This is a Second Appeal against the judgment and decree, dated 20-10-1992 passed by the learned District Judge Gilgit, whereby the learned District Judge has upheld the decision of the trial Court, dated 27-11-1988.
2. The brief facts of the case are that the original owner of the land in dispute Mst. Dilfrooz transferred the property by way of gift to her daughter Mst. Najaf Gul. Subsequently the properties in Khasra No.103 measuring 4 Kanals 4 Marlas were mortgaged by Mst. Najaf Gul with the present respondent namely Khudayar by means of registered deed, dated 26-3-1963 for a sum of Rs.3,000 for a period of one year, with a condition that if mortgagor did not redeem within a period of one year the mortgagee shall become its owner. The respondent mortgagee claims that since the land was not redeemed within the stipulated period as such he had required the ownership of the land, he accordingly got attested Mutation No. 411 on 12-5-1964.
3. In the meantime the original gift transaction by Mst. Dilfrooz in favour of Mst. Najaf Gul was challenged and a decree was passed of the land of Mst. Dilfrooz. First, Second Appeal and Review Application were filed but without any success. Meanwhile Mst. Dilfrooz and Mst. Najaf Gul died and a second Review application was moved by Muhammad A.I Shah etc., successors-in---interest of Mst. Najaf Gul which was accepted by the then Judge of the High Court for Gilgit and Baltistan setting aside the previous judgments. Secondly, the respondent was dispossessed from the possession of the land in dispute. His grievance is that ate was not a party and he has never been a party to all the previous civil proceedings and has therefore, illegally been dispossessed of the land in execution of the decree or order of the Court.
4. That after dispossession of the land in dispute the respondent filed a civil suit under section 9 of the Specific Relief Act, which was dismissed. First Appeal and Revision Petition were also dismissed.
He then filed the present objection petition under Order 21, Rule 100 of the C.P.C., this application was decreed by the executing Court and the orders of the trial Court were maintained by the first Appellate Court, hence this Second Appeal.
5. I have gone through the record and have heard the learned counsel for the parties also at length. The points for determination of this appeal are that whether the suit under section 9 of the Specific Relief Act filed by the present respondent can be termed as wrong forum and the period consumed therein can be excluded for the purpose of limitation? Secondly, whether the suit is still within time excluding the vacation period i.e., the month of January, 1947? 1 will take up the second point first which is much clear. Section 4 of the Limitation Act governs the limitation period where the Court is closed for vacations. In the case in hand the respondent was dispossessed on 31-12- 1973 and he has filed his suit under section 9 of the Specific Relief Act on 13-2-1974. The period for an application under Order 21, Rule 100, C.P.C. Is provided only 30 days whirl' the respondent has filed the suit under section 9 of the Specific Relief Act on 13-2-1974, definitely after expiry of the period of limitation, even, if the suit under section 9 of the Specific Relief Act filed by the respondent is taken into account. The respondent has not made any submissions for condonation of the said period. In this regard section 4 of the limitation is very much clear as section 4 of the Limitation Act, 1908 has nothing to do with commuting prescribed period but provides merely that when period prescribed for a suit etc., expires on a date when the Court is closed, then notwithstanding that fact, suit, etc., may be instituted on the day when Court re-opens. This section does not alter length of prescribed period nor does it provide that period of vacation shall be excluded from period of limitation prescribed. This point has also been dealt in PLD 1985 Lahore 610 and a similar point is held.
6. Coming to the first point there are divergent views of the superior Courts but in this regard one thing has to be kept in mind that the parties should be vigilant in choosing the forum and if they are in a wrong forum which is if duly brought in their knowledge by the opposite-party, then they cannot claim ignorance. In this case the respondents were told at the initial stage by the appellants that they are on the wrong forum, thus they should have reverted to the proper forum but they did not pay any attention till they were finally directed by the then Court of Judicial Commissioner.
7. I, therefore, hold that the application of the respondent under Order 21 Rule 100, C.P.C., is clearly time-barred which is accordingly rejected. The appeal is accepted by setting aside the orders of the two Courts below with no orders as to costs.