1. ' In this appeal appellants have challenged the judgment and decree dated 24-1-1993 and 26-1- 1993 respectively passed by learned Senior Civil Judge, Ghotki in F.C. Suit No,184 of 1992 whereby rejecting the plaint of appellants under Order 7, Rule 11, C.P.C.
2. ' The brief facts of the appeal are that appellants filed suit for specific performance and permanent injunction against respondents stating therein that agricultural land bearing Blocks Nos.29/3-4, 49/1-4, 59/1-2, 49/2-3, 28/3-4, 48/5-3, 59/4, 48/1 to 4, 49/6 and 59/5 measuring total 63-09 acres situated in Deh Bilhini Taluka Pano Akil was granted to ancestors of respondents Nos.3 to 6 namely Rehmat Khan under defence force scheme by Colonization Authorities Guddu Barrage. It is further mentioned that respondents Nos.3 to 6 used to lease out the land to the appellants since last 11 years till 1985 who improved the land and made the same worth cultivation. The appellants' further case is that in December, 1985 the time of expiry of lease Ghulam Rasool (respondent No,1) as attorney of respondents Nos.2 to 6 executed an agreement of sale about the suit land on 5-12-1985 with appellant in the sum of Rs,3,16,125 in presence of witnesses and duly attested by Notary Public, out of which appellants paid Rs,40,000 to him, who acknowledge the same in sale-deed and handed over the possession to the appellants. The remaining amount of land was settled to be paid Within instalments after receipt of R.O. Form from respondents.
3. ' It was on 17-6-1986 Bahram Khan respondent No,2 being annoyed over the purchase came at the land alongwith 10 persons duly armed and claimed that he has purchased the land from respondents and started interference into possession of appellants but because of intervention of the people, the possession was saved. Hence the appellants filed Suit No,14 of 1986 for grant of permanent injunction in the Court of Senior Civil Judge, Ghotki and the respondent No,2 filed written statement and thereafter the case was transferred to the Court of learned Joint Civil Judge, Sukkur, where the respondent No,2 moved an application under Order 7, Rule 11, C.P.C. Which was allowed and plaint was rejected on 21-6-1992.
4. ' Subsequent to the rejection of plaint the appellants filed another Suit No,184 of 1992 on 18-11-1992 for specific performance and injunction in the Court of learned Senior Civil Judge, Ghotki.
5. Respondent No,2 contested the same and filed an application under Order 7, Rule 11, C.P.C.
6. Regarding rejection of plaint, the same too was allowed vide judgment dated 24-1-1993.
7. ' Mr. Abdul Latif Memon learned counsel for the appellants and Mr. Abdul Naeem learned counsel for respondents have been heard at length.
8. ' Mr. Memon learned counsel for the appellants submits that the learned lower Court was not justified in rejecting the plaint under Order 7, Rule 11, C.P.C. And the judgment and decree passed is not warranted by facts and law and is liable to be set aside and the lower Court has exercised its jurisdiction illegally and with material irregularity. He submits that the important conditions laid down under Order 7, Rule I1, C.P.C. Have been ignored by the learned lower Court while rejecting the plaint. He states that the Trial Court did not raise any objection about the court-fee stamp to be affixed with plaint at the time of the institution of plaint, which was admitted on the same day of its filing in the Court. Even after the institution of the plaint, the Court did not even point out about the payment of court-fee during the pendency of suit, therefore, the objection raised by the other side, is not sustainable. On this point learned counsel refers case-law reported in PLD 1984 SC 289, 1991 SCMR 207 and 978, and 1987 CLC 92.
9. ' Learned counsel, for the appellants next, argues that plaint cannot be. Rejected and suit cannot be dismissed for non-joinder of necessary parties on the ground that in the suit L.Rs, of deceased Muhammad Hussain were not joined as respondents but a dead person namely Muhammad Hussain was included as defendant No,3. Learned counsel submits that in any case these L.Rs, have been made party in the appeal which is the continuation of the litigation and appeal is the continuing process of the matter in question. On this point learned counsel refers case-law reported in 1987 CLC 1698.
10. ' Learned counsel for the appellants further contends that the suit will not be hit by principle of res judicata as it is entirely on different footings and two reliefs are claimed like that of specific performance of contract and permanent injunction, quite independent to the reliefs sought in the first suit, and in law there is no bar for institution of the fresh suit and it is not necessary to seek permission from the Court for filing a fresh suit. On this point learned counsel relies on the case-law reported in PLD 1973. Lahore 495.
11. ' Learned counsel for the appellants argues that law of limitation tofile suit within 3 years will not be applicable with the appellants as in the very agreement to sell entered in-between appellants and respondent No,1, it was mentioned that the remaining four instalments will be due after T.O. Form is given by respondent No,1 to the appellants. Since respondent No,1 did not provide T.O Form, therefore the appellants had cause of action to file suit. On this point learned counsel refers the case-law reported in PLD 1978 SC 213 and 1987 SCMR 1.
12. ' Learned counsel lastly urges that plaint cannot be rejected outrightly looking into the documents filed alongwith the same and the case-law reported in 1990 MLD 1137, deals with this aspect of the matter.
13. ' On the other hand Mr. Abdul Naeem learned counsel for the respondents vehemently opposes the contention agitated by the learned counsel for the appellants and submits that suit in question is hopelessly time-barred as it has been filed beyond the required period of .3 years as required under Article 113 of Limitation Act. The First Suit No,14 of 1986 for permanent injunction was filed on 24-6-1986 about the same subject matter with same cause of action and in that suit the plaint was rejected on 21-6-1992. Second F.C. Suit No,184 of 1992 was filed on 18-11-1992 for specific performance of contract and permanent injunction on the same cause of action and 13 paragraphs in both the suits are one and same. Mr. Naeem submits that the time for determining the period of limitation will be counted firstly from 5-12-1985 the date of agreement then it will be barred by 7 years and if the time be reckoned from 24-64986, the date of filing first suit, then it will be barred by 6 years and 5 months and if the time is reckoned from filing written statement dated 17-11-1986, the suit will be barred by about 6 years. In any case Mr. Naeem learned counsel for the respondents submits that second suit is filed on 18-11-1992 with quite independent prayer seeking relief for specific performance of contract and injunction after about 6 years and 10 months. In the suit, the appellants in para.10 have mentioned that it was on 17-6-1986, respondent No,2 alongwith 10 persons duly armed started interference with his possession declaring that he has purchased the land from respondent No,1 so the learned counsel states that the cause of action to file the suit will occur to the appellants on 17-6-1986. On this point he refers the case-law reported in 1989 CLC 15(2) and PLD 1993 Quetta 78.
14. ' Learned counsel for the respondents next argues that the suit is also barred by Order 2, Rule 2 as according to him the appellants intentionally relinquished their claim about the specific performance of contract in the first suit, therefore under this provision of law they were barred to sue in respect of the same in another suit. According to him a dead person has been impleaded as defendant No,3 who cannot be sued according to law. The appellants have deliberately concealed the fact of filing of the previous Suit No,14 of 1986 wherein he had joined the L.Rs, ,of respondent No,3 deceased Muhammad Hussain as respondents. Even in appeal the appellants have joined the L.Rs, of respondent No,3 without seeking permission from this Court, therefore, the suit was liable to be dismissed for non-joinder of necessary parties. He argues that appellants have filed 5 documents alongwith the suit which were taken into consideration by the Trial Court while rejecting plaint and that original power of attorney has not been filed throughout during the pendency of the suit which factor was also taken into consideration while rejecting the plaint. He lastly urges that suit was properly dismissed as the court-fee required was not paid. He places the reliance on the case-law reported in PLD 1993 Quetta 78(2), PLD 1977 Kar. 747 and 1987 CLC 50 and submits that Court can suo mote reject the plaint even if written statement is not filed.
15. ' It is an admitted fact that on 24-6-1986 appellants filed suit for permanent injunction in the Court of learned Civil Judge, Pano Akil as F.C. Suit No,14 of 1986 with the prayer that permanent injunction be granted restraining the respondents or their persons or persons claiming through them from committing the breach of contract with them and interfering into their peaceful possession and enjoyment of suit land and further be restrained by forcibly being dispossessed or selling or transferring the land to respondent No,2 or any body else. The suit was transferred to the Court of learned Joint Civil Judge, Sukkur who on 21-6-1992 rejected the plaint under Order 7, Rule 11, C.P.C. It was again on 18-11-1992 that appellants filed another Suit No,184 of 1992 for specific performance and permanent injunction before the Court of learned Senior Civil Judge, Ghotki against the same respondents, the plaint of which too was rejected under Order 7, Rule 11, C.P.C., mainly on the ground that the same party had filed a similar Suit No,14 of 1986 on the same subject-matter.
16. ' Just to arrive at a proper conclusion Rule 11 of Order 7 is re-produced:-- "11 Rejection of plaint.--The plaint shall be rejected in the following cases:--
(a) where it does not disclose a cause of action;
(b) where the relief claimed is undervalued, and the plaintiff, on being required by the Court to correct the valuation within a time to be fixed by the Court, fails to do so;
(c) where the relief claimed is properly valued, but the plaint is written upon paper insufficiently stamped, and the plaintiff, on being required by the Court of supply the requisite stamp-paper within a time to be fixed by the Court, fails to do so;
(d) where the suit appears from the statement in the plaint to be barred by any law.
17. ' So far cause of action is concerned, the same had accrued to the appellants firstly on 5-12-1985 the day, the alleged agreement to sell was executed between appellants and respondent No,1 Ghulam Rasool. It thereafter accrued on 24-6-1986 the day, appellants filed suit for permanent injunction and then on 17-11-1986 the respondents in Suit No,14 of 1986 filed written statement denying the very agreement to ' sell in-between appellants and respondent Ghulam Rasool and pleaded that the same is a false agreement prepared with forged signatures of respondent Ghulam Rasool. In the present Suit No,184 of 1992 same agreement to sell as agitated in the first suit has been made basis of this suit also, so much so nearly 13 paragraphs are exactly same as that of the previous suit. When the basis for filing the previous suit and subsequent suit in the same cause of action will also be same and when the same was agitated in the previous suit, it cannot be agitated at different times in civil suits of like nature without availing of the remedy for filing appeal before competent Court. While taking this into the consideration the suit in question filed on 18th November, 1992 will be hit by the Limitation Act and is time-barred by 7 years from the date of execution of alleged agreement to sell viz. 5-12-1985 and 5 years and 5 months by the first suit filed on 24-6-1986 and by 6 years of filing written statement by respondents. Article 10 of Limitation Act provides a period of 3 years for filing suit for specific performance of contract, therefore apparently suit is barred by limitation. The contention of learned counsel for the appellants that the suit is not barred by limitation as the cause of action continues till the filing of the present suit, has no force as the cause of action is mainly based on the alleged agreement to sell, which was denied by the respondent No,1 Ghulam Rasool to have ever-executed with appellants and said in written statement that the same is forged and fabricated one. At least it becomes apparent from the day of filing written statement that there does not exist any agreement to sell in-between appellants and respondent No,1 Ghulam Rasool, therefore, cause of action did not accrue to the appellants for further litigation. Appellant could have amended his plaint by adding specific performance of contract in the first suit filed in 1986.
18. ' In the case of Mian Muhammad Akram and others v. Muhammad Rafi (1989 CLC 15(d)), plaint was rejected as the suit was filed after 10 years of the date of allotment. The contention that no objection was raised by the Court at the time of the institution of the suit about the non-payment of the stamp-fee according to its valuation, therefore, this point cannot be raised at this stage and it was the Court to ask for supply of requisite stamp paper within time to be fixed. No doubt this condition is laid down under Rule 11 of, Order 7, C.P.C. But objection was raised by the respondents at the very initial stage of the suit. The fact remains that no proper court-fee was paid by the appellants.
19. ' In case of Siddique Khan and others v. Abdul Shakoor Khan and others (PLD 1984 SC 289), Muhammad Iqbal and others v. Abdul Hameed (1991 SCMR 978) and Kadir Bux v. District Judge and 3 others (1987 CLC page 92), it has been mainly held that plaint may not be rejected for deficiency in court-fee and that can be done even in appeal and one opportunity as of right should be granted to the appellants to make-up deficiency in court-fee.
20. ' Case of Mst. Gulab Jehan v. Umerdin and others (1987 CLC 1698) is on different facts and circumstances and has no bearing with the facts of the present case as it has been held that:- "Where dead persons at time of institution of suit were not the only defendant but there were numerous other persons as defendants, provision of Order I, Rule 10, C.P.C. Held, were fully attracted which enable Civil Court to strike out name of any party to the suit who was improperly joined as such or add the name of any person either as plaintiff or defendant who ought to have been joined as such or whose presence was necessary in order to enable Court effectually and completely to adjudicate upon and settle all the question involved in such suit. Order of dismissal of suit against such defendant even if not an illegality was a material irregularity which justified rectification by High Court in exercise of its revisional jurisdiction.
21. ' The case in hand, the position is entirely different. Appellants in the first suit filed before Civil Judge, Pano Akil joined the legal heirs of deceased Muhammad Hassan as respondents showing Muhammad Hassan as dead whereas in subsequent Suit No,184 of 1992, they impleaded Muhammad Hassan as respondent No,3 so apparently he filed suit against a dead person and being in knowledge did not file suit with clean hands by joining the L.Rs, of deceased Muhammad Hassan as respondents. In appeal again appellants have joined L.Rs, as respondents of deceased Muhammad Hassan without seeking permission from this Court. The last case of Mahboob Siddiqui v. Nafeesullah and others (1990 MLD 1137) referred above relates to the principles to be followed while rejecting the plaint under Order 7, Rule 11, C.P.C. In this citation it has been held that Court can reject plaint under Order 7, Rule 11, C.P.C. Only if plaint appears to be barred in some law on the basis of averments made in the plaint. The case in my opinion also does not support the case of the appellants as this case is hit by law of limitation and is badly time-barred. On the other hand, the law referred by the learned counsel for the respondents fully supports his case. In the case of Yahya Bakhtiar v. Federation of Pakistan (PLD 1993 Quetta 78), it has been held that even non- raising of question of limitation in written statement, would not constitute estoppel/waiver-Court could itself dismiss plaint if from the statement in plaint it appeared to be barred by time. Non- raising of question of limitation would neither be a waiver nor estoppel for question of limitation is always a matter of statute and provisions being mandatory, no estoppel could be pleaded.
22. Irrespective of this, the suit is also barred by Order 2, Rule 2, C.P.C.
23. ' For the foregoing discussion, I have come to the conclusion that the suit in question is hit by law of limitation and is highly time-barred. The Trial Court was correct and justified in rejecting the plaint of the appellants. Consequently 1st C.A. No,2 of 1993 is disissed with no order as to costs.