5-7-2005 of CDGK to defendant No,5 informing that Reconstitution Committee has approved the reconstitution of record file in respect of Commercial Plot No,GC-1, Block-9, measuring 2442.22 sq. Yds., Clifton, Scheme-5 (Annexure 'A/3' at page 29 of the plaint), certificate dated 5-4-2006 showing the name of defendant No,5 as allottee in respect of suit plot (Annexure 'A/4' at page 31 of the file to the plaint) and payment challans in favour of Karachi Development Authority made by defendant No,5 .
17. (Annexures `A/6' to 'A/.10' at pages 35, 37, 39, 41 and 43 of the file to the plaint), facts that these documents filed by the plaintiffs themselves as aforesaid clearly show that the plaintiffs were all along aware of the allotment being made in favour of defendant No,5, but they did not take any concurred step in order to get leases in respect of their plots of land executed by the competent authority who allotted the said plots to them and get the allotment made in favour of defendant No,5 cancelled. It is also crystal clear that the execution of the lease deed dated 5-4-2006 was well within the knowledge of plaintiffs when they filed C.P. No,D-2459 of 2007 wherein the defendant No,5 was impleaded as a necessary party, however, the plaintiffs deliberately refused to mention the name of newly added intervenors Muhammad Saleern and Junaid Khan the defendant No,5, in the amended title filed by them on 13th September 2008 and the' counsel for the newly joined respondents in the aforesaid constitution petition raised objections and grievances that despite orders having been passed the intervenors are not being impleaded by the petitioners as respondents. Therefore, the learned Division Bench of this Court observed that."it appears that petitioners are no more interested to comply with the orders of this Court and, therefore, this petition is hereby dismissed for non-prosecution." This is order dated 12-11-2008. Thereafter, the petitioners again filed C.P. No,D-1749 of 2009, which was presented before this Court on 19-8-2009 and despite the fact that the petitioners were acutely conscious of the fact that the Indenture of Lease dated 5-4-2006 has already been executed in favour of defendant No, 5, they opted to file a constitution petition and not a suit for cancellation of the aforesaid documents and that also without impleading the defendant No,5 as a necessary party therein. It is also pertinent to mention here that even in the plaint the plaintiffs have failed to mention the date and, source of knowledge of the execution of Indenture of Lease dated 5-4-2006 executed by the Karachi Development Authority in favour of defendant No,5. Therefore, I am of the considered view that the present suit is hopelessly time barred by seven (7) years ten (10) months and sixteen (16) days, consequently, I allow CMA No,6153 of 2014 and reject the plaint.
18. ' C.M.A. No,15120 OF 2014.---Since the main plaint of the instant suit has of CMA No,2289 of 2014, which is an application under Order XXXIX, Rules 1 and 2, C.P.C. And was dismissed for non- prosecution on 20-8-2014, has become infructuous and is also dismissed as such.