ORDER ABDUL INAM, J.~ By this order I propose to dispose of CMA No. 3192/97 which has been filed by the defendant No. 1 under Order 7 Rule ,J1 CPC read with Section 151 CPC for rejection of plaint on two fold grounds: (a) suit being barred by limitation; and (b) the suit being bad for multifariousness of causes of actions.
2. The brief facts of the case relevant for the purposes of disposal of this application are that the parties to this suit are sons fo Dr. Muhammad Habib Effandi who died in the year 1957 and the dispute in this suit relates to the estate left by deceased Dr. Muhammad Habib Effandi. According to the contents of the plaint the predecessor in interest of the parties to this suit left the properties detailed in para 4 of the plaint. It is the case of the plaintiffs that at the time of death of their father there i.e three running businesses under the name and style of "Effandi Medical Store, Effandi Clinic and Effandi School". After the death of their father the main source of income was Effandi Medical Store and agricultural lands which used to produce fodder. Another business in the name of Eastern Commercial Company was also started and the running businesses generated so much profits that yet another medical store, namely, Standard Medical Store was established and the defendant No. 1 being the eldest brother was in complete charge of joint family properties and businesses.' According to the contents of the plaint although the attitude of defendant No. 1 right from the beginning was arrogant towards the plaintiffs and other legal heirs of deceased Dr. Muhammad Habib Effandi yet the plaintiffs did not asked for their share in the estate left by the deceased at the initial stage as the defendant No. 1 had allowed due participation of the plaintiffs in the family business. According to the contents of the plaint, out of the sale of agricultural land a house bearing No. 1-A, Sunset Boulevard, Defence Housing Authority, Karachi, was purchased from its owner for a total sale consideration of Rs. 27,00,000.00 as a joint family property and the same was supposed to be purchased in the name of mother but the defendant No. 1 instead of buying the said house in the mother name got the papers transferred in his name. The co-owners i.e. Legal heirs of late Dr. Muhammad Habib Effandi protested before the Defendant No. 1 on purchase of the said house in his name but on assurance of defendant No. 1 that the said house is a joint family property the plaintiffs trusted the words of defendant No. 1. With the passage of time the attitude and behaviour of defendant No. 1 towards his brothers and sisters became more and more arrogant and after the death of their mother in 1993, the defendant No. 1 illegally attempted to dispossess the plaintiffs from the said house which is a family property. It was only after such attempts on the part of defendant No. 1 that the plaintiffs were left with no option but to approach this Court for their share in the estate left by their deceased father. The case as set up by the plaintiffs is that defendant No. 1 has mis-appropriated the estate left by their deceased father and after the death of their mother has completely refused to give share of the plaintiffs in the estate left by their deceased father.
3. The defendants were served and defendant No. 1 has filed his written statement denying all the allegations contained in the plaint. The instant application has been filed by the defendant No. 1 on 5.7.1997 i.e. After about three years and ten months of the institution of the suit.
4. I have heard Mr. Khalil-ur-Rehman's learned counsel for the defendant No. 1 and Mr. Faisal Arab counsel for the plaintiffs.
5. It has been contended by Mr. Khalil-ur-Rehman's that predecessor in interest of the parties to the suit, namely, Dr. Muhammad Habib Effandi, died in the year 1957 and this suit having been filed in the year 1994 is hopelessly time barred. According to the learned counsel no specific article for filing a suit by a person excluded from the joint family property to enforce his right to share has been provided in the Limitation Act, 1908 and as such residuary. Article 120 which provides six years period shall "be applicable. In respect of Article 127 of the Limitation Act, 1908, contention of the learned counsel is that the said Article which provides a period of limitation of 12 years for enforcing right to share in joint family property is applicable in a case of joint Hindu Family only and in a suit by member of Muslim family for recovery of share in the estate of a deceased ancestor, Article 127 does not apply. Reliance in support of such contention has been placed on 'cases of S.K. MOHD ZAFEER V. S.K. AMIRUDDIN AND OTHERS reported in AIR 1963 Patna 108 and JEEVANBAINADIRSHAW GOLWALLA v. DARAB BURJORJI GOLWALLA AND 5 OTHERS reported in 1981 CLC 503. As to the multifariousness of causes of action, it has been urged by Mr. Khalil-ur-Rehman's that apart from claiming their share in the estate left by deceased Dr. Muhammad Habib Effandi the plaintiffs are also claiming a declaration to the effect that they are co-owners of the residential house and so also to the effect that defendant No. 1 is a benami purchaser of the said property. Furthermore, rendition of accounts in relation to certain businesses allegedly carried out in partnership but actually owned by defendant No. 1 has also been sought in the plaint. A prayer for damages on account of alleged attempt to dispossess from the residential house has also been made by the plaintiffs. In this regard contention of Mr. Khalil-ur-Rehman's is that the suit is. Hit by provisions of order 2 rules 2,3,4 and 6 of CPC.
6. On the other had, Mr. Faisal Arab, learned counsel for the plaintiffs, has contended that a specific Article 127 has been provided in the Limitation Act, 1908, for a suit to enforce a right to share by a person excluded from the joint family property which provides a period of 12 years and the limitation under Article 127 of the Limitation Act, 1908, shall run from the date when such exclusion becomes known to the plaintiffs. On the basis of provisions of Article 127 of the Limitation Act, 1908, it is contended by Mr. Faisal Arab that initially the defendant No. 1 had permitted the plaintiffs to participate in the joint family business and the plaintiffs were allowed to live in the house in Defence Housing Authority which was purchased out of sale of agricultural lands which formed part of the estate left by the deceased father of the parties. The cause of action for filing this suit finally accrued to the plaintiffs when an attempt was made by the defendant No. 1, after the death of their mother in the year, 1993, for dispossessing the plaintiffs from the aforesaid house. As to the objection of the defendant No. 1 in respect of multifariousness of causes of action, it has been urged by the learned counsel that the instant suit has been tiled by the plaintiffs for their share in the joint family property and the properties which were purchased by defendant No. 1 out of the income/sale derived from the properties left by deceased Dr. Mohd Habib Effandi and as such the suit does not suffer from multifariousness of causes of action.
7. It have given my careful consideration to the arguments advanced by the learned counsel for the parties and have perused the record. As to the objection of the learned counsel for defendant No. 1 in respect of suit being barred by limitation, in my view, there is sufficient force in the arguments of Mr. Faisal Arab to the effect that Article 127 of the Limitation Act, 1908, is applicable in the instant suit. For the share of convenience Article 127 of Limitation Act, 1908, is reproduced hereinbelow: - "127. By a person excluded Twelve years, from joint family property to enforce a right to share therein.
When the exclusion becomes known to the plaintiff."
8. In the instant case, it is an admitted position that the predecessor in interest of the parties to the suit, expired in 1957. The plaintiffs have been able to demonstrate that after the death of their father the defendant No. 1 initially permitted the plaintiffs to participate in the business and was sharing its profits with the plaintiffs. The Point blank refusal to share the assets of late Dr. Mohd Habib Effandi was made by the defendant No. 1 in the year 1993 when the mother of the parties expired. It will be pertinent to mention here that while dealing with an application under Order 7 Rules 11 CPC the Court can only look into the contents of the plaint and nothing else. I am of the considered view that from the contents of the plaint refusal to share the assets of late Dr. Muhammad Habib Effandi on the part of defendant No. 1 can be deduced only in the year 1993. Accordingly, the period of limitation for filing the suit shall start running from such refusal as provided under Article 127 of Limitation Act, 1908.
9. Now, I proceed to deal with the contentions advanced and ease law relied upon by Mr. Khalil-ur- Rehman's to canvass the proposition that the suit is barred by limitation. As stated above, contention of Mr. Khalil- ur-Rehman's is that the predeceaser in interest of the parties died in the year 1957 and the suit having been filed in 1994 is hopelessly time barred. Further contention of the learned counsel is that Article 127 of the Limitation Act is applicable to a case of joint Hindu family property only and the said-Article is not applicable in the suit filed by a member of muslim family for claiming a share in the estate left by deceased ancestor. In support of his contention the learned counsel has relied upon the case of S.K. MUHAMMAD ZAFEER V. S.K. AMIRUDDIN and others reported in AIR 1963 Patna 108 and JEEVANBAI NADIRSHAW GOLWALLA v. DARAB BURJORJI GOLWALLA and 5 others reported in 1981 CLC 503.
10. In the first case relied upon by the learned counsel for the defendant No. 1 it has not been held the Article 127 of the Limitation Act is not applicable to a suit by members of muslim family for recovery of. Shares in the estate left by a deceased Muhammadan ancestor but, in view of my under given reasoning, I am unable to persuade myself to agree with the dicta laid down in the said judgment. Prior to promulgation of the Limitation Act, 1908, Limitation Act, 1871 was in force in the subcontinent. Article 127 of the Limitation Act, 1871 reads as under:- "127. By a Hindu excluded from joint-family property to enforce a right to share.
Twelve years plaintiff claims and is refused his share."
A perusal of Article 127 as enacted in the Limitation Act, 1871, would reveal that word "Hindu" has been specifically mentioned in it but in the subsequent Limitation Act, 1908 the word "Hindu" has been omitted from the Article. This deliberate exclusion of the word "Hindu" from Article 127 of Limitation Act, 1908, in my view, connotes that the said Article was made applicable to persons of all faith. Furthermore, the case cited by the learned counsel being an Indian Court Judge is not binding on me.
In order to appreciate the dicta laid down by his Lordship Mr. Justice Saeed-uz-Zaman Siddiqui (as his lordship then was) in the cited case of JEENVANBAI NAD1RSHAW COLWALLA v. DARAB BURJORJI GOLWALLA, relied upon by the learned counsel for the defendant No. 1, I feel it appropriate to reproduce hereinbelow the relevant portion of the said judgment:- "This issue relates to limitation. The present suit was filed on 25.2.1967. The cause of action is alleged in paragraph 36 of the plaint as having arisen to the deceased plaintiff on 16.9.1958. The suit is for declaration and permanent injunction and accounts. The right claimed by the deceased plaintiff is based upon the right as a heir of the deceased who admittedly died in the year 1934. The learned counsel for the deceased plaintiff was unable to show as to how the suit is within time. The deceased plaintiff according to her showing became entitled to this share upon the demise of the deceased in the year 1934. The evidence on the record show that the deceased plaintiff never received any share out of the income of the two mines after the death of the deceased. It is on the record that the deceased plaintiff never participated in management, control or in the income of the two mines which were exclusively run, managed and controlled by the two sons of the deceased and their successor in title until filing of the suit. Even if I presume that the two mines were joint family property and that the deceased plaintiff was entitled to a share in it as an heir, even then the period of limitation will be 12 years under Article 127 of the Limitation Act from the date when the exclusion became known to the plaintiff. The plaintiff has not been able to show that the deceased plaintiff became aware of her exclusion from the joint property only within 12 years of the filing of present suit. There is ample evidence on record to show that the plaintiff was aware that she was not given her due share in the two mines left by the deceased and in any case on the death of Nariman she was specifically made known about her exclusion from the joint family property when late Nariman's will was communicated to her. I accordingly, hold that the plaintiffs have failed to show that the suit is within time."
A perusal of the aforesaid extract from the judgment sufficiently demonstrates that the deceased plaintiff never received any share out of the income the two mines. It was on the record that the deceased plaintiff never participated in management, control or in the income of the two mines which were exclusively run, managed and controlled by the two sons and their successor in title until filing of the suit.
11. The facts of the cited case are altogether distinguishable from the facts of the case in had and as such I am of the considered view that the judgment cited by the learned counsel for defendant No. 1 is of no help to the case of defendant No. 1. It may, however, be observed that in the cited case it had been held by his lordship that period of limitation for filing a suit of the nature in had is 12 years under Article 127 of the Limitation Act and such period of limitation shall run from the date when the exclusion became known to the plaintiffs. In this view of the matter, contention of learned for defendant No. 1 that Article 127 of the Limitation Act, 1908, is not applicable in the instant suit is also mis-conceived and liable to be repelled.
12. It may further be stated that Mr. Faisal Arab learned counsel for the plaintiffs has contended that bar of limitation would not stand amongst co-heirs and their successors in a suit filed by a co-heir inhering under the Muhammadan Law. Reliance in this connection has been placed by the learned counsel on the case of MST. AIMNA BI V. MST. BIBI AND OTHERS REPORTED IN 1993 M LD 1207. The findings of the learned Judge in the cited case is based on the case of GHULAM ALI AND 2 OTHERS v.
MST. GHULAM SARWAR NAQV1 (PLD 1990 SC 4) and such being the position I am bound by the rule laid down in the said judgment.
13. This brings me now to the second leg of ground urged by the learned counsel for the defendant No. 1 for rejection of plaint under Order 7 Rule 11 CPC., As stated above, the second ground urged by the learned counsel for the defendant No. 1 for rejection of plaint relates to alleged multifariousness of causes of action. Before proceeding further to discuss the provisions of Order 2 CPC, I deem it proper to see as to what is the meaning of the word "multifariousness". In AIYAR'S JUDICIAL DICTIONARY, 10th Edition at page 694 the word Multifariousness" has been definition the following:- MULTIFARIOUSNESS is the name given to misjoinder of parties and causes of action. Under Order II Rule 3 of the First/Schedule of CPC where it is found that a suit is multifarious, the Court may return the plaint for amendment or the plaintiff may be permitted to withdraw the suit with liberty to bring a fresh suit properly framed. Where the plaintiff declines to withdraw and insists that there is no multifariousness, the Court will frame an issue on the question of multifariousness and if it finds that it is multifarious, dismiss the suit entirely. Any# objection by the defendant should under Rule 7 be taken at the earliest possible opportunity and, in all ' ' cases where issues are settled, as or before such settlement, and any objection not so taken shall be deemed to have been waived."
In EARL JOWITT'S DICTIONARY OF ENGLISH LAW, Vol 2, page 1198, "multifariousness" is defined as under:- "MUETIFARIOUSNESS. Under the practice of the old Court of Chancery, a bill of complaint was open to a demurrer for multifariousness when it attempted to embrace too many objects dr case of suit."
In BALLENTINE'S LAW DICTIONARY, third Edition at page 820, the word "multifariousness" is defined as:- MULTIFARIOUSNESS. The joining or uniting in a declaration, bill or complaint of two or more matters which are independent of, or unconnected with, one another. A term loosely applied to the joinder as defendants or plaintiffs of persons without a common interest in the litigation. The joining in a statute of dissimilar and discordant subjects."
14. From the aforesaid definitions of word "multifariousness" it is apparent that multifariousness implies joining of two or more dissimilar and distinct causes of action in; one suit. A perusal of the plaint in this would however, manifest that dissimilar and discordant causes of action have not been joined and as such it cannot be said that the suit suffers from multifariousness of causes of action.
15. Order 2 Rule 2 CPC, inter alia, enjoins upon a plaintiff to include the whole of the claim which the plaintiff is entitled to make in respect of the causes of action. Order 2 Rule 3 CPC permits a plaintiff to unite in one suit several causes of action against the same defendant or same defendants jointly and any plaintiffs having causes of action in which they are jointly interested against the same defendants. The relevant rule for the purposes of deciding the objection raised by the learned counsel for the defendant No. 1 is Order 2 Rule 6 CPC which empowers a Court to order separate trials in a case where it considers that many causes of action joined in one suit cannot be conveniently tried or disposed of together. As stated above, the reliefs claimed in this suit arise out of one and the same basic cause of action i.e. Entitlement of the plaintiffs to claim their share in the estate left by the deceased arrestor of the parties and as such in my view separate and distinct causes of action have not been joined by the plaintiffs in this suit and all the causes of action claimed in the suit can be conveniently disposed of by one and single 'trial. Such being the position, in case of multifariousness of causes of action the only power which has been enjoined upon the Court is to order separate trial. In case the Court comes to the conclusion that the suit suffers from multifariousness of causes of action it shall given an option to the plaintiff to pursue particular cause of action in the sit and if the plaintiff fails to exercise such option then alone a plaint can be rejected under Order 7 Rule 11 CPC.
16. It may be stated that under Order 2 Rule 7 PC all objections in respect of misjoinder of causes of action are required to be taken at the earliest possible opportunity and any objection not so taken shall be deemed to have been waived. In the case in had, the suit was filed by the plaintiffs on 15.9.1994 and written statement was filed by the defendant No. 1 on 7.5,1997, The instant application under Order 7 Rule 11 CPC was filed by the defendant No. 1 on 7.5.1997 with a delay of more than has years and as such in my opinion on account of inordinate delay in filing the instant application, die objection in respect of multifariousness of causes of action was waived by the defendant No. 1.
17. In view of the aforesaid discussion, I am of the considered view that this application is misconceived and not maintainable. Accordingly CMA 3192/1997 is dismissed. Since the dispute in this suit is between real brothers and sisters, prolongment of litigation between the parties shall create further bad blood amongst the parties and as such the parties are directed to i.e their proposed issues within 15 days and upon settlement of issues the suit shall be listed for evidence within two months.