YOUSUF ALI SAYEED, J. Through the instant Application under section 115, C.P.C., the Applicant seeks revision of the Judgment and Decree made on 30.01.2012 by learned IVth Additional District Judge Karachi, Central in Civil Appeal No. 144/2007 (the "Impugned Judgment"), whereby the Judgment of 28.09.2007 and consequent Decree made on 03.10.2007 by the learned IVth Senior Civil Judge, Karachi, Central, in Civil Suit No. 359/1993 (the "Underlying Suit") was set aside.
2. The dispute inter se the parties, relates to a residential plot bearing No. 568, Waheedabad, Sheet No. K-28, Trans Lyari, measuring 40.56 square yards, in respect of which a lease hid been executed in favour of the Applicant by the Respondent No.2 (i.e. KMC,' Directorate of Katchi Abadies) on 21.05 .1985.
3. In terms of the Underlying Suit, the Respondent No.1 had assailed the Applicants title to the aforementioned property claiming that he (i.e. the Respondent No.1) was the lawful owner thereof under lease from the KMC issued to him in the year 1989, and alleging that the Applicant had been inducted thereon by him as a tenant, and had then contrived to obtain the aforesaid lease through collusion and fraud.
4. As such, in this backdrop it was prayed in terms of the Underlying Suit that the learned trial Court be pleased: i. To declare that defendant No.1 in collusion with Defendants Nos.2 and 3 has obtained fraudulent lease dated 21.5.1985 in respect of the land on which the defendant is put as tenant i.e. bearing No. DV/83-A (New No.569 and portion of 568), Waheedabad, Gulbahar, Karachi which shall be deemed as cancelled. ii. Declare lease dated 21.5.1985 as to the plot bearing No. DV/83-A (New No.569 and portion of 568), Waheedabad, Gulbahar, Karachi measuring 40 sq. yards obtained by misrepresentation and fraud and on forged documents be deemed as cancelled. iii. Defendant No.3 be directed to issue such directions to defendant No. 2 that lease issued by them in favour of Defendant No.1 on 21.5.1985 be cancelled and that same has no legal value. iv. Declare that defendant No.1 is tenant of the plaintiff in respect of tenement in question under valid tenancy. v. Grant injunction against the defendants or any person holding possession of plot with construction 'thereon bearing No. DV/83-A (New No.569 and portion of 568), Waheedabad, Gulbahar, Karachi from interfering or selling or creating third party interest. vi. Any other relief which this Honourable Court may deem fit and proper under the circumstances stated above. vii. Costs of the suit be awarded." [Sic]
5. In his written statement, the Applicant had impugned the maintainability of the Underlying Suit on the ground that Civil Suit Number 879 of 1991 had previously been filed by the Respondent No.1 on the very same cause of action, eliciting the very same relief, which had been dismissed by the learned IIIrd Senior Civil Judge, Karachi, Central, on 13.10.1994, as well as on the ground that the matter was time barred. Accordingly, of the issues framed for determination by the learned trial Court, the first two issues were:.
(i) Whether the suit is maintainable under the law?
(ii) Whether suit is time barred?"
6. At the final stage, the Underlying Suit came to be dismissed in terms of the Judgment of the learned Civil Judge on the ground that the Underlying Suit had been filed after lapse of the period of limitation prescribed under Article 91 of the Limitation Act 1908, hence was time barred, and also that the dismissal of earlier Suit Number 879 of 1991 operated as res judicata, hence the Underlying Suit was barred under section 11, C.P.C. The relevant excerpts from the Judgment of the learned Civil Judge are as follows: Defendant No.1 but the present suit has been filed in the year 1995 after about four years, whereas Article 91 Limitation Act provides a period of three years for cancellation of an instrument, as such suit of the Plaintiff is time barred."
"From perusal of record it appears that the Defendant No.1 in the written statement specifically stated that the Plaintiff filed Civil Suit No.879/1991 which was dismissed on 13-10-1994. The suit was filed on the similar grounds therefore suit is barred by section 11, C.P.C." [Sic]
7. On Appeal, the Judgment of the learned Civil Judge was set aside in terms of the Impugned Judgment, and the Underlying Suit was decreed to the extent of Prayers I, II, III, and V.
8. Assailing the Impugned Judgment, learned counsel for the Applicant contended that whilst the Underlying Suit had been dismissed on points of limitation and res judicata, the appellate Court had simply sidestepped these issues and proceeded to set aside the Judgment and Decree of the trial Court. It was contended that the appellate Court had materially erred in proceeding on merit without addressing the question of maintainability and had also fallen into error in its assessment of the matter on merits in as much as the written statement of the Respondent No.2 (i.e. KMC) had been treated as a piece of evidence when the Respondent No.2 had never even participated in the evidentiary proceedings ensuing before the trial Court and such written statement had never been exhibited.
9. He invited attention to the final paragraph of the Impugned Judgment, and submitted that the learned ADJ had touched upon the conduct of the Respondent No.1 in a most superficial manner, and proceeded to virtually ignore that the Underlying Suit was time barred, hence effectively condoning the delay, albeit that no such discretion was vested in a Court in relation to the institution of suits. The relevant excerpt to which reference was made reads as follows: "So far the appellant is concerned, no doubt he remained negligent in participating the R.C.S. No.879/91 and FRA so in my view he suffered a lot as it is second round of litigation which he is facing so keeping in view the above circumstances, rendered on concluding that the judgment dated 28.09.2007 and decree dated 03.10.2007 require interference, hence the same is set aside and appeal of the appellant is allowed, resultantly the suit of plaintiff is decreed to the extent to prayer clauses I, II, III and V, with no order as to costs."
10. Learned counsel for the Applicant referred to Sections 3 and 9 of the Limitation Act, as well as Article 91 thereof, and submitted that the Underlying Suit was barred by limitation and had been rightly dismissed on this point by the learned trial Court. Furthermore, referring to Order IX, Rule 13, C.P.C., he submitted that a subsequent suit on the same cause of action claiming the same relief was not maintainable. He submitted that in glossing over this aspect, the appellate Court had acted in the exercise of its jurisdiction illegally, and prayed that the Impugned Judgment accordingly be set aside and that the judgment of the trial Court be restored.
11. Conversely, addressing the point of section 11, C.P.C., learned counsel for the Respondent No.1 he submitted that dismissal of the earlier suit did not operate as res judicata as there had been no adjudication on merits and that on the date of dismissal of the earlier Suit (i.e. 13.10.1994) the Applicant, who was the defendant in that matter, had also not been in attendance, hence the Order IX, Rule VIII was not attracted. He places reliance upon the case of NED University of Engineering and Technology, Karachi v. Tariq Ali and 2 others PLD 1993 Kar. 626. Turning to the point of limitation, learned counsel merely sought to contend that adjudication of a dispute was required to be undertaken on merits and could not be based on technicalities, hence limitation ought not to be applied when the plaintiff had a good case.
12. Whilst considering the subject of limitation, one can do no better than to refer to the judgment of the Honourable Supreme Court in the case reported as Khushi Muhammad through L.Rs and others v. Mst. Fazal Bibi and others PLD 2016 SC 872, where certains settled propositions on the subject were considered and it was observed that: '(i) The law of limitation is a statute of repose, designed to quieten title and to bar stale and water logged disputes and is to be strictly complied with. Statutes of limitation, by their very nature are strict and inflexible. The Act does not confer a right; it only regulates the rights of the parties. Such a regulatory enactment cannot be allowed to extinguish vested rights or curtail remedies, unless all the conditions for extinguishment of rights and curtailment of remedies are fully complied with in letter and spirit. There is no scope in limitation law for any equitable or ethical construction to get over them. Justice, equity and good conscience do not override the law of limitation. Their object is to prevent stale demands and so they ought to be construed strictly;
(ii) The hurdles of limitation cannot be crossed under the guise of any hardships or imagined inherent discretionary jurisdiction of the court. Ignorance, negligence, mistake or hardship does not save limitation, nor does poverty of the parties;
(iii) It is salutary to construe exceptions or exemptions to a provision in a statute of limitation rather liberally while a strict construction is enjoined as regards the main provision. For when such a provision is set up as a defence to an action, it has to be clearly seen if the case comes strictly within the ambit of the provision;
(iv) There is absolutely no room for the exercise of any imagined judicial discretion vis--vis interpretation of a provision, whatever hardship may result from following strictly the statutory provision. There is no scope for any equity. The court cannot claim any special inherent equity jurisdiction;
(v) A statute of limitation instead of being viewed in an unfavourable light, as an unjust and discreditable defence, should have received such support from courts of justice as would have made it what it was intended emphatically to be, a statute of repose. It can be rightly stated that the plea of limitation cannot be deemed as an unjust or discreditable defence. There is nothing morally wrong and there is no disparagement to the party pleading it. It is not a mere technical plea as it is based on sound public policy and no one should be deprived of the right he has gained by the law. It is indeed often a righteous defence. The court has to only see if the defence is good in law and not if it is moral or conscientious;
(vi) The intention of the Law of Limitation is not to give a right where there is not one, but to interpose a bar after a certain period to a suit to enforce an existing right.
(vii) The Law of Limitation is an artificial mode conceived to terminate justiciable disputes. It has therefore to be construed strictly with a leaning to benefit the suitor;
(viii) Construing the Preamble and section 5 of the Act it will be seen that the fundamental principle is to induce the Claimants to be prompt in claiming rights. Unexplained delay or laches on the part of those who are expected to be aware and conscious of the legal position and who have facilities for proper legal assistance can hardly be encouraged or countenanced."
13. Having considered the arguments advanced at the bar in juxtaposition with the record; it falls to considered that even if the dismissal of the earlier suit does not operate as res judicata for the reasons ascribed on behalf of the Respondent No.1, it is nonetheless apparent that the Underlying Suit was time barred, as determined by the learned Civil Judge, and it is evident that such aspect was not considered by the appellate Court on any legal platitude, but instead was proceeded on the basis of a personal conception of hardship as per which the learned ADJ saw fit to overlook/condone limitation, which could not have been done.
14. In view of the foregoing, it is evident that the appellate Court acted with material irregularity and that the Impugned Judgment cannot be sustained, hence this Revision succeeds with the result that the Impugned Judgment is aside and the judgment of the learned trial Court restored.