1. ' This is a civil revision application under section 115, C.P.C. Directed against the judgment and decree, dated 22-4-1990 passed by learned IVth Additional District Judge Karachi South in Civil Appeal No,45 of 1988 Shahzada Muhammad Mateen Siddiqui v. Shaikh Qayamuddin Siddiqui and five others whereby the judgement and decree passed by Vth Senior Civil Judge, Karachi South in Suit No,2 of 1985 were maintained and the appeal was dismissed, hence his Civil Revision Application.
2. ' Brief facts of the case are that the applicant/plaintiff filed suit seeking declarations that the affidavit with regard to transfer of the plot in dispute allegedly signed by the respondent No,3 was forged, fabricated by the respondents Nos.1 and 2 consequently ab initio void, not binding upon the applicant/plaintiff as such of no legal effect and further to declare mutation entry of Plot No,15, Beachs Street No,18, Phase VIII admeasuring 1000 Sq. Yds. Pakistan Defence Officers' Cooperative Housing Society Karachi was without lawful authority, liable to be cancelled alongwith above said affidavit and further the respondents Nos.5 and '6 be restrained from dealing with the above said plot of land in any way.
3. ' The respondents Nos.1 to 4 filed their respective written statements the respondents Nos.1 and 2 also filed an application under Order 7, Rule 11, C.P.C. With a prayer to reject the plaint on the ground that the suit was time-barred and that proper court-fee was not affixed. The said application was heard by the learned Vth Senior Civil Judge, Karachi South who as per judgment and decree dated 21-1-1988, rejected the plaint under Order 7, Rule 11, C.P.C. Against the said judgment and decree Civil Appeal No,45 of 1988 was preferred by the applicant which was also dismissed as per impugned judgment and decree, hence this Civil Revision Application.
4. ' I have heard learned counsel for parties and perused the record and proceedings of the case and the case law cited by them. - ' Learned counsel for applicant has argued that both Courts below have erred in holding that suit is time-barred as Article 91 of the Limitation Act is attracted in the instant case which provided period of three years, where in the instant case Article 120 of Limitation Act would be applicable which provided period of six years. Learned counsel in the alternative submitted even if it be assumed that Article 91 of the Limitation Act is attracted then also plaint could not be rejected under Order 7, Rule 11, C.P.C. As the Court could only look into the averments made in the plaint and the defence plea in the written statement cannot be considered for rejected plaint. He has placed reliance upon (1) Mst. Zeba and 12 others v. Members, Board of Revenue and others 1986 CLC 233, (ii) Ahmed Din v. Muhammad Sharif and others PLD 1971 SC 762, (iii) Mst. Hameeda Begum v. Mst. Murad Begum and others PLD 1975 SC 624, (iv) Mst. Izzat v. Allah Ditta PLD 1981 SC 165; (v) Jeewana v. Mst.
5. Shabi PLD 1954 Lah. 253, (vi) Deen Muhammad and others v. Mehar All Khan and others PLD 1978 Kar. 267, (vii) Nisar Ali v. Noorabad Cooperative Housing Society PLD 1987 Kar. 676 in support of his contention.
6. ' Learned counsel for respondent No,1 has argued that the impugned judgments and decrees passed by two Courts below being based on concurrent finding of facts and law, therefore, no interference could be made in this Civil Revision Application and further that in the instant case Article 91 of Limitation Act would be attracted and the suit not having been filed within the statutory period of three years from the date of knowledge of the facts entitling the applicant/plaintiff, for seeking the cancellation of the affidavit and the mutation entry was barred by time. He further submitted that Article 120 of Limitation Act would not be attracted in the instant case as the applicant/plaintiff has sought cancellation of the documents for which Article 91 of the Limitation Act would apply. He has placed reliance upon (i) Shamshad Ali Shah and others v. Syed Hassan Shah and others PLD 1964 SC 143, (ii) Habibullah etc. v. Mst. Aziz Bibi NLR 1981 (A.C.) 3, (iii) Zohra Nigah v. Ali Automobiles PLD 1973 (Note 8) Kar. 16 in support of his contentions.
7. ' The two Courts below have held that the suit of the applicant/plaintiff is barred by limitation as the same is governed by Article 91 of the Limitation Act which provided period of three years and the applicant/plaintiff in his plaint stated that he received a letter, dated 4-1-1982 from respondent No,6 wherein it was stated that the plot in dispute was transferred in the name of respondent No,5 on the strength of affidavit of transfer signed by respondent No,3, therefore, plaint of the applicant was rejected.
8. ' The first point for my consideration in this Revision would be whether both the Courts below could have rejected the plaint under Order 7, Rule 11, C.P.C. Because for the purpose of rejection of plaint only averments made in the plaint which are deemed to be true in the manner and form without taking into consideration the pleadings raised in defence are to be considered. The applicant/plaintiff in para. 22 of plaint has stated that the cause of action accrued to him against the respondents when he came within the knowledge of alleged transfer of said plot in the name of respondent No,5 and finally in tte month of July, 1985 when the respondent No,3 categorically denied to have transferred the same in the name of respondent No,5 and signed the alleged affidavit of transfer. The fact that the respondent No,6 informed the applicant/plaintiff on 28th January, 1982 that the said plot of land was transferred in the name of respondent No,5 on the strength of affidavit of transfer said to have been signed by respondent No,3 has been subject to the statement made in para. 13 of the plaint that when the respondent No,3 came back from abroad who was contacted by the applicant when the former apprised the applicant/plaintiff that she had not signed any such affidavit of transfer for the purpose of transferring plot in the name of respondent No,5 and such letter was also sent by her to the respondent No,6 on 15-7-1985 which is said to have given cause of action to the applicant/plaintiff for the purpose of filing the instant suit.
9. This would show that there was controversy relating to the accrual of cause of action with regard to filing of suit. It is settled law that plaint can be rejected if from the statement of facts narrated in the plaint Court finds that the suit is barred by time. Reference may be made to (i) Fatima Moin v.
10. Additional District Judge Sheikhupura 1992 SCMR 1199. The perusal of plaint does not justify the application of Order 7, Rule 11, C.P.C. Keeping in view the entire contents of plaint.
(ii) Jeewana and seven others v. Federation of Pakistan 1994 SCMR 826 wherein their Lordships have held that the Court while taking action for rejection of plaint under Order 7, Rule 11, C.P.C.
11. Cannot take into consideration pleas raised by the defendant in the suit in his defence as at that stage the pleas raised by the defendants are only contentions in the proceedings unsupported by any evidence on record.
(iii) Mst. Karim Bibi and others v. Zubair and others 1993 SCMR 2039 wherein their Lordships observed that when none of the grounds exists for the rejection of plaint under Order 7, Rule 11, C.P.C. The plaint cannot be rejected and the parties who would be at issue the Court could decide the dispute after recording the evidence.
12. 'In the circumstances of the case it could only be seen by the Court after evidence is recorded as to when right to sue accrued to the applicant/plaintiff when as per para. 22 of the plaiht right to sue accrued to the applicant/plaintiff in July, 1985 whereas the suit was also filed in 1985 therefore, even if it is assumed that Article 91 of the Limitation Act would be applicable then also, suit could not be said to be time-barred, considering that the said plea of the suit being time-barred cannot be found from the averments made in the plaint consequently the plaint of the suit could not have been rejected on the said ground as well.
13. ' The next relevant point for my consideration would be whether in the circumstances of the case Article 91 or 120 of the Limitation Act would be applicable.
14. 'The applicant/plaintiff in the plaint has stated to have purchased the suit land from respondent No,3 Mrs. Ida Ahmed for consideration of Rs,40,000 as per sale agreement dated 11-10-978 with general power of attorney and she also handed over all original documents relating to the aforesaid plot to the applicant who in his turn handed over the said papers to respondents Nos.1 and 2 with instructions to get the said plot disposed of, however, applicant was informed as per letter, dated 24th April, 1982 by respondent No,6 that aforesaid plot already stood transferred in the name of respondent No,5 Abdul Shakoor on the strength of an affidavit said to have been signed by respondent No,3. It is also stated that the applicant on return of the respondent No,3 from abroad enquired from her about alleged transfer of plot in favour of respondent No,5 which she denied to have transferred the said plot to any other person so also have signed any affidavit of transfer, therefore, the applicant/plaintiff filed the instant suit with a prayer that it be declared that the mutation entry in the record of respondent No,6 on the basis of alleged forged and fabricated affidavit of transfer allegedly signed by respondent No,3 was not binding upon the applicant and on the respondent No,3. The applicant/plaintiff has sought declaration in respect of mutation entry to be declared as not binding upon him on the basis of forged affidavit of transfer and has also based his cause of action as per averments made in para. 22 of the plaint. The suit being for declaration the present form for which right to sue accrued to him in July, 1965 as para. 22 of the plaint would be maintainable under section 42 of the Specific Relief Act C consequently Article 120 of Limitation Act would be attracted. In the said respect reference may be made to (i) Daibakilal Basak v. Iqbal Ahmed Qureshi and another PLD 1965 Dacca 439 wherein learned Division Bench of the Dacca High Court held that the suit for a declaration that a certain document was void ab initio on the ground that it was not executed by the plaintiff but by somebody else and that the document has not affected the right, title and interest of the plaintiff is a suit to obtain the simpile declaratory relief.
(ii) Siraj Din through legal heirs v. Muhammad Ali and others PLD 1995 Lah. 313 wherein learned single Judge of Lahore High Court held that the document having been executed by general attorney after the said general attorney was revoked by the executant the document being void suit for declaration would be competent in the circumstances.
(iii) Fatahuddin v. Zarshad and another 1973 SCMR 248 wherein learned Division Bench held that the suit to declare gift void and ineffective on ground of fraud right to sue accrues from date of discovery of fraud, consequently, time would run from the date right to sue accrued, therefore, Article 120 of the Limitation Act would be applicable.
(iv) Rambharosa Lal v. Smt. Binda Devi and another AIR 1956 Pat. 203 wherein the -learned Single Judge held that the simple declaration that the sale-deed was forged document inasmuch as it was not executed by him would be maintainable under section 42 of Specific Relief Act.
15. The facts of case law cited by counsel for respondent are quite different and distinguishable to the facts of instant case. The concurrent finding of both Courts below on the point of limitation are based on misreading of the averments of the plaint and misreading of the provisions of law which has resulted to wrong conclusion, consequently, interference in the revision could be made. By this Court. I find that there has been misreading of the facts and misappreciation of the law on the part of two Courts below, therefore, the impugned orders passed by two Courts below are set aside and the revision application is allowed and the case is remanded to the learned Vth Senior Civil Judge, Karachi South to dispose of the suit expeditiously in accordance with law.
16. ' These are the reasons in respect of short order, dated 22-9-1998.