1. By deed of sale registered on 18-2-1976, Fazal Khan, Eitbar Khan sons of Sooba, Zikri son of Shahia, sold land in dispute to Aurangzeb at the sale price of Rs.6,000. Muhammad Akram as collateral of the vendors sued to pre-empt the sale and instituted pre-emption suit on 18-2-1977 in the Civil Court at Campbellpur. Upon compromise between the parties, the trial Court decreed the suit to Mohammad Akram on 5-5-1977 subject to his paying Rs.6,000 as sale price to the vendee and also making good the discovered deficit courts-fee before a particular date. In default of payment of sale price pre-emption suit was to stand dismissed. Likewise, Hussain Bakhsh as co-sharer m the property sold claimed pre-emption in respect of the above sale and instituted a suit in the Court of Assistant Commissioner, Campbellpur, on 18-2-1977. Aurangzeb vendee resisted the suit. It was pleaded by him that the Assistant Commissioner/Collector had no jurisdiction to hear the suit; that in absence of Muhammad Akram son of Zikri Khan who had meanwhile obtained a decree for pre- emption from the Court of Senior Civil Judge, suit could not proceed. On merits, it was averred that plaintiff had no right of pre-emption and also that the land in dispute was purchased at the stated consideration. In view of the objection as to non-joinder of Muhammad Akram decree-holder, plaint in the pre-emption suit filed by Hussain Bakhsh was amended and Muhammad Akram was impleaded as defendant No. 2 in the suit. On 4-12-1977, Collector took the view that he had no jurisdiction to hear the suit and sent the case file to learned District Judge, Campbellpur directing the parties to appear before him on 14-12-1977. On the same day i.e. 14-12-1977, learned District Judge made the following order:- "This case is triable by a Civil Court, so it is withdrawn from the Court of Assistant Commissioner and transferred to the Senior Civil Judge Campbellpur where the parties to appear on 2-1-1978."
2. It is seen from the trial Court's records that the trial Court again sent the case file to learned District Judge for review of order of the transfer of the case to this Court but the request for review did not appear to have succeeded and the case was sent back to his Court for trial. On 12-6-1978, the trial Court settled following issues for determination:-
(1) Does this Court lack jurisdiction to entertain the suit?
(2) Is the suit bad for non-joinder of necessary party?
(3) Has the plaintiff superior right of pre-emption qua the defendant-- vendee?
(4) Whether the ostensible sum of Rs. 6,000 as price of the suit land was fixed in good faith or actually paid?
(5) If the above issue is not proved, what was the market value of the suit land at the time of sale?
3. (6)Relief.
4. On 19-11-1978, following issue numbered as 5-A was added:- "Whether the decree in favour of defendant No. 2 is collusive and is ineffective on the rights of plaintiff? OPP."
5. On consideration of evidence, the trial Court held that it had jurisdiction; that the suit was not bad for non-joinder of necessary parties; that Hussain Bakhsh as co--sharer had superior right of pre- emption; that Mohammad Akram defendant No.2 had failed to establish his relationship to the vendors, and, therefore, the decree passed in his favour did not affect Hussain Bakhshi's preference; that the stated sale price was fixed in good faith and was actually paid to the vendors.
6. Consequent upon these conclusions, the trial Court gave decree for the land in dispute to Hussain Bakhsh plaintiff subject to his payment of Rs.6,000 within one month of the decree failing which his suit was to stand dismissed. Defendant No.2 preferred an appeal to learned District Judge, Attock.
7. In course of appeal, appellant also filed an application for permission to give additional evidence to sufficiently connect him with the vendors. On 28-3-1979, application for additional evidence was dismissed and so the main appeal on 8-5-1980. Against this decision, Mohammad Akram has filed petition for revision. It may be observed that against the decision of the trial Court, Hussain Bakhsh had also preferred an appeal claiming reduction in the sale price of the land in dispute. On 8-5- 1980, appeal filed by Hussain Bakhsh was dismissed as withdrawn and the time for deposit of the pre-emption money was further extended till 5-6-1980.
8. Appellant is represented by Sheikh Zamir Hussain, Advocate. Respondents despite sufficient service have failed to appear. Therefore, case was heard exparte against them.
9. At the hearing, Sheikh Zamir Hussain Advocate submitted that the suit for pre-emption instituted by Hussain Bakhsh was taken to a wrong Court which had no jurisdiction to hold its trial and after, it was found that the Court had no jurisdiction over the subject-matter of the suit, only proper and legal course for the Court to adopt was to return the plaint for its presentation to a Court of competent jurisdiction; that District Judge had no jurisdiction to transfer the suit from the Collector's Court which had no jurisdiction to entertain it, to the civil Court; that in any case when the suit reached the Court of competent jurisdiction, it had become barred by limitation and the time consumed in proceedings before a wrong forum, could not be deducted so as to save the suit from defeat on the ground of bar of limitation; that plea of limitation being a pure question of law can be raised at any time; that upon existing facts, section 14 of the Limitation Ad, 1908, did not assist Hussain Bakhsh pre-emptor.
10. It is manifest from the records that Hussain Bakhsh respondent No. 2 claimed pre-emption on the sole ground of co-ownership. Act XLVIII of 1976 enforced on 19th July, 1976, gave jurisdiction to the Collector, only to entertain pre-emption suits by the tenants in respect of land sold and comprised in their tenancies. As for the other qualifications to sustain pre-emption suits, civil Court alone had the jurisdiction. Therefore, on the stated ground Collector had no jurisdiction to entertain the pre- emption suit. In terms of sub-para. (8) of paragraph 25 of Land Reforms Regulation 1972, Collector was invested with the legal status of a civil Court having all the powers of a civil Court under any law for the time being in force which clearly included Civil Procedure Code also. This being so, when it was found that the Court had no jurisdiction Collector was bound to return the plaint for its presentation to proper Court instead of sending the case file to the District Court for its transfer to a Court of competent jurisdiction. It is settled statement of law that the power of transfer flows out of a valid institution of suit. Therefore, if the matter was pending before a Court which had no jurisdiction to entertain it, it could not be transferred so as to cure the initial defective institution. In the above view, only legal and proper course was to order return of the plaint under Order VII rule 10 of Civil Procedure Code. By the time, suit reached the proper Court, it had become barred by limitation. In this background, two points of importance arise for decision:-
(1) Could the time consumed in the wrong forum be deducted under section 14 of the Limitation Act:
(2) Whether plea of limitation which had not been adverted to in the Court below, could be taken up in revision.
11. I shall like to take up the second point first because it had a material bearing in regard to answer to be given to the first question. In section 3 of the Limitation Act, legislature has expressly declared that whether the defence of limitation be pleaded or not, the Courts, whether of first instance or of appeal, are bound to give effect to the law. The section is couched in peremptory language and is addressed to the Court making it its duty to take notice of the Limitation Act and give effect to it even though the same is not referred to in the pleadings. The above section has to be obeyed in full. Therefore, an obligation is cast upon the Court to dismiss a suit, appeal or application if it is barred by limitation. Subsection (2) clause (a) of section 3, Limitation Act provides that "A suit is instituted,--in an ordinary case, when the plaint is presented to the proper Officer (emphasis supplied)."
12. Therefore, it can be safely held that civil suit can only be said to be instituted when a plaint is validly presented--(a) by a duly authorised person, (b) to the proper Officer, (c) to the Court which has jurisdiction to try the suit. In case, the Court to which the plaint has been presented has no jurisdiction, be it pecuniary, territorial or subject-matter, the suit cannot be held to be validly instituted. It is also well settled that a plea of limitation like a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings. Plea of limitation as a pure question of law unless it involved the taking of fresh evidence, can be allowed to be raised as a matter of right at any stage of proceedings even in the Court of last resort. See Hakim Muhammad Buta and another v. Habib Ahmad and others P.LD 1985 SC 153. This brings me to the first question as to the application of section 14 of Limitation Act 1908 which is aimed to protect a bona fide litigant from the consequences of mistakes, his own or that of his advisors in prosecuting the claim.
13. Above section of law as its plain reading indicates protects, against the bar of limitation, persons honestly doing their best to get their cases tried on merits but failing because the Court was unable to give them such trial. Obviously, the section provides for extension of limitation. The period provided for under this section is to be added to the period prescribed by the Limitation Act provided the essential requirements laid down in it are fulfilled. Indulgence can be granted under this section only where the attributed error was an error which might be committed by a reasonable and prudent man exercising due diligence and caution. Another important fact which has to be constantly kept in view is that the effect of this section is not to render the suit after refiling in the proper Court a continuation of the original suit and consequently the period of limitation has to be determined for that suit as if it were a new suit and the period will be that which was prescribed for the original suit, but excluding, in its computation, the period during which the suit was being prosecuted bona fide in a wrong forum or Court. Negligence, want of good faith and mala fides clearly exclude the application of this section of law. Therefore, the important question which had escaped the attention of lower Courts below was whether in the facts and circumstances of the present case, Hussain Bakhsh could be held to have prosecuted his pre- emption suit before the wrong forum bona fide and in good faith and if so was entitled to add the period consumed by him in the wrong Court and thus save the suit from failing on account of bar of limitation. As the question of limitation goes to the root of the matter and touches the jurisdiction of the Court to grant the relief, a clear duty was cast on the Court to have decided the question of limitation, one way or the other. Though the matter was in revision, it was open to the High Court to take up the point of limitation raised before it and finally decide it, yet in view of the fact of the respondents being not present before the Court, it appeared to be a just and proper course that enquiry into the question of limitation and decision on it be left to the learned Judge below. There was yet another circumstance which persuaded the Court to adopt this course and that was that in course of hearing of civil revision, it had transpired that Muhammad Akram petitioner had failed to deposit pre-emption money in time fixed by the Court. The effect of default in failing to-comply with the pre-emptory requirement of the pre-emption decree shall also fall for examination by the learned Judge below.
14. The result of the foregoing discussion is that petition for civil revision is allowed, judgment and decree dated 8-5-1980 of learned District Judge Attock is set aside and. The case is remanded to him for deciding of the appeal before him afresh in accordance with law and observations made above. For purposes of clarity, it may be observed that the learned Judge shall decide:- (1)Whether Hussain Bakhsh prosecuted his suit in the Court of Collector with due diligence and in good faith and was consequently entitled to deduct the period spent in the wrong Court. To put it more concisely, whether Hussain Bakhsh was entitled to the benefit of section 14 of Limitation Act 1908; (2)Whether Muhammad Akram petitioner obeyed the terms of decree in regard to payment of pre-emption money in tune fixed by the Court and if not, what are its effect on his rights.
15. As the respondents failed to appear, I make no, order as to costs of this revision petition.
16. Records be returned. Petitioner shall appear before the Court below on 30-4-1989. As for respondents, learned Judge shall issue notice to them to pecure their attendance.