Judgments/orders and decree dated 19.7.2018 and 21.1.2022 of the courts below whereby the plaint in a suit for specific performance was rejected being barred by time and the appeal thereagainst also ended in dismissal, have been called into question in the present civil revision.
2. Facts from which this petition arises are that on 29.5.2014, the petitioners instituted a suit for specific performance of an agreement of sale dated 08.07.1996 in respect of land measuring one kanal comprising khasra Nos. 2018 to 2020 and also for annulment and cancellation of mutation No. 2200 dated 24.1.2001 whereby the land subject matter of suit was transferred in favour of Aflatoon son of Abdul Ghafoor defendant No.3 in the suit, now represented by respondent No.3(i) in the instant revision petition. Stance taken in the plaint was that through the agreement of sale, land was agreed to be sold, the entire amount of consideration was paid and that the petitioners initially filed a suit for specific performance of agreement which was withdrawn with permission to bring fresh one vide order dated 08.5.2014 and that despite the agreement of sale, the land was illegally transferred in favour of respondent No.3 which was liable to be annulled. With these assertions decree for specific performance of agreement and also the cancellation of mutation referred supra was claimed. Defendant Nos.1 and 2 in the suit filed their written statement and also moved an application under Order VII, Rule 11, C.P.C. for rejection of plaint on the plea that the suit was hopelessly barred by time; that the petitioners initially filed a suit on 29.3.2003 for specific performance of agreement dated 08.7.1996 on the same cause of action which was dismissed as withdrawn on 25.2.2010 with permission to file a fresh suit subject to payment of costs of Rs.500/- and that the petitioners thereafter filed another suit in the year 2010 on the same subject which too was withdrawn on 08.5.2014 with permission to file the fresh one subject to payment of Rs.3,000/- as costs and that the suit out of which the present petition emanates was filed on 29.5.2014 which obviously was barred by time and that as such the plaint was liable to be rejected. The application after due contest was allowed by the learned Civil Judge vide order dated 19.7.2018 and appeal thereagainst preferred by the petitioner also ended in dismissal vide order dated 21.1.2022 of the learned Addl. District Judge, Bhakkar. These orders are now subject matter of challenge in the instant petition.
3. Main stance of the learned counsel was that the courts below fell in error in rejecting the plaint and also the appeal without framing issues or recordin g evidence and that the petitioners having paid the entire consideration, the plaint could not be rejected outright. Added that due to pendency of some civil litigation the suit was not filed and that on the final disposal thereof the suit was instituted and that the courts below committed material illegality and proceeded with irregularity in allowing the application under Order VII, Rule 11, C.P.C. and also dismissing the appeal of the petitioner .
4. Admitted facts in this case as appear from the pleadings and documents available in this petition are that the claim of petitioners in the present suit was based on an agreement of sale purportedly dated 08.7.1996 wherein specific performance was claimed and also annulment of mutation No. 2200 dated 24.1.2001 was solicited. The first suit of the petitioners on the same subject and with the same cause of action was instituted on 29.3.2003 which was withdrawn on 25.2.2010 with permission to file a fresh suit. The second suit was instituted again on the same subject in the year 2010 which was withdrawn on 08.5.2014 with permission to file fresh suit while the third suit out of which the instant petition arises was instituted on 29.5.2014 approximately after more than 17 years from the date of the agreement and 13 years from the date of mutation under challenge. On being confronted that Article 113 of Limitation Act, 1908 provided for a period of three years to file a suit for specific performance from the date mentioned in the agreement or from the date when the performance is refused and that as per petitioners' own stance, the first suit was instituted on 29.3.2003 when the land had already been sold through mutation No. 2200 dated 24.1.2001 which was indicative of refusal to perform agreement, learned counsel submits that as a matter of fact in terms of oral understanding, the performance of the agreement was to be made after the termination of litigation in respect of the property which explanation did not sound convincing as the petitioners themselves annexed copy of civil revision No. 1823 of 2001 and also its order-sheet inclusive of order dated 02.3.2005 (available at page 107 of the instant revision petition) from where it is evident that revision petition was dismissed on 02.3.2005. Copy of order dated 28.3.2005 in C.M. No 304 of 2005 in the noted civil revision shows that the said civil miscellaneous application was filed for the restoration of revision petition which too was dismissed by the learned Single Judge of this Court as he then was vide order dated 28.3.2005.
5. Even if the petitioners' stance is consid ered, yet the suit having been filed on 29.5.2014 after six years from the disposal of the revision petition i.e. after more than nine years, it could not save the petitioners from the repercussion of filing a time-barred suit. Pendency of any litigation otherwise could not be a legally tenable ground for non-filing of suit unless the filing of suit claimed to have been stayed by a specific injunctive order of the court which was not the case here. Reference in this context can be made to the provision of section 15 of the Limitation Act, 1908. It was not the case of the petitioners that any injunctive order against the institution of the suit was ever issued or was operative that prevented the institution of the suit within limitation and, being so, the argument is devoid of substance.
6. From the contents of plaint and the material relied upon with the suit by the petitioners, it was discernible that the petitioners' own stance therein was that despite the agreement of sale dated 08.7.1996, the property was sold on 24.1.2001 and a cause of action accrued for the filing of the suit to enforce the agreement of sale dated 08.7.1996 and also to seek annulment of mutation dated 24.1.2001 and in this backdrop the first suit was instituted on 29.3.2003 which was later withdrawn on 25.2.2010 with permission to file a fresh one. The second suit on the same subject was filed in the year 2010 which too was withdrawn on 08.5.2014 with permission to file a fresh one while the third suit was filed on 29.5.2014 i.e. after more than 17 years from the date of alleged agreement and after 11 years from the date of alleged accrual of cause of action as given in the first suit and after 13 years from the date of mutation dated 24.1.2001. The argument advanced by learned counsel was that at the time of granting permission to withdraw the earlier suit and to file a fresh one no objection was raised as to the limitation and, therefore, limitation should have been counted from the date of withdrawal of the last suit. The argument is wholly misconceived. It is settled rule that in the event of filing a fresh suit time will run against the plaintiffs from the date of institution of the first suit and that the institution of the fresh suit could not affect limitation. Order XXIII, Rule 2, C.P.C. mandates that in any fresh suit instituted on permission granted under the last preceding rule the plaintiff shall be bound by law of limitation in the same manner as if the first suit had not been instituted. In view of the clear rule the petitioners were responsible for the time consumed in the former suit and the same period will have to be counted against them. Reference in this regard can be made to "Bahadar Alam and others v. Abdul Razzak and others"
(2001 YLR 331), "Malik Zahir and others v. Muhammad Saleem and others" (2010 CLC 642), "Saltnat Khan and others v. Asfandyar Khan and others" (2015 YLR 2559). Reference can also be made to the case of "Mrs. Akram Yaseen and others v. Asif Yaseen and others" (2013 SCMR 1099) wherein it was observed that Order XXIII, Rule 1, C.P.C. provided for filing of fresh suit with permission of court, however , under Order XXIII, Rule 2, C.P.C. a plaintif f will be bound by law of limitation in the same manner as if the first suit had not been instituted.
7. In view of the consistent rule in the cases referred supra, the argument that the time consumed in the earlier litigation could be excluded or that the limitation would run from last suit, on the face of it being devoid of substance and fallacious, is accordingly repelled. The cause of action having alleged to have accrued on alleged breach of contract by alienation of property through mutation No. 2200 dated 24.1.2001, the petitioner filed the first suit for the performance of agreement and also for annulment of the mutation raising the plea that the performance of agreement had been refused, the suit was instituted on 29.3.2003 and was withdrawn on 25.2.2010, the subsequent suit instituted in the year 2010 was withdrawn on 08.5.2014, the last suit having been filed on 29.5.2014, on the face of the plaint and the admissions made therein, was barred by time having been filed beyond the period of three years from the accrual of cause of action. Under section 9 of the Limitation Act, 1908 where once time has begun to run, no subsequent disability or inability to sue stops it and the time consumed in the earlier litigation was obviously the responsibility of the petitioner to bear and the subsequent suit having been filed after the expiry of limitation, as per averments in the plaint and the admissions made therein, the plaint was rightly rejected.
8. As regards the objection that the question of limitation could not be determined without evidence and framing of issues the same does not sound good in the circumstances of this case. Where the allegations in the plaint do not require any roving inquiry to give findings that the suit was barred by limitation and that the plaint on the face of it was based on facts not seriously in dispute was barred by time, then the plaint could be rejected under Order VII, Rule 11, C.P.C. Facts being undisputed in the instant case the plaint was rightly rejected on the face of it the suit was filed after 17 years from the alleged accrual of cause of action, though under Article 113 of the Limitation Act, 1908 the suit could be instituted within three years. In the peculiar circumstances of this case no exception could be taken to the orders passed by the courts below. Reference in this regard can be placed to the case of "Abdul Majeed and others v. Tasaduq Ali and others" (2018 CLC 245) where in a situation similar to the present case the plaint was rejected as barred by time and the judgment and orders were affirmed by observing that no error of law was committed in rejecting the plaint, in view of the facts admitted on record. Reference can also be made to the case "Syed Athar Hussain Shah v. Haji Muhammad Riaz and and another" in Civil Petition No. 1831 of 2017 the Supreme Court of Pakistan observed to the effect that the rejection of the plaint in the first suit or withdrawal of the second suit will not help to avoid the period of limitation and that limitation once started running no subsequent disability or inability to sue could stop it. Operative part of the judgment reads as follows: "10. The petitioner's conduct in filing the first suit, not paying requisite court fee, which resulted in the rejection of the plaint, filing the second suit, withdrawing it, and then filing the third suit is inexplicable. However, what requires determination is whether the third suit was filed within the prescribed period of limitation. It needs consideration whether once the period of limitation commences it can be stopped or be avoided by introducing another cause of action or relief in the suit or by reformulating them. The answering is provided by section 9 of Limitation Act, 1908, reproduced hereunder: '9. Continuous running of time: Where once time has begun to run, no subsequent disability or inability to sue stops it.'
The rejection of plaint in the first suit and the withdrawal of the second suit would not help avoid the period of limitation as is made clear from Rule (2) of Order XXIII of the Code, reproduced here:- '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 it the first suit had not been instituted.'
11. 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.vs. Ajit Singh (15 Cal 58) 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 year's 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 .vs. Rashid Arshad (PLD 2012 Supreme Court 212, para 5, p. 230 G) this court held that if the main relief is time barred and the bar is not surmounted by the respondent, the indidential and consequential relief has to go away alongwith it and the suit is liable to be dismissed on account of being time barred ((PLD 2012 Supreme Court 212, paragraph 5, p. 230 G). 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."
9. Reference in this regard may also be placed on the rule in "Noor Din and another v. Additional District Judge, Lahore and others" (2014 SCMR 513). In the circumstances the concurrent view of the courts below is reasonable and in accordance with law and no illegality or jurisdictional error could be pointed therein as to warrant interference.
10. As a result of the above, the revision petition being without merits is, accordingly , dismissed .