AHMAD NADEEM ARSHAD, J. Through this civil revision, the petitioners have called in question the legality and validity of judgment and decree dated 15.08.2009 passed by the learned appellate court, whereby while allowing the appeal of predecessor of respondent No.1-A decreed her suit.
2. The facts in brevity are that the predecessor of respondent No.1-A (Mst. Haleem an Bibi) initially instituted a suit for declaration titled "Mst. Haleeman Bibi Vs. Suba etc." on 26.02.1992 contending therein that she is entitled to get 1/6 share from the legacy of her father Boda being his legal heir and the order dated 15.08.1981 whereby the suit property was allotted in the name of petitioner/defendant No.1 (Suba) and sale deed No.1248 dated 05.05.1982 executed in favour of Suba, mutation No.154 dated 28.08.1982 and mutation No.155 dated 13.09.1982 are against facts and law, void ab-initio, result of fraud and forgery and has no effect upon the rights of the plaintif f.
She contended in her plaint that her fathe r namely Boda was allotted land measuring 100-kanal in a co-operative farming society scheme and after his death, she being one of the legal heirs is entitled to get her inheritance from the suit property but the petitioner/defendant No.1 fraudulently got allotted the suit property in his name by concealing true facts. She further stated in her plaint that cause of action was accrued in her favour one and a half months before the institution of the suit. The suit was hotly contested by the petitioner/defendant No.1 by stating that the Assistant Commissioner/Collector cancelled the allotment in the name of Boda vide order dated 30.12.1966 which was never challenged and the suit property was allotted to him in his personal capacity . He also objected that the suit of respondent No.1 was time-barred. The learned trial court after full-fledged trial, dismissed the suit vide judgment and decree dated 19.02.1995. Feeling aggrieved, she preferred an appeal, during the proceedings of appeal, the suit was withdrawn on the ground of some formal defects by seeking permission to file a fresh one vide order dated 31.01.2001. In this scenario fresh suit was instituted on 17.02.2001, which was hotly contested by the petitioners/defendants. The learned trial court keeping in view the divergent pleadings of the parties framed necessary issues and invited the parties to produce their respective evidence, after recording of evidence pro and contra, dismissed the suit vide judgment and decree dated 30.07.2008. Feeling aggrieved, she preferred an appeal before the learned appellate court, which was allowed vide judgment and decree dated 15.08.2009. Resultantly , the judgment and decree of the learned trial court were set-aside and the suit of respondent No.1/plaintif f was decreed. Having dissatisfied by the said judgme nt and decree of the learned appellate court, the petitioners have filed the instant civil revision.
3. I have heard the arguments of learn ed counsel for the parties at length and also gone through the record minutely with their able assistance.
4. On 01.12.2021 learned counsel for the petitioners raised an objection that suit of respondent No.1/plaintif f was barred by time as her earlier suit was instituted on 26.02.1992 when as per her stance alleged cause of action had accrued in her favour . When confronte d with this legal proposition to the learned counsel for respondent No.1/plaintif f he sought some time to prepare his brief on this point and the case was adjourned for today . Learned counsel for respondent No.1 while relying upon "MUHAMMAD ZUBAIR and others versus MUHAMMAD SHARIF" (2005 SCMR 1217 ), "PEER BAKSH through LRs and others versus Mst. KHANZADI and others"
(2016 SCMR 1417 ) and "MOON ENTERPRISER CNG STATION RAWALPINDI versus SUI NOR THERN GAS PIPELINES LIMITED through General Manager , Rawalpindi and another" (2020 SCMR 300) maintains that no limitation runs against the issue of fraud especially in the matters involving inheritance, particularly right of female.
The suit of Mst. Haleema Bibi was within time as the earlier suit was withdrawn in presence of learned counsel for the petitioners and he while recording his statement on 31.01.2001 categorically stated that he had no objection for withdrawal of appeal and institution of the fresh suit.
5. Undeniably respondent No.1/plaintif f instituted her first suit for declaration with the permanent injunction on 26.02.1992 with regard to the same relief as prayed in the suit subject matter of this civil revision. In the earlier suit, she specifically mentioned that cause of action has arisen in her favour one and a half months before the institution of that suit. Meaning thereby cause of action had been accrued in January 1992, whereas the present suit was instituted on 17.02.2001, after a period of nine years from the previous suit. The limitation for instituting the suit for declaration was not provided in the Limitation Act, 1908. However , with regard to computing the period of limitation residuary Article 120 of the Limitation Act, 1908 is applied and according to which the limitation for instituting a suit, where no period of limitation is provided, is six years when the right to sue accrues. Certainly with regard to the present suit right to sue accrued to the plaintif f in the year 1992. For ease Article 120 of the Limitation Act, 1908 is reproduced as under:- Description of suit Period of LimitationTime from which period begins to run
120. Suit for which no period of limitation is provided elsewhere in this schedule.Six years When the right to sue accrues
6. The provision of Rule 2 of Order XXIII of the Civil Procedure Code, 1908 provides that the law of limitation is applicable in the same manner as if the first suit had not been instituted. For ready reference Order XXIII Rule 2 of CPC is as under:- "2. Limitation law not affected by first suit.- In any fresh suit instituted on permission granted under the last preceding rule, the plaintiff shall be bound by the law of limitation in the same manner as if the first suit had not been instituted."
7. From the perusal of said rule it appears that the plaintif f shall be bound by the law of limitation in the same manner as if the first suit had not been instituted. The withdrawal of earlier suit with permission to institute the fresh suit, the permission will save the fresh suit only from the bar contained in sub-rule (3) of Order XXIII Rule 1 C.P.C., according to which on an unconditional withdrawal the plaintif f is precluded from instituting a fresh suit on the same cause of action. It will not save the fresh suit from the bar of limitation.
8. In order to consider the question, whether the time consumed in the proceedin gs arising out of the earlier suit was liable to be excluded in view of subsection (1) of section 14 of the Limitation Act, 1908, it is better to see section 14 of the Limitation Act, 1908, which reads as under:- "14. Exclusion of time of proceeding bona fide in Court without jurisdiction. (1) In computing the period of limitation prescribed for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of appeal, against the defendant, shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature, is unable to entertain it.
(2) In computing the period of limitation prescribed for any application the time during which the application has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or in a Court of appeal, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction, or other cause of a like nature is unable to entertain it."
9. From a bare reading of that section it appears that said section provides that in computing the period of limitation prescribed for any suit or application, the time during which the plaintif f or the appe llant has been prosecuting with due diligence another civil proceedings whether in a Court of the first stance or in a Court of appeal against the defendant shall be excluded where the proceeding is founded upon the same cause of action or for the same relief and is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of a like nature is unable to entertain it. The Hon'ble Supreme Court of Pakistan while dealing with the applicability of section 14 of the Act
(ibid) in a case reported as "Mst. ANW AR BIBI and others versus ABDUL HAMEED" (2002 SCMR 144) held as under:- "Section 14 of Limitation Act applies to a case where the Court by its own order has terminated the suit or proceedings on the ground that it has no jurisdiction to entertain it or that there is some other cause of like nature which makes it impossible for the limitation of a party bona fide pursuing his case and seeking adjudication on merits but nevertheless prevented from getting decision on merits on account of defect of jurisdiction or other cause of like nature. The Phrase "other cause of like nature" has a meaning ejusdem generis that the words, "defect of jurisdiction". The first suit it would appear hereinafter was not withdrawn for defect of jurisdiction or other cause of like nature. The order dated 10-1-1973 passed by the learned District Judge, Campbellpur in C.A. No.1 of 1972 mentioned that the respondent had submitted that there was certain technic al and formal defects in the suit and it was likely to fail on the said ground, therefore, he requested to permit him to withdraw the suit with opportunity to bring fresh one on the same cause of action. On perusal of the record it would appear no particulars as to technical and formal defects were stated in the submissions made for the withdrawal of the first suit filed by the respondent. It would also appear that second suit was also filed in the same Court. 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."
10. The full bench of Hon'ble Supreme Court of Pakistan in another case, while defining with due diligent prosecution of the case in good faith as stated in section 14 of the Limitation Act, 1908, reported as "MUHAMMAD SAEED BACHA and another versus Late BADSHAH AMIR and others" ( 2011 SCMR 345 ) held as under:- "It was, therefore, in view of the provisions of section 14 of the Act obligatory on the part of the appellants/plaintiffs for discharging the initial onus justifying for exclusion of the period spent in prosecuting the previous proceedings, which factum is completely wanting in the instant case though essentially , it was required on the part of the appellants/plaintiffs to have pleaded material facts in the plaint to justify the grant of relief within the purview of section 14 of the Limitation Act. It was conceded before this Court in the earlier proceedings ,that the suit was independently filed and for such defect in the form of the suit, permission was accorded to the appellants/plaintiffs in the said appeal to withdraw the suit in order to file a fresh suit on the same subject matter and cause of action, hence; in such view of the matter , it could not be presumed that the plaintiffs had been diligently prosecuting the previous legal proceedings before the courts of law; as for the first time before this Court, it was submitted on behalf of the appellants/plaintiffs (in the previous suit) that they may be permitted to withdraw the suit and at no stage of proceedings of the case, up to the level of High Court even the compete ncy of the suit or otherwise was looked into, rather; the conduct of proceedings and prosecuting the suit throughout, abundantly indicates that in a casual and cursory manner the suit was being prosecuted by the plaintiffs, therefore, the period spent in prosecuting the proceedings in previous suit for want of due diligence on the part of the appellants/ plaintiffs could not be allowed to be excluded from, preceding the date on which the fresh suit was instituted. The previous suit in view of the averments, as contained in the plaint, to have essentially instituted for in a representative capacity after compliance of the required formalities, which was not done and, thus; the provisions of the law governing such kind of suit was disregarded and instead the proceedings were initiated by institu ting the simplicitor suit without complying with the provisions of Order I, Rule 8, C.P.C., therefore, hardly it could be said that it was a matter in which due diligence was shown in filing the suit and thereafter , the same was prosecuted with good faith. The ignorance of law for having disregarded the mandatory provisions of the law can hardly in the instant case, furnished legitimate and valid basis to exclude the period spent in prosecuting the suit; hence, in such circumstances on the institution of fresh suit by virtue of provisions of Order XXIII, Rule 2, C.P.C., the appellants/plaintiffs shall be bound by the law of limitation in a same manner , as if the first suit has not been instituted, therefore, in view of the averments as contained with regard to the accrual of cause of action referred to herein above, the fresh suit instituted by the appellants was badly barred by limitation."
11. The Hon'ble Supreme Court of Pakistan while elaborating this proposition of law in a case reported as "MUHAMMAD YOUSAF and others versus NAZEER AHMED KHAN (DECEASED) through LRs and others"
(2021 SCMR 1775) held as under:- "Order XXIII, Rule 1(2), C.P.C. also provides that the limitation for filing of the suit would start from the date when the original suit was instituted and it cannot start from the date when the permiss ion was granted for filing of the fresh suit. The present suit appears to have been filed initially on 20.01.1979 and it was alleged that even at that time, it was barred by time. Even if limitation is computed from the said date i.e. 20.01.1979 (the date of institution of the first suit) permission could not have been granted because more than 40 years had elapsed between the alleged cause of action on the basis of which the suit was filed and the date when the suit was actually filed."
12. In the sequence of the above, there is no cavil to the legal proposition that after withdrawal of earlier suit limitation will be counted from the date of institution of that suit as once limitation starts on the same cause of action, it does not discontinue. The object of permission to file a fresh suit is that technicalities of law may not create hurdle in the way of the plaintif f but in no case, the Rule discussed (supra) gives protection to a plaintif f from the bar of limitation. Furthermore keeping in view the said Rule, a plaintif f will be responsible for the time he/she consumed in the earlier suit as the said period shall be counted against him/her . In case of the institution of a fresh suit on the basis of permission granted under Rule 1 of Order XXIII, C.P.C. the plaintif f is bound by the law of limitation in the manner as if the first suit had not been instituted. Therefore, it will be seen that not only the period consumed in the form of earlier suit instituted by the plaintif f is to be counted and not to be excluded for the purpose of limitation and applicability of section 14 of the Limitation Act has also been excluded as it is to be deemed that no first suit had earlier been instituted.
13. Keeping in view the prevailing law of limitation the suit of respondent No.1/plaintif f was barred by limitation. The case laws cited by the learned counsel for respondent No.1/plaintif f do not apply to the facts and circumstances of this case, thus, not helpful for the plaintif f.
14. Epitome of the above discussion is that this civil revision is allowed and the impugned judgment and decree dated 15.08.2009 passed by the learned appellate court is set aside and resultantly the suit instituted by respondent No.1/plaintif f shall stand dismissed with no order as to costs. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.