1. ' This Revision Application has been preferred against the judgment and decree dated 24th August, 1977, passed by the learned Additional District Judge in Civil Appeal No,75 of 1975, whereby the said appeal was dismissed and the judgment and decree passed in Suit No,523 of 1973 on the preliminary issues rejecting the suit as not maintainable, was upheld.
2. 1.(i) The facts relevant for the purposes of this case are that the respondent filed an ejectment case bearing No,54 of 1967 against the applicant (hereinafter referred to as the plaintiff) for his eviction from the shop premises in the building bearing No,RL 4/216, G-2, Ranchore Lines, Karachi. In the said case ex parte order of ejectment was passed against the plaintiff on 8th July,1968.
3. ' Thereafter the respondent filed Execution Application No,44 of 1969. According to the plaintiff's case he was lying ill and was not attending the shop which was then in the sole occupation of his brother who was living separately from him and that before the writ of ejectment could be executed, the landlady had approached him and asked to deliver the keys to her as the shop then was lying closed continuously for sometime. This, according to plaintiff, gave him first opportunity to move an application before the Executing Court on 23rd July, 1969. The said application was rejected, the learned counsel is unable to give the date on which the order was passed. He, however, stated that on 8th October,1969, writ of ejectment was executed and possession of the shop was delivered to the respondent/landlady.
4. ' The learned counsel then submitted that before the writ of ejectment could be executed, he on 8th October,1969 filed Suit No,1187 of 1969 in the Court of IX Civil Judge at Karachi for declaration and injunction that the order of ejectment passed in Rent Case No,54 of 1967 was illegal and without jurisdiction. He also prayed for permanent injunction restraining the respondent from taking possession of the shop in question. The plaint however was rejected on 21st December, 1971 on an application filed under Order VII, rule 11, C.P.C. By the respondent on the ground that the plaintiff had not prayed for consequential relief of possession and as such the suit filed for mere declaration would not lie.
5. ' Thereafter the plaintiff remained silent for a considerable period but on 23rd March, 1973 he filed another suit being Suit No, 523 of 1973 in the Court of the XIV Civil Judge Second Class at Karachi (out of which proceedings the present revision application has arisen). In this suit the plaintiff claimed the following reliefs: "A. The Honourable Court may declare that ejectment order and such other orders against the impersonated man other than the plaintiff are illegal.
6. ' The plaintiff is to be put possession as ejectment order was void.
7. ' To grant any other relief that this Honourable Court may in the interest of justice and equity deem fit..
8. D. To grant costs of the suit."
(v) On the pleadings of the parties, the learned trial Court framed nine issues, out of which the following issues were treated as preliminary issues and were disposed of by judgment passed on 31st March, 1967.
9. "Issue No,1: Whether suit is time barred?
10. ' Issue No,2: Whether suit is barred under the principles of res judicata? Issue No,3: Whether the suit as framed is not maintainable?
11. ' Issue No,4. Whether the suit is liable to be dismissed due to non-compliance of the mandatory provision laid down under Order VII, rules 19 and 26 of C.P.C. ?"
12. 2.(i) The trial Court after hearing the advocates for the parties on the preliminary issue No,1 held that the suit was barred by time.
13. ' Under Issue No,2, no finding appears to have been given except noting the contentions of the two learned counsel for the parties and under Issue No,3, it was held that the plaintiff had not complied with the requirements of Order VII, rule 19 of C.P.C. Inasmuch as address of service of the plaintiff was not given and under Order VII, rule 26 list of legal heirs of the plaintiff was not supplied as required by the amendments introduced in the Civil Procedure Code by Law Reforms Ordinance, 1972. It was further held that the plaint was not verified in accordance with the Order VI, rule, 15 C.P.C. (as amended). Accordingly it was held that these objections were fatal to the plaintiff's case.
14. ' Finally the learned Court observed that the order passed by the Rent Controller was appealable as provided in the West Pakistan Urban Rent Restriction Ordinance, 1959 and hence the suit was barred.
15. ' On the findings given as above, the suit was dismissed as not maintainable.
16. Aggrieved by the aforesaid judgment dismissing the suit, the plaintiff filed Civil Appeal No, 75 of 1975 before the lower Appellate Court.
17. ' It may here be observed that no ground in the memo of appeal for exclusion of time for prosecuting bona fide and diligently the earlier Suit No, 1187 of 1969, was raised. It however appears that the learned Advocate for the plaintiff/appellant raised the plea that the suit was not barred by limitation as section 14 of the Limitation Act could be pressed into service for exclusion of period spent in prosecuting Suit No, 1187 of 1969. The learned lower Appellate Court, however, did not accept this plea holding that section 14 of the Limitation Act could not save the period of limitation prescribed for filing the suit which admittedly would be governed by Article 95 of the Limitation Act.
18. The learned lower Appellate Court also agreed with the trial Court that the suit was barred by section 15(5) of the Ordinance of 1959 which provided that no order passed by the Controller, the appellate authority or the High Court under the provisions of the said Ordinance shall be called in question in any Court of law beside or otherwise except as provided under the said Ordinance.
19. ' Against the above judgment and decree passed by the two Courts. Below the plaintiff/applicant has filed this petition invoking the revisional jurisdiction of this Court under section 115 of C.P.C.
20. ' The only question, on which the learned Advocate for the applicant has addressed the Court, was as to the applicability of section 14 of the Limitation Act to the Suit No, 523 of 1973, which was held to be barred by time by the lower Courts.
21. ' Mr.S.S.Hamid, the learned counsel for the plaintiff/applicant contended that the period spent in prosecuting Suit No,1187 of 1969, i,e, from the date of its filing from 8th October, 1969 till the plaint was rejected on 21st December, 1971 is liable to be excluded under section 14(1) of the Limitation Act.
22. In order to appreciate the plea raised, it would be relevant to reproduce hereinbelow the aforementioned provision relied upon by the learned counsel:- "14. (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."
23. ' Since no reliance was placed on the other provisions contained in section 14, the same have not been reproduced above.
7. I have carefully considered the arguments of Mr.S.S.Hamid, the learned Advocate for the plaintiff/applicant and I am of the view that the plea raised can't be accepted for the reason that no such ground was raised either in the learned trial Court nor even before the learned First Appellate Court in the memo of appeal.
24. A persual of the provisions of section 14(1) of the Limitation Act reproduced above would show that before the plaintiff could succeed in seeking exclusion of time, he has to establish inter alia, (i) that he had been prosecuting with due diligence other civil proceedings, (ii) that the proceeding was founded upon the same cause of action and was prosecuted in good faith. The questions involving decision on (1) due deligence, (2) same cause of action and (3) prosecuting the good faith are questions of fact which unless have been expressly pleaded could not be allowed to be taken up for consideration for the first time in a Court of appeal particularly in the absence of any such ground having even been raised in the memo of appeal. The learned lower Appellate Court, therefore, rightly held that section 14 of the Limitation Act was not attracted.
25. ' Mr.S.S.Hamid, the learned counsel for the plaintiff placed reliance upon the case reported as (Yepuri) Venkamma v. Pabbisetti Parthasarathi Brothers AIR 1926 Madras 1081 and Muhammad Rashid khan v. Mst. Manzooran Begum PLD 1981 AJ&K 44. These cases do not help the plaintiff/applicant for seeking exclusion of time under section 14 of the Limitation Act. In the Madras case, time was excluded under section 14 as it was found that the plaintiff was bona fide litigating for his rights in the earlier suit. In the case of Muhammad Rashid Khan v. Mst.Manzooran Begum, it was found that the application for setting aside the order of dismissal itself contained a detailes and well-founded prayer for computation of period spent in the civil proceedings before the District Judge and the High Court. The above-cited cases are thus distinguishable from the case under consideration.
26. ' Before concluding it may be mentioned that the ejectment case was filed against the plaintiff by the respondent in 1967 and possession was delivered to the respondent on 8th October, 1969 by execution of writ and the earlier Suit No,1187 of 1969 was dismissed on 21st December,1971. The plaintiff, however, chose to remain silent for almost 15 months before he filed the second suit bearing Suit No, 2523 of 1973. The plaintiff/applicant is guilty of lathes as well. He has also not cared to produce the plaint of the earlier suit or even the order of the Civil Court rejecting the plaint. It is, therefore, not possible even to appreciate if provisions of section 14 of Limitation Act could at all be attracted. The discussion above has been based upon the contentions of the Advocate for the applicant.
27. ' No case thus has been made out for interference by this Court with the impugned judgments/decrees in the supervisory jurisdiction of. This Court within the meaning of section 115 of C.P.C. The Revision-Petition is accordingly dismissed. The parties are, however, left to bear their own costs.