1996 C L C 1184
[Karachi]
Before Dr. Ghous Muhammad, J
SOOMAR and 15 others‑‑‑Petitioners
versus
MUHAMMAD PARIAL and 14 others‑‑‑Respondents
Civil Revision Application No.79 of 1984, decided on 30th July, 1995.
1992 MLD 833 ref.
Abdul Sattar Sheikh for Applicant. Jhamat Jethanand for Respondents.
Date of hearing: 30th July, 1995.
JUDGMENT
The instant Revision Application filed under section 115 of the C.P.C. has called into question judgment and decree of the District Judge, Thatta, in Civil Appeal No. 13 of 1981 dated 18‑3‑1984 directing dismissal of Suit No.5 of 1975 filed before the Civil Judge, Thatta with costs. The applicants in this Revision had earlier filed Suit No.5 of 1975 claiming the following reliefs:‑‑
(i) Declaration as to title in the suit property:
(ii) declaration that the registered Sale‑Deed No.179 dated 26‑8‑1969 be held/declared to be void ab initio;
(iii) injunction restraining any interference against enjoyment and possession of suit property.
The facts which led to filing of the above suit are pertinent and warrant description. The suit property in this case are pieces of de‑surveyed land (hereafter referred to as the “suit land”) which has been averred by the applicants as acquired through inheritance. It has been alleged that one Din Muhammad alongwith others filed a suit, FC Suit No.175 of 1971 in the Court of Senior Civil Judge. Hyderabad for declaration, possession, injunction and mesne profits pertaining to the suit property. The defendants in that suit were the applicants in the. present Revision Application. The Suit was subsequently transferred to the district Court of Thatta and was renumbered as Suit No.46 of 1972 in the transferred Court. In the said suit one Hidayatullah secured his impleadment as a defendant on the basis that he was the owner of the 1/2 share of the suit property. He filed a written statement in the said suit wherein it was alleged that a mutational change in the record of rights had been effected and he had sold out his 1/2 share in the suit property to Muhammad Parial, Abdul Shakoor and Ghulam Rasool (defendants in Suit No.5 of 1975 and respondents in the instant Revision Application) vide registered Sale‑Deed No.179 dated 26‑8‑1969. The said written statement was filed on 22‑2‑1972. It is pertinent to note that the applicants in instant Revision were also the co‑defendants with Hidayatullah in Suit No.46 of 1972. Accordingly, the applicants had knowledge of the existence of the Sale Deed and the mutational change as on date of filing of the written statement by Hidayatullah i.e. on 22‑2‑1972. It is an admitted position that the Applicants had no knowledge of such change in records or of the Sale‑Deed before 22‑2‑1972 when the written statement by Hidayatullah as stated above had been filed. That subsequently, the respondents filed an application before the Mukhtiarkar of the area for partitioning of the suit property. Accordingly, the Mukhtiarkar issued a notice to the applicants dated 25‑6‑1975 which they received on 27‑6‑1975. That upon receiving the notice the applicants filed Suit No.5 of 1975 impugning the notice alongwith the entries in the record of rights as also the registered Sale‑Deed while seeking declaration as stated above. It is an admitted position that the applicants did not approach the Mukhtiarkar to file any objections against notice or took any other action after 22‑2‑1972, the date when they found out about the change in the record of rights and the impugned registered Sale‑Deed, or even after Suit No.46 of 1972 was dismissed in default on 15‑3‑1974.
The learned Civil Judge, Thatta, Sindh decreed the suit in terms of the declaration sought vide his judgment dated 31‑1‑1981. On appeal, however, the District Judge, Thatta reversed the decree early passed, while deciding only the point of limitation raised. The learned District Judge in his judgment has been of the view that the suit was barred by limitation in view whereof it was not essential to adjudicate upon or give a finding on other issues on merits, hence this Revision.
Mr. Abdul Sattar Shaikh, the learned counsel for the applicants has contended that the District Judge had materially erred in finding the suit to have been barred by limitation. According to the learned counsel no reason whatsoever has been given by the learned District Judge for arriving at the impugned conclusion. According to the learned counsel the suit is to be governed by Article 120 to the Schedule of the Limitation Act which prescribes a limitation period of six years from the cause of action. On the other hand, Mr. Jhamat Jethanand, the learned counsel for the respondents has contended that the suit was rightly dismissed as barred by limitation inasmuch as that Article 14 or 91 or 92 or 93 of the Schedule to the Limitation Act were attracted in the case, Article 14 prescribing one year whereas the other three prescribing three years as period of limitation. According to the learned counsel for the respondents the cause of action had arisen on 26‑8‑1969, the date of registered Sale‑Deed and as such the suit was time‑barred having been filed in 1975 whether 8 limitation period of one year car three years is taken.
At the very outset I may observe that the learned District Judge has materially erred in giving a finding on limitation without disclosing reasons there as at page 5 of the impugned judgment he has observed:‑‑
“But no useful purpose would be served to elaborate on this point because I have already formed the opinion that the period of limitation is to be computed from 26‑8‑1969 and 22‑2‑1972 as disclosed above. However I may observe that the respondents knowing well lastly in 1972 during the proceedings of the Suit No. 175 of 1971 that in 1972 the appellants had asserted their rights by disputing the title and rights if any of he respondents therefore instead of waiting for the partition proceedings they could have rushed with the declaratory suit for the removal of clouds which had already cast on their rights. In view of the above discussions the finding of the Trial Court on Issue No. l is set aside and it is concluded that the suit is time‑barred. “
On this count alone I find the impugned judgment/decree devoid of force, however, I intend to dispose of the instant application by going into the merits of the argument as to whether on the law, facts and record the suit was; in fact barred by limitation. In this respect two points warrant determination:_
(i) When the cause of action had arisen; and
(ii) which Article in the Limitation Act is to be construed as applicable as prescribing the period of limitation in the matter.
There can be no cavil with the proposition, which is quite settled, that a cause of action arises from the date of knowledge thereof (see Fatahuddin v. Zarshad, 1973 SCMR 248). It is an admitted position that the applicants in this case for the first time found out about the mutational change in the record of rights and the Sale‑Deed pertaining to the suit property on 22‑2‑1972 when the above‑referred Hidayatullah filed the written statement in Suit”Ro.46 of 1972.
Suit No.5 of 1975 was filed on 10‑7‑1975 i.e. after a lapse of three years and 5 months from the date when the cause of action had arisen. The question that now warrants determination is whether the said suit was barred by limitation.
Article 14 to the Schedule of the Limitation Act prescribes a time limit of one year to set aside an act or an order of an officer of the Government in his official capacity. The learned counsel for the respondents has contended that since the record of rights contained an entry passed by a Government official, the suit is to be governed by the time limit in Article 14. Additionally, he has invited attention to Article 91 which prescribes a time limit of three years for cancellation or setting aside an instrument. The learned counsel of respondents
has contended that the suit sought cancellation of the registered Sale‑Deed. At best the matter would be governed by Article 91. The learned counsel for the respondents has additionally referred to Articles 92 and 93 of the Limitation Act each of which prescribe three years. Article 92 is in respect of a declaration of forgery of an instrument while Article 93 relates to declaration of forgery of an instrument attempted to be enforced against the plaintiff. The learned counsel for the respondents had contended that since the applicants’ case revolves around forgery of the document the matter would fall under these two Articles.
I have considered the arguments advanced by either side. Article 120 is the residuary/omnibus Article which applies in all cases where no other specific period of limitation has been provided. I am of the view that in light of precedents and facts before me Article 120 prescribing a six year limitation period is applicable and the District Judge has erred in holding the suit to have been filed beyond limitation. There is plethora of case‑law on the point that in suits pertaining to cancellation, correction and amendment to record of rights Article 120 and not Article 14 of the Limitation Act is applicable. In this regard reference is invited to Lal Shahadat Khan v. Mst. Gul Marjana (1989 CLC 803) and more recently Muhammad Ali v. Hasan Muhammad (PLD 1994 SC 245). Further to the issue that Article 120 and not Article 14 of the Limitation Act is applicable, the applicants’ case appears to be based on the argument that since they had no knowledge of the mutational change in the record of rights and the impugned Sale‑Deed amounted to an arrangement between two parties without the knowledge of the applicants, the Deed was fraudulent and void. In this regard a Full Bench of the Hon’ble Supreme Court in Government of Sindh v. Khalil Ahmed (1994 SCMR 782) has categorically held that where parties to an agreement deceitfully agree to transfer property owned by a third party without the latter’s knowledge, the agreement is fraudulent and, void and no bar of limitation can be pressed. In light of the above there can be little doubt that Article 14 of the Limitation Act has no application.
The next issue is to determine as to whether Article 91 can be pressed into service. It has been stated by the learned counsel for the respondents that since the applicants have sought cancellation of the Registered Sale‑Deed the matter is to be governed by Article 91, which prescribes a period of three years. The contention is equally devoid of force. The applicants have not sought cancellation of the registered Sale‑Deed in the suit. In fact the applicants have sought a declaration to the effect that the said Sale‑Deed be declared as void ab initio and of no legal effect. It is quite juridically impossible to challenge a document by seeking a declaration for it to be void ab initio while not seeking its cancellation. If an authority is needed on this point it is the case of Daibakilal Basak v. Iqbal Ahmed Qureshi (PLD 1965 Dacca 439). Also in this regard there appears to be settled law that once a declaration of title is sought, cancellation of the document in issue becomes a consequentiAl relief and is totally unnecessary to seek. In this regard one of my brother and senior Judges of the Sindh High Court namely, Wajihuddin Ahmed, J. has very ably observed in Qabool Muhammad Shah v. Bibi Bushra (1992 MLD 833):‑‑
“The crucial point, nonetheless, often is whether simple declaration of title would do in a given case or cancellation or other relief is also called for. As regards documents tending to detract from title the principle evolved seems to be that cancellation or other consequential relief would be totally unnecessary if such incorporate or evidence a void transaction or operate between third parties, not involving the plaintiff, though a claimant under a party is to be visited with draw?backs attaching to the party.” (at page 847).
I am thus of the view that cancellation of the instrument i.e. the registered Sale‑ Deed is merely an incidental or ancillary to the substantial relief claimed by the applicants in the suit, in view whereof Article 91 would become in applicable. This has been the view expressed by another Full Bench of the Honourable Supreme Court in the case of Hamida Begum v. Murad Begum (PLD’1975 SC 624). The same are also the reasons for coming to the conclusion that in the facts and circumstances of the case Articles 92 and 93 would also be inapplicable considering that it is not essential and necessary in the case to seek a declaration of forgery in relation to the registered Sale‑Deed when declaration of title has been sought. In the context of Article 92 such has also been the ratio decidendi in Gokula Venkamne v. Gokula Narasim Ham and others (AIR 1918 Madras 1198). Additionally, as regards Article 93 I am of the view that the same is also inapplicable as the said Article applies in a situation when the plaintiff is party to the document which is admitted to be used against him, as held in Gadadher Patre and others v. Bholanath Chaudhary (AIR 1939 Patna 548). The applicants are not a party to the registered sale‑deed in this case. In any event I am of the view that the laws pertaining to limitation are procedural/technical in nature and should not be given an unwarranted adherence. The correct approach should be that the provisions of the Limitation Act should be strictly construed but in case where more than one interpretation is possible the interpretation which would avoid non‑suiting a party on grounds of limitational bar should be adopted. In this regard I would once again place reliance upon 1992 MLD 833 where the p learned Judge had held that the Courts should avoid in making a fetish of technicalities at page 849). Also the cases of Imtiaz Ahmed v. Ghulam Ali (PLD 1963 SC 382) and Muhammad Saleem v. Superintendent of Police (PLD 1992 SC 369) support the view that procedural defects alone should not be allowed to thwart substantial rights.
The aforesaid are the reasons for setting aside the impugned judgment and decree passed by the learned District Judge, Thatta and holding that Suit No.5 of 1975 filed before Civil Judge, Thatta, is in time and not barred by limitation. I accordingly remand the case back to the District Judge, Thatta for his observations and findings on all other issues on merits. Before parting with the judgment I would make the following three observations/directions:‑‑
(i) the findings and observations in this judgment should have no bearing on the disposal by the District Judge of other issues;
(ii) the District Judge should dispose of the matter within one month of receipt of the R&P, and notice to the parties;
(iii) time and again it has been the practice of the subordinate Courts to avoid giving findings on all the issues before it. Such a practice is to be deprecated as the same causes undue delay. Had the District Judge given his findings on all the issues before it this Court would have been in a position to decide the entire matter which is already very old. Attempts should be made by the Courts to give a finding on each and every issue before it so that at the appellate or revisional stages all issues can be agitated and there is little scope of remanding the case back for adjudication on these issues on which a finding had not been given.
The parties are left to bear their own costs.
A.A./S‑1190/K Case remanded.
