CH. MUHAMMAD MASOOD JAHANGIR, J. Precisely, State land had admittedly been allotted to respondents/defendants, but same was cancelled by the competent Authority vide order dated 18.12.1963. Subsequently, the respondents allegedly agreed to sell the rights attached with the area in dispute (when they were no more its allottees) via agreement to sell dated 21.05.1984 in favour of the petitioner, however the property could not be alienated in the name of latter, who along with his brother viz, Muhammad Khalid, initially instituted declaratory suit for confirmation of their title on 25.03.2014, but thereafter through order dated 12.12.2017, it was withdrawn with permission to file fresh one. Then petitioner along with his brother long thereafter on 22.02.2022 filed suit in hand, which was also accompanied by application under Order XXXIX, Rules 1 & 2, C.P.C. for grant of temporary injunction, but regretted by the Courts below vide impugned unanimous orders dated 24.02.2022 and 30.06.2022 respectively. Being aggrieved, now this petition has been filed.
2. It is contended by learned counsel for the .petitioner that her client and his brother are still in occupation of the disputed property, thus they fully developed prima facie arguable case, but both the Courts below failed to consider said crucial aspect of the case. During the course of arguments when she was confronted that even main suit of the petitioner is squarely hit by law of limitation, she accentuated that the earlier one was withdrawn with permission to file another and consequent thereupon, the instant lis was filed within five years, whereas Article 120 of the Limitation Act, 1908 provided six years in this behalf, is misconceived. The mere withdrawal of the previous suit to the extent of aforesaid parties and institution of present one even with permission of the Court neither provided fresh cause of action nor extended point of limitation. In this regard, Rule 2 of Order XXIII, C.P.C. being relevant and applicable is reproduced hereunder: "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."
A bare perusal thereof makes it clear that in case of withdrawal of first suit, plaintiff(s) is/are bound by law of limitation to proceed with his/their subsequent suit, as if the first one was never filed. It is so, because section 9 of the Limitation Act, 1908, reproduced as below:- "Where once time has begun to run, no subsequent disability or inability to sue stops it." made it clear that time once starts running, no subsequent event can stop the same. The apex Court in case titled "Muhammad Saeed Bacha and another v. Late Badshah Amir and others"
(2011 SCMR 345) has already settled the point under discussion while holding that:- "In our considered opinion, the beneficial applicability of the provision of Section 14 of the Limitation Act would not simply be dependent on the withdrawal of the suit with the permission of the Court to institute a fresh suit on the same cause of action; rather, in view of the provision of the Order XXIII, Rule 2, C.P.C, on the application of law of limitation as if the previous suit so instituted was within time but if the same was hit by limitation, the burden would always be on the plaintiff to show that he had been with due diligence prosecuting another civil proceedings founded/upon the same cause of action and acted in good faith in a Court which, for the defect of jurisdiction or other cause like nature is unable to entertain it read with the explanations to section 14 of the Limitation Act, to be entitled to the exclusion of the period consumed in such proceedings."
The hon'ble Supreme Court recently via decision styled as Syed Athar Hussain Shah v. Haji Muhammad Riaz and another (2022 SCMR 778) has once again clinched the same proposition with more clarity. Its para 11 being relevant is given below:- "We now proceed to consider the applicable period of limitation. The first suit had sought the specific performance of the agreement and the second suit also the cancellation of the sale deed. For both these causes of action the prescribed period of limitation is three years as respectively provided under Article 113 and Article 91 of the First Schedule of the Limitation Act, 1908, The petitioner's third suit had sought the specific performance of the agreement, the cancellation of the sale deed, which was executed when there was no suit pending, and a declaration with regard to the ownership of the land. The third suit was filed after three years and was time barred with regard to seeking the specific performance of the agreement and for the cancellation of the sale deed. We are now left to consider whether the third suit was saved because it had also sought a declaration of ownership of the land as submitted by the petitioner's learned counsel for which Article 120 prescribes six years period of limitation. The Privy Council in the case of Janki Kunwar v. Ajit Singh held that the substance of the relief has to be seen, and if a relief is added for which there is a longer period of limitation it would not save the suit. That was a case in which the plaintiff had added the relief of possession of immovable property, which had 12 years limitation, to the relief of setting aside a deed of sale, for which the period of limitation was three years under Article 91. In Muhammad Javaid v. Rashid Arshad this Court held that, 'If the main relief is time barred and the bar is not surmounted by the respondent, the incidental and consequential relief has to go away along with it and the suit is liable to be dismissed on account of being time barred". An examination of the petitioner's plaint makes it clear that the petitioner had primarily sought the specific performance of the agreement, then the cancellation of the sale deed and had added the declaratory relief to primarily save the third suit from the consequence of having been filed beyond the period of limitation."
3. In view of available record, which otherwise is admitted by learned counsel for the petitioner that the first suit was instituted on 25.03.2014, as such cause of action accrued and limitation started running at least from that very point. There is no denial that period to file suit for declaration in terms of Article 120 of the Limitation Act, 1908 is six years and the suit in hand instituted on 22.02.2022 for seeking declaration was certainly barred by time. Per mandate of S. 3 of the Act ibid, sine non qua for the Court to scrutinize the plaint, application and appeal on the point of limitation regardless of the fact that said issue had been agitated by either party or not. The relevant provision of law for clarity and ready reference is reproduced here:- "Section 3 Dismissal of suit, etc, instituted, etc, after period of limitation. Subject to the provisions contained in Sections 4 to 25 (inclusive), every suit instituted, appeal preferred and application made after the period of limitation prescribed therefore by the First Schedule shall be dismissed, although limitation has not been set up as a defence."
It is an established principle by now that law of limitation is not merely a technicality, rather said statute furnishes certainty/regularity to the human affairs, matters and dealings. There is also no cavil that law helps the vigilant and not indolent, whereas after expiry of prescribed limitation, a vested right always accrued in favour of the rivalry. See Muhammad Nawaz and 3 others v. Mst.
Saina Bibi and 3 others (1974 SCMR 223) and Central Board of Revenue, Islamabad through Collector of Customs, Sialkot Dry Port, Samberial District Sialkot and others v. Messrs Raja Industries (Pvt.) Ltd through General Manager and 3 others (1998 SCMR 307). It is settled law that if the proceedings are launched beyond the scope of limitation, the Court cannot assume jurisdiction. There is no second opinion that law of limitation being statute of repose is designed to quit title as well as to bar, stale water logged disputes, which must be strictly complied with, thus this Court cannot refrain itself from applying the said law even if the other party is not here to raise such objection.
4. There is yet another damaging factor that the petitioner had sought decree for declaration of title on the basis of alleged agreement to sell dated 21.05.1984 (from non-title holder), which even did not create any right, title or interest in the property. On this score as well suit for declaration on the face of it was not maintainable. Reliance is placed on Muhammad Yousaf v. Munawar Hussain and 5 others (2000 SCMR 204), wherein it was held as under:- "In this view of the matter, the right course for the petitioner would have been to institute a suit for specific performance if at all such agreement was executed. The agreement to sell by itself cannot confer any title on the vendee because the same is not a title deed and such agreement does not confer any proprietary right, and thus, it is obvious that the declaratory decree as envisaged by section 42 of the Specific Relief Act, cannot be awarded because declaration can only be given in respect of a legal right or character. The only right arising out of an agreement to sell is to seek its specific performance and in case the vendee has been put in possession, the same is protected under' section 53-A of the, Act. It was also urged before the Lahore High Court that the agreement to sell should be construed as sale-deed. This plea was repelled and rightly so."
No doubt in suitable gases, the Court can mold the alternate relief, but here the petitioner possessed no cause of action to claim for specific performance of the purported agreement even beyond the scope of three years provided under Article 113 of the Act ibid as instant suit was filed after more than thirty-eight years of its execution, which too was bound to fail on this score alone.
5. Additionally, well established by now that a plaint can be rejected when comes within mischief of O.VII, R.11, C.P.C., which provision for ready reference is reproduced hereunder:-
11. Rejection of plaint.--The plaint shall be rejected in the following cases:-
(a) where it does not disclose a cause of action;
(b) where the relief claimed is under-valued, and the plaintiff, on being required by the court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficient stamped, and the plaintiff on being required by the Court to supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law.
There is no cavil that under aforesaid clause (d) as soon as Court comes to the conclusion that suit is barred by law, the plaint is to be straightaway rejected to relieve the defendant(s) of vexatious litigation. This power can be exercised at any stage and even by the Appellate or Revisional Court.
It also cannot be denied that the Court is empowered to reject the plaint suo motu without there being any application filed by rival party, when comes to the conclusion that it does not disclose any cause of action or barred by time/law. To arrive at this view, this Court is fortified by the case law reported as Muhammad Shafi and 5 others v. Amanat Ali and 5 others (2005 MLD 559), wherein while relying upon series of judgments cited as Muhammad Swaleh and another v.
Messrs United Grain and Fodder Agencies (PLD 1964 SC 97), H.M. Saya and Co. Karachi v. Wazir Ali Industries Limited, Karachi and another (PLD 1969 SC 65), Municipal Committee Bahawalpur v. Sh. Aziz Elahi (PLD 1970 SC 506), Muhammad Salim and others v. D.C.O and others (1994 MLD 295) and Muhammad Saleem and another v. Mst. Zarin Begum and 4 others (1996 MLD 1959) held as under:- 'Now dealing with the petitioner's stance that the revisional Court could not itself reject the plaint as the same was not before it and instead it should have remitted the case to the trial Court for doing the same activity under its direction. No doubt scope of the revisional jurisdiction is controlled by certain prerequisites laid down in section 115 of the Code and those, powers are circumscribed by the condition of excess of failure to exercise and exercise of jurisdiction in an illegal manner but in spite of it, this jurisdiction is very vast and corresponds to the remedy of "certiorari" which, though discretionary yet can be invoked suo motu as well and the Court can make such order in the case, as it thinks fit. Since, in the language of the section 115 of the Code, this Court can make such order as may be needed in the circumstances of the case, hence on invocation of this jurisdiction, the entire case becomes open for scrutiny," thus, there is no ambiguity that during the course of exercise of revisional jurisdiction, the Court can pass any order needed in the circumstances of the case including rejection of plaint, if the same is required on the touchstone of the provision referred above. The limitation in such like cases is purely a question of law and where the suit is apparently found to be time barred, the Court is bound to reject the plaint, because that issue cannot be left unanswered and necessarily to be attended before proceeding any further. In such situation, learned Trial Court originally and learned Appellate Court below, at the most, should have resorted to the aforesaid provision to nip the bud at the inception, but both of them omitted to take its notice. When the suit filed by the petitioner along with his brother is found to be clearly time barred, this Court in exercise of visitorial/corrective powers vested under revisional jurisdiction has no other option, but to reject its plaint. For the foregoing discussion, not only instant Civil Revision is dismissed confirming impugned unanimous orders of learned fora below, rather per mandate of 0. VII, R. 11, C.P.C., the plaint of suit is rejected as well.
6. Before parting with this order, the Deputy Commissioner, Bhakkar is directed to resume possession of disputed property in favour of State forthwith and submit report in this regard to this Court through Deputy Registrar (Judl) within a fortnight. Mr. Naveed Aslam, Addl. Advocate-General as well as Deputy Registrar (Judicial) of this Court will convey this direction to the Authority concerned for strict compliance. 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.