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1993 M L D 2126

 

[Lahore]

 

Before Ch. Fazal Karim, l

 

Sh. ALLAH RAKHA (deceased) through Legal Heirs—Appellants

 

Versus

 

U.P. CHURCH and others—Respondents

 

Regular Second Appeal No.271 of 1970, decided on 10th July, 1993. 

Sh. Karamat Nazir Bhindari for Appellants.

 

Ch. Hafeez Ahmad and Ch. Naeem Shakir for Respondents.

 

Date of hearing: 12th June, 1993.

 

 

JUDGMENT

 

This regular second appeal by the defendant, Sh. Allah Rakha, comes from the judgment and decree of the learned District Judge, Gujranwala, dated 17-5-1969, whereby the appellant’s first appeal against the judgment and decree of the learned Senior Civil Judge, Gujranwala, dated 11-7-1967 was dismissed. The learned Senior Civil Judge had by his judgment dated 11-7-1967 decreed the suit of the plaintiff, U.P. Church, Qila Deedar Singh, Tehsil and District Gujranwala brought through Mumtaz Khan, Incharge U.P. Church, Qila Deedar Singh.

 

2. The facts leading to this appeal are as follows. On 29-10-1963, the defendant, Munshi Danial, executed the sale-deed (Exh.D.l) in respect of the property in suit in favour of the appellant Sh. Allah Rakha, whereby, the purportedly sold it to the appellant ShAllah Rakha for Rs.700. The deed was placed before the Sub-Registrar for registration on 25-3-1964. He refused to register it on the ground that according to Munshi Danial he had no tiff. to transfer. Under section 73 of the Registration Act, 1908 (in this judgment it will be referred to as the Act), if a Sub-Registrar refuses to register a document on the ground that the person by whom it purports to be executed denies its execution, any person claiming under any such document may within 30 days after the making of the order of the refusal apply to the Registrar to establish his right to have the document registered. But if the refusal to register is made on the ground other than denial of execution, an appeal lies under section 72 of the Act against the order of the Sub-Registrar refusing to admit the document to registration, to the Registrar, the period of limitation for such appeal also being 30 days, from the date of the order. Thus this was a case in which an appeal under section 72 and not an application under section 73 lay. However, the appellant made an application under section 73 of the Act. That application was dismissed by the order of the Registrar dated 17-8-1964; that order (Exh.P.3) reads:

 

“This is an application under section 73 of the Registration Act, 1908. The Sub-Registrar, Gujranwala, has refused the registration by his order dated 25-3-196.1 for want of title. The refusal of registration by the Sub-Registrar is not based on the denial of execution of document by the respondent and as such the application under section 73 of the Registration Act is not appropriate. In the circumstances of the case, an appeal under section 72 of the Act ought to have been preferred. I would, therefore, advise that the petitioner may if he so desired, convert the petition to an appeal. The petition is the result, is dismissed.”

 

It appears that as advised by the Registrar, the appellant filed an appeal under section 72 of the Act on 9-9-1964. In that appeal only one respondent, namely, Danial Fazal Din (he is the same name who is described as Munshi Danial in the plaint) was made respondent. The appeal was accepted by the Registrar’s order dated 18-12-1965; in so doing he observed. “I am quite confident that originally the respondent did execute the document in question, but later on changed his mind. This case falls under section 75 of the Registration Act.” Accordingly he ordered that “the deed should be registered compulsorily.”

 

3. In pursuance of this order, the deed Exh.D.1 was presented for registration before the Sub-Registrar on 29-12-1965 and was registered.

 

4. In the meantime, on 26-11-1964, the plaintiff Church had instituted a suit seeking a declaration that the property in suit was its property and that the vendor Munshi Danial was not competent to transfer it as his personal property. It is plain that the need to institute that suit arose because of the execution of the sale-deed (Exh.D.1) in favour of the appellant. The vendor filed a written statement confessing judgment; he also appeared before the Civil Judge and gave his consent to the suit being decreed. Consequently the suit was decreed on 22-3-1965.

 

5. This suit was brought by the U.P. Church on 10-1-1966. It was for a declaration that the order of the Registrar dated 18-12-1965 ordering the registration of the deed Exh.D.1 was illegal, void and ineffective and that the “plaintiff is the owner of the said property and in consequence registration done by the defendant No.4 on 29-12-1965 be declared as cancelled and without any legal effect.” The plaintiffs case was that though the Registrar’s order was against the vendor, yet it affected its ownership right “regarding the said property when the property is, by the decree of Civil Judge dated 22-3-1965, the property of the plaintiff and the defendant No.2 has nothing to do with it;” that the Registrar’s order was made in the absence of the plaintiff and without providing him an opportunity to explain his position; that “the Registrar ignored this fact even that appeal, preferred by the defendant No.1 was hopelessly time-barred No application for condonation of the delay was made by defendant No.1 and nor Registration Act gives any power to him, to hear an appeal against an order of the Sub-Registrar filed beyond thirty days from the date of order of the Sub-Registrar.

 

6. The suit was contested by Sh. Allah Rakha only. He asserted that the vendor was the owner of the property and that he had sold it to him for consideration. According to him the vendor had later gone back upon the contract and as the deed was compulsorily registrable the Registrar had rightly directed its registration. According to him the declaratory decree obtained by the plaintiff on 22-3-1965 was collusive and fraudulent and, therefore, ineffective as against his rights.

 

7. On the parties’ pleadings the following issues were formulated and tried: –

 

(I) Whether the suit in its present form is maintainable? O.P.P.

 

(2) Whether the valuation of the suit for the purpose of court-fee and jurisdiction is correct? O.P.P.

 

(3) If not, what should be the valuation? O.P.D.

 

(4) Whether the plaintiff is the owner of the property in suit ? O.P.P.

 

(5) Whether the order of the Registrar dated 29-12-65 effecting the registration of the property in dispute is illegal, void and ineffective for the reasons given in para. No.5 of the plaint? O.P.P.

 

(6) Whether the decree dated 22-3-65 declaring the plaintiff to be the owner of the property was obtained fraudulently and the same is ineffective against Sh. Allah Rakha defendant No.1? O.P.D.

 

(7) Relief.

 

8. In its evidence, the plaintiff examined its Mukhtar, Mumtaz Khan as P.W.2; he testified that the property in dispute belonged to the plaintiff and not to the vendor. He admitted in cross-examination that the property in dispute was purchased by Padri Fazal Din, father of the vendor and that he was its owner. The plaintiff Church also called Muhammad Shafi (P.W.1); he stated that he had been in possession of the property in dispute as the licensee of Mumtaz Khan, etc. On the other hand the appellant examined himself and called one Muhammad Ramzan (D.W.1).

 

9. The learned Senior Civil Judge referred to the deed, mentioned above and observed that the Registrar’s order dated 18-12-1965 (Exh.P.2) showed that “Munshi Danial had refused to get the deed registered on the ground that his partner was not agreeing with him on the question of the sale of plot in dispute”; that the appellant was not a party to the decree (Exh.P.l) and “as such it was obtained behind his back” and that “obviously the intention of the declaratory suit was to defeat the right of Allah Rakha to get the sale-deed Exh.D.1 properly registered. Obviously, this was an attempt of fraud on the part of the plaintiff.”

 

10. The learned Senior Civil Judge then posed the question: “whether the declaratory decree dated 22-3-65 Exh.P.1 would take priority over the registered sale-deed Exh.D.1 or not?” To decide that question he referred to the provisions of sections 47 and 50 of the Registration Act and held:

 

” although Exh.D.1 was registered on 29-12-65, the title would be considered to have had passed in favour of Allah Rakha on 29-10-63. Accordingly, on 22-3-65, when the declaratory suit was instituted on behalf of the plaintiff Munshi Danial stood divested of his title and could not have had conceded to the ownership of U.P. Church. Even otherwise since Allah Rakha was not a party to the judgment Exh.P.1 it could not have operated against him.”

 

11. So far, the learned Senior Civil Judge was, if I may say so, on firm ground. But then he went on to deal with “another aspect of the matter which needs consideration”. He noticed that there were two orders of the Registrar; one dated 17-8-1964 (Exh.P3) and the other dated 18-12-1965 (Exh.P.2). By the first order, the Registrar had come to the conclusion that the remedy of Sh. Allah Rakha lay under section 72 and not under section 73 of the Act and he advised him to convert that petition into an appeal; that the Registrar did not treat his application under section 73 as an appeal under section 72; that application under section 73 was dismissed; that the appeal under section 72 was to be filed within 30 days from the Sub-Registrar’s order dated 25-3-1964; that it was filed on 9-9-1964 when it “was hopelessly barred by time”. In the view of the learned Senior Civil Judge “on account of the bar of limitation, the Registrar was not competent to exercise jurisdiction for directing compulsory registration” and, therefore, the order dated 18-12-1965, Exh.P.2) “was without jurisdiction” and the registration of the deed (Exh.D.1) on 29-12-1965 “would stand vitiated”. The learned Senior Civil Judge, therefore, held that “it would be difficult for Allah Rakha to claim title on the basis of the registration dated 29-12-65. Since the registration is void, the document Exh.D.1 cannot be considered to have had conferred a valid title upon Sh. Allah Rakha defendant No.1. Thus although the document Exh.D.1 was executed on 29-10 63 it would not take precedence against the declaratory decree dated 22-3-65 existing in favour of U.P.Church.”

 

12. The learned District Judge affirmed these findings; he was of the opinion that “the Registrar was not competent to exercise discretion for directing compulsory registration because the appeal was barred by limitation” and that “the order Exh. P.2 dated 18-12-65 had been rightly determined by the learned trial Court to be without jurisdiction, and as such Allah Rakha appellant cannot claim title on the basis of registration dated 29-12-65 and sale-deed Exh.D.1 cannot be considered to have conferred a valid title”. In his view, “under these circumstances, Munshi Danial respondent could have made a statement conceding to the plaintiff’s title, which he did in the declaratory suit, which was decreed on 22-3-65.”

 

13. As regards the title to the property in suit, the plaintiff’s claim was founded entirely upon the decree dated 22-3-1965. In fact, Padri Mumtaz Khan (P.W.2) admitted in cross-examination that the property in suit had been purchased by Eazal Din, father of Munshi Danial defendant in his own name. As has been held by the learned Courts below and rightly in my view, the sale deed (Exh.D.1) in favour of Sh. Allah Rakha defendant was executed on 29-10-1963 and if it was validly registered on 29-12-1965, the document was under section 47 of the Act to operate from the date of its execution and not from the date of its registration. The only question, therefore, is whether the learned Courts below were right in holding that the registration was invalid because it was made in pursuance of the Registrar’s order dated 18-12-1965 and that order was without jurisdiction because the appeal before the Registrar was time-barred.

 

14. There is no doubt that since it was not a case in which the vendor Munshi Danial had denied the execution of the deed an appeal under section 72 and not an application under section 73 of the Registration Act, 1908 lay to the Registrar. However, admittedly, the application under section 73 was made to the Registrar within the time limited by law. There can also be no doubt that the Registrar could treat that application as an appeal under section 72. The Registrar’s order dated 17-8-1964 (Exh.P.3) shows that he was inclined to so treat it. This is clear from his following observation in that order: “I would, therefore, advise that the petitioner may, if he so desired, convert the petition to an appeal.” It appears, however, that instead of asking Sh. Allah Rakha Rakha if he would like the application to be treated as an appeal he proceeded to dismiss it. It was in these circumstances that Sh. Allah Rakha was driven to file an appeal under section 72 of the Act. I am of the opinion that it was too technical a view to take that the appeal before the Registrar was barred by time. An appeal is the right of entering superior Court or office and invoking its aid and interposition to redress the error of the E Court or authority below. As was said in Nagendar Nath v. Suresh Chandra (59 IA. 283), “any application by a party to an appellate Court asking it to set aside or revise a decision of a subordinate court is an `appeal’ within the ordinary acceptation of the term.” Here Sh. Allah Rakha did make an application to the Registrar, and there is no question that that application, if it were an appeal under section 72, was made timeously. There was no bar to that application being treated as an appeal under section 72; at worst it was a case of mis description of a provision of law. As observed above, the Registrar did advise Sh. Allah Rakha to “convert” the application into an appeal but did not afford him an opportunity to do so and straightaway dismissed the application.

 

15. In this view of the matter the contention raised by learned counsel for the appellant that the defect of limitation is merely procedural and not jurisdictional can be dealt with briefly. When it is said that a defect of limitation is jurisdictional what it means is that the Court or authority has no jurisdiction to entertain the application or appeal made before it after the lapse of time fixed by law. But when it is said that it is only procedural, it means that the other party has a right to ignore the period of limitation and condone it or object to the appeal or application as being barred by time. Learned counsel for the appellant cited Messrs Lyalipur-Salriwal Bus Service (Regd.), Lahore v. Appellate Authority and 2 others PLD 1970 Lah. 775. In that case the Regional Transport Authority, acting under the Motor Vehicles Ordinance, had rejected the application of one of the respondents for route permit. The decision was dated 27-1-1968 and the copy was delivered to him the same day. The said respondent filed an appeal before the Board of Revenue. The period of limitation for such an appeal was 30 days and section 5 of the Limitation Act was not applicable. An objection to the appeal being out of time was raised yet the appeal was accepted and the objection was overruled. The result was that the route-permit granted to the petitioner was cancelled and the same was granted to the said respondent. The only point in the writ petition made under Article 98 of the 1962 Constitution was that the appeal before the Member, Board of Revenue, was barred by time and he had no authority in law to accept it. In other words the question was whether an order made in an appeal or application filed beyond the period of limitation is without jurisdiction. It was held that the defect of limitation is not a defect of jurisdiction; that the Member, Board of Revenue who had jurisdiction to entertain the appeal from the order of the Regional Transport Authority did, not only entertain it but also proceeded to dispose of it after repelling the objection on the score of limitation and his order howsoever wrong it was could not attract the jurisdiction of the High Court under Article 98 of the Constitution.

 

16. On the other hand learned counsel for the respondents relied upon Ahsan Ali and others v. District Judge and others PLD 1969 SC 167. There by subsection (2) of section 19 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, it was provided that the appeal could be presented within 15 days of the date of the order appealed against. Subsection (3) of section 19 made the provisions of section 5 of the Limitation Act, 1908 for computing the aforesaid period of 15 days applicable. An appeal before the Additional Settlement Commissioner was filed after 15 days; yet the Additional Settlement Commissioner entertained the appeal and decided it on its merits. It was argued that though no application under section 5 of the Limitation Act was made, yet the Additional Settlement Commissioner must be taken to have condoned the delay. It was held that the Displaced Persons (Compensation and Rehabilitation) Act, 1958, was a Special Act; that by section 29, subsection (2) of the Limitation Act the provisions of section 3 of that Act applied as if such period were prescribed there for in the Schedule to the Limitation Act and that it was clear “that whether the plea of limitation was raised or not, it was the duty of the Settlement Court, to notice the point of limitation. A waiver of the question of limitation is not permissible, even where the period of limitation is prescribed by a special or a local law.” It was held further that “mere disposal of the appeal on merits is not sufficient to lead to the inference that the delay must have been condoned. There must be something in the order or judgment itself to show that the Court concerned was conscious of the fact that the proceeding was out of time and had applied its mind to the question of limitation before dealing with the proceeding on merits.”

 

17. In taking the view that the defect of limitation is not a defect of jurisdiction, the learned Judges who decided the Messrs Lyallpur-Sahiwal Bus Service (Regd.), Lahore v. Appellate Authority and 2 others relied upon Mehtab Rai v. Nanak Chand 1878 PR 59; Raja of Farid Kot v. Sardar Gurdayal Singh (1898 PR 34); Nathus Ram v. Kahan Das (ILR 26 All. 522); Babu Ram v. Munna Lal AIR 1927 All. 358 and Abdul Malik Mian v. Moslem-ud-Din AIR 1932 All. 273. They were all cases under section 115 of the Code of Civil Procedure, 1908. Unfortunately, the case reported as Joy Chand v. Kamalahsha PLD 1949 PC 114 was not cited before and considered by them. In that case, the Privy Council had expressly ruled that Babu Ram’s case referred to above had been wrongly decided, for it was a case “in which the subordinate Court by its own erroneous decision ….on the point of limitation …invested itself with a jurisdiction which in law it did not possess and the High Court held, wrongly their Lordships think; that it had no power to interfere in revision to prevent such a result.” I say unfortunate because the Privy Council’s decision in Joy Chand’s case had the effect of overruling the view taken in cases such as Mehtab Rai v. Nanak Chand and Babu Ram v. Munna Lal.

 

18. The question whether the requirement of law that a certain action, appeal or application must be made within a time limit is jurisdictional or only procedural in the sense stated above fell for consideration in Kammins Ballrooms Co. Ltd. v. Zenith Investments.(Torquay) Ltd. 1971 AC 850. The provision in that case was section 29(3) of the Landlord and Tenant Act, 1954 which provided that no application under section 24 of that Act “shall be entertained” unless it was made within a specified time. The House of Lords by majority held that such requirement was not jurisdictional but only procedural. If I may undertake the hazardous task of paraphrasing the reasons given in the various speeches of their Lordships, they are as follows. The words “shall not be entertained” are to be contrasted with such words as “no order or judgment shall be made or given unless ” or with such words as “an order under this Act shall not be made save on an application made within six months from ….” A statute of limitation is a procedural statute. The construction which has been uniformly applied by the Courts to such unqualified and unequivocal words in statutes of limitation which prohibit the bringing of legal proceedings after the lapse of a specified time is that the procedural requirement of such a character is for the benefit or protection of one party alone and that it can be waived by the party for whose benefit it is imposed even though the statute states the requirement in unqualified and unequivocal words. In this context “waived” means that the party had chosen not to rely upon the non-compliance of the other party with the requirement, or had disentitled himself from relying upon it either by agreeing with the other party not to do so or because he has so conducted himself that it would not be fair to allow him to rely upon the non compliance. But there is no doubt that the Court has no power to dispense with the prescribed time limit if the defendant choses to object at the proper time. For the words “shall not be entertained” unless it is made within the prescribed period cannot be read literally and once it appears that some modification of the natural meaning is necessary, the Court should not be bound to stop there when the object is, as it always must be, to find out what Parliament must have, or must be supposed to have, intended. For that purpose it must be shown that there was some public interest which had induced the Parliament to prevent the defendant from waiving the time limit. But there can be no public interest in preventing parties who want as speedy a decision as possible from going to the Court before or after a certain period had elapsed. The words “shall not be brought”, “no action shall lie or instituted” and “no order or judgment….shall be made or given unless…” are, therefore, generally speaking not designed to oust the jurisdiction of the Court but may, at the option of a party sued, be set up to bar a remedy. But even if such words are designed to oust the jurisdiction of the Court, then there is the we established principle that any provision ousting the jurisdiction of the Court must be construed strictly and the same applies to a provision that a Court or authority is not to have jurisdiction if the application or appeal is made too soon or too late.

 

19. But so far as ibis Court is concerned, it must be taken to have been settled in Ahsan Ali v. District Judge that the requirement that in an action, appeal or application shall be made within the time limited by law must be made within that time and that if that requirement is not fulfilled, there is no power in the Court or authority to entertain and decide it. Ahsan Ali’s case has decided that the requirement of limitation goes to jurisdiction and an order G made in disregard of that requirement is without jurisdiction. It seems to me that what makes the difference is the provisions of section 3 of the Limitation Act which by virtue of section 29 of that Act applies to special laws such as the Registration Act. Section 3 provides that every suit instituted, appeal preferred and application made after the period of limitation prescribed therefore shall be dismissed although limitation has not been set up as defence.” It appears to proceed on the assumption that it is in the public interest that actions must be brought within the statutory time limit; and the words “although limitation has not been set up as defence” provide a clear indication of the legislative intent that it is not left to the parties to take or not take the objection that the suit, appeal or application is outside the time limit fixed by law and that the Court must dismiss the suit, appeal or application if it has not been made timeously. In other words, contracting out, or waiver, of the statutory time limit is, by the plain language of section 3 itself, forbidden.

 

20. In this case, both the law and the justice of the matter were in favour of Sh. Allah Rakha defendant. He had purchased the property in suit for consideration from Munshi Danial, about whose title there was no doubt. The plaintiff relied upon the decree dated 22-3-1965, which was a consent decree and was obviously the result of a collusion between the plaintiff and Munshi Danial; the latter had consented to that decree being passed in favour of the plaintiff Church long after he had executed the sale-deed (Exh.D.1) in favour of Sh. Allah Rakha on 29-10-1963 and received the entire sale consideration from him. In these circumstances, the learned Senior Civil Judge very rightly held that this was obviously “an attempt of fraud on the part of the plaintiff ” By decreeing the plaintiffs suit, therefore, the plaintiff was allowed to benefit from its own “fraud” and to succeed on a hypertechnicality, when the justice of the matter did not warrant that course. The significance of this lies in this that the relief sought by the plaintiff was the relief of declaration which was a discretionary relief and I have no doubt that if these facts had received due consideration it would not have been granted to the plaintiff.

 

21. For these reasons, the appeal is accepted, the judgments and decrees of the Courts below are set aside and the suit of the plaintiff Church is dismissed with closts.

 

AA./A-443/L     Appeal accepted.

 

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