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2001 M L D 1861

 

[Karachi]

 

Before Shabbir Ahmed, J

 

MUHAMMAD SAEED and others‑‑‑Plaintiffs

 

Versus

 

MUHAMMAD ASIF and others‑‑‑Defendants

 

Suit No.461 of 1995, decided on 28th November, 2000.

 

Mustafa Lakhani for Plaintiffs. Anwar Muhammad for Defendant No.3.

 

Date of hearing: 28th November, 2000.

 

ORDER

 

The plaint of the suit was rejected by shot order, dated 28 11‑2000 after hearing the learned counsel for the parties. Following are the reasons:‑‑

 

Briefly, facts are that plaintiffs Muhammad Saeed, Muhammad Hameed and Muhammad Wasim and defendant Muhammad Asif son of Muhammad Shafi were partners in partnership business of construction with Muhammad Rasheed, Muhammad Arif, Muhammad Khalid and Muhammad Hameed sons of Muhammad Sadiq. From the funds provided by above persons, Plot No. 172‑E, Block‑2, Tariq Road, PECHS, Karachi was purchased in the name of defendant No. l and a building was constructed known as Sheikh Arcade. The dispute arose between them and suit was filed by Muhammad Rasheed, Muhammad Arif, Muhammad Khalid, Muhammad Hamid against the plaintiffs and defendant Muhammad Asif in this Court bearing Suit No.318 of 1987 for declaration, dissolution, of partnership, cancellation of documents, partition of the immovable property, accounts, payment of shares and mandatory injunction. The suit was compromised on 27‑10‑1987 whereby Shaikh Estate was dissolved. Under the compromise, the plaintiffs i.e. Muhammad Rasheed; Muhammad Arif, Muhammad Khalid and Muhammad Hamid got shops Nos.9 to 12, 14 and 15 and passage marked, whereas defendant i.e. plaintiffs and defendant No. 1 of this suit got shops Nos.3, 4, 7, 8, 13, and 16, Chowkidar’s room and portion of basement under shops Nos.3, 4 and 7 (hereinafter referred to as the suit property) It was also agreed that the defendant shall execute necessary documents of transfer/conveyance/lease deed in respect of the property partitioned and allocated in favour of plaintiffs so as to give them and to their nominees marketable title within 15 days. By virtue of the compromise decree, the plaintiffs and defendant No. 1 became joint owner of the aforesaid shops and basement of the building known as Sheikh Arcadre.

 

Clauses (1) and (7) of the compromise application are relevant which run thus:‑‑

 

“(2) that the defendants shall take and own exclusively the shops Nos.4, 3, 7, 8, 13, 16, Chowkidar’s room and portion of the basement directly under the shops 3, 4 and 7. These are demarcated as Block A in the accompany sketch.

 

(7) That defendant No. 1, the owner of the plot on record shall execute the necessary documents of transfer, lease etc. in respect of the property partitioned and allocated in favour of plaintiffs so as to give them or to their nominees marketable title within 15 days.”

 

It is case of the plaintiff that in spite of repeated demands and requests by the plaintiffs to execute and register necessary documents of transfer/conveyance, sub‑lease in respect of the said property to the joint name of the plaintiff alongwith defendant No. 1. Defendant No. 1 refused/avoided to do so and kept the plaintiff on false hope. It came to the notice of the plaintiffs through Court notice published in daily Dawn dated 21‑5‑1995 that Nazir of the Banking Court, Karachi and Sukkur will sell by public auction the suit property, alleged to have‑ been mortgaged by defendant No.2, wife of defendant No. 1 in favour of Muslim Commercial Bank in execution of the decree passed on 26‑5‑1993 in Suit No.963 of 1999. The plaintiff on the above information came to know that Suit No.963 of 1998 was decreed against M/s. Unitco Textiles and Mrs. Nafis Laman A. Syed for recovery. Defendant No.2 had deposited the title deeds of the suit property by creating equitable mortgage. It also came to the notice of the plaintiff that defendant No.1 illegally, malafidely, fraudulently and with intent to deprive the plaintiff executed and got registered sub‑lease of the suit property in favour of defendant No.2 on 5‑1‑1989 which was jointly owned by the plaintiff and defendant No.1. This suit was filed showing accrual of cause of action on 27‑10‑1987 based on compromise decree and subsequently when they came to know about sale proclamation with the following prayers:‑‑

 

“(a) Pass judgment and decree declaring that the defendant No. 1 and had no right and authority to execute and register the sub‑lease in respect of shops Nos.3, 4, 7, 8, 13, 16 Chowkidar’s room and portion of the basement directly under the shops 3, 4 and 7 in the building known as Sheikh Arcade situated on Plot No. 172‑E, Block No.2, Tariq Road, PECHS, Karachi.

 

(b) Declare that defendant No.2 had no right and authority to create equitable mortgage by deposit of title deed in favour of defendant No.3 in respect of shops Nos.4, 3, 7, 8, 13, 16 Chowkidar’s room and portion of basement directly under the shops 3, 4 and 7 in the building known as Sheikh Arcade situated on Plot No. 172‑E, Block‑2, PECHS.

 

(c) Adjudge that the sub‑lease, dated 5‑7‑1989 executed and registered by defendant No.1 in favour of defendant No.2 and the Equitable mortgage by Deposit of title deeds created in favour of defendant No. 3 by defendant No. 1 in respect of shops Nos. 4, 3, 7, 8, 13, 16. Chowkidar’s room and portion of the basement directly under the shops Nos.3, 4 and 7 in the building known as Sheikh Arcade on Plot No.172‑B, Block‑2, PECHS, Society, Karachi, Tariq Road, illegal and void and of no legal effect.

 

(d) Cancel the sub‑lease dated 5‑7‑1989 executed by the defendant No. l in favour of defendant No.2 in respect of shops Nos.3, 4, 7, 8, 16, Chowkidar’s room and portion of the basement directly under the shops Nos.3, 4 and 7 in the building known as Sheikh Arcade on Plot No.172‑E, Block‑2, Tariq Road, PECHS, Karachi,‑and direct the defendant No.2 to deliver up the same.

 

(e) Cancel the equitable mortgage by deposit of title deed in respect of shops Nos.3, 4, 7, 8, 13, 16 Chowkidar’s room and portion of the basement directly under the shops Nos.3, 4 and 7 in the building known as Sheikh Arcade, on Plot No.172‑B, Tariq Road, PECHS, Karachi, created by defendant No.2 in favour of the defendant No.3.

 

(f) Grant permanent injunction restraining the defendant No.3 and its officers, servants and agents, claiming through or under it from attaching and selling the shops Nos.3, 4, 7, 8, 1.3, 16, Chowkidar’s room and portion of basement directly under the shops Nos.3, 4 and 7 in building on Plot No. 172‑E, Block‑2, Tariq Road, Karachi, in execution of the decree passed in Suit No.963 of 1993 passed by Banking Tribunal at Karachi.

 

(g) Declare that the sale/auction of the suit property in favour of defendant No.4 is void and liable to be cancelled.

 

(h) Award Costs of the suit.

 

The defendants, through application under Order VII, Rule 11, C. P. C. sought rejection of the plaint on the grounds that the suit is not maintainable, barred by limitation and under the Banking Companies (Recovery of Loans, Advances, Credits and Finances) Act, 1997, the Court has no jurisdiction and the plaintiff has got no cause of action.

 

I have heard the learned counsel for the parties.

 

The learned counsel for defendant No.3 has contended that the plaintiff after getting information could have approached the Banking Court under the provisions of section 18(6) by filing objection to the execution of the decree. According to him, the investigation of claim and objection in respect of attachment or sale of any property whether mortgaged or not could have been done under the provisions of subsection (6) of section 18 of the Act, 1997 and he further contended that the plaintiff in case of being unsuccessful could have availed remedy provided under subsection (5) of I section 21 by filing an appeal against the order passed under section (6) of section 18. On these premised, it has been contended that the Civil Court has no jurisdiction and the plant is liable to be rejected. In my view the provisions of Act, 1997, has no retrospective effect as such, the bar cannot be pleaded under the Act, 1997.

 

There is another aspect of the case. The, plaintiff’s right in the property emanates from the decree passed in Suit No.318 of 1987, dated 21‑1‑1988. The plaintiff in para. 8 of the plaint has pleaded that in spite of repeated demands and requests by the plaintiff to execute and register necessary document of transfer/conveyance/sub‑lease in respect of said property to the joint same of the plaintiff alongwith defendant No. 1, defendant No. 1 avoided and neglected to do so and was kept on false hope. The period of limitation for execution of decree passed by the High Court is ..years from the date of decree in terms of Article 183 of the Schedule I of Limitation Act. In case of Abdul Wahid v. Abdul Ghani and others (PLD 1963 Kar. 990) it was held that the decree grants certain right to the parties. There can be no doubt that those rights have to be enforced in the execution proceedings and not by a separate. suit. As the matter relating to the execution of such right are mattes relating to the execution of decree. Similar view was expressed in case of (AIR 1990. Allahabad 555).

 

I am not unmindful that the provisions at section 47(2), C.P.C. enjoins the Court to treat a suit as proceeding under section 47, C.P.C. subject to the question of limitation or jurisdiction. This suit could have been treated as execution application and same could have dealt with as such but the plaintiffs have lost the remedy due to efflux of time. The plaintiffs’ suit 8 cannot be treated as execution application under section 47, C.P.C. for the reasons that the decree is dated 7‑1‑1988 and the suit was filed on 13‑7‑1995 after expiry of limitation period under Article 193.

 

The suit in fact is in respect of right under a decree seeking negative declaration. It cannot be taken out of the scope of section 47(1) of the C.P.C. which is fresh suit, which touches the question of execution, and satisfaction of the decree.

 

The plaintiff has to show that Suit 5 instituted by them was not instituted after the period prescribed therefore by the Schedule 1. Section 3 of the Limitation Act Lasts a duty on the Court to dismiss the Suit instituted, appeal preferred and application made after the period of the limitation prescribed therefore by the First Schedule, although limitation has not been set up as a defence. The provision of section 3 of the Limitation Act, read as under:‑‑

 

“3. Dismissal of suit etc. instituted etc after Period of limitation.‑‑‑ Subject to the provisions co tamed in sections 4 to 25 (inclusive), every suit instituted, appeal preferred, and application made, after the period of limitation prescribed therefore, by the First Schedule shall be dismissed, although limitation has not been set up as a defence.

 

Explanation.‑‑‑A suit is instituted, in ordinary cases, when the plaint is presented to the proper officer; in the case of a pauper, when his application for leave to sue as a pauper is made; and, in the case of a claim against a company which is being wound up by the Court when the claimant first sends his claim to the official liquidator. “

 

It is clear from the provisions of section 3 of the Limitation Act and Order 7, Rules 1, 6 and 11 of C.P.C. that at the first instance, the plaintiff has to show that his suit was not instituted after the period prescribed C therefore, by Schedule First and accordingly it is not required to be dismissed under section 3 of the Limitation Act.

 

In Peeru Muhammad Raotha Pillai v. Kassam (AIR 1955 TC 188), the view taken by the Bench was that section 3 is pre‑emptory and compells the Court to discuss the suit if it is time‑barred although the defence of limitation has not been set up. The plaintiff must show that his suit has been instituted within the period of limitation or that there are circumstances which take his case out of the ordinary period of limitation.

 

In Muhammad Akbar Khan v. Province of West Pakistan (PLD 1957 W.P. (more 295), the Division Bench of Lahore High Court ruled as follows:‑‑

 

“When person brings a suit and this claim is denied by the other Party, it is his duty to show that the suit was instituted within the prescribed period of limitation. It is enough for the defendant to completely deny the plaintiff’s claim. The argument, that it lies on the defendant to mention the date on which the cause of action accrued to the plaintiff or the precise Article of the Limitation Act applicable to the suit was not accepted.”

 

The plaintiffs have slept over more than six years and allowed the decree in their favour un-executable due to expiry of limitation period and cannot base the suit on such compromise decree for the rights under the decree by seeking negative declaration as in the present case.

 

Resultantly, the suit is incompetent under the provisions of section 47(1), C.P.C. and also barred by limitation. The plaint is, therefore, rejected, however, with no order as to costs alongwith the listed application.

 

H.B.T./M‑186/K Plaint rejected.

 

 

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