SHAHID BILAL HASSAN-J: Tersely, the petitioners instituted a suit for declaration regarding land measuring 1 Kanal 19-Marlas falling in Khata No.66/61 Min, Khatuni No.93, Khasra No.4/4/1, situated at Chak No.12-A, TDA, Tehsil Darya Khan, District Bhakkar, alleging therein that the petitioners may be declared owner in possession of the suit property and gift mutation No.103 dated 16.07.1999 and exchange mutation No.105 may be declared null and void, result of fraud, misrepresentation and result of connivance inter se the respondents and revenue officials. The suit was filed on 01.09.2001, however, the same was withdrawn on 29.01.2004 due to some technical defects with permission to file a fresh suit. Then, fresh suit was filed in the year 2006, which was also withdrawn on 30.11.2010 with permission to file a fresh suit. Again, the petitioners instituted suit on 07.04.2012. The respondents appeared and contested the suit. They filed an application under Order VII, Rule 11, Code of Civil Procedure, 1908 seeking rejection of the plaint being barred by law of limitation. The petitioners submitted reply to the said application. The learned trial Court accepted the application and rejected the plaint vide impugned order and decree dated 17.10.2015. The petitioners being aggrieved preferred an appeal but the same was dismissed vide impugned judgment and decree dated 07.12.2017; hence, the instant revision petition.
2. Heard.
3. Perusal of Rule 11 of Order VII, Code of Civil Procedure, 1908, divulges that it envisions four categories where the Court could reject a plaint and the first three are where the deficiencies in the plaint could be redressed. For instance, under clause (a) where the plaint is rejected on the ground that it does not disclose a cause of action, subject to law of limitation, a fresh plaint could be presented by overcoming the defect and disclosing the cause of action. Likewise, under clause (b) where the plaint is rejected on failure(s) of plaintiff to correct the valuation, again subject to law of limitation, the defect could be removed and a fresh plaint could be presented. In the same manner, under clause (c) if the plaint is rejected on failure of the plaintiff to supply the requisite stamp paper, subject to law of limitation, such defect could be remedied by supplying the court fees. However, where the plaint under clause (d) of Rule 11 is rejected on the ground that the suit is barred by any law, the filing of fresh plaint is not envisaged unless the findings declaring the suit to be barred by any law are reversed and, therefore, the withdrawal of the suit could not be allowed with the permission to file a fresh. It would, of course, be unlawful to revive a dead cause without bringing back the suit to life. In the like manner, Order XXIII, Rule 1, C.P.C., which allows the plaintiff to withdraw his suit or abandon part of his claim, empowers the Court to allow such withdrawal with permission to file a fresh suit. However, such permission is to be granted by the Court after satisfying itself and recording reasons that unless such permission is allowed, the suit would fail by reason of some formal defect. The Court can also allow such withdrawal with permission to file a fresh suit in case where the Court is of the view that there are other sufficient grounds for allowing plaintiff to withdraw his suit with the permission to file a fresh suit. A case law study shows that the suit may be allowed to be withdrawn in a case where the plaintiff fails to implead necessary party or where the suit as framed does not lie or the suit would fail on account of misjoinder of parties or causes of action or where the material document is not stamped or where prayer for necessary relief has been omitted or where the suit has been erroneously valued and cases of like nature. It is always to be kept in mind that where such defect could be remedied by allowing amendments, the Court should liberally exercise such powers but within the parameters prescribed by Order VI, Rule 17, C.P.C. Besides while exercising powers under this provision the Court must identify the defect and record its satisfaction that the defect is formal and does not go to the root of the case. It is also to be kept in mind that such withdrawal would not automatically set-aside the judgment and decree which has come against the plaintiff unless such judgment and decree is set-aside by the Court after due application of mind. If the permission is granted for filing a fresh suit under Order XXIII, Rule 1, C.P.C., then, pursuant to Order XXIII, Rule 2, the plaintiff is bound by the law of limitation in the same manner as if the first suit had not been filed, therefore, no fresh cause of action would accrue from the date when such permission was granted by the Court. Reference is made to the cases of Muhammad Saeed Bacha and another v. Late Badshah Amir and others (2011 SCMR 345).
4. Cases falling in the first category; Section 5 of the Limitation Act, 1908 is applicable which vests the Court with vast discretion of condoning delay in cases where the Court is satisfied that the application seeking condonation of delay discloses "sufficient cause" by accounting for each day of delay occasioned in filing the application, appeal, review or revision.
On the other hand, the Courts on the original side while trying a suit as required under section 3 of the Limitation Act, 1908 are bound to dismiss the suit if it is found to be barred by time notwithstanding that limitation has not been set up as defense. The Court has no power to condone the delay in filing the suit but could exclude time, the concession whereof is provided in sections 4 to 25 of the Limitation Act, 1908, only in cases where the plaintiff has set up in the plaint one of such grounds available in the Act such as disability, minority, insanity, proceedings bona fide before a Court without jurisdiction etc. and not otherwise. In fact, the language used in Section 3 of the Act ibid is mandatory in nature and imposes a duty upon the Court to dismiss the suit instituted after the expiry of period provided unless the plaintiff seeks exclusion of time by pleading in the plaint one of the grounds provided in Sections 4 to 25 of the Limitation Act. Reference can be made to the cases of Haji Abdul Karim and others v. Messrs Florida Builders (Pvt.) Limited (PLD 2012 SC 247) and Hakim Muhammad Buta and another v. Habib Ahmad and others (PLD 1985 SC 153). In cases where limitation is not set up in defense and consequently a waiver is pleaded, the Courts notwithstanding such waiver are bound to decide the question of limitation in accordance with law. Reference can readily be made to the case of Ahsan Ali and others v. District Judge and others (PLD 1969 SC 167).
5. It has been held in number of judgments by Apex Court of the country that the Law of Limitation is not a mere technicality and that once limitation expires, a right accrues in favour of the other side by operation of law which cannot lightly be taken away. Reference can be made to the judgments of this Court in the case of Asad Ali v. Bank of Punjab (PLD 2020 SC 736), Ghulam Qadir v. Abdul Wadood (PLD 2016 SC 712), Abdul Sattar v. Federation of Pakistan (2013 SCMR 911) and Muhammad Islam v. Inspector-General of Police (2011 SCMR 8).
6. The present petitioners alleged that fraud revealed upon them in the year 2001 but they subsequently did not avail the remedy of filing suit after withdrawing the earlier suits within period of limitation and the argument that the fresh cause of action would accrue from the date of withdrawal of second suit has no force rather the same is based on miscomprehension of law. As such, the learned Courts below have rightly appreciated law on the subject and have reached to a just conclusion that the suit of the petitioners is barred by limitation. No illegality and irregularity has been committed while passing the impugned judgments and decrees, warranting interference by this Court in exercise of revisional jurisdiction under section 115, Code of Civil Procedure, 1908, which otherwise has a limited scope.
7. For the foregoing reasons and while placing reliance on the judgments supra as well as judgment reported as Muhammad Anwar (deceased) through L.Rs. and others v. Essa and others (PLD 2022 SC 716), the revision petition in hand fails and the same stands dismissed. No order as to the costs.