' The application, C.M.A. No,7914 of 2001, has been filed on behalf of defendants Nos.1 to 4 with a prayer to reject the plaint under Order VII, Rule 1 1, C.P .C.
2. This case has a chequered history , but in order to examine the plea of rejectio n of plaint within the meaning of Order VII, Rule 11, C.P.C. The back ground of this case is confined to what has been averred in the plaint and what is revealed from the documents annexed to and relied upon by the plaintif f. The case, as set forth by plaintif f Kazim Imam Jan, is that the demised Property , bearing No, C-79, Block-4, F.B. Area, Karachi admeasuring. 600 sq. Yds., K.D.A. Sche me No,16 was released to him on 29-12-1964. He entered into a Sale Agreement with Muhammad Jawed, defendant No,1 on 24-2-1971 in respect of this property for total consideration of Rs,76,500 out of which he received Rs, 30,000 and handed over the vacant possession of the premises to him on the same day. Later on Muhammad Javed, allegedly , could not fulfil the terms and conditions of the agreement, the plaintif f sent a notice, dated 14-12-1971 to him through his Advocate asking the latter to pay Rs,500 per month as occupation charges for the period from 24-2-1971 being the date of possession and Rs,5,000 as damages. The plaintif f had also executed a General Power of Attorney to one Noor Muhammad on the same day i,e, 24-2-1971, who, as per plaint, entered into a sale agreement dated 21-11-1972 with the said Muhammad Jawed and the later gifted the said premises to one Gul Muhammad, but the documents annexed to the plaint, bear the fact that the plaintif f's attorney Noor Muhammad conveyed the demised property to Muhammad Jawed, defendant No,I through a registered sale deed, dated 22-11-1972. The plaintif f, however , claimed that he had already cancelled the authority given to. Noor Muhammad through the said Power of Attorney .
3. The entire affair remained untouched for a period of around 20 years and later on the plaintif f executed a General Power of Attorney in favour of Ghulam Mohiuddin Qureshi under whose signature he has filed the plaint in the instant suit. The said attorney Ghulam Mohiuddin Qureshi filed a Rent Case No, 836 of 1991 against the defendants in the Court of HI-Rent Controller , Karachi Central. Another Rent Case No,192 of 1992 was also filed by one Mst. Rukhsana Tabassum against a fictitious tenant Rais Ahmed. The said Mst. Rukhsana Tabassum succeeded in getting an eviction order which was challenged by Gul Muhammad, the father of defendants Nos. 2, 3 and 4 by moving an application under section 12(2), C.P.C. This application was dismissed and writ of possession was issued. Gul Muhammad preferred an appeal being F.R.A No, 62 of 1994 which was allowed and the impugned order , dated 31-7-1993 was set aside and the matter was remanded back by judgment, dated 1 1-1-1995.
4. At one stage, Rais Ahmed came into the picture in Rent Case No, 192 of 1992 and made a statement in his affidavit-in-evidence that he had never entered into a tenancy agreement nor possession of demised premises was ever given to him by Mst. Rukhsana Tabassum. Anyhow , after remand of the case evidence was led by parties whereafter the application of Gul Muhammad preferred under section 12(2), C.P.C. Was again dismissed by order , dated 17-3-1998. Gul Muhammad preferred an appeal (F.R.A. No,143 of 1998) in this Court which was allowed by this Court by judgment, dated 3-5-2000. It was directed in the said judgment that possession be restored to appellant name ly Gul Muhammad through his legal heirs. The plaintif f challenged the aforesaid judgment in the Honourable Supreme Court, vide C.P.L.A. No,287-K of 2000 but leave to appeal was refused to him and the petition was dismissed. He was directed to hand over the vacant possession of the premises to legal heirs of Gul Muhammad (respondent No,1) within 4 months and in case of failure writ of possession was to issue without notice against the plaintif f/petitioner with police aid, if necessary . It was, inter alia, observed by the Honourable Suprem e Court that the issue of title could not be decided by Rent Controller and the parties may approach the Civil Court. Laying the foundation of his suit on the aforesaid observations, the plaintif f's attorney instituted this suit seeking the following reliefs:--- "(i) That a judgment and decree may be passed in favour of the plaintif f against the defendants declaring therein that the plaintif f is the lawful and bona fide owner of the premises bearing No,C-79, Block No, 4, F.B.
Area, Karachi by virtue of his title documents i,e, Allotment and Lease.
(ii) That Sale Agreement entered into with the defendant No,1 and Gift Deed entered into with the said Gul Muhammad (late father of defendants Nos.2, 3 and 4) be declared null and void as already cancelled, and also mutation of defendant No,5 be declared null and void and cancelled.
(iii) The possession of the premises C-79, Block No, 4, F.B. Area, Karachi be handed over to the plaintif f taking it back from the defendants or anyone in occupation of the premises.
(iv) The defendants, their agents, servants, or any body acting on their behalf or in his individual capacity be restrained to transfer , sell or anybody else in the said property to dispose it of in any manner .
(v) The defendants be ordered/directed to pay Rs,500 rent per month with legal increments as envisaged in the Sindh Rented Premises Ordinance, 1979 since their occupation till the vacation of the premises.
(vi) Cost.
(vii) Any other relief(s) which this Hon'ble Court may deem fit and proper in the circumstances."
5. The defendants, through this applicati on, have sought rejection of plaint on the grounds that the suit is barred by time; barred by doctrine of res judicata; barred by Order 11, Rule 2, C.P.C.; and no cause of action has accrued to the plaintif f for filing of this suit. While resisting this application, the plaintif f's attorney Ghulam Mohiuddin Qureshi, in his affidavit, stated that cause of action has accrued to him in the light of judgment/order of the Hon'ble High Court and that of the Honourable Supreme Court.
6. I have heard learned counsel for parties.
7. Elaborating his case, Mr. Sajjad Ali Shah, learned counsel for defendants Nos.1 to 4 submitted that limitation for relief of declaration is covered by Article 120 of the Limitation Act wherein the period for instituting a suit is 6 years and for cancellation of deeds is 3 years and for possession the period of limitation under Article 142 is 12 years, but since the suit has been filed after a period of about 30 years the same is hopelessly time-barred. According to him, the said agreement was executed by plaintif f Kazim Imam Jan himself in favour of Muhammad Jawed on 24-2-1971 and possession was delivered on the same day and subsequently the Sale Deed was executed in favour of Muhammad Jawed through plaintif f's attorney Noor Muhammad (based on a fresh agreement) and if the said irrevocable Power of Attorney was cancelled on 14- 12-1971 as claimed by plaintif f then the cause of action arose on the aforesaid date i,e, 14-12-1971- whereas the suit has been filed on 12-4-2001. He further contended that the property was mortgaged, therefore, after paying entire money it was released and in the year 1980 the property was mutated in the name of Muhammad Jawed who gifted the same to Gul Muhammad in the year 1980 and such mutation was effected in 1981, therefore, on that count also the suit for cancellation of documents filed in the year 2001 was barred by time.
He further explained that the Honourabl e Supreme Court as also this Court by observing that the title was not to be decided through rent proceedings, and 'the parties may approach Civil Court did not extend the period of limitation. He emphasized that the case of plaintif f is not covered even by section 14 of the Limitation Act as the said section does not cover the proceedings through rent cases.
8. Learned counsel for plaintif f was emphatic on the point that Power of Attorne y in favor of Noor Muhammad was cancelled by plaintif f through letter dated 14-12-1971, therefore, after cancellation the defendants became tenants and since the Honorable Suprem e Court has observed that serious question of title could not be decided .Through rent proceedings and the parties may approach Civil Court, therefore, cause of action has accrued to plaintif f only in pursuance of the said observations and the suit was accordingly within time: He further submitted that the Power of Attorney was executed in favour of Ghulam Mohiuddin Qureshi in the year 1991, therefore, cause of action accrued in the year 1991 and Article 142 comes into play in this respect. The suit, therefore, could be filed within 12 years from the said date i,e, 3-9-1991.
9. I have given anxious consideration to all these contentions. In the first instance, it would be advantageous to reproduce the observations of the Hono rable Supreme Court made in the order dated 18-7-2000 dismissing C.P.L.A. No, 287-K of 2000, which run as under:-- ' It is, clear that ownership of the premises is being claimed by petitioner Kazim Imam Jan, his attorney Rukhsana Tabassum Shaikh and respondent No,1 Gul Muhammad. It appears to be the case of serious dispute about title of the premises. In a case like this, issue of title cannot be declared by Rent Controller and the parties may approach Civil Court. The premises was in possession of respondent No,1 Gul Muhammad (now deceased) at the time when it was illegally taken by the petitioner .
'In consequence, leave to appeal is refused and the petition is dismissed. The petitioner is directed to hand over vacant possession of the premises to legal heirs of the respondent No,1 within 4 months from now. In case of failure to do so, the writ of possession shall be issued without notice against the petitioner with police aid, if necessary ."
10. The observations of this Court in the order passed in F .R.A. No,143 of 1998 are also reproduced below:--- .......... In the first instance Mr. Sharif attempted to show that the aforesaid lady had been muted in her name, I pointed out that the question of title could only be settled by Civil Court and it was unnecessary to raise the controversy ." ................... For the foregoing reasons, I would direct that possession be delivered to the appellant within two months from today , failing which a writ of possession will issue without notice. It will however , be open to the respondent No,1 or any person claiming to be landlord of the property to seek ejectment of the appellant according to law. The above is also without prejudice to the respective claims of the parties as to title which will be decided on the original side." (Emphasis supplied).
11. The legal position emer ging from the above observations need no extens ive deliberation. The Humble Supreme Court, in clear and precise words, has directed the parties to approach the Civil Court as the issue of title could not be decided by the Rent Controller . Such an order , undoubtedly , provides guidance to the parties to seek redressed of their grievance in accordance with law and so also the relev ant Court is expected to decide the case in accordance with law. It cannot, at all, be read from these observations that the Humble Supreme Court directly or indirectly extended the period of limitation enabling the party to A prosecute a time-barred claim/relief which was absolutely not an issue before the Honorable Supreme Court. No party can be allowed to raise a presumption from an order of Humble Supreme Court when something is not expressly observed or stated therein. The law is well-settled that vested rights are created on account of limitation, (see 1975 SCMR 304 and 1982 SCMR 285), therefore, determination of such rights cannot eventually be subjected to presumptions and self-conceited inferences. The plaintif f has to face the consequences of limitation on the merits of his own case and cannot seek a refuge under the above observation s made either by the Humble Supreme Court or even by this Court in its rent appellate jurisdiction.
12. Admittedly , the registered sale-deed, founded on the irrevocable Power of Attorney executed by plaintif f in favor of Noor Muhammad, was executed on 22-11-1972 and if cancellation of this document is sought after 30 years the suit would certainly be barred by time under Article 91 of the Limitation Act. Even if it is assumed that the fact of ' Registered sale-deed or even subsequent registered declaration of gift came to the knowledge of plaintif f at a later stage through the rent proceedings instituted in the year 1991, it would be manifestly established that from that period onwards the plaintif f knew about these documents, he could seek cancellation of the said deeds/documents within 3 years, but he kept quiet. Yet after going to a maximum extent of relaxation it can certainly be said that after filing of application under section 12(2), C.P.C. By Gul Muhammad, lack of knowledge of these documents cannot at all be conceived, as the order , dated 11-1-1995 passed by this Court in F.R.A. No, 62 of 1994 in clear terms mentions that plaintif f Kazim Imam Jan, being respondent No,1 therein, was represented by an Advocate Mr. G.M. Saleem in those proceedings. The said rent appeal, as already stated, was filed by Gul Muhammad to whom the property was gifted through registered declaration of gift by Muhammad Jawe d deriving title from the aforementione d registered sale deed. In this manner , at least in the month of January, 1995 the existence of aforementioned registered documents, undoubtedly , became known to the plain tiff; consequently , on that score too the suit filed in the year 2001 was barred by time under Article 91 of the Limitation Act as it was filed after the prescribed time of three years.
13. Initially , the sale agreement was admittedly executed on 24-2-1971. The suit as against this contract as also the sale agreement, dated 21-11-1972 referred to in para. 4 of the plaint is also hopelessly barred under Article 114 of the Limitation Act which provides a period of 3 years only for rescission of contract.
14. It is also an admitted position that on the said date i,e, 24-2-1971 the possession was delivered by Kazim Imam Jan, the plaintif f to Muhammad Jawed, therefore, relief of possession after 30 years was also barred within the meaning of Article 142 to the Schedule to B Limitation Act which provides a period of 12 years from the period of discontinuance of the possession. The plaintif f was divested of his title through registered sale deed on 22-11-1972 and again in 1980 Muhammad Jawed gifted the property to Gul Muhammad whereafter even mutation was effected. A declaration for title to property was also barred by time within the purview of Article 120 of the Limitation Act,
15. It may, consequently , be summed up that on all counts the instant suit was hopelessly time-barred.
However , the plea raised on behalf of the plaintif f that under section 14 of the Limitation Act the time spent in seeking remedies through rent jurisdiction be excluded needs to be examined in the light of circumstances of the case. In order to extend benefit of section 14 of the Limitation Act for the purpose of exclusion of time the Court can exclude the time during which the plaintif f has been prosecuting with due diligence another civil proceeding whether in a Court of first instance or in a Court of appeal against the defendants when such proceedings are founded upon the same cause of action and he has prosecuted in good faith in a Court which, from the lack of jurisdiction or other cause of like nature, is unable to entertain it. Reliance, in this regard, may be placed on Ghulam Ali v . Akhter PLD 1991 SC 957 .
16. In the instant case the plaintif f himse lf is an advocate and it is incomprehen sible that he failed to prosecute his case on a wrong legal advice. He had admittedly executed a sale agreement and also parted with possession after receiving a good amount of consideration in the year 1971, that is to say about 30 years back. It cannot be presumed that he had no knowledge of law. Further during the rent proceedings his title was clearly and effectively questioned yet he did not prefer to seek a declaration to his title. All that he did was that he indulged in appointing attorneys one after the other . Initially , he appointed one Noor Muhammad through an Irrevocable Power of Attorney in the year 1971, then he appointed one Mehmood Shah as his attorney , while Mst.
Rukhsana Tabbasum also claimed to be his attorney and instituted rent proceedings at her own level on behalf of plaintif f and lastly one Ghulam Mohiuddin Qureshi who has filed this suit is his attorney . As pointed out by learned counsel for defendants Nos. 1 to 4 the plaintif f Kazim Imam Jan has not himself signed the plaint in the instant suit. It is not known when will he turn up and bid farewell to the last attorney also. All the circumstances put together lead to a sustainable inference that plaintif f Kazim Imam Jan was not entitled to exclusion of time of limitation within the meaning of section 14 of the Limitation Act. Indeed, the irresistible conclusion would be that the plaintif f's suit is hopelessly time-barred.
17. In result of the foregoing discussion it is held that the plaint is liable to be rejected within the meaning of Order VII, Rule 1 1, C.P .C. Being barred by law of limitation and is hereby rejected with no order as to costs.
18. The rest of the applications are dismissed having become infructuous in a consequence of the above.