SHAFIUR RAHMAN, J.---Leave to appeal was granted in four matters arising out of the same ex parte judgment of the trial Court to examine whether important questions with regard to the maintainability of the suit, its valuation, its being within time and on merits had received due attention of the Courts dealing with the case.
2. On the 27th of July, 1978, Muhammad Hussain (deceased) the predecessor-in-interest of respondents 1(i) to (1)(x) instituted a suit claimingto be the owner of land measuring 1,887 Kanals 14 Marlas in Khewat No,1, Khatuni Nos.1 to 52, according to Jamabandi for the year 1945-46 situated in Had Bast of village Dhanna Singhwala, Tchsil and District Lahore on the . Strength of purchase made by him from an Hindu evacuee on 14-6-1946 for a sum of Rs,90,000. The grievance expressed in the plaint was that being minor at the time of purchase of this land in 1946 by his late father in his name, he remained for various reasons unaware of his property and rights therein till 1977 when he got the particulars of the property, a copy of the registered sale-deed and instituted the suit taking his cause of action to have arisen in 1977. The Collector refused to give effect to the registered deed and the Deputy Custodian held that he had no jurisdiction to deal with the claim.
The parties arrayed in the suit were as hereunder:-- "Muhammad Hussain son of Ata Muhammad, Caste Rajput, resident of 21 Empress Park, Bibi Pakdaman, Empress Road, Lahore--Plaintiff ' versus
(1) Government of Pakistan through Chief Settlement Commissioner, Board of Revenue, Punjab, Lahore.
(2) Collector Lahore.
(3) Deputy Custodian, Punjab 11, Egerton Road, Lahore.--Defendants".
' The trial Court kept on issuing notices to the respondents and a number of such notices were issued. A publication in the newspaper also took place and on failure of the defendants to appear an ex parte decree was passed. It appears that during the course of the trial at one stage a Clerk of the Court, Office of the Chief Settlement Commissioner appeared and at the concluding stages a lawyer on behalf of the Chief Settlement Commissioner but they took no active part in the proceedings. An appeal was preferred against this ex parte decision but the same was dismissed.
The revision petition filed against this decision also failed.
3. In the appeals before us extensive arguments have been addressed on the point of non- impleading of necessary parties, about the service on the defendants, about the manner in which ex parte order was passed and on the merits of the ex parte order.
4. After hearing the learned counsel for the parties on all aspects of the case we find that it is one of the rare cases in which the judgments rendered at all the levels though laboured and spread over pages impressive in number show such appalling ignorance and misapplication of law and procedure as is likely to impair the very confidence in the integrity, competence and efficacy of the judicial process in the country, the conduct of the parties to the litigation also not being free from serious blame.
5. In East and West Steamship Co. v. Queensland Insurance Co. PLD 1963 SC 663 this Court had observed as hereunder:- "There can be no doubt of the duty of the Court to-ensure, even when proceeding ex parte, that its decision is in accordance with the facts, which should be ascertained with as much care as is possible in the absence of any contesting party."
' Since this law was laid down changes have taken place in the Civil Procedure Code materially altering the procedure in ex parte matters. Order VI, Rule 15, C.P.C. Was amended, so was Order IX, Rule 6, C.P.C. By Law Reforms Ordinance, 1972 and after amendment these provisions read as hereunder:-- "Order VI, Rule 15, C.P.C.
15. Verification of pleadings.---(1) Save as otherwise provided by any law for the time being in force, every pleading shall be verified on oath or solemn affirmation at the foot by the party or by one of the parties pleading or by sonic other person proved to the satisfaction of the Court to be acquainted with the facts of the case.
(2) The person verifying shall specify, by reference to the numbered paragraphs of the pleading, what he verifies of his own knowledge and what he verifies upon information received and believed to be true.
(3) The verification shall be signed by the person making it and shall state the date on which and the place at which it was signed."
"Order IX Rule 6(1)(a) C.P.C.
6. Procedure when only plaintiff appears.---(1) Where the plaintiff appears and the defendant does not appear when the suit is called on for hearing them--
(a) if it is proved that the summons was duly served, the Court may proceed ex parte and pass decree without recording evidence."
6. This amendment in the law ostensibly dispenses with the scrutiny of the merits of the claim as such. However, there are certain requisites preliminary and antecedent to adjudication, even of ex parte matters which have to be scrutinized and satisfaction ensured before proceeding with the matter. In Chapter 1-C of the High Court Rules and Orders (Volume I), the following instructions are laid down for the subordinate Courts, relevant to the case:-- "Part C.---EXAMINATION OF THE PLAINT
(i) On the presentation or receipt of a plaint, the Court should examine it with special reference to the following points, viz.--
(i) .............................................. Whether, there is, prima facie, any non-joinder or misjoinder of parties, or misjoinder of causes of action; [page 9, para. 1(ii)].
(ii) Suits for inheritance, partition or declaration or right in order to effect a partition, contribution, redemption, foreclosure, administration of property, dissolution and winding up of a partnership, and the like, cannot be properly disposed of unless all persons interested in the matter are before the Court. Therefore in cases of this description, if it appears that any necessary parties have not been joined, the plaintiff should be ordered to join them. [page 11, para.3(b)].
(iii) If the plaint relates to agricultural land and the plaintiff is illiterate, it should be scrutinized with special care, according to the following directions:-
(i) ............................. Every such plaint shall be accompanied by a statement, in the prescribed form setting forth the particulars relating thereto recorded in the Settlement record and in the last Jamabandi. This statement shall be verified by the signature of the Patwari of the Circle in which the land concerned is situate. Where by reason of partition, river action or other cause, the entries in the Settlement record and in the last Jamabandi do not accord, a brief explanation of the reason should be given in the column of remarks. Where the suit is for a specific plot with definite boundaries, it shall also be accompanied by a map, drawn to scale, showing clearly the specific plot claimed, or in relation to which the decree is to be made, and so much of the fields adjoining it, also drawn to scale, as may be sufficient to facilitate identification. The specific plot and adjoining fields shall be numbered in accordance with the statement and the map shall be certified as correct by the Patwari or other persons who prepared it Where, however, the suit is for the whole of one or more Khasra numbers as shown in the Settlement map, or a share in such numbers, and not for a specific portion thereof no map will be required unless it is necessary for other reasons to show the boundaries of such Khasra numbers. [Pages 12 & 13, para. 9 (ii)].
7. If the trial Court, the appellate Court and the revisional Court had kept in view the requirements of section 79 of the Civil Procedure Code read with Order XXVII, C.P.C. They would not have entertained the claim at all with the parties arrayed in the form in which they were arrayed. Section 79 of the Civil Procedure Code requires, and so does Article 174 of the Constitution, that all suits against the Central Government have to be filed in the name of Pakistan and against a Provincial Government in the name of the Province. Suing Pakistan, as was done in this case, through the Chief Settlement Commissioner and Member, Board of Revenue was in fact not only a mistake but a diversion of the proceedings materially affecting service and representation of the concerned defendants. The Chief Settlement Commissioner had ceased to be a legal entity or a functionary after repeal of the evacuee laws in 1974 --much before the institution of the suit. Provincial Member, Board of Revenue could not represent Pakistan.
' Similar is the position of Deputy Custodian. There was no functionary of the description of Deputy Custodian after the repeal of the evacuee laws.
' As regards the Collector of the District, the procedure prescribed was quite a simple one -- a straightforward one, for service on him. It is provided in Order XXVIII of the Civil Procedure Code that the Governments and their functionaries can be served through the Government Pleader. No effort, at any stage, was made to effect service through the Government Pleader. The Clerk of the Court of Chief Settlement Commissioner who made the appearance and even the lawyer appointed by the Solicitor was supposed to represent the Chief Settlement Commissioner when in fact no such office did exist in the eye of law. The revisional Court was in serious legal error in thinking and assuming that Collector represented ex-officio the province of Punjab and by impleading him the Province stood automatically impleaded. Not only the Collector is not under the law representative of Province but in this particular case the Collector was sued as a functionary refusing to give effect to the Registered Deed and not as a representative of the Province. With the parties arrayed as they were, the suit could not be entertained unless necessary correction he's been made.
8. From the recital in the plaint as well as the facts readily ascertainable without recording evidence it was clear that during the period 1947 to 1978 this property had been treated at first as evacuee property then as compensation pool property and had been disposed of under the Displaced Persons (Land Settlement) Act and the Displaced Persons (Compensation and Rehabilitation) Act to various persons and authorities.
The document filed with the plaint, namely, the Order of the Deputy Custodian of Evanuee Property would show that before him this very plaintiff had impleaded a number of private respondents and they were all allottees of the land whom he had not impleaded in the suit and no reason was forthcoming for such an omission. The position of the Revenue Record and the intervening interest, their extent and nature would have been quite clear to the Courts if they had discharged their duty under the High Court Rules and Orders, the provisions of which have been just reproduced in para 6 above. In the absence of those parties who had in the meantime dealt with the property as evacuee or as belonging to the compensation pool, or had acquired interest therein, the matter could not have proceeded to a decision.
9. The view taken by the Courts that because the plaintiff was claiming it to be a Muslim property, so others were not necessary parties is patently an erroneous view. That very claim in fact made their presence necessary because they were asserting otherwise. The ex parte decree passed by the trial Court was materially defective and it went unnoticed by all the Courts. Declaration and injunction was sought in respect of 1,887 Kanals 14 Marlas of land but it was granted only in respect of 1,701 Kanals without identifying which part of the land was included and which was the land excluded. Even in the plaint no such distinction was made nor in any other record filed with the plaint. This would have made the execution of the decree impossible.
10. The revisional Court's view that no suit can fail for lack of necessary parties is patently erroneous. An opportunity should have been given to bring on record the necessary parties against whom relief was justifiably sought or could be sought. It is on failure of the plaintiff to implead them that the suit could certainly be dismissed.
' The revisional Court was again in error in holding that the Provincial Government was bound by the decree passed against the Government of Pakistan as if the Provincial Government was a transferee pending litigation. The Provincial Government had statutorily after repeal of the evacuee laws succeeded to the rights in such property and those remained undisposed of vested in it. It could not be bound by the decree against the Government of Pakistan.
11. The appellate Court was in legal error in taking the view that in all appeals against the ex parte decrees the merits of the ex parte decree or proceedings cannot be examined but only the reasons leading to an ex parte decree. Even if ,the reasons had to be seen of the ex parte decree, could it be said that resort to Order V, Rule 20, C.P.C. In the case where the Collector was a defendant was at all justified when a provision like Order XXVII, C.P.C. Existed. How could the Court be satisfied that there were reasons to believe that the Collector and the Province and the Federal Government were keeping out of the way for the purpose of avoiding service or they cannot be served in the ordinary course.
12. After we had concluded the hearing on the form of the suit, the no impleading of necessary parties, the manner in which the parties impleaded were proceeded ex parte and while considering the order to be passed, we adverted to another aspect of the case, namely the question of limitation. This we had to do in view of compulsive language of section 3 of the Limitation Act which is reproduced hereunder:- "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 therefor by the First Schedule shall be dismissed although limitation has not been set up as a defence.
' Explanation.---A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer; in the case of a pauper, when his application for leave to sue as a pauper is made; and, in the case of a claim against a company which is being wound up by the Court, when the claimant first sends in his claim to the official liquidator."
13. This question was specifically raised before the High Court (Paragraphs 3 and 4 of the Revision Petition) but it remained unnoticed, unanswered by the High Court. The question before us is whether permitting now and at the stage the impleading of necessary parties and proper service on them will not entail a trial which may be altogether futile and unnecessary in view of the bar of limitation. We therefore called upon the parties to address further arguments separately on this aspect of the case. We have heard them at great length.
14. The learned counsel for the appellants pointed out that on the recitals of the plaint and whatever evidence has been produced by the plaintiff ex parte itself established that the claim was hopelessly time-barred. The registered deed on the basis of which title was claimed was dated 14-7-1946. The suit was filed on 29-7-1978. In the interregnum the property had been treated as evacuee property, then as property acquired by the Central/Provincial Government whole of it forming part of the compensation 'pool and thereafter some of it was transferred to departments, claimants and others. All this is borne out from the fact that the plaintiff himself impleaded Pakistan, the Deputy Custodian, the Chief Settlement Commissioner and the Collector as defendants in the suit, omitting the transferees of the property, old and recent.
15. In reply the learned counsel for the respondents contended that in applying the bar of limitation, the first question to be determined is whether in a particular case the question of limitation is a pure question of law or a mixed question of law and fact. If it happens to be a mixed question of law and fact then the decision of it is to be deferred to a stage after it has been pleaded, controverted and proved by evidence on record. In case it is a pure question of law the principles governing the rejection of plaint have to be observed. These principles are that every averment made in the plaint has to be accepted as correct and the consideration that the plaintiff may not ultimately succeed in establishing the averments made in the plaint cannot be a ground for rejection of the plaint. Reliance for this has been placed on S.M. Faisal v. Additional Estate Officer 1989 CLC 2473 (Karachi), Muhammad Ahmed v. Muhammad Siddiq and 2 others 1987 CLC 2179 (Karachi), Mushtaq Ahmad Khan and another v. Mercantile Cooperative Finance Corporation Ltd.
And another PLD 1989 Lahore 320 and Haji Mitha Khan v. Muhammad Younus and 2 others 1991 SCMR 2030.
16. The other principle invoked by the learned counsel for the respondents is that once the possession of the plaintiff over part of the property is found established, not every cause of action obliges the plaintiff to institute the suit. He can be the chooser of his own time, the selector of his own cause of action. The start of limitation cannot be taken to the original cause of action. Every threat to his rights, even a fresh one affords him as good a cause of action or even a better one as did the first cause of action. Reliance has been placed for this proposition on Hakim Singh and others v. Waryaman and others (1907) No,140 Punjab Records page 670, Qasim Khan v. Mirza Ali Khan and others (1990 Monthly Law Digest 2406 at 2410 (Peshawar)), Muhammad Baldish and 3 others v. Umar and 3 others PLD 1952 Lahore 307), Mt. Bolo v. Mt. Koklan and others (AIR 1930 Privy Council 270), Annamalai Chettiar and others v. A.M.K.C.T. Muthukaruppan Chettiar and another (AIR 1931 Privy Council 9), Ghulam Muhammad Khan and others v. Samundar Khan and others (AIR 1936 Lahore 37).
17. The third principle invoked by the learned counsel for the respondents is that recently the Shariat Appellate Bench of the Supreme Court has declared section 28 of the Limitation Act as repugnant to the Injunctions of Islam in Maqbool Ahmad v. Hakoomat-e-Pakistan 1991 SCMR 2063, and it has ceased to be statute law of Pakistan. Consequently bar of limitation may react on the remedy at law but it cannot extinguish the rights of the owner in property. For that reason declaratory relief coupled with injunction will always be available at law to the rightful owner.
Reliance has also been placed on Dalip Singh and others v. Sikh Gurdawara Parbandhak Committee, Amritsar and another AIR 1931 Lahore 668.
18. Finally, it has been contended that the Law Reforms Ordinance, 1972 by amending Order IX, Rule 6, C.P.C. Has enabled the Court to proceed ex parte and pass decree without even recording evidence. This could be done and was done in the case in hand on the basis of the plaint (paragraphs 4, 8 and 9) and whatever evidence was recorded ex parte.
19. The principles of law invoked by the parties, particularly the respondents are unexceptionable in the abstract. They correctly state the law. The questions in the appeals now before us are how far they apply to and govern the case under consideration. An examination of the plaint shows that purchase of the land was claimed in 1946 through a registered deed and then total lack of control over the property and complete ignorance of rights therein till December, 1977 (para,4 of the plaint). The land was entered in the name of Central Government all along. In para. 8 of the plaint it is stated that "the plaintiff is in occupation of a portion of the land in question and the tenants of the rest have attorned to the plaintiff and have conceded his right of ownership". This happened in or after December, 1977 and not earlier. Finally in paragraph 9 of the plaint it is stated that "the cause of action accrued to the plaintiff against the defendants in the month of December, 1977 when the plaintiff came to know about the sale-deed in question". On his own showing having never remained in possession during period 1946 to December, 1977, having remained completely ignorant of his ownership during this period, the property having remained in possession of others who claimed it in their own right, could the plaintiff on such pleading claim a cause of action since December, 1977 and base a suit on it as within limitation. None of the cases cited showa such an absence of possession over such a long period. Taking the maximum from the plaint (7 years of age in 1946) and out of the law cited by the learned counsel for the respondents Kasem Molla v.
Fajel Shek and others PLD 1952 Dacca 347 the period of limitation for any suit in respect of this property expired in 1963. There is no principle known to law whereunder on expiry of full available period of limitation revival of cause of action afresh and running of the limitation period over again could take place either from the date of knowledge or the attornment of the tenants or on obtaining of possession. The Shariat Appellate Bench decision referred to does not apply to rights extinguished in 1963 or to events that happened in December, 1977. It is a prospective decision having its application and effect with effect from 31st August, 1991 as provided under the Constitution and as ordered by the Court in that case.
20. As regards the amendment in Order IX, Rule 6 of the Civil Procedure Code, its scope and effect on proceedings and the powers and duties of the Court, the same were considered by this Court in Shamroze Khan v. Muhammad Amin (PLD 1978 S.C. 89). The Court observing as hereunder:- "The words 'and pass decree without recording evidence' were inserted by the Law Reforms Ordinance, 1972 and we would observe here that before this amendment the consistent practice of the Courts was to record evidence before decreeing a suit under this rule. This practice of recording evidence could lead to delays and as submitted by Mr. Inayat Elahi the object of the amendment was to empower the Courts to decide a case without recording evidence. But does this mean that the question was left to the discretion of the Courts or does it mean as submitted that it was incumbent on Courts to decree a suit without recording evidence? If Mr. Inayat Elahi's submission is correct, Courts would be compelled to decree patently time-barred suits or suits which were patently dishonest or which contained absurd and exaggerated claims. Such an intention cannot lightly be attributed to the Legislature, nor would we be justified in doing so because the amended rule now reads: "....The Court may proceed ex parte and pass decree without recording evidence "
' This means that the Court may proceed ex parte and that it may pass a decree without recording evidence. The word 'may' here imports discretion and means may, not shall, therefore, when a Court strikes off the defence of a defendant, it has further to decide, in the exercise of its discretion, whether it should decree the claim against the defendant after recording evidence or without recording evidence, and like all discretions vested in the Courts, this discretion must be exercised judicially."
21. The duties of the Court under section 3 of the Limitation Act remain unaffected by this amendment. It is a duty equally to be exercised by the trial Court, by the appellate Court, by the revisional Court, by all the Courts, for the time being seized of the matter. Applying the same to the facts of the case, we find the suit to be hopelessly time-barred. The appeals are accepted. The judgments and decrees of all the Courts are set aside and the suit of the plaintiff is dismissed as barred by limitation with costs throughout.
' C.M.P. 157-R/1980 also stands disposed of in view of this order/judgment.
…and 34 more citing cases