' Mr. Muhammad Hussain Jahania, Advocate, for respondents has raised a preliminary objection about maintainability of present Regular Second Appeal. According to the learned counsel after amendment made in section 102, C.P.C. Read with section 18 of Civil Court Ordinance, regular second appeal is not maintainable.
2. According to Ordinance X of 1980, which was amended on 26-3-1980 the jurisdictional value was enhanced from Rs,2,000 (two thousands) to Rs,50,000 (fifty thousands). However, another amendment was incorporated in section 102 of C.P.C. By the Act VI of 1992, which became operative from 30-5-1992. By way of this amendment the jurisdictional value of 1st Appellate Court was enhanced from 50,000 to Rs,1,00,000 (one lac). Subsequent thereof another amendment was introduced by Ordinance XXXIII of 1993 and jurisdiction value was further enhanced from Rs,1,00,000 (one lac) to Rs,2,50,000 (two lac fifty thousand) which became operative from 13-10-1993. It was later on made Act XIV of 1993 and became Operative from 31-7-1994.
3. It is contended by the learned counsel for respondents that the Statute providing change of forum pecuniary or otherwise would be procedural in nature and would have retrospective effect unless contrary is provided expressly or impliedly and effect the existing rule or cause injustice or prejudice. It is further contended that any Statute which enhances or reduces the pecuniary jurisdiction of the Court or provides forum other than where the case was pending the same would fall within the category of Procedural Law. In such a situation, according to the learned counsel, such amendments are procedural in nature and, therefore, operate retrospectively because no injustice will be caused to the appellants if the Act is treated to be operative with retrospective effect. The learned counsel has placed reliance upon the cases Bashir v. Wazir Ali (1987 SCMR 978) and Malik Gul Hasan & Co. And 5 others v. Allied Bank of Pakistan (1996 SCMR
4. Conversely the learned counsel appearing on behalf of appellants has contended that the amendment made subsequent to the filing of suit does not affect the rights enjoyed by the parties when right of second appeal was conferred on the parties by existing Statute and the mere fact that the right of second appeal was not conferred after institution of the suit did not effect the situation. It is further contended that the Proposition that institution of the suit carried with it the implication that all rights of appeal then in force were reserved to the parties concerned till rest of the career of the suit and these rights would be taken away only by subsequent enactment provided it so provided expressly or by necessary intendment and not otherwise and would not preclude the addition of the remedy of the second appeal if the litigation was pending before First Appellate Court or any Court subordinate to it when the second appeal was added. The learned counsel advancing his arguments further stated that the appeal is not a mere matter of procedure, but a substantive right and this right accrued to the plaintiffs, when he brought the suit and the suit would continue at all stages. Of litigation in spite of repeal of the Provisions which.
Created rights. The learned counsel has referred the cases of Haji Muhammad Ibrahim and 3 others v. Mst. Surrayia un Nisa and 9 others (PLD 1992 Supreme Court 637) and Mst. Shohrat Bano v.
Imail Dada Adam Soomar (1968 SCMR 574).
5. I have heard the arguments advanced by the learned counsel for parties and have also gone through the record with the help of learned counsel. The suit was instituted on 25-3-1992 before the learned Trial Court. It is necessary to point out that at the time of institution of suit the Ordinance X of 1980 was in force. According to above Ordinance, the amendment made in section 102(2), C.P.C., the jurisdictional value was enhanced from Rs,2,000 (two thousands) to Rs,50,000 (fifty thousands).
Subsequent thereto the jurisdictional value was further enhanced vide amendment brought through Act VI of 1992, from Rs,50,000 (Fifty thousand) to Rs,1,00,000 (One lack) of First Appellate Court. The said Act became operative from 30-5-1992. Since the suit in the present case was instituted on 25-3-1992, therefore, the amendment made through Act VI of 1992, which came into force on 30-5-1992, was not at all applicable to the case. As held by their Lordships in 1968 SCMR 574 (ibid) that the right accrued to the plaintiff when he brought his suit and would continue at all stages of the litigation in spite of the repeal of the Provision, which created the right and since the appeal is in continuation of the suit, therefore, the principle laid down by their Lordship, in the above cited cases, would also govern the present case and subsequent amendment made after institution of the suit would not make any difference and the right of filing the second appeal before this Court, as existed at the time of institution of suit, would continue. In the present case the jurisdictional value of the suit is Rs,56,850 and according to law, which existed at the time of institution of the suit, would also govern the institution of appeal, therefore, the present regular second appeal being continuation of the suit is very much maintainable. '
6. In the light of above discussion, the objection raised by the learned counsel is overruled. Since the present regular second appeal is still at motion stage, let it be fixed in motion. The status quo already granted shall continue in the meanwhile.
[Karachi] Before Rasheed Ahmed Razvi, J USMAN A. GHANI and 3 others-Plaintiffs versus Suit No,792 of 1986, decided on 3rd March, 1998.Firri GHULAM NABI and another-Defendants-mstu arh
(a) Specific Relief Act (I of 1877)--- ----S. 42---Civil Procedure Code (V of 1908), 0. III, R.2---Qanun-e-Shahadat (10 of 1984), Art.46(2), (5)---Factum of relationship of plaintiffs as sons of deceased landowner---Statement of deceased incorporated in general power of attorney in favour of her eldest son (plaintiff)---Effect- --Deceased owner of property in all cases filed by her or against her was represented by her son in dual capacity as her son and her attorney which status was never challenged or denied by defendants throughout those proceedings before Civil Courts and other quasi-judicial Authorities- --Denial of relationship of plaintiffs with deceased landowner was raised for the first time through counter-affidavit filed by defendant in 1987---Landowner by that time had expired, therefore, it was not possible for plaintiffs to produce her in rebuttal of plea raised by defendant---Evidence produced by plaintiffs on factum of relationship with deceased owner was consistent and convincing while defendants' evidence on that issue did not inspire confidence---Plaintiffs were, thus, successors-ininterest/legal heirs of deceased owner and were competent to claim property in question owned by her through suit filed by them. [p. 1568] A
(b) Specific Relief Act (I of 1877)--- ----S. 42---Limitation Act (IX of 1908), S.14---Cooperative Societies Act (VII of 1925), Ss .64-A & 70- A---Terms "Civil proceeding" and "suit " -Connotation-- Benefit of S.14, Limitation Act, 1908, when to accrue to plaintiff---Case of multiple causes of action---Commencing of limitation---Term "civil proceedings" in S.14, Limitation Act, 1908 was used in reference to period of limitation in filing suit--- Use of words "civil proceeding" in S.14, Limitation Act, 1908, indicated that not only time consumed in prosecuting suits was entitled to be excluded but other proceedings of like nature which could be termed as "civil proceedings" would also come within purview of S.14, Limitation Act, 1908---To avail benefit of S.14, Limitation Act, 1908, plaintiff must show that he was diligently and with good faith prosecuting his case based on same cause of action, through some other legal proceedings in some Court or forum which was suffering from jurisdictional defect or any other cause of like nature, which included misjoinder of parties or cause of action---Where dispute between parties pending before Arbitrator was referred back by him for decision by Civil Court, fresh cause of action had accrued to plaintiff, therefore, question of benefit of S.14, Limitation Act, 1908 was of no consequence---Defendant had taken two different pleas before two different forums which were mutually destructive---Law would not permit anybody to blow hot and cold in the same breath by agitating before Arbitrator that it had no jurisdiction and then pleading before Court that Arbitrator had jurisdiction---Plaintiff's case was of multiple causes of action; first cause of action had arisen in 1977 when predecessor of plaintiffs was informed about transfer of property in question to private defendant which was made basis for initiating proceedings before Arbitrator which kept the matter sub judice till 1985, when plaintiffs were directed to approach Civil. Court for determination of their entitlement---Fresh cause of action, thus, accrued to plaintiffs to maintain suit---Plaintiff's suit was, thus, deemed to be within time. [pp. 1572, 1573, 1574, 1575] B, C, D, E & F Ramdutt Ramkissen Dass v. E.D. Sassoon & Co. AIR 1929 PC 103; Messrs 4ftab Medical Stores v. Commissioner of Income-tax PLD 1976 Lah. 1330; Messrs Haroon Textile Mills Ltd. v.
Allah Ditta PLD 1972 Kar. 57; Saddar Din v. Allah Rakha 1984 CLC 1258; Kilachand Devechand & Co.
(Private) Ltd. v. Messrs Sh. Mian Muhammad Allahbux PLD 1962 (W.P.) Kar. 510; Mirza Muhammad Saeed v. Shahab-ud-Din and 8 others PLD 1983 SC 383; Agricultural Development Bank of Pakistan Ltd. v. Noor Muhammad and 2 others PLD 1985 Quetta 74; Sher Muhammad and 8 others v.
Ismatullah and 3 others 1996 CLC 206; Masud Ahmad and 2 others v. United Bank Limited 1992 SCMR 424; Purshottamdas Hassaram Sabnani v. Impex (India) Ltd. AIR 1954 Bom. 309; Maharaj Sai v. Kedar Nath and another AIR 1933 Nag. 130; Muhammad Aslam Mirza v. Mst. Khursheed Begum PLD 1972 Lah. 603; Mathora Singh v. Bhawani Singh and others ILR 22 A11.248; Choudhry Abdul Sattar and others v. Abdul Roshan and others 40 CWN 914; Oxford Companion to Law by David M. Walker Clarendon Press Oxford, 1980, p.224; Hussain Baksh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Stroud's Judicial Dictionary; Bradlough v. Clarks 8 AC'354; Sheikh Haider v.
Registrar, Cooperative Societies, Karachi and others PLD 1966 (W.P.) Kar. 177 and F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 ref. S. Afsar Abidi for Plaintiffs.
Khalilur Rehman and Arif Bilal Sherwani for Defendants.
' This is a suit for declaration, permanent injunction and possession filed by some four plaintiffs who claim to be the successors-in-interest of Mst. Ayoor Bai W/o Noor Muhammad, who expired on 2- 4-1986 at Karachi. The subject-matter of this suit is an immovable property/open Plot bearing No,WS-3/B/7 and 8, Central Commercial Area, Karachi Cooperative Society Union, Karachi measuring 319 square yards (hereinafter referred to as the suit property). Defendant No,1 Ghulam Nabi claims to be the present owner of the suit property while defendant No,2 namely Karachi Cooperative Housing Society Ltd. (hereinafter referred to as Cooperative Society) is the authority which controls and administers the said property.
2. This case has a chequered history starting from 2-5-1965 when Mst. Ayoor Bai purchased the suit property in an open auction against the total amount of Rs,33,495. It is alleged in the plaint that on 3rd July, 1975, plaintiff No,1 while in transit from Dhoraji Colony to Jodia Bazar, lost his brief case which contained several documents including allotment order and possession order of the suit property; that an advertisement was published in daily Dawn (Gujrati) Karachi; that the Cooperative Society was also informed; that in December, 1977, plaintiff No,1 found that the defendant No,1 was raising construction on the suit property; that when he was asked to stop construction, he refused to do so; that on 19-12-1977 Mst. Ayoor Bai informed the Cooperative Society about the illegal acts of defendant No,1; that vide letter, dated 22-12-1977, the Cooperative Society asked Mst. Ayoor Bai to appear in person and produce original allotment and to clarify her position.
3. It is alleged in the plaint that since the Cooperative Society failed to resolve dispute between Mst.
Ayoor Bai and defendant No,1 she filed a Suit bearing No,7 of 1977 in the Court of 14th Civil Judge Karachi seeking declaration, injunction and cancellation of documents and also for mesne profits against both the present defendants. The said suit was admittedly withdrawn with the permission to file a fresh one. Instead of filing a fresh suit, Mst. Ayoor Bai filed arbitration proceedings under section 54 of the Sindh Cooperative Societies Act, 1925 (hereinafter referred to as the Act, 1925) which was referred to the nominees of the Registrar Cooperative Housing Society. Meanwhile, plaintiff again filed another Suit bearing No,2651 of 1978 against defendant No,1 for injunction restraining him from raising any construction or in any manner creating mortgage or alienation on the property. However, the plaint was rejected by the Court vide order, dated 4-11-1978. Initially, the award was announced on 26-11-1978 by the nominee of the Registrar, Cooperative Societies in favour of Mst. Ayoor Bai declaring her to be the lawful owner of the suit property and directing the defendant No,1 to deliver the physical possession of the same to her. Against this award, defendant No,1 filed an appeal under section 56 of the Act, 1925 before the Deputy Registrar who by his order, rated 19-8-1979 set aside the Award and held that since the dispute involved complicated questions of law and facts, the parties should seek redress in a Court of appeal. Against the order of Deputy Registrar, Mst. Ayoor Bai filed revision under section 62 of the Act, 1925 before Government of Sindh which was heard and decided on 29-9-1981 through which the order of Deputy Registrar was set aside and the Award of the nominee was restored. This order of Provincial Government was challenged by the defendant No,1 through a Constitutional Petition No,D-1021 of 1981 which was allowed by a learned Division Bench of this Court vide order, dated 10-5-1982 and the order of Secretary, Labour and Cooperatives, Government of Sindh was set aside and the case was remanded for re-hearing by the concerned Provincial Minister.
4. After remand, the matter was heard by the concerned minister, Government of Sindh who, by order, dated 5-11-1985, upheld the order of Deputy Registrar and held that in view of the complicated questions involved in the matter, the same is required to be decided by a Civil Court.
Mst. Ayoor Bai, being aggrieved with the said order, issued notice under section 70 of the Act, 1925 and filed the instant suit with the following prayers:---
5. "(a) For cancellation of the mutation/transfer of the Plot No,WS-3/7 & 8, ' Central Commercial Area, measuring 319 square yards in Karachi Cooperative. Housing Society Union, Karachi in favour of Defendant No,1 in the records of the Defendant No,2 Society.
(b) For a declaration that the Plaintiffs are the owners of the said plot.
(c) For a direction/injunction to the Defendant No,2 directing it to enter the names of the Plaintiffs as owners of the said plot in its records and in the event of its failing to do so for an order directing the Nazir to do so and to issue documents of title/ownership in relation thereto to the Plaintiff.
(d) For a Permanent Injunction against the Defendant No,1 restraining him from transferring, alienating, mortgaging and/or encumbering the said plot in any manner or raising any construction thereon and for removing any construction raised thereon.
(e) For possession of the said plot to the Plaintiffs.
(f) For Mesne Profits against the Defendant No,1 at the rate of Rs,4,000 per month till the delivery of possession to the Plaintiffs.
(g) Such other relief as may be deemed appropriate by this Honourable Court.
(h) Costs of the Suit."
5. The case of the defendant No,1 is that Mst. Ayoor Bai was not the predecessor-in-interest of present plaintiffs; that the name of deceased mother of the present plaintiffs was Mst. Hoor Bai whose husband was Abdul Ghani and father (maternal grandfather of present plaintiffs) was Noor Muhammad; that the present plaintiffs have no locus standi to raise any claim on the suit property; that defendant No,1 has purchased the suit property from Mst. Ayoor Bai Noor Muhammad against the sale consideration of Rs,52,000 and, as a result, both of them filed a joint transfer application before the Cooperative Society; that the present suit is barred by time; that no cause of action ever accrued to the plaintiffs to maintain the present suit. The case of defendant No,2/Cooperative Society is of neither denial nor admission. It was stated that the property was transferred to defendant No,1 by the then Chief Officer who is no more in the employment of the said society and that he has died. As a result of these pleadings, following issues were adopted by this Court by consent of the parties, vide order, dated 4-10-1987:--- "(1) Is the suit of the plaintiff barred by time?
(2) Are the plaintiffs the legal heirs and successors-in-interest of Mst. Ayoor Bai wife of Noor Muhammad?
(3) Whether Mst. Ayoor Bai Noor Muhammad never sold the suit plot to defendant No . 1 for sale consideration of Rs .52,000 or executed any documents transferring the same in favour of the Defendant No,1?
(4) Whether the Defendant No,2 was informed by the plaintiff about the loss of original papers of the suit plot? If not, to what effect?
(5) Was the transfer/mutation of the suit plot obtained by forging the signature of Mst. Ayoor Bai and whether the transfer/mutation of the suit plot in the record of defendant No,2 is liable to be cancelled?
(6) Whether notice under section 70 of the Cooperative Societies Act was duly served upon the Registrar, Cooperative Societies? If not, to what effect?
(7) Are the plaintiffs entitled to the cancellation of the mutation/transfer of suit plot by defendant No,2 in favour of defendant No,1?
(8) Are the plaintiffs entitled to relief of declaration and injunction as prayed for?
(9) Are the plaintiffs entitled to possession of suit plot and mesne profit as prayed for?
(10) What should the decree be?"
6. On 24th August, 1994 when this matter came up for arguments before an earlier Bench, it was stated by Mr. Afsar Abidi that the period, which has been spent by the plaintiff in perusing the proceedings under the Cooperative Societies Act and in the proceedings in other suits and writ petitions before different Courts, has to be excluded in view of the provisions of section 14 of the Limitation Act, 1908. It was further contended by him that if such period is excluded this suit would be within time whether the period of limitation is taken as three years under Article 91 or 6 years under Article 120 of the First Schedule of the Limitation Act. It was further submitted that if the benefit of section 14 of the Limitation Act is not available to the plaintiff then the suit as a whole would be barred by limitation and the plaintiff would not be able to obtain the relief of possession, which is dependent upon the other relief sought, namely, the relief of cancellation. On the same day, it was argued by Mr. Khalilur Rehman that the limitation commenced to run from 31st January, 1976 when the Cooperative Society informed the plaintiffs that the plot in question has been transferred, which fact was contested by Mr. Abidi, who was of the view that the limitation commenced to run in December, 1977. Again when this matter came up for hearing on 5-9-1994 and 14-11-1995, following orders were passed:--- 5-9-1994.
"Mr. Abidi has concluded his argument on the question of limitation. He says that he will argue the question of merit only if the suit is held to be within the period of limitation. Mr. Khalilur Rehman agrees that it would be futile to argue the question of merit, if the Court comes to the conclusion that the suit is barred by limitation. Mr. Khalilur Rehman will, therefore, submit his argument in reply to Mr. Abidi on the next date.
Adjourned to 14-9-1994."
14-11-1995.
"On 24-8-1994 and 5-9-1994 it was agreed between the parties that first the question of limitation be decided as it will decide the fate of this suit. It is stated by Mr. Khalilur Rehman that the suit is barred by Article 91 of the Limitation Act. In the circumstances parties are directed to first argue the question of limitation. Adjourned to 11-12-1995 . "
7. As a result of the above orders, arguments were heard on the first two issues and vide a short order, dated 20th February, 1998, both the issues were answered in the following manner:- "In pursuance of this Court orders, dated 24-8-1994 and 5-9-1994 arguments were heard on the Issues Nos.1 and 2. For the reasons to be recorded separately both these Issues are answered as follows:--- ISSUE NO.1. Is the suit of the plaintiffs barred by time? FINDING: No, the suit is within time. ISSUE NO.2.
Are the plaintiffs legal heirs and successors-in-interest of Ayoor Bai?
FINDING: Yes, plaintiffs are legal heirs of Mst. Ayoor Bai.
Parties are directed to make their submissions on Issues Nos.4 to 10 on the next date of hearing."
8. The arguments of Mr. S. Afsar Abidi, Advocate for plaintiffs, Mr. Khalilur Rehman, Advocate for defendant No,1 and Mr. Arif Bilal Sherwani, Advocate for defendant No,2 were heard at length. It was vehemently argued by Mr. Khalilur Rehman that the suit is barred by Article 91 of the Limitation Act, 1908 (hereinafter referred to as Limitation Act) as the time to file the instant suit rose from the day when the first suit was withdrawn or in the alternate when the plaint in Suit No,2651 of 1978 was, rejected, which date is 4-11-1978, while the instant suit was filed on 12th November, 1986, after a lapse of more than eight (8) years. In reply to this objection, it was argued by Mr. Afsar Abidi that since the arbitration proceedings as provided under the Act, 1925 were pending; such period is liable to be excluded while computing the period for limitation. Reliance is placed on section 14 of the Limitation Act. Again, it was contended by Mr. Khalilur Rehman that the plaintiffs are not entitled to the benefits provided under section 14 of the Limitation Act as they are not the successors/legal heirs of Mst. Ayoor Bai. In this view of the matter, I would first like to discuss Issue No,2 which involves the question of successorship of Mst. Ayoor Bai and then Issue No,1 which involves question of limitation as the plaintiffs are seeking exclusion of time consumed in the arbitration proceedings by relying on section 14 of the Limitation Act. The plaintiffs have admitted that they would be entitled for exclusion of the abovesaid period provided they succeed in establishing that Mst. Ayoor Bai was their real mother and predecessor in interest. Issue No,2.
9. In support of this issue, plaintiff No,1 Usman Abdul Ghani was examined as Exh.P.W.1. He has stated that Mst. Ayoor Bai was his mother who died in the year 1986 leaving behind all the four plaintiffs as her legal heirs. He has produced extract of entries of City Register of Deaths being maintained by Karachi Metropolitan Corporation which shows Mst. Ayoor Bai wife of Abdul Ghani died at the age of 87 years due to heart failure on 9-2-1986. The reporting date shown in Exh.P/1 is 2-4-1986. The initial order of allotment which was brought on record as Exh.P/2 shows the name of successful bidder as Mst. Ayoor Bai and in the column of address it is mentioned as C/o Usman Abdul Ghani, 254 Zia Manzil, Burns Road Karachi. The said person is now plaintiff No,1 who has also produced original of National Identity Card of Mst. Ayoor Bai as Exh.P/5 which is numbered as 518- 00-085-637 where her name is shown as Hoor Bai wife of Abdul Ghani, residing at Dhoraji Colony, Karachi. This identity card was issued on 28-5-1974. It is pertinent to note that during the arbitration proceedings, which commenced in the month of June, 1978 and were finally terminated by the order of Government of Sindh, dated 5-11-1985, plaintiff No,1 represented Mst. Ayoor Bai showing himself to be her attorney as well as her son. Even in the title of Suit bearing No,7 of 1978 filed in the Court of 4th Civil Judge Karachi, it is clearly mentioned as Mst. Ayoor Noor Muhammad---through her son and attorney Usman Abdul Ghani. Against the order of interim injunction passed in the said suit, an appeal was filed by the defendant No,1 where in memo of appeal Exh.X-1 he has impleaded Mst. Ayoor Bai Noor Muhammad through her son and attorney Usman Abdul Ghani. Even in the Constitutional Petition bearing number D-1021 of 1981 filed by defendant No,1 on 3-11-1981 a copy of which was exhibited as Exh.X-2, he has again impleaded Mst. Ayoor Bai wife of Noor Muhammad as respondent No,4 through son and attorney Usman Abdul Ghani. For the first time in the year 1987, it was claimed by the present defendant No,1 in this suit that Mst. Ayoor Bai was not the predecessor- in-interest of the plaintiffs. Admittedly, this plea was raised after expiry of Mst. Ayoor Bai which left no scope for the plaintiffs to rebut the same by producing Mst. Ayoor Bai in the witness-box. In all the proceedings, whether it was Civil Suits bearing No,7 of 1978 or 2651 of 1978, or arbitration proceedings before the nominee of Deputy Registrar, Secretary Government of Sindh or even before the Minister, Government of Sindh, Mst. Ayoor Bai was represented by plaintiff No,1 in the capacity as her attorney as well as her elder son. Plaintiffs have also filed a copy of general power of attorney as Exh.P/16 which is neither registered nor endorsed by Notary Public. However, it shows that this document was executed some time in December, 1977 at Karachi. It is pertinent to note that it is one of the findings of the nominee of Deputy Registrar, Cooperative Societies, Karachi given as reasons of Award vide Exh.P/9 where it was held that Usman Abdul Ghani was also her son. However, these findings were not set aside by the Deputy Registrar while hearing Appeal No,62 of 1978. He only referred the parties to resolve the complicated questions of law and facts through a regular suit. It will be seen that during all this period, none else has appeared on behalf of Mst.
Ayoor Bai claiming any right and interest in the property. If it is accepted that the mother of plaintiffs was Hoor Bai wife of Abdul Ghani and not Mst. Ayoor Bai then why have the defendants not denied that plaintiff No,1 Usman Abdul Ghani is not the same Usman Abdul Ghani who was representing Mst. Ayoor Bai. This aspect of the case has not been denied by the defendants that the plaintiff No,1 is not the same person who has represented Mst. Ayoor Bai Noor Muhammad as her legal attorney before the earlier round of litigation and before the arbitrators.
10. Defendant No,1 has produced one Abdul Karim son of Ghulam Nabi as the witness who claimed to be his attorney.
' This witness has also filed copy of initial allotment order as Exh.D-1/6 which is same as Exh.P-7/2.
The contents of both these documents are same which indicate the address of Mst. Ayoor Bai as "C/o Usman Abdul Ghani." Even the signatures of the allottee is the same which appears on Exh.P-6 and in the earlier pleadings. This witness has stated that at the time of transfer he was present when the then Chief Officer of defendant No,2 called the plaintiff No,1 in presence of Mst. Ayoor Bai and asked the nature of relationship between them to which she stated that Usman Abdul Ghani is her caste fellow. According to this witness, the suit property was transferred in the name of defendant in the year 1976 and, therefore, it could be safely presumed that defendant No,1 was in the knowledge that plaintiff No,3 was not the real son of Mst. Ayoor Bai. Then why was the claim of plaintiff No,1 that he is son and attorney of the deceased Mst. Ayoor Bai has never challenged in the first round of litigation or in the proceedings before the arbitrator (till 1987) when plaintiff No,1 was throughout claiming himself to be the attorney and son of Mst. Ayoor Bai. Thus, the evidence of this witness to this extent is not convincing. D.W.2 namely Muhammad Anwar, who, at the time of his examination was the Chief Officer of defendant No,2, produced during his cross-examination the Nominal Membership Form as Exh.D-2/9 to be filed by a member of the Cooperative Society. Again, this document is signed by Usman Abdul Ghani on behalf of Mst. Ayoor Bai. It was admitted by this witness that he cannot say on the basis of record of the Cooperative Society whether Mst. Ayoor Bai ever appeared in the office at the time of this transfer. There is some discrepancy while printing the name of Mst. Ayoor Bai in several documents brought on record. In some of such documents she is shown to be wife of Noor Muhammad while in others, she is shown as daughter of Noor Muhammad. However, in nearly all such documents she was being represented by plaintiff No,1 in dual capacity as her son and her attorney which status was never challenged or denied by the defendants throughout the proceedings before Civil Courts and before the authorities constituted under the Cooperative Societies Act, 1925. Such plea was raised for the first time through a counter-affidavit filed by defendant No,1 in January, 1987 and the status of the plaintiffs was challenged. By that time, Mst. Ayoor Bai had expired and it was not possible for the plaintiffs to produce her in rebuttal of the plea raised by the defendant No,1. The evidence produced by the plaintiffs on this issue is consistent and convincing while the defendants' evidence on this issue does not inspire confidence. In these circumstances, I am inclined to hold that the present plaintiffs are the successors-in-interest/legal heirs of Mst. Ayoor Bai. Accordingly, Issue No,2 is answered in affirmative.
Issue No,1.
11. Before dilating upon the question whether Article 91 or 120 of the Limitation Act is involved, I would like to deal with the provisions of section 14 upon which heavy reliance is placed by the plaintiffs.
Section 14 of the Limitation Act reads as follows:--- "14. Exclusion of time of proceeding bona fide in Court without jurisdiction.---(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.
(2) In computing the period of limitation prescribed for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a Court of first instance or in a Court of Appeal, against the same party for the same relief shall be excluded, where such proceeding 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. Explanation I.---In excluding the time during which a former suit or application was pending, the day on which that suit or application was instituted or made, and the day on which the proceedings therein ended, shall both be counted.
Explanation II.---For the purpose of this section a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding.
Explanation HI.---For the purpose of this section misjoinder of pa-fties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
' Section 14 provides protection against the bar of limitation to a plaintiff who was prosecuting another civil proceedings with due diligence against the same defendant, provided such civil proceedings is founded upon the same cause of action and was prosecuted in good faith in a Court which is unable to entertain it from defect of jurisdiction or other cause of a like nature. It was argued by Mr. S. Afsar Abidi that from the day 18-6-1978 when the matter was referred to the arbitration till 5-11-1985 when the appeal was finally decided by the provincial minister, this period is to be excluded. On the other hand, it was vehemently contended by Mr. Khalilur Rehman that the proceedings before an arbitrator is not in the nature of civil proceedings; therefore, the said period is not liable to be excluded while computing the period of limitation prescribed for filing this suit.
Both the parties have referred to the following cases:---
(i) Ramdutt Ramkissen Dass v. E.D. Sassoon & Co. (AIR 1929 P.O. 103);
(ii) Messrs Aftab Medical Stores v. Commissioner of Income-tax (PLD 1976 Lahore 1330);
(iii) Messrs Haroon Textile Mills Ltd. v. Allah Ditta (PLD 1972 Karachi 57);
(iv) Saddar Din v. Allah Rakha (1984 CLC 1258);
(v) Kilachand Devechand & Co. (Private) Ltd. v. Messrs Sh. Mian Muhammad Allahbux (PLD 1962 (W.P.) Karachi 510);
(vi) Mirza Muhammad Saeed v. Shahab-ud-Din and 8 others (PLD 1983 SC 383);
(vii) Agricultural Development. Bank of Pakistan Ltd. v. Noor Muhammad and 2 others (PLD 1985 Quetta 74);
(viii) Sher Muhammad and 8 others v. Ismatullah and 3 others (1996 CLC 206);
(ix) Masud Ahmad and 2 others v. United Bank Limited (1992 SCMR 424);
(x) Purshottamdas Hassaram Sabnani v. Impex (India) Ltd. (AIR 1954 Bombay 309); and
(xi) Maharaj Sai v. Kedar Nath and another (AIR 1933 Nagpur 130).
12. In the case of Ramdutt Ramkissen Dass (cited at serial No,(i) above), one of the question for consideration before the Privy Council was whether section 14(1) of the Indian Limitation Act is attracted in the matter of second arbitration as the first proceedings before another arbitrator was held to be without jurisdiction. The Bengal High Court applied the said provision which was approved by their Lordships of the Privy Council. It was held that "an arbitration under the Indian Arbitration Act are not prosecuted by filing suits and preferring appeals from the decrees in such circumstances, but by procuring awards and filing them in Court and resisting applications to set them aside. The analogy of the Indian Limitation Act requires that an arbitrator should exclude the time spent in prosecuting in good faith the same claim before an arbitrator who was without jurisdiction." In the case of M/s. Aftab Medical Store (at serial (ii) above), the question involved before a Division Bench of Lahore High Court was whether the time consumed in a proceedings filed before the appellate Assistant Commissioner of Income Tax which was subsequently dismissed for defect of jurisdiction, can be excluded. The appeal was dismissed on the ground that the same was barred by three days. After making reference to the case Muhammad Aslam Mirza v.
Mst. Khursheed Begum (PLD 1972 Lahore 603), it was held that section 14 of the Limitation Act is applicable to the proceedings before the Income Tax Authorities. In M/s. Haroon Textile Mills Ltd. (at serial No,iii above), a second appeal was filed before a Division Bench of this Court against the judgment and decree passed by the Civil Judge 1st Class Karachi. One of the issue framed was whether it was barred by time. In that case, the plaintiff served appellant till 31-4-1959 but filed a suit in January, 1966 for recovery of this claim. It was pleaded that the time consumed before the Authority constituted under section 20 of the Workmen's Compensation Act, 1923 be excluded. It was held that by filing an application to the Factory Inspector for claim in tort can by no stretch of arguments be said to be a bona fide proceedings fit for condonation of delay under section 14 of the Limitation Act. In Saddar Din (at serial (iv) above), it was held by a learned Single Judge of Lahore High Court that the plaintiff was not entitled to the benefits of section 14 of the Limitation Act as the previous suit was withdrawn under Order XXIII, Rule 1, C.P.C. With the permission to bring a fresh one. In Kilachand Devechand and Co. (Private) Ltd. (at serial (v) above), an appeal under clause 10 of the Letters Patent was filed against an order of learned Single Judge of this Court to set aside an Award. One of the objections to the Award was that the claim of the plaintiffs had become time-barred as at the time of second reference to arbitration, there was no subsisting dispute between the parties. The Appellants relied on section 14 of the Limitation Act and referred to the case of Ramdutt Ramkessan (serial (i) above). Appeal was accepted by a Division Bench comprising Inamullah and Anwarul Hague, JJ. (as their Lordships then were) after making reference to the cases of Mathora Singh v. Bhawani Singh and others (22 ILR All. 248) and Choudhry Abdul Sattar and others v. Abdul Roshan and others (40 C.W.N. 914) and the order of learned Single Judge was set aside. In this judgment the term 'other cause of a like nature' used in section 14 was considered in the following manner:--- "16. The phrase 'other cause of a like nature' is not capable of being defined with any precision or exactitude and it is not easy to lay down a hard and fast rule or to enumerate all the causes which should be regarded as of a like nature to absence of jurisdiction; but any cause, unconnected with want of diligence or good faith on the part of the plaintiff, which precludes the Court from hearing the former suit or proceedings of the plaintiff on merits, is a cause which comes within the purview of section 14 of the Limitation Act. It would generally be a cause arising out of a bona fide mistake of law, procedure or fact which precludes the Court from considering on merits the issues involved in the case."
13. In Mirza Muhammad Saeed (at serial (vi) above), a petition for special leave to appeal was filed against the judgment passed by a Division Bench of Lahore High Court. It was held by the Hon'ble Supreme Court that indulgence under section 14 of the Limitation Act can only be granted in case of mistake or error committed by a reasonable or a prudent man exercising due diligence and caution. In that case, appeal filed before the Lahore High Court was barred by 223 days for which the appellant filed an application under sections 5 and 14 of the Limitation Act seeking condonation of delay. The leave petition was dismissed with the following observation:--- "this, indeed, is a dilemma to which there is no entirely satisfactory answer. The law as it now stands is that the Courts can show indulgence and condone the delay where time has been lost by prosecuting a remedy before a wrong forum on account of a bona fide mistake or error committed by a counsel, which a reasonable and prudent man despite exercising due diligence and caution might have committed. Where, however, the mistake in approaching the wrong forum is committed by him due to gross negligence and carelessness and it does not appear that he has shown due diligence and caution before moving the said wrong forum; the only remedy for the unfortunate client of such a counsel appears to be to sue him for damages for the loss suffered on account of his gross negligence. If such a remedy is exercised more frequently and counsel made to pay for their carelessness and negligence which results in such grave losses to their clients, some amelioration in the situation is possible."
14. In the case of A.D.B.P. (serial (vii) above) a Constitutional petition was filed through which order of the Presiding Officer, Labour Court, as well as the order of Labour Appellate Tribunal Quetta were called in question. In that case, respondent who was employee of A.D.B.P. Was informed that his service had been terminated while he was posted at Kotri, Sindh. He filed proceedings under section 25(a) of the Industrial Relations Ordinance, 1965 before the 'Labour Court, Hyderabad but subsequently withdrew the same with permission to file fresh proceedings and, therefore, he filed the same before the Labour Court at Quetta. It was pleaded that the time consumed before the Labour Court at Kotri be excluded as the said Court did not have jurisdiction. It was held by a Division Bench of Balochistan High Court that the respondent was entitled to exclude the time spent in the said proceedings on the principles laid down under section 14 of the Limitation Act. It was further held that "the essential object of section 14 and the principles which underly it is, that the bar of limitation should not affect a person doing his best to get his case tried on merits but failing through the Court being unable to give him such a trial. The principle is clearly applicable not only to cases in which a man files his case in wrong Court i,e,, a Court having no jurisdiction to entertain it but also where he brings the suit in the wrong Court in consequence of a bona fide mistake or defect of procedure." In Sher Muhammad (at serial (viii) above), it was held by a learned Single Judge of Balochistan High Court that the application of section 14 can be considered by the Trial Court even if it is not specifically mentioned in the plaint. In Masud Ahmed (at serial (ix) above), it was held by the Supreme Court of Azad Jammu and Kashmir that section 14 of the Limitation Act has nothing to do with appeals and its application is confined to suits alone. Still it was held that this provision can be made applicable by analogy so that if a litigant shows that he had been in good faith prosecuting other civil proceedings within the meaning of section 14 such circumstance may be treated as a sufficient cause for condonation of delay within the meaning of section 5 of the Limitation Act. In Purshottamdas Hassaram Sabnani (at serial (x) above) it was held by a Division Bench of Bombay High Court that the provisions of section 14 of the Limitation Act are not attracted in arbitration matters as there is a specific provision in section 37(5) of the Indian Arbitration Act. Therefore, this rule is not attracted in the circumstances of the present case. In the last case cited above, Maharaj Sai v. Kedar Nath and another, it was held by a Single Judge of Nagpur High Court that a suit brought in a Civil Court which was filed after a lot of time consumed in the previous arbitration proceedings cannot be excluded for the purpose of computing limitation as the arbitration proceedings were not based upon the same cause of action as of civil suit since arbitration proceedings resulted from an agreement while in the civil suit no such agreement was pleaded and the cause of action was based on the right or title of plaintiff.
15. It is pertinent to note that the term "civil proceeding" in section 14 of the Limitation Act was used in reference to the period of limitation in filing a suit. It is quite understandable that when it was open to the Legislature to use the word "suit" still phrase "civil proceeding" was used which indicates that not only the time consumed in prosecuting the suits filed under section 9 of the Civil Procedure Code is entitled to be excluded but other proceedings of like nature which can be termed as civil proceedings. This was defined in "The Oxford Companion to Law" by David M. Walker (Clarendon Press Oxford 1980) at page 224 as "an application or claim made in a Court with the object of declaring or enforcing a right for the advantages of the person claiming, or of recovering money or property, as contrasted with administrative or criminal proceedings which have the objects of securing a benefit or the punishment of a public offence respectively." This term was also considered by a Full Bench of the Supreme Court of Pakistan in reference to the writ jurisdiction of the High Court arising out of the Constitution, 1962. In Hussain Baksh v. Settlement Commissioner, Rawalpindi and others (PLD 1970 SC 1) it was held as follows:--- " .A proceeding taken for the enforcement of a civil right is a civil proceeding, whatever may be the source of the Court's jurisdiction invoked for enforcement of such a right. According to Stroud's Judicial Dictionary, 'Civil Proceeding' is a process for recovery of individual right or redress of individual wrong, inclusive, in its proper legal sense, of suits by the Crown see Bradlough v. Clarks (8 A.C. 354). Whether a proceeding is civil or not depends on the nature of the subject-matter of the proceeding and its object, and not on the mode adopted or the forum provided for the enforcement of the right. A proceeding which deals with a right of a civil nature does not cease to be so merely because the right is sought to be enforced by having recourse to the writ jurisdiction"..............................................................................................
16. Again, the terms "Court of first instance" and "Appellate Court" have been used in section 14 of the Limitation Act instead of "Court of Civil Judge" or "Court of District Judge", the two main forums of suits which further emphasis that the benefits of these provisions could be extended to other proceedings of civil nature. Therefore, in order to avail benefit of this provision, it is necessary that the plaintiff must show that he was diligently and with good faith prosecuting his case, based on the same cause of action, through some other civil proceedings in a Court or forum which was suffering from jurisdictional defect or any other cause of the like nature, which includes misjoinder of parties or causes of action (See Explanation III to section 14 of the Limitation Act.). This provision was considered by this Court in Haroon Textiles (PLD 1972 Karachi 57) in reference to the proceedings arising out of Workmen Compensation Act, 1923 and the time consumed in those proceedings was excluded while computing the period of limitation for filing a suit for recovery of outstanding wages. However, it is not necessary in this suit to discuss whether proceedings before an arbitrator are civil proceedings in stricto senso with particular reference to section 14 of the Limitation Act. Nevertheless, it would be advantageous to examine the relevant provisions of the Sindh Cooperative Societies Act, 1925 (the Act of 1925) in order to see whether the arbitration proceedings taken under such Act can be termed as civil proceedings. It is settled law that where a dispute touching the business of a cooperative society arises between the parties who are from the same categories as mentioned in section 54 of the Act of 1925, the jurisdiction of a Civil Court is barred. In such circumstances, the aggrieved party is required to resort to the statutory arbitration as provided under section 54 of the Act of 1925. There are further provisions in the said Act for filing appeal and revisions against the order of the arbitrator, Deputy Registrar or Registrar of the Cooperative Societies. By virtue of section 59(1) of the Act, 1925 an award which attains finality shall be deemed to be a decree of a Civil Court and shall be executed in the same manner as a decree of such Court. (See Sheikh Haider v. Registrar, Cooperative Societies Karachi and others (PLD 1966 (W.P.) Karachi 177).
17. Although the parties have vehemently argued on the question as to which date should be taken for computing the period of limitation but it was not argued that it is the time when the order of the provincial minister was passed under section 64 of the Act of 1925, through which the order of the Deputy Registrar was confirmed whereby he referred the dispute back to the parties for decision by a Civil Court as the dispute involves complicated questions of facts and law. In my opinion, contention of Mr. Khalilur Rehman, that the period of limitation should commence from 31st of January, 1976 when the cancellation was made and the plea of Mr. Afsar Abidi that the plaintiff is entitled for the benefit of section 14 of the Limitation Act, are of no consequence in view of the fact that a fresh cause of action had accrued to the plaintiff when the dispute was referred back by the arbitrator for decision by a Civil Court. It would be advantageous if the relevant proviso to section 54 of the Act of 1925 is reproduced which reads as under:--- "Provided that if the question at issue between a society and a claimant, or between different claimants, is one involving complicated questions of law and fact, the Registrar may, if he thinks fit, suspend proceedings in the matter until the question has been tried by a regular suit instituted by one of the parties or by the society. If no such suit is instituted within six months of the Registrar's order suspending proceedings the Registrar shall take action as laid down in paragraph 1 of this section."
18. In the circumstances of this case, the moot question which requires determination is, that once a dispute is referred back to the party by the arbitration forum established under the Act of 1925, whether it would be open to any party to set up the plea of limitation. In the instant suit, the conduct of defendant No,1 is very relevant. It was he who objected to filing of the suit by the plaintiff prior to invoking of arbitration proceeding by the plaintiff. It is an admitted fact that the first Suit bearing No,7 of 1977 was withdrawn by the plaintiff with the permission to file fresh suit on the same cause of action while in their second Suit bearing No,2651 of 1978 the plaint was rejected by the Civil Court vide its judgment, dated 4-11-1978 on the grounds raised by the defendant No,1 that the suit was barred under sections 54 and 70 of the Act, 1925. Now, it is the same party who is pleading that the cause of action should be reckoned from December, 1976 when throughout the period 1977 to 1985 he was involved in this dispute with the plaintiff before the forums established under the Act, 1925. It is not the case of any of the parties that the arbitration proceedings were without jurisdiction or without lawful authority. From the conduct of defendant No,1, it is evident that he has taken two different pleas before two different forums which are mutually destructive. Law does not permit anybody to blow hot and cold in the same breath.
19. It is a matter of experience that in several cases arbitration proceedings arising out of disputes covered by the Act of 1925 consume years and years to reach finality. For instance, the present suit is one of such example. Admittedly, the proceedings under section 54 of the Act of 1925 commenced before the nominee of the Registrar of the Cooperative Societies in the year 1978 and were disposed of by the concerned minister/Provincial Government vide order, dated 5th November, 1985, thus, it took more than seven years for finalisation of the arbitration proceedings.
If, what Mr. Khalilur Rehman has suggested, is accepted, then the entire purpose of the provisions of section 54, as reproduced hereinabove, would stand negated. In these circumstances, I am inclined to hold that a fresh cause of action accrued to the plaintiff on 5th November, 1985 when the dispute was finally referred back to Mst. Ayoor Bai by the forums established under the Act, 1925.
20. Mr. Khalilur Rehman has next argued that since the suit was not filed within the six months after the order, dated 5th November, 1985 passed by the Provincial Government, therefore, this suit is also time barred on this account as well. This is mis-construction of para. 3 of section 54 of the Act of 1925 reproduced above, which envisages that the aggrieved party should file a suit within six months of the order directing such party to seek remedy from a Civil Court. Nowhere any penal consequence is provided as a result of an act of a party who fails to invoke jurisdiction of a Civil Court within six months. On the contrary, it is provided that where a party fails to refer the said dispute to a Civil Court, the arbitrator would be entitled to proceed with the matter. It was open to the defendants to again approach the arbitrator after Mst. Ayoor Bai failed to invoke the jurisdiction of a Civil Court within six months. But this was not done and a suit was filed after a period of eight months after passing of the order by the Provincial Government which is within the time provided by Articles 91 and 120 of the Limitation Act. This is a case of multiple causes of action; the first cause of action arose in the month of December, 1977 when the predecessor-in-interest of the present plaintiffs Mst. Ayoor Bai was informed about the transfer of suit property which was made basis for initiating proceedings before the arbitration/Registrar as provided in the Sindh Cooperative Societies Act, 1925 which kept the matter sub judice till 5th November, 1985 when the order was passed by the Minister/Provincial Government under section 64-A of the Act, 1925 referring back the matter to the plaintiffs for determination by the Civil Courts as the dispute involves complicated facts. This gave fresh cause of action to the plaintiffs to maintain this suit as no suit could be maintained on the cause of action, dated December, 1977 by virtue of section 70-A of the Act, 1925. It was held by the Hon'ble Supreme Court in F.A. Khan v. The Government of Pakistan (PLD 1964 SC 520 at 532) that "the legislature when it provides an hierarchy of Tribunals for determination of a dispute is really providing one complete procedure for such determination, proceedings before different Tribunals being only steps in this procedure".
21. On 20-2-1998, through a short order, the above two issues, namely, Issues Nos.1 and 2 as mentioned in para. 5 above were answered and the parties were directed to make their further submissions on the remaining eight issues. But, on 25-2-1998, Mr. Khalilur Rehman, instead of making his submissions on the other issues, stated that he would like first to go through the reasoning and, if advised by his client, he would also like to prefer an appeal.
' The above are the reasons for the said short order.