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1992 M L D 2321

 

[Federal Shariat Court]

 

Present: Tanzilur Rahman, CJ., Fida Muhammad Khan arid Mir Hazar Khan Khoso, JJ

 

Dr. MAHMOODUR RAHMAN FAISAL‑‑‑Petitioner

 

versus

 

GOVERNMENT OF PAKISTAN and others ‑‑‑ Respondent

 

Shariat Petition No.3/I of 1992, decided on 10th May, 1992.

Petitioner in person.

 

Date of hearing: 10th May, 1992.

 

JUDGMENT

 

TANZILUR RAHMAN, CJ. ‑‑‑By this Shariat Petition the provision of section 3 of the Limitation Act, 1908, has been challenged. The said section reads as under:‑‑‑

 

“S.3. Subject to the provisions contained in sections 4 to 25 (inclusive) every suit instituted, appeal preferred, and application made after the period of limitation prescribed therefore by 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 in his claim to the official liquidator.”

 

2. No verse of the Holy Qur’an or the Sunnah of the Holy Prophet (p.b.u.h.) has been cited in support or otherwise of the proposition of repugnancy of the law of limitation as repugnant to the Injunctions of Islam. There are, however, some juristic opinions in support of the proposition that a State can fix various periods of limitation for various kinds of suits in public interest.

 

3. Allama Ibn Abideen in his famous work “Radd‑al‑Muhtar” popularly known as Fatawa Shami‘ in the Sub‑Continent, has written that:‑‑‑

 

(The reason of negation is the eradication of deceitfulness and falsification and it is not against what is stated in al‑Ishbah etc. that is “non‑extinguishments of rights because of limitation ..Qazi’s refusal to hear any case is in such circumstances when a party denies the facts, in case he makes admission then such suit will be entertained. As is evident what we mentioned with reference to Fatawa Almaula Abi Al Sa’ud Afandi that there is no falsification with confession). (Shami, Vol. IV, p.381).

 

4. Ibn Abideen at another place of his famous work, referred to above, has also expressed his opinion that the claims. will not be heard by the Courts after lapse of time. He says:

 

(Decision of a judge is meant to manifest a thing and not to prove it. Judiciary therefore has been specified with time, place and categories of suits and claims. If the Court were ordered not to hear certain cases after the lapse of 15 years’ periods. These cases if heard would not be executed). (Ibn Abideen: Radd‑al‑Muhtar, Vol. IV, p.380).

 

5. There is also a chapter contained in the `Majille al Ahkam al‑Adliah‘ ” codified by a Committee of jurists remained in vogue till 1924 in Turkey during the Caliphate of Sultan Abdul Hameed, the Second. In the said law different periods have been fixed for bringing in Court various claims. In this respect reference may be made to sections 1660‑1675. Some of the relevant provisions of the said law are reproduced as under:‑‑‑

 

(Actions which do not affect the public or property included in that originally made Waqf, such as actions for debt and for a thing deposited for safe‑keeping and for immovable mulk property, and inheritance, and actions for the benefit and produce of dedicated property, and for a meshruteh tevliet and for the possession by ijaretein or muqata’a of immovable Waqf properties, after being abandoned for 15 years are not heard.) (Section 1660, Translated by C.R. Tyser, President, District Court of Kyrenia).

 

(in this chapter is considered, that is to say, the lapse of time, which prevents the hearing of actions, is the lapse of time which has taken place without excuse:

 

On the other hand consideration is not given to time which passes, in consequence of one of the excuses allowed by Sher’i Law.

 

Such as, a person being an infant or madman or person of unsound mind, whether the plaintiff has a guardian or not, or a person being in a foreign country along way off (muddet sefer), or his opponent being a person in power.

 

Therefore, the beginning of the time which elapses is considered to be from the removal of the excuse).

 

For example.‑‑‑The time when a person is an infant is not considered in the time passed. The time elapsed from the date when he arrived at full age is considered alone.

 

Likewise, when a person’s action is with one who is in power, if time elapsed in consequence of his not being able to bring his action, while the power of his opponent last, it does not prevent the hearing of that action.

 

The time elapsed is only considered from the date when the power ceased. (Section 1663; Translation, ibid).

 

(If a person has left his action as abovementioned without excuse and the time has elapsed, that action if brought by himself, while he is alive, is not heard, and it is not heard if brought by his heirs on his death). (Section 1669, Translation, ibid).

 

(Therefore, when an action is prescribed, and the defendant, in the presence of the Judge, admits and avows explicitly that there is still a right against himself in the way claimed by the plaintiff in his action, no attention is paid to the lapse of time, judgment is given according to the admission of the defendant) (Section 1674, Translation ibid).

 

6. The subject has also been discussed by Ibn Abidecn in `Al‑Auqood‑al Durriyah fi Tang ih‑al‑Fatawa Al‑Hamdiya Reference may be made to `Kitab‑al‑Da’wa wa Mutaliba Vol. II, pages 2‑12. The relevant portion is reproduced below:‑

 

(It is stated in Jami’al Fatawa and the jurists of later period stated that a claim cannot be entertained after the lapse of 36 years unless the petitioner is not present, or is immature or of unsound mind and they have no guardian to manage their affairs or respondent is a tyrant ruler, in fear of his tyrannic action, he becomes late in filing petition).

 

7. The law of limitation, in fact, prescribes certain periods of limitation within which suits and other actions may be instituted in a Court of law. The law is based on certain considerations of public policy. Firstly, they protect defendant from being vexed by old claims pertaining to long‑passed matters, about which ocular or documentary evidence may no longer be available. Secondly, the law of limitation calls upon the plaintiff to seek the aid of justice vigilantly within a reasonable time. This is based on the maxim that law helps the “vigilant and not indolent”. Thirdly, it is a matter of public policy that the disputes, if any, must close and attain finality within a reasonable time. The dispute, if any, should not hang on a person so as to jeopardise the right of the other person against whom the right is claimed. In the words of Lord Kenyon, the law of limitation is a “statute of repose:”

 

8. It may, however, be clarified that the law of limitation does not extinguish the right of a person in respect of his claim to a right of property. It only debars from seeking the aid of the Court of law.

 

9. It may further be clarified that right of a person does not extinguish or becomes time‑barred uptil the day of judgment. An obligation in terms of money, asset or property remains redeemable by a debtor or transgressor. But the right to invoke the aid of Court may become barred by time, fixed by the State. Moreover, as the law of limitation, generally speaking, falls within the domain of procedural law and has been kept outside the pale of jurisdiction of this Court as provided under Article 203‑B(c) of the Constitution, this Court is not competent to examine the said provision of the procedural law.

 

10. With the above observations, we are of the opinion that the provision of section 3, as such, is not repugnant to the Injunctions of Islam as it does not extinguish the right. It is only an enabling provision of law to prescribe certain periods of limitation to bring suit in a Court of law.

 

11. The petitioner has also challenged in this petition the entire Schedule which consists of one hundred eighty‑three (183) Articles prescribing different periods of limitation for different kinds of suits/applications etc. This Schedule, generally speaking, comes within the purview of procedural law. We do not feel inclined in this petition to consider each and every Article mentioned in the Schedule as no assistance was made available to us by the petitioner in this regard. Moreover, a number of other petitions challenging several Articles on the ground that they fall within the ambit of substantive law, filed by the other petitioners, are already pending adjudication before this Court. We would like to examine such Articles in those petitions.

 

12. In result, the petition is dismissed accordingly.

 

M.B.A./736/FSC Petition dismissed.

 

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