1. ' HAMID ALI MIRZA,, J.---This civil petition for leave to appeal is directed against the judgment dated 13-8-2001 in Civil Revision No,264-D of 1991 passed by the Lahore High Court, Rawalpindi Bench whereby judgments and decrees dated 4-11-1989 and 30-3-1991 passed by learned Civil Judge, Attock and of Additional District Judge, Attock respectively were reversed and the revision petition was allowed.
2. ' Brief facts of the case are that Ghulam Sarwar, predecessor-in-interest of the petitioners was transferred Shops Nos.B.IX/3-B & C at Campbellpur while the respondent Abdul Hameed was transferred House No,B.IX/3-A of same building by the Settlement Authorities. The respondent applied before the Additional Settlement Commissioner for the transfer of the shops as well on the ground that the property was one unit but his application was rejected on 14-12-1964 against which order he preferred an appeal wherein he took the plea that in case shops could not be transferred to him then since he was using roof of the said shops as courtyard of his house consequently his right in that behalf be secured. The said appeal was pending before the Settlement Authorities the respondent Abdul Hameed on 17-4-1964 also filed a Suit No, 178/603 of 1964 against said Ghulam Sarwar predecessor-in-interest of the petitioners seeking the permanent injunction restraining said. Ghulam Sarwar from blocking respondent's right of way to a latrine constructed over the roof of his house, flow of water from the said roof towards the Pernala and access of light and air by raising of any construction on his shops. The said suit was pending when the appeal filed by the respondent was allowed by the Settlement Commissioner as per order dated 17-5-1965 whereby his request for transfer of shops was rejected but his right to the use of roof over the said shops as courtyard was held to remain undisturbed. Meanwhile the said suit filed by the respondent Abdul Hameed was dismissed on 2-12-1971 by the learned Senior Civil Judge Campbellpur against this judgment and decree Appeal No, 1 of 1972 was preferred and during pendency of appeal the said respondent Abdul Hameed made prayer for withdrawal of suit with permission to file a fresh suit.
3. The prayer was not objected to by the said Ghulam Sarwar predecessor-in-interest of the petitioners consequently withdrawal of the suit with permission to file fresh suit was allowed by the learned District Judge, Campbellpur on 10-1-1973.
4. ' Petitioners' predecessor, Ghulam Sarwar challenged the order dated 17-5-1965 passed by the Settlement Commissioner through the Writ Petition No, 764-R/65 in the High Court, West Pakistan at Lahore. The petition was dismissed by the learned Judge in Chambers on 6-5-1969 with an observation that undertaking was given by the respondent Abdul Hameed that he would not raise any new construction on the roof of the shops. Against the said judgment of learned Judge in Chambers L.P.A. No, 193 of 1970 was filed by later Ghulam Sarwar which was dismissed by learned Division Bench of Lahore High Court on 18-11-1971 against which C.A. No, 61 of 1974 was filed in this Court which too was dismissed in default on 22-11-1983. Against the said order of dismissal in default C.M.P. No, 136-R of 1984 was filed for restoration of the appeal which was also dismissed by this Court on 10-6-1984. The Review Petition No, 40-R of 1984 was also dismissed on 8-2-1989.
5. ' The respondent Abdul Hameed filed Second Suit No, 95 of 1988 which was in fact presented on 20- 5-1987 in the Court of Civil Judge, Attock against the petitioners for mandatory injunction seeking directions against the petitioners/defendants to demolish the Chobara from the roof of the Shops No,B.IX/3-B-C built by their predecessor Ghulam Sarwar and restore roof of the said shops to its previous position after demolishing of Chobara. The said second suit was dismissed by the learned Civil Judge as per his judgment and decree dated 4-11-1989 against which Civil Appeal No, 190 of 1990 was preferred which was heard by the Additional District Judge-II, Attock and was dismissed on 30-3-1991. The respondent Abdul Hameed preferred Civil Revision No, 264-D of 1991 before the Lahore High Court, Rawalpindi Bench against the judgments and decrees passed by the learned Civil Judge and Additional District Judge, Attock which civil revision was allowed as per impugned judgment dated 13-8-2001 against which decision present civil petition for leave to appeal has been filed.
6. ' We have heard learned counsel for the petitioners and perused the record.
7. ' The contentions of the learned counsel for the petitioners are that (i) the suit was time-barred, (ii) the learned Judge in Chambers has wrongly extended the benefit of section 14 of Limitation Act to bring the suit within limitation, (iii) the Settlement Commissioner was not competent to give away the use of roof of the shops to the respondent Abdul Hameed as courtyard of house transferred to him and (iv) that the learned Judge in Chambers under the revisional jurisdiction was not empowered to interfere with the concurrent finding of two Courts below.
8. ' Contention of the learned counsel for the petitioners that the suit was time-barred has no merit and substance. Admittedly the petitioners' predecessor-in-interest was transferred Shops No,B.IX- 31B-C while the respondent Abdul Hameed was transferred House No,B-IX/3-A of the same building by settlement authorities. The respondent tried his level best to get the shops in question transferred to him alongwith house transferred to him but he was not transferred the same.
9. However, as per order dated 17-5-1965, learned District Judge with powers of Settlement Commissioner allowed the respondent's prayer for his right to use roof of the disputed shops as courtyard of his house with the following observations:-- ' "In order to appreciate the factual position I inspected the spot myself and found that the roof of the disputed shops is to all intents and purposes indispensable as a courtyard for Abdul Hameed appellant. Appellant's latrine also stands on the roof of the disputed shops. It will not only work genuine hardship on the appellant but will render House No,B.IX/3-A of which the appellant is the transferee occupant wholly unserviceable for the family inmates of the house particularly in short they will be left in the lurch....Therefore whereas dismissing this appeal-cum-revision I cannot help concluding with the observation that appellant's right to use the roof o1 the disputed shops as a courtyard shall continue to remain undisturbed."
10. ' The petitioners' predecessor-in-interest preferred Writ Petition No, 764-R of 1965 before the Lahore High Court which petition was heard by learned Judge in Chambers but same was dismissed on 6th May, 1969 with the following observation:-- ' "The learned Settlement Commissioner who inspected the site has stated in unmistakable terms that the roof of the disputed shops is to all intents and purposes, indispensable as the courtyard for Abdul Hameed respondent. Not only this but the respondent's latrine also stands on the roof of the disputed shops. According to learned Settlement Commissioner, by depriving the respondent to use roof of the shops not only will it work genuine hardship on him but will also render his house wholly unserviceable for the female inmates of the house....However, Sardar Attaullah, learned counsel for respondent Abdul Hameed has given an undertaking that the respondent will not raise any new construction on the roof of the shops...."
11. ' The petitioners' predecessor-in-interest preferred L.P.A. No, 193 of 1970 which was heard by the learned Division Bench of the Lahore High Court and was dismissed on 18-11-1971 against which Civil Appeal No, 61 of 1974 was preferred before this Court by the petitioners' predecessor-ininterest but was dismissed in default on 22-1-1983 and then C.M.P. No,136-R of 1984 was filed for restoration of the said appeal which was also dismissed on 10-6-1984 and thereafter Review Petition No, 40-R of 1984 was preferred which was also dismissed on 8-2-1989 by this Court. This would show that the respondent Abdul Hameed's right and interest for the use of roof of the petitioners' shops was finally confirmed on 8-2-1989 when the final attempt of the petitioners to get the right with regard to the use of roof given to the respondent was not set aside by this Court. This would also show that respondent's right for the use of the roof over the shops became conclusive and final after the dismissal of the review petition filed by the petitioners. The respondent Abdul Hameed had presented the plaint of Suit No, 95 of 1988 on 20-5-1987 in the Court of learned Civil Judge Attock wherein he prayed for the judgment and decree that the respondents be directed to remove Chobara subsequently built after the withdrawal of first suit on the roof of the shops and restore him the same in previous position. It may be pointed out that the earlier Suit No,178/603 of 1964 filed by the respondents Abdul Hameed was for mandatory injunction restraining the petitioners' predecessor-in-interest from raising any construction over the roof of the said shops on the ground of his alleged easement rights whereas the subsequent Suit No, 95 of 1988 was filed by the respondent after the clouds over his right to the use of roof the said shops as his courtyard were cleared as per final judgment of this Court on 8-2-1989 and the said suit was based on altogether different subject-matter on the basis of his right to use the roof of said shops as courtyard subject to condition that the respondent would not raise new construction thereon. This Court in F.A. Khan v.
12. Government of Pakistan (PLD 1964 SC 520) at page 526 has observed:-- ' "The question, however, would always arise whether the very first denial of a right should be held to oblige a person whose right had been invaded or on whose title a cloud had been cast, to go to Court at once. It may be that a right to sue may accrue on the first denial and yet in the particular circumstances of a case, the option may rest with the person concerned to wait till the denial of right acquires finality by some subsequent development."
13. ' At page 532 it has been observed:-- ' "If the propositions stated above are to be accepted there appears to be good ground for holding that the passing of an order subject to appeal will not necessitate the filing of a suit for it is only a step in a proceeding and not a final order. In any case once an appeal is filed the matter becomes sub judice and when the appellate authority passes an order the order of the original authority disappears and merges in the order of the appellate authority so that there remains in existence only the appellate order and this order can be made the basis of a suit."
14. ' His lordship while referring Privy Council case Mst. Ranee Surno Moyee v. Shooshee Okhee Burmini (1886)12 M I A 244 and Baijnath Suhai v. Ramgut Singh (1896) ILR Cal. 755 (PC) reproduced the observation as follows:-- ' "That principle (as I understand it) is that whenever proceedings are being conducted between the parties bona fide in order to have their mutual rights and obligations in respect of a matter finally settled, the cause of action for an application or for a suit the relief claimable wherein follows naturally on the result of such proceedings should be held to arise only on the date when those proceedings finally settle such rights and liabilities."
15. ' At page 536 it was observed:-- ' "The second reply to this contention is that when the appeal was in fact filed the matter became sub judice. 'Once it became sub judice a right to sue would arise only when it was decided. Also when it was decided only the order of the appellate Tribunal existed, the original order having disappeared and merged in the appellate order which order would then be the basis of a suit."
16. ' Admittedly the first suit for mandatory injunction was filed by the respondent on the ground of the alleged easement rights against, the predecessor-in-interest of the petitioners while the second instant suit was filed after the respondent's right to use the roof of the said shops whose right was denied and to such right cloud had been cast was ultimately cleared by the decisions of dismissal of C.M.P. No,136-R of 1984 on 10-6-1984 and thereafter of Review Petition No, 40-R of 1984 on 8-2- 1989. It became open thereafter to the respondent either to sue the predecessor of the petitioners on the dismissal of C.M.P. No, 136-R of 1984 or the Review Petition No, 40-R of 1984.
17. ' In the circumstances it could not be said that the suit for removal of Chobara from the roof of the shops and for the restoration of the roof in its previous position was barred by time whether the suit was filed under Article 120 or under Article 144 of the Limitation Act (hereinafter referred said Act) considering that Article 144 of said Act was omitted as per Act No,II of 1995 dated 18-10-1995 whereas suit was filed on 20-5-1987 and the cause of action having arisen then. Admittedly the first suit was based on different cause of action on the basis of the facts that the petitioners' predecessor-in-interest be restrained from raising construction over the roof of the shops while the second suit was filed on the basis of respondent's right of use of roof finally affirmed by this Court with a different relief of removal of Chobara which was constructed after the withdrawal of first suit and restoration of the roof of shops in previous position considering that the limitation would run/start only with reference to a particular event/cause of action/subject-matter. In that instant case the subject-matter and cause of action in the first suit were different to that in the subsequent suit. Reference may be made to Vallabh Das, v. Dr. Madanlal and others (AIR 1970 SC 987) wherein it has been observed:- ' "Same subject-matter" in Order 23, rule 1 means the bundle of facts which have to be proved in order to entitle the plaintiff to the relief claimed by him. Where the cause of action and the relief claimed in the second suit are not the same as the cause of action and the relief claimed in the first suit, the second suit cannot be considered to have been brought in respect of the same subject-matter as in the first.
18. ' Where in the first suit the plaintiff sought to enforce his right to partition and separate possession and in tr second suit, he sought to get possession of the suit properties from a trespasser on the basis of his title; ' Held that the subject-matter in the two suits was not the same although the factum and validity of adoption of the plaintiff in both the suits came up for decision."
19. ' It may, however, be 'observed that as soon as the right to use over the roof was finally confirmed by this Court in favour of respondent, the petitioners would have no right to remain over there or keep their construction over the roof, which their predecessor raised during the pendency of litigation, therefore, petitioners remaining there or keeping Chobara would become unlawful and unauthorized and refusal to restore roof and remove Chobara would give rise fresh cause of action to the respondent who would be entitled under the law to the restoration of, the roof and removal of Chobara as the petitioners had no right to keep their unauthorized construction over the roof the use of which had been given away to the respondent Abdul Hameed. Suit No, 95 of 1988 having been filed on 20-5-1987 could not be said time-barred when cause of action accrued to the respondent after the confirmation of his right to the use of roof by this Court. In fact on the dismissal of the appeal and restoration petition by this Court on 22-11-1983'and 10-6-1984 respectively, the right of the respondent over the roof was finally confirmed, therefore, thereafter the respondent could file suit against the petitioners on the basis of his right before the Court hence it could not be said that suit was barred by time considering the period of limitation provided whether suit was filed under Article 120 or 144 of the Limitation Act was 6 and 12 years respectively. In view of aforesaid reasonings the contention of the learned counsel for the petitioners has no force.
20. ' So far the contention of the learned counsel for the petitioners that section 14 of Limitation Act would not apply to extend the period of filing of suit. 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 application 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.
21. 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 proceeding therein ended, shall both be counted.
22. Explanation II.--For the purposes of this section, a plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding.
23. Explanation III..--For the purposes of this section misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction."
24. ' Admittedly this provision of Limitation Act would not be attracted to the facts of the instant case considering that it could not be said that the first suit or the proceedings for acquiring right to the use of proof before the Settlement Authorities or before the High Court and this Court were not prosecuted in the Courts which from the defect of jurisdiction or other cause of like nature were unable to entertain the same. Section 14 of Limitation Act applies to a case where the Court by its own order has terminated the suit or proceedings on the ground that it has no jurisdiction to entertain it or that there is some other cause of like nature-which makes it impossible for the Court to entertain it. The object behind is the protection against the bar of limitation of a party bona fide pursuing his case and seeking adjudication on merits but nevertheless prevented from getting decision on merits on account of defect of jurisdiction or other cause of like nature. The Phrase "other cause of like nature" has a meaning ejusdem generis that the words, "defect of jurisdiction".
25. The first suit it would appear hereinafter was not withdrawn for defect of jurisdiction or other cause of like nature. The order dated 10-1-1973 passed by the learned District Judge, Campbellpur in C.A.
26. No,1 of 1972 mentioned that the respondent had submitted that there was certain technical and formal defects in the suit and it was likely to fail on the said ground, therefore, he requested to permit him to withdraw the suit with opportunity to bring fresh one on the same cause of action. On perusal of the record it would appear no particulars as to technical and formal defects were stated in the submissions made for the withdrawal of the first suit filed by the respondent. It would also appear that second suit was also filed in the same Court. Besides the first suit was withdrawn under rule 1 of Order XXIII, C.P.C., therefore, section 14 of the Limitation Act was not applicable in view of the provisions of rule 2 of said Order which provides that in any fresh suit instituted on permission granted under rule 1 the plaintiff shall be bound by law of limitation in the same manner as if first suit has not been instituted. Reference may be made to (i) Varajlal Bhaishankar Selat and others v. Shomesh War alias Amratlal Raridat Bhat (ILR 29 Born. 219), (ii) ALAR Arunachellam Chettiar and others v. Lakshmana Ayyar and another (ILR 39 Mad. 936), and (iii) and Rahim Ali and others v. Yehia Khan and others (AIR 1928 All. 402(2)).
27. ' Admittedly the Court of Civil Judge Attock so also the said Settlement Authorities, so also the High Court and this Court had jurisdiction in respect of subject-matter and there was no other cause of like nature which could make it impossible for the Court to entertain it. Therefore, following the ratio laid down in the above precedents we hold provision of section 14 of the said Act were not applicable in this case in view of the facts stated above. However, it may be observed that second suit filed by the respondent was filed on different cause of action and relief on the basis of right to use the roof subsequently conferred and confirmed by this Court on 10-6-1984 when C.M.P. No, 136- R of 1984 was dismissed and thereafter on 8-2-1989 when the Review Petition No, 40-R of 1984 was also dismissed. The second suit was presented on 20-5-1987 in the Court of Civil Judge Attock for different relief viz. Restoration of the courtyard and demolishing of Chobara. If the period of limitation is counted from the decision of C.M.P. No, 136-R of 1984 or from the date of dismissal of the Revision Petition No, 40-R of 1984 the second suit would not be barred by time whether the suit was filed under Article 120 or 144 of Limitation Act which provide period of 6 years and 12 years respectively. It may also be stated that learned Judge in Chambers only observed that the respondent was entitled to benefit of section 14 of Limitation Act by analogy as the respondent bona fide kept on defending the proceedings to defend his right.
28. ' The next contention of the learned counsel for the petitioners is that the Settlement Commissioner had no jurisdiction to give away the right to use roof of said shops has also no merit and substance. The order of the Settlement Commissioner whereby the respondent was conferred right to use roof was challenged by the petitioners' predecessor-in-interest before the High Court and ultimately before this Court but the right given to respondent was- finally maintained by this Court which right of respondent attained finality. Therefore, it could not be said now that the Settlement Commissioner had no jurisdiction to confer the right to use the roof of the shops to the respondent Abdul Hameed. In the circumstance the contention is without force.
29. The last contention of the learned counsel, for the petitioners is that the concurrent findings of two Courts below could not have been interfered with by the learned Judge in Chambers of Lahore High Court to which contention also we do not find merit and force. The plea of limitation being a legal and factual plea which was not legally dealt with so also evidence on record was misread by the both Courts below consequently the learned Judge in Chambers was justified in interfering with the concurrent findings which were on the face of record illegal. It would also not be out of place to state here that the High Court has rightly interfered with the concurrent findings as it was just and legal so as to see that complete justice is done to the party who was made to suffer on account of illegality of the two Courts below. Learned counsel has placed reliance upon (i) Abdul Rahim and another v. Mrs. Jannatay Bibi and 13 others (2000 SCM R 346), (ii) Abdul Hakeem v. Habibullah and others (1997 SCM R 1139), and (iii) Muhammad Bux v. Muhammad Ali (1984 SCM R 504).
30. ' In Abdul Rahim's case at No,(i), learned counsel for the appellant could not bring his case within the four corners of the provisions of clauses (a), (b), and (c) of subsection (1) of section 115, C.P.C.
31. And even could not point out to any jurisdictional error in the judgment passed by the learned Judge in Chambers of the High Court whereas in the instant case the learned Civil Judge and the Additional District Judge had acted in exercise of the jurisdiction illegally and had misread the evidence on record holding that the suit was barred by time, therefore, he was perfectly justified to interfere with the judgments of two Courts below.
32. ' In Abdul Hakeem's case at No,(ii)' this Court held that concurrent finding of fact could only be interfered with by the High Court under section 115, C.P.C. If the courts below had either misread the evidence on record or while assessing or evaluating the evidence had omitted from consideration some important piece of evidence which had direct bearing on the issues involved in the case or that the finding was perverse meaning thereby that no reasonable person would reach the conclusion arrived at by the Courts below on the basis of evidence on record. This Court observed in the cited case that the High Court could not find that the decisions of Courts below suffer from misreading of material evidence on record and further reassessment of entire evidence and discarding the conclusion of Courts below having found to be inconsistent with its own assessment would not fall within the purview of section 115, C.P.C. However, in the instant case learned Judge in Chambers found that there was misreading of evidence so also there was illegal exercise of jurisdiction by two Courts below consequently the concurrent finding of two Courts below was reversed in exercise of the revisional jurisdiction.
33. ' In Muhmmad Bux's case at No,(iii), the respondent's suit was decreed by the trial Court, appeal filed by the petitioner was dismissed by District Judge and revision petition was also dismissed by the High Court. In this Court in the petition learned counsel submitted that his case would fall in clause (c) of section 115, C.P.C. On the ground that principle of estoppel as enshrined in section 115 of Evidence Act should have been applied by the courts below to estop Pathana's successor-in- interest of the respondents from challenging the power of attorney in favour of the respondent who had himself failed to challenge the same and also participated in fraud of obtaining confirmation of land through bogus power of attorney. This Court in the cited case held that nothing has been alleged which could demonstrate that in exercising jurisdiction vested in it by law the civil Court had in any manner committed illegality or material irregularity. The facts of the instant case are quite different and distinguishable to the cited case, therefore, the said cited case would not help the petitioners.
34. There is no cavil with the observations made by this Court in the above cited cases that power of High Court in the revisional jurisdiction is limited but in the instant case both the Courts below had acted in the exercise of jurisdiction illegally and had misread the evidence on record, therefore, interference by the High Court was justified and legal. In the circumstances, this petition has no merit and substance consequently the same is dismissed and leave to appeal is declined.