FAHIM AHMED SIDDIQUI, J---. Through the instant Civil Revision Application, the applicant has called in question the order of rejection of plaint passed on 21.12.2006 by the learned Senior Civil Judge-II, Larkana in F.C. Suit No.23/2006, which was maintained by the impugned judgment dated 02.10.2009 passed by the Additional District Judge-II, Larkana.
2. The facts in a nutshell are that prior to the aforesaid suit, three suits were filed by the applicant with different prayers viz. the Specific Performance of Contract, Injunction, Declaration and Injunction so also Restoration of Possession. Those suits were withdrawn with the permission to file fresh suit under the no objection of the other side. Consequently, the lawsuit as mentioned earlier was filed for "Specific Performance of Contract, Restoration of possession, Compensation and Permanent Injunction." In the said suit, the applicant (plaintiff) claimed the ownership on C.S No.819 as well as adjacent S.C. No.818/2-B (from which 86 square feet in possession of applicants) which was allotted to respondents Nos.01 to 06 and purchased by applicants in 1974 for a consideration of Rs.12,900/- out of which Rs.10,000/-was paid and the remaining to be paid at the time of registration of sale deed. The applicants/plaintiffs further asserted in the plaint that their predecessor (Abdul Majeed) had constructed five shops over some portion of his house situated in C.S. No.818/2-B area 86 square feet. It is further asserted that one Faiz Mohammed son of Haji Noor Mohammed (predecessor of respondents Nos.07 to 14) owned and possessed a property bearing C.S. No.818/1-A/1 (area 501-08 square yards). The house of Faiz Muhammad is adjacent to the plot purchased by the said Abdul Majeed viz. C.S No.818/2-B, and he came to him (Abdul Majeed) and claimed himself to be its owner and threatened that he would occupy the same forcibly; hence the suit mentioned above was filed.
3. The learned counsel for the applicants assailed the order of the Court of the first instance as well as appellate Court from different angles. According to him, the earlier three suits filed by the applicants were withdrawn with the permission to file fresh suit for which the respondents have given no objection in writing before the trial court. He submitted that the application under Order XXIII, Rule 1, C.P.C. was allowed on 31.01.2006 and subsequently the new suit being F.C. Suit No.23/2006 was filed on 17.2.2006 and after a long time i.e. on 21.12.2006 the trial court rejected plaint under Order VII, Rule 11 of C.P.C. He pointed out that the last suit being Suit No.23/2006 was for the purpose of possession, compensation, mandatory and permanent injunction and it is settled law that there is no limitation for possession. He further submitted that it is the settled law that limitation is a mix question of facts and law as such without framing of issues, plaint cannot be rejected. According to him, an application under Order VII, Rule 11, C.P.C. requires evidence if it is on the point of limitation. He submitted that as the previous suits were withdrawn with the permission to file a new suit for which respondents have given no objection; therefore, the new suit is not hit by "principle of res judicata" while limitation is also covered on the ground of previous suits. According to him, the new suit of the applicants is maintainable in all respect, and the order of the rejection of the same is neither proper nor legal. During arguments, the learned counsel for the applicants relied upon the following case laws:
(i) Dr. Salahuddin Ahmed v. Ministry of Works and another (1983 CLC 457).
(ii) Bashir Ahmed v. Government of Sindh (1984 CLC 3061).
(iii) Qazi Sher Muhammad and others v. Nazar Ali Shah and others (1985 CLC 2883).
(iv) Mst. Miraj Bibi v. Additional District Judge and others (1991 CLC 1405).
(v) Messers Kashmirian (Pvt.) Ltd., through Shomaila Loan Marker and 6 others v. Ghulam Nabi Gujjar and another (2006 CLC 482).
(vi) Abdul Hamid and another v. Dilawar Hussain alias Bhalli and others (2007 SCM R 945).
(vii) Habib Bank Limited v. Aizad Hassan and another (2007 M LD 1687).
4. The learned counsel for the respondents while opposing the instant revision application drew the attention of this Court towards some paragraphs of the plaint. According to him, for the purpose of deciding an application under Order VII, Rule 11, C.P.C. the contents of the plaint are looked into and if it is evident from the substance of the plaint that it is barred by limitation; then the plaint should be rejected. According to him, from the title of the plaint, it is clear that the main relief claimed in the suit was the 'specific performance' while possession was the ancillary relief of specific performance. He submitted that it would be clear from the contents of paragraph number 13 of the plaint that the suit was barred by limitation. He contended that the agreement was shown to be executed ion 12-6-1974 while the lawsuit was filed in 1990 with main relief of the specific perfornance as such the same was rightly declared as time barred. In response to a query, he submitted that as per record no objection was ever raised regarding limitation in the previous three suits which were withdrawn. He argued that no doubt the respondents have given no objection regarding withdrawal of previous three suits, but the same was by reserving a right to raise any legal objection of limitation on the new suit. He submitted that the learned judge of the trial court regarding his findings based on the plaint only and he did not look into any exterior material. According to him, there is no need to frame issue regarding limitation because the point of limitation was floating on the record. He submitted that the order of the trial Court, as well as the judgment of appellate Court, are according to legal norms and principle, as such he prayed for dismissal of the instant civil revision. In support of his contention, he relied upon the following case laws:
(i) George Levi v. Mrs. Zakia Sulatan (1984 SCMR 3066).
(ii) Muhammad Khan v. Muhammad Amin through LRs and others (2008 SCM R 913).
5. I have heard the arguments advanced and had gone through the material placed before me. In the instant case, the premise of consideration is whether the suit is liable to be rejected on the point of limitation?
6. The well-settled proposition is that while considering the application under Order VII, Rule 11, C.P.C., it is not necessary to take into consideration the defence set up by the defendant in his written statement or other documents. The question whether plaint discloses any cause of action and whether it is barred by any law is to be decided by looking at the averments in the plaint itself without any prejudice from the defence set up in the written statement. While considering the application under Order VII, Rule 11, the strength or weakness of the case of the plaintiff is not to be examined. It is settled that the Court has to find out from the allegations made in the plaint itself and not beyond it as to whether the plaintiff has initiated any vexatious or frivolous litigation. The Court cannot take into account materials beyond the plaint to declare that the case of the plaintiff is trivial or is barred by any law. In the instant matter, it cannot be denied that the suit was filed for "Specific Performance" of an agreement and the claim of possession is the ancillary relief of the specific performance. It is also established from the record that possession of the disputed property was never handed over to the applicants in any manner.
7. It is settled law that the plaint has to be looked as a whole to consider whether the plaint is liable to be rejected either on the ground of limitation or on the other reasons as enumerated under Order VII, Rule 11 of C.P.C. It is also settled that law of limitation is a mixed question of law and fact; therefore, when the pleading in the plaint makes it clear that the suit is barred by limitation, the plaint can be rejected on the ground of limitation. However, when there are allegations in the plaint, which require a roving enquiry to give a finding whether the suit is barred by limitation and in that context, the Court should conduct a roving enquiry to find out whether the suit is barred by limitation. Bearing these principles in mind, now it will be seen whether the allegations made in the plaint, which was filed before the trial Court, make out a case that the suit is barred by limitation.
8. I have gone through the entire plaint of the suit initiated before the trial Court. It is alleged in the plaint that the plaintiff entered into an agreement with the defendants Nos.1 to 6 on 12-06-1974 and payment of Rs.10,000/- was made out of agreed amount of Rs.12,900/- and remaining amount to be paid within short time i.e. on the date of registration of sale deed. It is alleged in paragraph 9 of the plaint that the cause of action arose in or about May, 1999 when defendant No.7 came to the house of the plaintiff and claimed ownership of the property in question. I would like to reproduce paragraph 9 of the plaint, which is as under: "9. That the cause of action actually arose in about May, 1999 when the defendant No.7 came to house of plaintiff and claimed ownership of plot on which 05 shops of plaintiff are constructed and defendant No.7 offered costs of material to plaintiff which he refused and plaintiff being real owner did not accept his demand therefore defendant No.7 threatened the plaintiff to occupy the shops forcibly."
The cause of action was further defined in paragraph 13, which is reproduced as under: "13. That the cause of action actually accrued in about May, 1999 for Specific Performance of Contract when the defendants Nos.1 to 6 refused to execute the registered deed of sale hence F.C.
Suit No.90 of 1999 was filed within time and so also when the plaintiff was dispossessed on 25.07.1999 from the 05 shops illegally therefore the suit for restoration of possession under section 9 of Specific Relief Act and compensation for un-authorized use at the rate of Rs.500/- per shop and the total amount of Rs.2,500/- for 05 shops was claimed from August 1999 and said suit was filed on 04.08.1999 within time but all the 03 suits were withdrawn with the permission to file a fresh suit by correcting the contents of all the 03 suits and therefore the present suit is within time due to reason that the permission is granted by this Hon'tile Court on an application under Order XXIII, Rule 1, C.P.C. on 31.01.2006 with no objection from other side for allowing an application under Order XXIII, Rule 1, C.P.C."
9. It is admitted position that prior to the present suit, the applicants filed three different suits with the various prayers but subsequently all those suits were withdrawn by filing an application D under Order XXIII, Rule 1 of C.P.C. with the permission to file new suit covering the contents of all the suits previously filed. The respondents' counsel has given no objection in the following terms: "No objection to the withdrawal of suits only. I reserve the right to raise any legal objections of limitation etc., on fresh suit."
From the above no objection, it is clear that the same was not unconditional, but the fact is that the counsel for the respondents has manifested his intention to challenge the limitation of the proposed fresh suit.
10. As mentioned above, the question of limitation is admittedly a mixed question of facts and law, but it is not necessary that the question of limitation remains an intricate issue because of the complexity of facts and law. In those cases, where the issue of limitation is obvious and crystal- clear, there will be no need of roving enquiry by formulating a point or issue and leading evidence for the same. It is settled law that there will be no need of enquiry if the question of limitation is floating on the record without any proper explanation and no allegation is made in the plaint, which requires evidence to determine the time for accruing of the cause of action for the plaintiff.
In this respect the learned counsel for the respondents has rightly taken reliance of the case reported as Muhammad Khan v. Muhammad Amin through LRs and others (2008 SCM R 913) wherein the honourable Supreme Court held as under: "On perusal of paragraph 18 of the plaint it appears that the petitioner in the plaint averred that the cause of action accrued to the plaintiff in the month of January, 2000 when the petitioners approached the defendants, to sale the suit property after issuance of T.O. Form. The plaint in the suits were admittedly filed on 5-1-2004. Evidently the suit was filed beyond the period of limitation prescribed under Article 113 of the Limitation Act it must be stated that the fact of limitation is evident from the averments made in the plaint itself. In such circumstances, the trial Court was not required to frame issue and record evidence."
11.The Honourable Supreme Court has taken the similar view in the case reported as Akram Yaseen and others v. Asif Yaseen and others (2013 SCM R 1099).
12.In paragraph 13 of the plaint, the applicants (plaintiffs of the suit) took a plea that since the new suit was filed after the permission of the Court; therefore, the period of limitation will cover under the date of filing of the previous suits. In this respect, my observation is that no doubt under Order XXIII, Rule 1, C.P.C. provides for the filing of the fresh suit with the permission of the Court.
However, under Order XXIII, Rule 2, C.P.C., the plaintiff is bound by the law of limitation in the same manner as if the previous suit had not been instituted and the plain interpretation of this rule is that period of limitation would have started in accordance to cause of action firstly accrued. In this respect, I would like to take reliance from the case of the honourable Supreme Court reported as Mst. Anwar Bibi and others v. Abdul Hameed (2002 SCM R 144) in which it is held as: "Besides the first suit was withdrawn under Rule 1 of Order XXIII, C.P.C., therefore, section 14 of the Limitation Act was not applicable in view of the provisions of rule 2 of said Order which provides that in any fresh suit instituted on permission granted under rule 1 the plaintiff shall be bound by law of limitation in the same manner as if first suit has not been instituted."
13. The learned counsel for the applicants has relied upon a teaming number of case laws in support of his contention. In the cases of Dr. Salahuddin Ahmed v. Ministry of Works and another (1983 CLC 457) and Mst. Miraj Bibi v. Additional District Judge and others (1991 CLC 1405), it is held that if mala fide is alleged in the plaint, then the evidence is needed. The said case law is inapplicable because no specific incident of mala-fide is quoted in the plaint nor it was pointed out by the learned counsel for the applicant. He also relied upon the case of Qazi Sher Muhammad and others v. Nazar Ali Shah and others (1985 CLC 2883) in which it is held that the plaint can be rejected on the basis of the averment of the plaint only, and this aspect has been discussed in detail in the preceding paragraphs. The learned counsel for the applicants also relied upon the case of Messrs Kashmirian (Pvt.) Ltd., through Shomaila Loan Marker and 6 others v. Ghulam Nabi Gujjar and another (2006 CLC 482), which pertains to the question of adverse possession as such the same is inapplicable to the facts of the present case. The learned counsel for the applicant also relied upon the case reported as Abdul Hamid and another v. Dilawar Hussain alias Bhalli and others 2007 SCM R 945), but the same is also not applicable to the present case as in the case of Abdul Hamid (supra), the plaint was rejected because of insufficient court fee and not on account of limitation.
14. In the present case, the agreement on which the applicants are relied upon for the specific performance was executed on 12.6.1974 while the suit for the specific performance of the same was filed in the year 2006. As far as the cause of action is concerned, it is claimed to be accrued to the plaintiff (applicants) in the year 1999. The period of limitation under Article 113 of Limitation Act, 1908 is provided being 'three years'. Because of paragraph 9 and paragraph 13 of plaint, it is evident that the cause of action was shown to be accrued in the year 1999 for the specific performance of the contract allegedly executed in the year 1974, as such the suit was badly time-barred. Upon consideration of the plaint averments the two forums below have rightly come to the conclusion that the suit is barred by limitation and No substantial grounds are made out by the applicants (plaintiff) warranting the interference of the Order of both the Courts below.
15. The consequential outcome of the above discussion is that the instant civil revision is dismissed with no order as to cost.