MUHAMMAD YOUNIS THAHEEM, J.--- Through instant Revision Petition, plaintiff/petitioner has challenged the concurrent judgments and decrees dated 03.01.2015, passed by the learned District Judge, Bannu and judgment and decree dated 07.7.2014 of the learned trial Court of Civil Judge-X, Bannu whereby the latter rejected the plaint under Order VII, Rule 11(a) and (d) of C.P.C. While the former upheld the same.
2. Brief facts of the case are that the present petitioner filed a suit for specific performance and perpetual mandatory injunction regarding transfer of agricultural land in his name situated in Mouza Kot Qalandar pertaining to Khata No.249 khasra Nos.409, 397, 406, 398, 408 and 407 consists of total area measuring 9 kanals, 11 marlas out of which area measuring 1 kanal 2 marlas as per averments in the plaint was agreed by respondent to transfer it in lieu of Rs.26000/- some 20 years ago in the year 1993 and now defendant is refusing for performance that oral agreement to sell.
3. Upon this defendant was summoned who filed application for rejection of plaint under Order VII, rule 11 of C.P.C. Which after replication and hearing of arguments was accepted and plaint of the petitioner/plaintiff was rejected vide order dated 07.7.2014.
4. Dis-satisfied from the order dated 07.7.2014 of the learned trial court the petitioner filed Regular Civil Appeal before the learned District Judge, Bannu who after hearing the parties, dismissed the appeal vide its judgment and decree dated 03.01.2015.
5. The present petitioner feeling aggrieved from the order of the learned trial Court and judgment and decree of the learned appellate Court dated 03.01.2015 filed instant revision petition to set aside both the above said order and judgment inter alia on the grounds mentioned therein.
6. Arguments heard and record perused.
7. From the perusal of record it reveals that plaintiff/present petitioner filed suit for specific performance and perpetual mandatory injunction regarding transfer of agricultural land in his name situated in Mouza Kot Qalandar pertaining to Khata No.249 khasra Nos.409, 397, 406, 398, 408 and 407 consists of total area measuring 9 kanals 11 marlas out of which area measuring 1 kanal 2 marlas was allegedly agreed by respondent to transfer it in lieu of Rs.26000/- some 20 years ago and is now refusing for the performance of said agreement to sell. It is pertinent to mention that previous to the instant suit plaintiff had filed a similar nature of suit No.61/A against the present respondent in respect of property bearing Khata Nos.596, 595 and 246 pertaining to the same mouza and the same suit was also rejected at appellate stage by learned Additional District Judge-II, Bannu under Order VII, R-11 of C.P.C. Vide its order dated 04.10.2013 wherein it was held that: "Therefore, on allowing this revision petition, I order rejection of the plaint under Order VII, rule 11(a) of the Code of Civil Procedure, 1908. Needless to mention that the plaintiff may bring fresh suit on the same cause of action under rule 13 of Order-VII of the Code of Civil Procedure, 1908, which, if filed, is to be decided on its own merits."
8. After going through the above order of the then learned Additional District Judge-II, Bannu it transpires that the previous suit was rejected due to non-affixation of required Court fee and the matter was disposed of in above terms, so once again the present petitioner instituted instant fresh suit.
9. Another fact which is noticeable is that in the previous suit the plaintiff described area measuring 1 kanal pertaining to three Khatas Nos. 246, 595 and 596 Khasra No.1-3 while in the instant suit the description of area pertains to only one Khata No.249 and different survey numbers measuring area 1 kanal 2 marlas but in lieu of same alleged amount of Rs.26000/-.
10. The defendants on appearance again submitted application for the rejection of plaint under Order-VII, rule 11 of C.P.C. On variety of grounds mentioned in the application for rejection of plaint being badly time barred, in view of Article 113 of the Limitation Act to which the present petitioner submitted replication and after hearing both the parties the learned trial Court of Civil Judge/JM-X, Bannu rejected the plaint vide its order dated 07.7.2014, wherein it is held that: "Thus in view of the above, it is held that the averments made in the plaint had proved that the plaint does not disclose a cause of action and it is time barred under the law of Limitation Act, 1908. Therefore, by accepting the instant application the plaint in hand stands rejected under Order-VA Rule-11 (a) and (d) C.P.C."
11. After rejection of the plaint the present petitioner being dissatisfied from the said order dated 07.07.2014 filed Regular Civil Appeal before the learned District Judge, Bannu, who after hearing the parties also dismissed the appeal by giving its findings which are reproduced herein below: "As admitted by the appellant/plaintiff; in his plaint, that he had, previously, filed a suit against the respondent/defendant on the same cause of action, wherein the respondent/ defendant's application for rejection of plaint, was accepted by the appellate Court with permission to the appellant/plaintiff to file a fresh suit. However, perusal of order of the appellate Court (learned ADJ-II Bannu) dated 04.10.2013, available on case-file, reveals that the said permission is statutory permission under Order VII, Rule 11 of the C.P.C., according to which mere rejection of plaint under Order VII, Rule 11, C.P.C. Shall not preclude a plaintiff from presenting a fresh plaint, in respect of the same cause of action. However, such a permission is subject to the law of limitation and the principle of Res judicata. If any reference is required, '2009 SCMR 1079 and 2007 SCMR 945' would be particular on the point. Since in the present case, the cause of action had, admittedly, been arisen to the appellant/plaintiff, twenty years back, therefore, his suit, being hopelessly time- barred, could not be proceeded with."
12. The learned counsel for petitioner contended that the parties are real brothers inter se and the time of said agreement averred in the plaint is 20 years back i.e. 1993 and due to reposing of confidence on respondent being his real brother remained silent; further submitted that the question of limitation is mixed question of facts and law hence the provisions of Article 113 of the Limitation Act are not applicable to circumstances of the instant case in strict sense and the other arguments that though at the time of arguments before the appellate Court the predecessor of the present petitioners was alive but after arguments and before announcement of judgment on 03.01.2015 their predecessor Sher Khan died on 27.12.2014, so the judgment of the appellate Court below is technically against a dead person.
13. The arguments advanced by petitioners' side have no force as on the one hand the period of limitation for filing suit for specific performance is provided as 3 years which is governed by Article 113 of the Limitation Act and the reckoning of time would take start from the date, month and year of agreement in case time for performance is not stipulated. The relevant Article 113 is reproduced as below: 113.Specific performance ofThree The date fixed for the a contract. years performance, or if no such date is fixed, when the plaintiff has notice that performance is refused.
14. In the instant case according to the plant alleged agreement took place some 20 years back in the year 1993 and the instant suit was brought on 27.03.2014, which is surely a suit beyond the prescribed period of limitation and is thus barred by limitation.
15. While adverting to the other arguments that at the time of announcement of impugned judgment dated 03.01.2015 plaintiff Sher Khan had died so the judgment is against a dead person, hence case be remanded back first for the appointment of legal heirs of Sher Khan, their predecessor, therefore, impugned judgment and decree is the result of an irregularity and is liable to be set aside. This argument is also not tenable as petitioner could not take refuge in such like technical objection. No one among the legal heirs moved any application for appointment of L.Rs.
Of deceased Sher Khan after arguments and before announcement of impugned judgment. As the predecessor of present petitioner died just after completion of arguments and before announcement of judgment so the appellate Court has rightly proceeded and made announcement of judgment impugned herein and no abatment is there by reason of death of either party after hearing of the case and before the judgment. In this regard wisdom is derived from the judgment of Hon'ble Supreme Court of Pakistan Mst. Kubra Begum and others v. Mst. Shad Begum and others (1993 SCM R 2096). The relevant portion of the judgment is reproduced below: "Court in such event could proceed with the suit and announce judgment or order; such judgment or order, notwithstanding death of plaintiff, would have the same force and effect as pronounced before death of such plaintiff. "
' This Court also takes notice of variations in the pleadings of previous suit and instant suit regarding Khatas as earlier discussed about description of land. Thus the learned appellate Court below was, correct in its decision by maintaining the order of learned trial Court.
16. In the light of above discussion this Court holds that both- the learned courts below have adverted correctly in accordance with law to the legal position of the case. This Court observes no any illegality wrong reading of record and such like frivolous and time barred suits should be buried on their inception. Object of rule 11 of Order VII, C.P.C. Is primarily to save the parties from the rigors of frivolous litigation at the very inception of the proceedings, and if the Court on the basis of averments made in the plaint and documents available, comes to the conclusion that even if all the allegations made in the plaint are proved, plaintiff would not be entitled to the relief claimed, Court would be justified in, rejecting the plaint in exercise of powers available under Order VII, rule 11 of C.P.C. As earlier held that suit of plaintiff/ petitioner was badly time barred by limitation. In this respect this Court places reliance on the principles enunciated in the judgment titled Muhammad Saddiq (deceased) through L. Rs. And others v. Mushtaq and others on (2011 SCM R 239), hence this petition being bereft of merit is dismissed with costs.