Limitation Act, 1908

 

PART I

PRELIMINARY

 

              1.       Short title, extent and commencement. — (1) This Act may be called the  Limitation Act, 1908. 

(2)        It extends to the whole of Pakistan. 

(3)        This section and section 31 shall come into force at once. The  rest of this Act shall come into force on the first day of January,  1909

In this Act, unless there in anything repugnant in  the subject or context,— 

 

(1)        “applicant” includes any person from or through whom an applicant  derives his right to apply: 

 

(2)        “bill of exchange” has the same meaning as in section 5 of the  Negotiable Instruments Act, 1881 (XXVI of 1881), and includes a Hundi  and a Cheque]: 

 

(3)        “bond” includes any instrument whereby a person obliges himself to  pay money to another, on condition that the obligation shall be void  if a specified act is performed, or is not performed, as the case may  be: 

 

(4)        “defendant” includes any person from or through whom a defendant  derives his liability to be sued: 

 

(5)        “easement” includes a right not arising from contract, by which  one person is entitled to remove and appropriate for his own profit  any part of the soil belonging to another or anything growing, or  attached to or subsisting, the land of another: 

 

(6)        “foreign country” means any country other than [Pakistan] : 

 

(7)        “good faith”; nothing shall be deemed to be done in good faith  which is not done with due care and attention: 

 

(8)        “plaintiff” includes any person from or through whom a plaintiff  derives his right to sue: 

 

(9)        “promissory note” has the same meaning as in the Negotiable  Instruments Act, 1881 (XXVI of 1881)]: 

 

(10)      “suit” does not include an appeal or an application: and 

 

(11)      “trustee” does not include a Benamidar, a mortgagee remaining in  possession after the mortgage has been satisfied, or a wrong-doer in  possession without title. 

 

PART II
LIMITATION OF SUITS, APPEALS AND APPLICATIONS

 

3.         Dismissal of suit, etc. instituted, etc. after period of  limitation.—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 therefor 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 would up by the  Court, when the claimant first sends in his claim to the official  liquidator. 

 

Court Decisions

 

Lapse of prescribed period of limitation. Doors of Justice are closed after lapse of prescribed period of limitation and no plea of injustice, hardship or ignorance could be agitated unless delay so caused was fully Justified legally and each day’s delay must be accounted for by legal and valid reasons.   P.L.J.2000 Tr. C. (Services) 517.

 

Punjab Pre-emption Act, 1913, S.15–Deficiency of court-fee and its effect on limitation–Failure to pay proper court-fee at time of institution of suit would not render suit time-barred at subsequent stage when orders were passed for supply of deficiency Question rat limitation, “held, would not arise with reference to proceedings on question of court-fee under O. VII, R. 11. Civil Procedure Code–En cases of deficient court-fee, it was a matter of right that Court was to determine deficiency and afford at least one opportunity under said provision to plaintiff to make up deficiency. –>1986 S C M R 1439 

 

Recovery of possession of immovable property – Suit plot was taken over and converted into the park in year 1975 and the suit for recovery of possession was filed in the year 1991—Validity—Such suit was hit by provision of S. 3 of the Limitation Act, 1908, and was barred by Art. 142 of Limitation Act, 1908, which provided maximum period of 12 years – Suit was not maintainable in circumstances.  PLD 2003 Kar. 162

 

S. 3 and Article 181. Limitation. Application U/S. 12(2) CPC and revision U/S. 115 CPC were both miserably time barred. It would be, a mockery of Limitation Act if issues are framed in an application which was filed after more than 13 years of decree passed by trial Court. Sanctity must be attached to Judicial proceedings and law is never on side of an indolent person even if the contentions of petitioner be favourably considered. Trial court as also the District Judge were bound by mandatory provisions of section 3 of Limitation Act, 1908 where prima facie there were no reasons for condonation of delay.   P.L.J.1996 Lah. 939 = 1997 CLC 268.

 

Suit for recovery. Suit decreed but for less amount. Appeal against for further decree of amount refused. Dismissal due to bar of limitation. It is well settled that knowledge of counsel is knowledge of client, Legal principle that it was duty of client to find out position of case cannot be disputed. Counsel for appellant has not advanced any reason why discretion of court should have been exercised in favour of Bank in the light of amended section 3 of Limitation Act. Counsel of Bank was present at the time of announcement of judgment. During period of .29th of June to 29th of November, no effort was made to find out whether judgment had been announced or not. No explanation has been given for it.  PLJ 1997 SC (AJK) 143 = PLD 1997 SC (A&K) 15.

Validity of limitation not effected by deficient court-fee.- P L D 1984 S.C .289

Void order, erroneous order an decree obtained through fraud—Starting point of limitation—Period of limitation would apply to such orders and decrees, which would start running, when person adversely affected factually came to know about the same—- In all fairness terminus a quo should be fixed and date to knowledge of alleged void order must be independently established on sound basis. PLD 2004 Kar. 143

Suit by co-owner seeking share of inheritance—Limitation—For such co-owner, particularly in possession, there was no limitation. PLD 2004 Lah. 1

 

Amendment in plaint –  Defendant raised a plea that the suit was not maintainable under O.XXX, R.10. C.P.C. and the same was liable to be rejected – Plaintiff sought amendment in plaint – Validity – Any amendment at such belated stage being hit by the provisions of S.3 of the Limitation Act, 1908, could not be allowed – Where the suit was not maintainable at the time of institution, amendment could not be allowed to make the proceedings in the suit so as to make it maintainable resulting in change of the character of the suit by introducing new plaintiff for which no application was made by the party – High Court declined to allow amendment in the plaint – Plaint was rejected in circumstances. PLD 2002 Kar. 315

 

Application U/S. 12(2) CPC and revision U/S. 115 CPC were both miserably time barred. It would be, a mockery of Limitation Act if issues are framed in an application which was filed after more than 13 years of decree passed by trial Court. Sanctity must be attached to judicial proceedings and law is never on side of an indolent person even if the contentions of petitioner be favourably considered. Trial court as also the District Judge were bound by mandatory provisions of section 3 of Limitation Act, 1908 where prima facie there were no reasons for condonation of delay.  PLJ 1996 Lah. 939 = 1997 CLC 268.

 

Condonation of delay-Contention that delay should be condoned because machinery of Government takes inordi­nately longtime to make arrangements for filing cases-Repelled–­Government in matter of condonation, held, cannot claim preferential treatment.- 1981 C L C 1148

 

Court Fees Act, 1870) could not be read in isolation or independently of those provisions of Court Fees Act, 1870 which relate to ascertaining proper court-fee-Certain amount of court-fee, if and when adjudged, as proper fee as was visualised by S. 6, Court Fees Act, 1870 result would follow as provided in Ss. 10(ii), 12(ii) & 28 of Court Fees Act, 1870 and not as provided in S. 3, Limitation Act, 1908Validity mentioned in Ss. 10(ii), 12(ii) & 28, Court Fees Act, 1870 was vis-a-vis fiscal requirement (and consequences) as a measure of . prosecution of lis and not regarding physical institution of a document by act of presentation –Question of limitation arises if after determining “proper” court-fee document was returned and time was allowed for fresh presentation of same (after supply, of deficiency) and same was not refiled within specific period. P L D 1984 S.C 157

 

Date of the suit be reckoned from the time when the plaint was presented to the Court competent to receive it– Insufficiency or deficiency of court-fee shall not affect the question of limitation at all–Validity of plaint for the purposes of the Limitation Act is not dependent on its validity for the purposes of Court Fees Act. 1987 C L C 2428

 

Deficiency of court-fee and its effect on limitation–Failure to pay proper court-fee at time of institution of suit would not render suit time-barred at subsequent stage when orders were passed for supply of deficiency Question rat limitation, “held, would not arise with reference to proceedings on question of court-fee under O. VII, R. 11. Civil Procedure Code–En cases of deficient court-fee, it was a matter of right that Court was to determine deficiency and afford at least one opportunity under said provision to plaintiff to make up deficiency. –>1986 S C M R 1439 

 

Deficiency, making up–interpretation of  O. VII, r. 11, C. P. C.-Contentions (1) that decision of S.C in case of Mst. Walayat Khatun P L D 1979 S C 821 and subsequent reported decisions by S.C has led to conflict of authority, thus leading to confusion, for litigant public and Bar which needed to be resolved, (2) that S.C in a Full Bench case of Shahna Khan v. Aulia Khan P L D 1984 S C 157 has pointed out that case of Mst. Walayat Khatun : was authority and law declared only to extent of common ratio of two separate judgments, rendered therein-Held: (1) Decision in Mst. Walayat Khatun’s case P L D 1979 S C 821 cannot be assumed to have dissented from S.C judgments in Muhammad Nawaz Khan’s case P L D 1970 S C 37 and Shah Nawaz’s case 1972 S C M R 179–Law laid down by S.C in cases of Muhammhd Nawaz Khan P L D 1970 S C 37 and Shah Nawaz’s case 1972 S C M R 179 continue to hold field and is law declared, notwithstanding judgment in case of Mst. Walayat Khatun P L D 1979 S C 821-No departure was ever made in any case from what was held in two cases of Muhammad Nawaz and Shah Nawaz to effect that it was obligatory to allow time for supply of deficiency in court-fee before rejecting plaint and regarding refusal of discretion under S. 149, C. P. C. only on grounds of contumacious and positive mala fide conduct ; (2) That this being not unusual for Court consisting of Bench of more than one Judge to render a decision consisting of more than one judgment, decision reached in Mst. Walayat Khatun’s case P L D 1979 S C 821 was undoubtedly common ratio of two separate judgments-Strict view in Mst. Walayat Khatun’s case expressed in second judgment was not common ratio of decision and has to be treated as individual opinion of one Judge. P L D 1984 S.C 289

 

Delay in filing appeal against rule of court. Unexplained delay of 17 days in filling appeal. No express extension for submission of award is required. Delay is impliedly condoned. Knowledge of proceedings appear from record. Plea of proceedings without knowledge repelled. PLJ 1999 Lah. 251 = 1999 MLD 2829.

 

Dismissal of time barred appeal.. Appeal filed by defendant was barred by time. Defendant had failed to offer any explanation, much less plausible, for the same. Appellate Court below, thus, appears to have applied its judicial mind to facts and circumstances of case carefully and had recorded.speaking order vide which he had dismissed appeal. Appellate Court had given valid reasons for its conclusions and because of the fact that order impugned was neither arbitrary nor perverse which does.not suffer from any illegality or material irregularity, therefore, no interference was warranted by High Court in exercise of its revisional jurisdiction.  PLJ 2000 Pesh. 110.

 

Extension of time, grant of. Deficiency in Court Fee made good before decision of appeals but effect of filing appeals initially without proper Court Fee as well as effect of making good deficiency not determined by appellate Court Question whether appellants before lower Courts entitled to grant of extension of time also not considered Held: Appeals could not be dealt with on merits without considering aforesaid questions and no alternative left but to remand cases to lower appellate Courts for fresh decision.Civil Procedure Code, 1908, S. 107 (1) P L D 1982 Lah.218

 Gavaranga Sahu v. Botokrishna Patro I L R 32 Mad. 305 and Hari Ram v. Akbar Hussain I L R 29 All. 749 ref

 

Laches/Delay when bar to a /is. Laches per se is not a bar to a Constitution Petitioner. There is a marked distinction between delay in filing of a legal proceeding within period specified in an Article of Schedule to Limitation Act and delay in filing of a Constitution Petition for which no Statutory period is provided for. In former case delay of each day is to be explained by furnishing sufficient cause for seeking condonation of delay under Section 5 of Limitation Act in filing of a legal proceeding after expiry of statutory period. Whereas, in latter case, delay or question of laches is to be examined on equitable principles for reason that grant of constitutional relief is a discretionary relief and Court may decline to press into service its constitutional jurisdiction if it would be inequitable keeping in view conduct of a petitioner. Question of delay or laches is to be considered with reference to facts of each case. Delay/laches of several years can be overlooked in»a Constitution petition if facts of case and dictates of justice so warrants. Plea of laches is only available to a person who acts bona fide under belief that what he is doing is legal and proper and same cannot be invoked in aid by a person who knew from very inception that what he was doing was on account of his own manipulation contrary to law.  PLJ 1999 SC 2331 = 1999 SCMR 2883.

 

Laches/Delay when bar to a Lis. Laches per se is not a bar to a Constitution Petitioner. There is a marked distinction between delay in filing of a legal proceeding within period specified in an Article of Schedule to Limitation Act and delay in filing of a Constitution Petition for which no Statutory period is provided for. In former case delay of each day is to be explained by furnishing sufficient cause for seeking condonation of delay under Section 5 of Limitation Act in filing of a legal proceeding after expiry of statutory period. Whereas, in latter case, delay or question of laches is to be examined on equitable principles for reason that grant of constitutional relief is a discretionary relief and Court may decline to press into service its constitutional Jurisdiction if it would be inequitable keeping in view conduct of a petitioner. Question of delay or laches is to be considered with reference to facts of each case. Delay/laches of several years can be overlooked in»a Constitution petition if facts of case and dictates of Justice so warrants. Plea of laches is only available to a person who acts bona fide under belief that what he is doing is legal and proper and same cannot be invoked in aid by a person who knew from very inception that what he was doing was on account of his own manipulation contrary to law.   P.L.J.1999 SC 2331 = 1999 SCMR 2883.

 

Land Reforms Regulation, 1972 (M.L.R. 115), para. 25(7)Unless required amount of Court Fee chargeable on document (which term includes plaint also) as was indicated in schedules, was not paid, it shall not be taken to be of any validity Such rule however, does not lead to a necessary corollary that the plaint which was not adequately stamped was not a ‘proper plaint’ at all in the eyes .of law and further that for the limitation purposes suit shall be deemed to have been instituted only when proper and required Court Fee was paid on it. 1987 C L C 2428

 

Lapse of prescribed period of limitation. Doors of justice are closed after lapse of prescribed period of limitation and no plea of injustice, hardship or ignorance could be agitated unless delay so caused was fully justified legally and each day’s delay must be accounted for by legal and valid reasons.  PLJ 2000 Tr. C. (Services) 517.

Where the period of  limitation prescribed for any suit, appeal or application expires on a  day when the Court is closed, the suit, appeal or application may be  instituted, preferred or made on the day that the Court re-opens. 

 

Court Decisions

 

S. 10 of General Clauses Act, 1897. Delay in filing appeal. Condonation of. Revisional jurisdiction. Exercise of By reading these two provisions it would be cleared that these enable a person to do what he could have done on holiday, on next working day in other words where period is prescribed for performance of an act in a court or office and that period expires on holiday then act should be considered to have been done within period if that is done on next day on which court or office is open. Principle of S. 4 of Limitation Act is analogous to that of S. 10 of General Clauses Act which is more general in character than former i.e. S. 4 of Limitation Act by usmg words act and proceedings instead of suit, appeal or application and also word ‘office’ in addition to court. It is general preposition of law that one should not be prejudiced by act of court or may be said by act of office which is beyond control of person.  PLJ 1996 Pesh. 87 – 1995 CLC 1830.

 

Suit in forma pauperis. Whether second appeal was barred by time. Objection that appeal is barred by 5 days. Argument that High Court being closed due to summer vacations, appeal could be filed on re-opening of Court under Section 4 of Limitation Act, 1908, and same having been filed on 19.8.1985, was well within time. High Court was functioning even during summer vacations. In fact, appellants filed appeal during vacations but failed to specify ground of urgency, which cuts at root of argument. Case of appellants was not covered by Section 4 of Limitation Act. Regular second appeal is barred by 5 days. PLJ 1995 Lah. 172 = 1995 MLD 1042.

Any appeal or application for  [a revision or] a review of judgment or for leave to appeal or any  other application to which this section may be made applicable [by or  under any enactment] for the time being in force may be admitted after  the period of limitation prescribed therefore, when the appellant or  applicant satisfies the Court that he had sufficient cause for not  preferring the appeal or making the application within such period. 

 

Explanation.—The fact that the appellant or applicant was misled by  any order, practice or judgment of the High Court in ascertaining or  computing the prescribed period of limitation may be sufficient cause  within the meaning of this section. 

 

Court Decisions

 

Suit in forma pauperis. Whether second appeal was barred by time. Objection that appeal is barred by 5 days. Argument that High Court being closed due to summer vacations, appeal could be filed on re-opening of Court under Section 4 of Limitation Act, 1908, and same having been filed on 19.8.1985, was well within time. High Court was functioning even during summer vacations. In fact, appellants filed appeal during vacations but failed to specify ground of urgency, which cuts at root of argument. Case of appellants was not covered by Section 4 of Limitation Act. Regular second appeal is barred by 5 days. PLJ 1995 Lah. 172 = 1995 MLD 1042.

 

            Time-harred appeal. Appeal was filed when limitation of ninety days for filing the same had already expired. Appellants, had no explanation for delay. Appellants, plea, that appellant being Government, time was required for Government agencies to get sanction and face lengthy procedure for filing appal, can hardly be reason. to condone delay, which had created substantive right in favour of respondents. Government cannot claim to be treated in any manner differently from ordinary litigant nor the same can be granted facilities other than ordinary litigants. No where either in application for condonation of delay or affidavit in support thereof, delay was stated to be due to obtaining sanction from Government. Government functionaries appeared to be un­necessarily careless, negligent and deliberately delayed filing of appeal even after obtaining copy of impugned judgment. PLJ 2000 Kar. 109. Where Appellants, plea, was that they had no knowledge of judgment was of no consequence in as much as, judgment was announced in presence of Assistant Government Pleader. Appellant’s contention that time was required for Government to get sanction and face lengthy procedure for filing appeal could hardly be the reason to condone delay, which had created substantive right in favour of respondents. Government could not claim to be treated in any manner differently from ordinary litigant nor it could be granted facilities other than the ordinary litigants. No where in memo of appeal, in application under S. 5, Limitation Act 1908, and in affidavit in support thereof, it had been stated that delay was due to obtaining sanction from Government. Government functionaries seemed to be un-necessarily careless, negligent and deliberately delayed filing of appeal even after obtaining copy of impugned judgment, for which appellants had no reply. Appeal having been filed beyond prescribed period of limitation and no cogent reason having been given for condonation of delay, the same was dismissed being barred by time. PLJ 2000 Kar., 123 = 2000 CLC 831. /*            ->Dismissal of appeal for non-payment of court-fee –­Defendant’s plea that funds were not available by Finance Department was not valid ground for enlargement of time or grant of permission to make up deficiency of court-fee-Defendants by not affixing requisite court-fee on memo of appeal even after objection of plaintiff, for two years were guilty of contumacy especially when decree of Trial Court clearly indicated payable court-­fee-When party to litigation was guilty of contumacy, Court could not extend time for its benefit-Defendant’s conduct in not affixing court-fee on memo. of appeal being contumacious Court would decline to exercise discretion in his favour-Where defaulting party could not make out good cause for condonation of delay, such party could not be allowed to make up deficiency of court-fee after expiry of period of limitation-Government could not claim to be treated in any manner differently from ordinary litigant in such matter-Delay of each day must be explained-Dismissal of appeal by Appellate Court for non-payment of court-fee would not Justify interference therein-Defendants were not found entitled to relief on account of their contumacious conduct. 1998 M L D 589

 

            Petitioner’s officials acted with gross negligence in refiling revision petition. They took almost one year in doing what they were required to do in seven days and explanation offered by them for this inordinate delay has not been found to be convincing.   P.L.J.1997 SC 1644 = 1997SCMR 1224 = NLR 1997 Civil 693 = 1997 Law Notes 393.

 

            Suit for permanent injunction. Possession of petitioner is not proved, when possession of petitioner over disputed property is not proved how permanent injunction can be granted to petitioner. Civil revision is time barred as well as learned counsel has failed to properly constitute civil revision placing documentary evidence as well as necessary documents on record. Revisional Jurisdiction is intended to correct errors of subordinate courts and limitation is a statutory bar.  P.L.J.1997 Lah. 699 = PLD 1997 Lah. 403.

 

 ‘Order without jurisdiction’ and ‘order based upon technical errors’—Difference existed between a case where the Court though vested with jurisdiction to pass an order but while passing the same, some technical error was committed which did not affect the jurisdiction of the Court and the case in which the Court though not vested with jurisdiction and power to pass an order but it had passed the same, in the latter case, the higher Court before whom such order was challenged could decide question of condonation of delay keeping in view that the maintenance of such order on the ground of limitation would perpetuate an order which was nullity having been passed by the Court vested with no jurisdiction giving undue advantage to a party deriving benefit thereunder—Delay could be condoned in circumstances. PLD 2002 S.C  630  1998 SCMR 2296 ref.

1974 S C M R 364 ; 1976 S C M R 141 ; 1976 S C M R 147 analysed. P L D 19E Lah; 261 and P L D 1981 B J 23 Ref.

 

Appeal :– Condonation of delay. Sufficient cause. Any action taken on advice give by counsel against a clear provision of law would not entitle party to seek condonation of delay on the ground that the bonafidely acted on that advice. Where, however, appellant is able to establish that he acted in good faith in pursuing his appeal before wrong Court, such a case cannot be excluded from purview of S. 5, Limitation Act, 1908, for condonation of delay. PLJ 1999 SC 208 = 1998 SCMR 2296.

 

Appeal filed by appellants firstly before District Judge was incompetent and before a party is allowed condonation it has to be seen as to whether a sufficient cause within meaning of Section 5 read with Section 14 of Limitation Act exists to warrant condonation. Party has to demonstrate that he prosecuted appeal before a wrong forum in a good faith. Appellants did not act with due care and attention to bring their case within meaning of “good faith”. Appeal was -filed after delay of 160 days which is hopelessly time barred, hence, dismissed.  PLJ 1998 Lah. 69 = 1998 CLC 485.

 

Appeal is barred by 334 days. It is not only a case of indifference on the part of counsel for appellants but also a case of gross negligence on the part of appellants and their representative. On both counts main ground for condonation of delay cannot be termed “sufficient cause” within scope of S. 5 of Limitation Act. In matter of Limitation Government is at par with an ordinary litigant. Appeal dismissed in limine. PLJ 1996 Pesh. 269 = 1997 CLC 434.

 

Appeal–Condonation of delay–Appellant-plaintiff filing his first appeal before District Judge which was returned for presentation to proper forum–Appellant faced with a curious order passed by trial Court which placed him in a fix and he remained in hands of Advocate who was under a bona fide mistake of law qua value of suit and determination of forum of appeal which point was not free from difficulty–Delay condoned in circumstances. 1986 C L C 126

 

Appellant genuinely believed that Rev. Secretary had jurisdiction to review his orders and consumed time in pursuing remedy at a wrong forum. Appellant filed affidavit which was not controverted by respondents. It is in interest of Justice that delay in filing appeal may be condoned and appeal may be decided on merits. PLJ 1994 Tr.C. (Services) 180 == 1994 PLC(C.S.) 597.

 

Appellant has filed application for condonation of delay stating that appeal filed by respondent before Tribunal was dismissed, for default of appearance and that he came to know of restoration of appeal only when he received notice from A.O.R. engaged in Civil Appeal No. 1790 of 1996 intimating him that petition for leave to appeal has been filed against decision of learned Tribunal. Statement made by appellant has not been controverted. Sufficient reasons have been given by appellant for condonation of delay in filing appeal. Delay condoned. PLJ 1998 SC 702 = 1998 SCMR 183 = 1998 PLC 96.

 

Application for extension of time. Acceptance of. Revision filed by respondent accepted. Expression “Case decided” falling in S. 5 does not necessarily mean decision of entire suit. It may relate to a decision of an interlocutory matter, order of trial Court fell. within expression of “case decided” and as such was amenable to revision. Impugned order passed by revisional Court cannot be said to be illegal.  PLJ 1998 Lah. 1053 = 1998 MLD 1129.

 

Civil Procedure Code, 1908 Order IX Rule 13. Under Section 5 of Limitation Act applicant is required to explain each day delay but has failed to give plausible explanation for delay. Application filed under Order DC Rule 13, CPC is dismissed being barred by time. PLJ 1995 Kar. 206 – 1995 CLC 1346.

 

Compensation of acquired land. There is no period provided for filing of appeal u/S. 54 of Act. However, under Art. 156 of Limitation Act period of 90 days has been provided’ for appeal to High Court, under C.P.C. 1908 except for cases covered by Articles 151 and 153 of Limitation Act. Period has to run from date of decree. Since appeal was filed beyond 90 days, therefore, petitioner also moved C.M. for condonation of delay on sole ground of lengthy correspondence for seeking sanction from Provincial Govt.. Sanction was granted by Provincial Govt. much earlier than filing of instant appeal and within stipulated period fixed for appeal. Appeal was filed beyond period of limitation and no cogent reasons have been given for condonation of delay. PLJ 1998 Pesh. 9 = PLD 1998 Pesh. 21 = NLR 1998 Rev. 42.

 

Condonation . of delay. Delay of 133 days in filing appeal. Contention that counsel delayed intimation of judgment. Knowledge of counsel is knowledge of client and thus limitation starts running from date of announcement of judgment if it is announced in presence of counsel.  PLJ 1997 SC (AJK) 361 -1997 MLD 2926.

 

Condonation of delay— Delay of 21 days was sought by the authorities to be condoned— Plea raised by the Authorities for Condonation of delay was that the delay in filing of the petition for leave to appeal was not intentional or deliberate but due to the fact that the judgment was received in the concerned office i.e. Law Branch after some delay— Validity—- No preferential treatment is to be offered to Government Department qua the civil litigation— Supreme Court declined to condone the delay and took serious not of the conduct of Government officials and directed that the officers of Government Departments who were responsible for causing delay in instituting proceedings before different Courts should be penalized because on account of their such conduct Government sustained considerable loss which ultimately had to be borne by the public and lethargic tactics of the delinquent officers could not be tolerated merely either on account of their ignorance of law or for any extraneous consideration—- Supreme Court expected that Government functionaries would take interest to institute the proceedings before courts for law within time as per law of limitation. PLD 2003 SC 6

 

Condonation of delay in-filing appeal for enhancement of compensation under section 60 of N.W.F.P. Urban Planning Ordinance 1978. Petitioner’s plea that he had no knowledge of acquisition proceedings was not warranted for acquisition ,covered a large area, which was duly notified compensation was disbursed after announcement of award and possession of acquired land was taken by Departmental Authority concerned. Application for condonation of delay did not meet requirements of S. 5, Limitation Act, for it neither contained sufficient cause for not preferring appeal within time nor explained delay of each day which is condition precedent for condonation of. delay. Even if it was perfumed that petitioner had no knowledge of award, he was obliged to file appeal within six weeks of award in terms of S. 60 NWFP Urban Planning Ordinance 1978. Question of condonation of delay was determined on the touchstone of provisions of S. 5 of Limitation Act, and not on principle of equity. Equity, however helps vigilant and not indolent. Order in question was not shown to suffer from any legal defect so as to warrant interference in Constitutional jurisdiction.  PLJ 1996 Pesh. 326 = 1996 MLD 1428.

 

Condonation of delay. Appellant was pursuing his remedy diligently and some points of law are involved in his case. In the interest of justice delay condoned by computing period spent in High Court. Moreover, limitation is not pressed by respondents as well. PLJ 1996 Tr.C. (Services) 142 =  1995 PLC (C.S.) 1207.

 

Condonation of delay. Application for Dismissal of. Application against. Ailment (low backache). Ground of. Appeal was preferred after delay of 28 days of prescribed period of limitation and no sufficient cause for condonation of delay for each days delay has been shown, therefore, there could not be said to be any illegality or misreading of evidence warranting interference in revisional jurisdiction. PLJ 1997 Kar. 194 == 1997 MLD 732.

 

Condonation of delay. Impugned judgment was passed in open Court in presence of Legal Advisor of M.C.L., Chief Corporation Officer, Asstt. Education Officer and Superintendent, General of M.C.L.. Therefore, it cannot be urged that impugned order was not in knowledge of functionaries of Corporation. No sufficient cause can be said to have been shown for not preferring appeal within prescribed period of limitation. All four appeals are barred by limitation. PLJ 1996 Lah. 686 = PLD 1996 Lah. 499.

 

Condonation of delay. In applications seeking condonation of delay, no sufficient cause was shown except mentioning facts for seeking condonation. Thus it was found hopelessly time barred.  PLJ 1999 Qta. 77 = PLD l999 Qta. 36.

 

Condonation of delay. Time spent in prosecuting application for review cannot be excluded while computing limitation for filing appeal.  PLJ 1998 Lah. 191 = PLD 1998 Lah. 189.

 

Condo-nation of delay-Contention that delay should be condoned because machinery of Government takes inordi­nately longtime to make arrangements for filing cases-Repelled–­Government in matter of condonation, held, cannot claim preferential treatment. 1981 C L C 1148+1998CLC417

 

Declaration, possession and injunction.  Contention that Article 163 provides limitation of 30 days and application for restoration was hopelessly time barred. By virtue of amendment brought by Ordinance X of 1980, provisions of Section 5 of Limitation Act have been made applicable to application filed under Order DC Rule 9(1) of C.P.C.. Delay condoned and suit restored. PLJ 1995 Kar. 378 = PLD 1995 Kar. 267.

 

Deficiency, making up– Interpretation of O. VII, r. 11, C. P. C.-Contentions (1) that decision of S.C .in case of Mst. Walayat Khatun P L D 1979 S C 821 and subsequent reported decisions by S.C .has led to conflict of authority, thus leading to confusion, for litigant public and Bar which needed to be resolved, (2) that S.C .in a Full Bench case of Shahna Khan v. Aulia Khan P L D 1984 S C 157 has pointed out that case of Mst. Walayat Khatun : was authority and law declared only to extent of common ratio of two separate Judgments, rendered therein-Held: (1) Decision in Mst. Walayat Khatun’s case P L D 1979 S C 821 cannot be assumed to have dissented from S.C .Judgments in Muhammad Nawaz Khan’s case P L D 1970 S C 37 and Shah Nawaz’s case 1972 S C M R 179–Law laid down by S.C .in cases of Muhammhd Nawaz Khan P L D 1970 S C 37 and Shah Nawaz’s case 1972 S C M R 179 continue to hold field and is law declared, notwithstanding Judgment in case of Mst. Walayat Khatun P L D 1979 S C 821-No departure was ever made in any case from what was held in two cases of Muhammad Nawaz and Shah Nawaz to effect that it was obligatory to allow time for supply of deficiency in court-fee before rejecting plaint and regarding refusal of discretion under S. 149, C. P. C. only on grounds of contumacious and positive mala fide conduct ; (2) That this being not unusual for Court consisting of Bench of more than one Judge to render a decision consisting of more than one Judgment, decision reached in Mst. Walayat Khatun’s case P L D 1979 S C 821 was undoubtedly common ratio of two separate JudgmentsStrict view in Mst. Walayat Khatun’s case expressed in second Judgment was not common ratio of decision and has to be treated as individual opinion of one Judge. P L D 1984 S.C .289

 

Delay condonation of. Pray for. Revision filed after a delay of 877 days. Appeal dismissed on 15-5-1991 copy applied on 2.11.1993 which delivered on the same day, but revision filed on 12.1.1994. Under second proviso to sub-section (1) of Section 115 Cr.P.C. a revision petition must be made within 90 days of decision of subordinate court. Petition is barred by 877 days and explanation that time was consumed due to official routine for getting sanction from Government is not a valid ground for condonation of such a long delay. After prescribed period of limitation has elapsed, door of justice is closed and no plea of injustice, hardship or ignorance can be of any avail unless delay properly explained and accounted for.  PLJ 1998 Lah. 1211 = 1998 MLD 1672.

 

Delay in filing appeal against rule of court. Unexplained delay of 17 days in filling appeal. No express extension for submission of award is required. Delay is impliedly condoned. Knowledge of proceedings appear from record. Plea of proceedings without knowledge repelled. PLJ 1999 Lah. 251 = 1999 MLD 2829.

 

Delay in filing appeal before departmental authority. Whether service Tribunal could dismiss appeal on point of limitation. At. time of representation, Authority was conscious of proceedings being out of time thus by deciding controversy .on merit it’ impliedly condoned delay. Extract of concise statement filed by special Assistant to Prime Minister is also Supportive of fact that authority keeping in view facts and circumstances of case and affidavit filed by appellant and comments submitted by department, it impliedly condoned delay and in those circumstances it was not justified by Servica Tribunal to dismiss appeal merely on technical ground of limitation without adverting to merits of case. Since Service Tribunal has not expressed any opinion on merits of case therefore remand order will serve ends of justice. Appeal accepted and case remanded to. service Tribunal for deciding it afresh on merits in accordance with law. PLJ 1998 SC (AJK) 95.

 

Delay in filing appeal before wrong forum. S.C  confirmed its earlier view expressed in Sherin’s case (1995 SCMR 584) that despite S. 14, Limitation Act 1908 of appellant was able to establish that he followed remedy before wrong forum in good faith with due care and caution Court may condone such delay in filing of appeal treating it as sufficient cause -under S. 5, Limitation Act 1908. Court, however, reiterated that filing of appeal in wrong Court on account Of mistaken advice tendered by counsel for condonation of delay by itself would not attract S. 5, Limitation Act 1908. PLJ 2000 SC 200 = PLD 2000 SC 94.

 

Delay in filing grievance notice and grievance petition. Condonation of Prayer for. Section 5 of Act is applicable to grievance notice and grievance petition under Section 25-A of Ordinance. Although Section 14 of Act is not applicable, yet its principle can be applied while condoning delay under Section 5. Petition before NIRC against termination order was not competent at all but respondent patently acted negligently while petitioning to NIRC. There is no sufficient cause for condoning delay. Both grievance notice and grievance notice and grievance petition were beyond limitation and order of respondent holding that grievance notice and grievance petition were within time, is clearly illegal and without jurisdiction. PLJ 1996 Lah. 252 = 1996 PLC 162.

 

            Delay in filing ICA. Condonation of delay. Appellants were given call date for supply of copy by Copying Agency as 19.2.1997, 5.3.1997 and 15.3.1997. Even if Copy Agency had secretly prepared certified copy of impugned Judgment on 20.2,1997, act of officials of Court would not cause any prejudice to party. Appeal filed within time.   P.L.J.1999 SC 64 = 1998 SCMR 2280.

 

Delay in filing” petition for leave to appeal before Supreme Court. Condonation of delay. Entitlement. Petitioner being Government whether entitled to be treated preferentially. State and subject both are at par in the eyes of law, therefore, Government agencies are not to be treated preferentially. Impugned order however, being void and beyond jurisdiction of High Court, delay in filing petition for leave to appeal was condoned. Compensation in terms of money was neither claimed in original plaint, nor prayer was made for granting decree in terms of money nor during pendency of suit plaint was sought to be amended by incorporating alternative relief. High Court, thus, travelled beyond it jurisdiction’ by granting relief to Respondents and passed order which had no legal sanction in law. Case was remanded to High Court for disposal in accordance with law. PLJ 2000 SC 1739.

 

Delay of 67 days in intra court appeal:– A period of 20 days is prescribed for filing an Intra Court Appeal. Appeal in question has been filed after 67 days. In Paragraph No. 3 of application, appellant applied for approval to solicitor of Punjab on 15.5.1997, when limitation to file appeal had already expired. In matter of limitation Government cannot claim any exceptional ‘ treatment. Being a party in litigation, Government functionaries are expected to take all possible steps, for ensuring that remedy is availed within limitation. Appeal dismissed in limine. PLJ 1998 Lah. 96 – 1998 CLC 569. Condonation of delay. Appellants were given call date for supply of copy by Copying Agency as 19.2.1997, 5.3.1997 and 15.3.1997. Even if Copy Agency had secretly prepared certified copy of impugned judgment on 20.2,1997, act of officials of Court would not cause any prejudice to party. Appeal filed within time.  PLJ 1999 SC 64 = 1998 SCMR 2280.

 

Delay of each day must be explained. 1998CLC417

 

Delay of five days in filing appeal was explained by showing cause that delay had occasioned on account of sickness of defendant who also filed an affidavit. Petitioner, plaintiff did not file any counter affidavit to challenge authenticity of said certificate and in rebuttal of affidavit. Appellate court was perfectly justified in condoning five days delay in filing appeal.  PLJ 1995 Lah. 511 = 1995 MLD 923.

 

Dismissal of time barred appeal. Copies of judgment and. decree were delivered to defendant (petitioner) well within time of limitation yet he did not file appeal within period of limitation and filed the same after 10 days of expiry of limitation. Appellate Court dismissed defendants appeal as being time barred. Party seeking condonation of delay must explain each day’s delay and unless same was done, delay would not be condoned especially when valuable rights had accrued to other side. Grant or refusal of condonation being pure question of discretion, High Court saw no substance to -interfere with it having been properly exercised by competent court. Superior Courts would not and should not interfere with exercise of discretion under S. 5, Limitation Act 1908 exercised by courts below unless view of such court was found to be preposterous or perverse. Defendant having failed to point out any irregularity, illegality or jurisdictional error in impugned order there was no substance to interfere with discretion exercised by competent Court. PLJ 1999 Pesh. 70 = 1999 MLD 2357.  Appeal filed by defendant was barred by time. Defendant had failed to offer any explanation, much less plausible, for the same. Appellate Court below, thus, appears to have applied its judicial mind to facts and circumstances of case carefully and had recorded. speaking order vide which he had dismissed appeal. Appellate Court had given valid reasons for its conclusions and because of the fact that order impugned was neither arbitrary nor perverse which does.not suffer from any illegality or material irregularity, therefore, no interference was warranted by High Court in exercise of its revisional jurisdiction.  PLJ 2000 Pesh. 110.

 

Filing of appeal in wrong forum. Provisions of Section 5 and 14 of Limitation Act 1908, whether attracted. Sufficient cause. Connotation. Sufficient cause would differ from case to case and any action taken on advice by the counsel against any clear provision of law would not entitle the party to seek condonation of delay on the ground that he had acted bonafide on such advice. Where both the parties were legal heirs of deceased and appellant, in order to deprive respondents, took various steps to prolong the proceedings they were not entitled to claim condonation of delay for filing appeal in wrong forum. Appellant, having contested appeal emanating out of /is between them, after judgment of the same it had become clear that appeal arising from judgment of Trial Court was to be preferred before High Court and not the District Court. Appellant having filed appeal before District Court instead of High Court were adamant to claim that they had properly filed the same they were thus not entitled to’ claim condonation of delay in filing appeal in wrong forum and the time spent therein. Deliberate assertion of a plea, which to their knowledge was illegal/improper, could not be treated as sufficient cause for condonation of delay. Sufficient cause for delay having not been shown, appeal of appellants was rightly dismissed by the High Court.PLJ  2001 SC 248 = PLD 2001 SC 355.

 

Grounds for condonation of delay. Judgment was announced on September 16, 1998. Appeal was filed on February 12, 1999, after prescribed limitation. Appellant has failed to show any sufficient cause for condonation. According to appellants, own case, as appearing-from affidavit of his representative, he acquired knowledge of judgment on January 16, 1999, but interesting, no explanation is given for delay caused from January 16, 1999 to February 12, 1999, when appeal was filed. Appeal is time barred and accordingly dismissed. PLJ 1999 AJ&K 44.

Hassan Bakh.sh v. Afzal Shah 1974 S C M R 364 ; Jan Muhammad v. Ghulam uhaus 1976 S C M R 141 and Abdul Ghani v. Muhammad Alam 1976 S C M R 147 analysed.

 

High Court gave good reasons for declining to condone delay holding that delay of each day is to be explained and Government cannot be treated differently than private litigant on question of limitation under ^; Section 5 of Limitation Act. PLJ 1995 SC 335 = 1995 SCMR 546.

 

It has been well settled that provisions of S. 14 cannot be invoked for seeking condonation of delay, in filing appeal. However, Section 5 of Limitation Act, can be invoked for said purpose, if sufficient cause is shown in perusing wrong remedy.   PLJ 1999 Qta. 77 = PLD 1999 Qta. 3

Jagat Dhish Bhargava v. Jawahar Lal Bhargava and others AIR 1961 S( 832 ref.

 

Laches/Delay when bar to a Lis. Laches per-se is not a bar to a Constitution Petitioner. There is a marked distinction between delay in filing of a legal proceeding within period specified in an Article of Schedule to Limitation Act and delay in filing of a Constitution Petition for which no Statutory period is provided for. In former case delay of each day is to be explained by furnishing sufficient cause for seeking condonation of delay under Section 5 of Limitation Act in filing of a legal proceeding after expiry of statutory period. Whereas, in latter case, delay or question of laches is to be examined on equitable principles for reason that grant of constitutional relief is a discretionary relief and Court may decline to press into service its constitutional jurisdiction if it would be inequitable keeping in view conduct of a petitioner. Question of delay or laches is to be considered with reference to facts of each case. Delay/laches of several years can be overlooked in»a Constitution petition if facts of case and dictates of justice so warrants. Plea of laches is only available to a person who acts bona fide under belief that what he is doing is legal and proper and same cannot be invoked in aid by a person who knew from very inception that what he was doing was on account of his own manipulation contrary to law.  PLJ 1999 SC 2331 = 1999 SCMR 2883.

 

Lapse of prescribed period of limitation. Doors of justice are closed after lapse of prescribed period of limitation and no plea of injustice, hardship or ignorance could be agitated unless delay so caused was fully justified legally and each day’s delay must be accounted for by legal and valid reasons.  PLJ 2000 Tr. C. (Services) 517.

 

Limitation Act, 1908 read with Evacuee Property and Displaced Persons Laws (Repealed) Act, 1975. Whether Settlement Authorities ceased to exist after repeal of settlement laws. Perusal of impugned order shows that no fresh order was passed by Settlement Authorities. Entire plaint is silent on the point as to why plaintiffs have not challenged impugned order prior to 1995. There is no legal defect in impugned order. Suit was filed after a lapse of l7 years, hence, appears to be patently barred by Limitation Act. PLJ 1996 Kar. 814 = PLD 1996 Kar. 429.

 

            Limitation for Revision :– There is no period prescribed for filing a civil revision but it is to be filed diligently within a period of 90 days. It can be filed after expiry of 90 days provided a case for condonation of delay is made out. High Court can exercise revisional Jurisdiction suo motu at any time without being bound by any period of limitation provided it fosters cause of Justice. Ground that Government takes longer period than a private litigant, is not sufficient to condone delay.  P.L.J.1995 SC 11 = 1994 SCMR 833. Petitioners being conscious of the fact that value of subject matter was beyond Jurisdiction of District Judge, therefore, filing of revision in wrong forum could not be termed as bona fide mistake. For condonation of delay, petitioner, were required to established that delay in filing revision had occurred due to bona fide mistake or under circumstances which were beyond their control; Such qualifying conditions, however, were lacking in petitioner’s case, therefore, petitioner, cannot claim protection of S. 5, Limitation Act, 1908 or S. 151 C.P.C- Record indicated that revision petition was returned to petitioners on 27.2.1999 but the same was filed in High Court on 10.4.1999 so the same was further delayed by one month and 13 days for which no explanation had been offered by petitioners. Petitioners having failed to ‘make out a case to the effect that they have been pursuing their case in good faith, therefore, they were not entitled to condonation of delay, so caused. Revision was dismissed on ground of limitation.   P.L.J.2000 Pesh. 323.

 

Limitation-interpretation of  O. VII, r. 11, C. P. C.-Contentions (1) that decision of S.C in case of Mst. Walayat Khatun P L D 1979 S C 821 and subsequent reported decisions by S.C has led to conflict of authority, thus leading to confusion, for litigant public and Bar which needed to be resolved, (2) that S.C in a Full Bench case of Shahna Khan v. Aulia Khan P L D 1984 S C 157 has pointed out that case of Mst. Walayat Khatun : was authority and law declared only to extent of common ratio of two separate judgments, rendered therein-Held: (1) Decision in Mst. Walayat Khatun’s case P L D 1979 S C 821 cannot be assumed to have dissented from S.C judgments in Muhammad Nawaz Khan’s case P L D 1970 S C 37 and Shah Nawaz’s case 1972 S C M R 179–Law laid down by S.C in cases of Muhammhd Nawaz Khan P L D 1970 S C 37 and Shah Nawaz’s case 1972 S C M R 179 continue to hold field and is law declared, notwithstanding judgment in case of Mst. Walayat Khatun P L D 1979 S C 821-No departure was ever made in any case from what was held in two cases of Muhammad Nawaz and Shah Nawaz to effect that it was obligatory to allow time for supply of deficiency in court-fee before rejecting plaint and regarding refusal of discretion under S. 149, C. P. C. only on grounds of contumacious and positive mala fide conduct ; (2) That this being not unusual for Court consisting of Bench of more than one Judge to render a decision consisting of more than one judgment, decision reached in Mst. Walayat Khatun’s case P L D 1979 S C 821 was undoubtedly common ratio of two separate judgments-Strict view in Mst. Walayat Khatun’s case expressed in second judgment was not common ratio of decision and has to be treated as individual opinion of one Judge. P L D 1984 S.C 289

 

Mistaken advice of counsel : — Although appeal had been filed by appellant before District Judge on account of mistaken advice of counsel yet the conduct and act of District Judge and its office in entertaining appeals in earlier round when appeal was filed by respondents and then when the appeal was filed by appellant and District Judge deciding appeals on both occasions on merits and not noting or raising question of maintainability and respondents conduct on both occasions were also factors which led to appellant in filing appeal before District Judge and pursuing the same there. Such facts and circumstances together constitute case of sufficient cause as per terms of S. 5, Limitations Act 1908. Appeal filed by appellant before High Court was, thus, not liable to be rejected on ground of’ limitation. Case was remanded to High Court for disposal of appeal on merits. PLJ 2000 SC 200 = PLD 2000 SC 94. Wrong advice of counsel or negligence mistake of the counsel is no reason for condoning the delay. PLD 2003 Pesh. 46

 

Mukhi Chatromal and another v. Khubchand and 6 others 1988 CLC 1711; Assistant Commissioner and Land Acquisition Collector, Badin v. HaJi Abdul Shakoor and others 1997 SCMR 919; Mst. Walayat Khatun v. Khalil Khan and another PLD 1979 SC 821; H.H.S. Feldman v. Province of East Bengal PLD 1970 Kar. 295; Seth Hafiz Abdul Aziz Yousfani & Sons v. HaJi Ali Muhammad & Co. PLD 1968 Kar. 883; Muhammad Ghaffar v. The State 1969 SCMR 12; Siddiq Khan v. Abdul Shakur Khan PLD 1984 SC 289; Shah Nawaz and 6 others v. Muhammad Yousaf and 3 others 1972 SCMR 179; F.A. Khan v. Government of Pakistan PLD 1964 SC 520; Province of East Pakistan v. Chairman, Election Tribunal, N. W. F. P. PLD 1976, SC 625; Muhammad Nawaz’s case PLD 1970 SC 37; Federation of Pakistan through Secretary, Ministry of Foreign Affairs, Government of Pakistan, Islamabad and 5 others v. Jamaluddin and others 1996 SCMR 727; State Life Insurance Corporation of Pakistan v. Mst. Zainab Khatoon and 5 others PLD 1987 SC(AJ&K) 5 and Mst. Walayat Khatun v. Khalid Khan PLD 1979 SC 821 ref.

 

Mutations and alienations having taken place behind the back and knowledge of the owner of the property, Condonation of delay in filing suit while taking into consideration the circumstance was valid.    PLD 2003 SC 159

 

Office of High Court has been returning appeal on petty objections. Contention of. Appeal is not barred by time. Appeal was instituted in time. Objections raised by office were removed and it was re-filed within time given by office. Appeal thereafter seems to have treated as an objection case merely because office was of view that objection regarding flagging of impugned order was still not removed at time of re-filing of appeal in time and it is possible flag attached to impugned order might have fallen down while appeal was lying in the office of High Court. Even otherwise it was not an objection of such a nature which could only be removed by the appellant or his counsel. Appeal in all other respects was complete and office could have put up appeal for hearing by flagging impugned order itself instead of placing appeal against as an objection case. High Court of the view that law does not intend to make appeals as barred by time due to non-compliance, by defaulting party, in time, such petty objections, being raised by office of High Court and the spirit of law, in High Court’s view is that appeals are to become barred by time only if nature of objections is such, that the same can only be removed by the defaulting party itself, like making of deficiency of Court-fee, deposit of printing charges, furnishing of certified copies of impugned judgments and decrees etc.. No contumacy is involved and there is no negligence either on the part of appellant or his counsel because appeal was re-filed in time after removal of the objections which were raised for first time by office but office again treated it as an objection case merely because allegedly impugned order was not flagged. This “objection could have been removed by office itself easily in absence of the appellant or appellant’s counsel. PLJ 2000 Lah. 958.

 

Officials acted with gross negligence in re-filing revision petition. They took almost one year in doing what they were required to do in seven days and explanation offered by them for this inordinate delay has not been found to be convincing.  PLJ 1997 SC 1644 = 1997SCMR 1224 = NLR 1997 Civil 693 = 1997 Law Notes 393.

 

Operation of S. 12 distinct from that of S. 5:– Words “time requisite” in S. 12-Court required to exclude time requisite for obtaining copy of order appealed from-Such statutory provision of exclusion to be distinguished from power conferred on Court under S. 5 to admit appeal after period of limitation prescribed therefor if Court satisfied that appellant – bad sufficient cause for not preferring appeal within such period-Section 5 confers discretionary power on Court-No such discretion vests under S. 12 and party is entitled, as of right, to exclude period spent in obtaining copies-Section 12 confers a substantive right upon appellant to claim time as excluded and Court cannot impose upon statutory right of any appellant a restriction not warranted by Act Appellant must act with reasonable promptitude and diligence in order to satisfy Court that time which he claims to be excluded was properly required in obtaining copies-Question as to what was time requisite for obtaining copy must necessarily depend upon practice and Rules in force-No general principles on question could safely be formulated-Such question is one of fact to be determined on circumstances of each case in light of Rules framed on subject, P L D 1984 S.C  208

 

Petition for leave to appeal :- Duty of counsel of petitioner to have’informed petitioner in time about dismissal-of petition. Opposite-party could not be penalised for negligent handling of case by petitioner or his counsel. Such plea was not a valid ground for condonation of delay. Leave to appal was refused.  PLJ 2001 SC 1523  Contention that respondent, (a Federal Government Employee) during pendency of Infcra-Court Appeal Before High Court, where, .appeal was not maintainable, raised no objection to maintainability of such appeal and, therefore appellants (Federation of Pakistan) were under bona fide impression that I.C.A. was competently filed. Respondent was under no obligation to point out defect in proceedings filed by appellants. Ground urged by appellants (Federation of Pakistan) for condoning delay, therefore, could not be accepted as “sufficient cause” for not filing appeal in time. PLJ 1999 SC 1802 = 1999 SCMR 644.

 

Plaintiff seeking declaration of land in question being ownership possession. Land in question, being Banjar Qadeem and Gher Mumkin Darya seemed lying vacant not under of any cultivator. Where property was not in possession of any one then rightful owner could claim possession of such property as possession would follow title. Suit being for declaration anybody whose ownership or possessor rights were interfered with or threatened could come to civil Court at any time when his possession or rights stood threatened. No question of -limitation would, thus,’ arise in such cases. Appellate Court, therefore had rightly decided point of limitation. Additionally defendant had not been able to show good ground as to why revision was not filed in time and why should delay be condoned. Only reason which was assigned for delay was that there were some complicated questions for the department due to frequent misplacement of relevant files and paper which were the cause of delay in filing revision. Application for condonation of delay did not show sufficient ground and explanation for period of delay, therefore, same was rightly dismissed by Appellate Court. Judgment of Appellate Court being un-exeeptionable, revision was not maintainable in circumstances.  PLJ 1999 Lah. 1790.

 

Pre-emption. Whether delay in filing first appeal was condonable. Inspite of fact that Clerk of Court of District Judge pointed out that appeal was time barred, still appellants did not move application under Section 5 of Limitation Act, which requires that applications should be moved alongwith memo of appeal. Appellants moved application more than a year after presentation of memo of appeal. There was no explanation as to why .application was not moved earlier. Appellants were clearly negligent and if such type of excuses are accepted then whole purpose of Limitation Act would .be frustrated.   PLJ 1995 Lah. 114 = PLD 1994 Lah. 399.

 

Principles—Person seeking condonation of delay must explain delay of each and every day to the satisfaction of the court and should also establish that delay had been caused due to reasons beyond his control—When the delay in filing the appeal was seemingly due to mere negligence and carelessness of the appellant who failed to pursue his case with due diligence, he was not entitled to any indulgence by the Supreme Court—When on the day period of limitation expired, copies of the impugned judgment were available with the appellant and appeal could have been filed in time, delay regarding time consumed between preparation of copies and its delivery was condoned but each day after expiry of period of limitation having not been satisfactorily explained, appeal was liable to be dismissed as time-barred—Involvement of valuable rights would not furnish a proper ground for condonation of delay in a civil matter—Door of justice was closed after the prescribed period of limitation had elapsed and no plea of injustice, hardship or ignorance could be of any avail unless the delay of each day was properly explained and accounted for. PLD 2003 SC 628

 

Principles—Where on merits the respondent had no case, then limitation would not be a hurdle in the way of appellant for getting justice—S.C observed that the Court should not be reluctant in condoning the delay depending upon facts of the cse under consideration. PLD 2002 S.C  84

Province of East Pakistan v. Abdul Hamid Darji and others 1970 S C M R 559 and Commissioner of Income-tax v. Ravi Textile and Carpet Company 1968 SCMR115rel.

 

Punjab Alienation of Land Act, 1900 :— Sale of land by lessee and further sale by lessee–Acceptance of application u/s 3(2) of Punjab Alienation of Land Act, by D.C. holding that Section 12 of Pakistan (Administration of Evacuee Property) 1949 did not oust his jurisdiction concerning property belonging to evacuees–Constitutional petition against order of D.C. disposed of by High Court–Declaratory suit challenging vires of D.C. dismissed by Civil Court–Appeal dismissed by District Judge—High Court accepted appeal on merits and dismissed appeal being barred by time on failure of appellant to attach judgment and decree of trial Court with memo of appeal–Inter Court Appeal–Whether appeal was time–barred-Question of law–Discretion–Exercise of–S.C has considered this proposition of law and held that High Court should have passed order on application of appellant for dispensing with production of certified copy of judgment and since record was available in High Court, prayer in application should have been allowed and discretion should have been exercised in favour of appellant when Court is vested with power to exempt party from performing legal obligation, but such request if declined and in the meanwhile Court has permitted period of limitation prescribed for performance of such obligation to expire, time must be extended by Court to enable party to perform such obligation, because no one can be made to suffer by any act of Court–Court has inherent power and existence of inherent power is to do justice based on sound judicial principles-. PLJ 2002 LAH.. 90   AIR 1947 Calcutta 67; PLD 1999 SC 35; ILR Calcutta Series 1955; PLD 1959 Lah.. 946 PLD 1989 SC 532.

 

Re-admission and condonation of delay. Prayer for. Earlier provisions of Section 5 of .Limitation Act were not applicable and period of limitation provided for re-admission of appeal could not be extended. Through Act, IV of 1990 amendment was made in Order XLI C.P.C. and sub-rule (2) was added to Rule-19. After said amendment, delay in filing petition for re-admission of appeal can be condoned if sufficient cause is shown for delay. Petition for re-admission is barred by 119 days. No sufficient cause existed for condonation of delay. It is well established principle of law that where valuable rights are accrued to party for lapse of time due to negligence or lack of bona fides etc. such party cannot be deprived of such rights except . where sufficient cause’is shown. Court has no jurisdiction to extend time as petitioner was grossly negligent and inactive. Petition for condonation and re-admission fail and are dismissed in limine. PLJ 1998 Lah. 1199 = 1999 CLC 45.

 

            Re-Admission of appeal dismissed for non-prosecution. Time for readmission of appeal (30 days) dismissed for default runs from date of dismissal and not from . date of knowledge of dismissal. Application for restoration has been submitted after 8 months of dismissal of appeal in default. Application for re-admission of appeal is hopelessly barred by time. No sufficient cause has been established for condonation of delay. Law helps those who are vigilant in perusing their rights and not those who sleep thereon. Application for readmission of appeal is dismissed as barred by limitation.  P.L.J.1997 Lah. 710 = 1997CLC 1324.

 

Sufficient cause. Notwithstanding the fact that S. 14, limitation Act, 1908, in term, does not apply to proceedings of an appeal, if appellant is able to establish that he followed remedy before a wrong forum in good faith, the Court may condone such delay in filing of appeal treating same as “sufficient cause” under S. 5, Limitation Act, 1908. As to what would constitute “sufficient cause” in such cases would depend on facts and circumstances of each case. PLJ 1999 SC 208 = 1998 SCMR 2296.

 

Suit decreed but for less amount. Appeal against for further decree of amount refused. Dismissal due to bar of limitation. It is well settled that knowledge of counsel is knowledge of client, Legal principle that it was duty of client to find out position of case cannot be disputed. Counsel for appellant has not advanced any reason why discretion of court should have been exercised in favour of Bank in the light of amended section 3 of Limitation Act. Counsel of Bank was present at the time of announcement of judgment. During period of .29th of June to 29th of November, no effort was made to find out whether judgment had been announced or not. No explanation has been given for it.  PLJ 1997 SC (AJK) 143 = PLD 1997 SC (A&K) 15.

 

Suit for declaration with permanent injunction. Grant of temporary injunction by trial Court, upheld in appeal. Lapse of time due to settleme.nt of dispute through respectables. Ground for condonation of delay. Prayer for. Ground of condonation of delay do not appear to be forceful in given situation. Names of respecfeables have not been disclosed in petition nor date is given as to when matter was referred to such respectables for settlement. There is no ground for condonation of delay in filing revision. Application to that effect is dismissed which is, patently time barred. PLJ 1999 Lah. 1060.

 

Suit for declaration-Application u/S. 5 of Limitation Act for extension of time. Acceptance of. Revision against. Acceptance of. Writ against. Question of maintainability of Revision petition against order of trial court. Order of trial Court was not appealable, hence, revision was competent. Trial Court entertained an application which could not be entertained, as such acted illegally. Consequently revisional court was competent to set that mistake right by passing impugned order. PLJ 1998 Lah. 1053 = 1998 MLD 1129.

 

There can be no two opinions that a suit for declaration with prayer for consequential relief, will be governed by Article 120 under which starring point of limitation, is date when right to sue accrues. Right fco bring a declaratory suit is a continuing right. Where plaintiff is in possession, more particularly as a co-sharer in joint khata, he is not bound to sue ,on every denial of his right. PLJ 1995 SC 265 = 1995 SCMR 284.

 

Time barred appeal. Unless and until a substantial reason for condonation of delay is explained in application u/S. 5 ‘of Limitation Act Affidavit annexed with application has no value at all. Delay itself gives a right of dismissal of appeal to adverse party unless it is condoned by learned court. PLJ 1998 Lah. 1105 = 1998 CLC 1212. Plaintiff’s suit having been dismissed on 28-9-1996, he applied for copies of Judgment and decree Sheet on 7-5-1997 and after obtaining copies filed appeal on 8-5-1997–Plaintiffs’ plea for condonation of delay was, that on coming to know that suit had been dismissed on 28-9-1996 he also came to know that decree Sheet had not been prepared for which he applied on 7-5-1997 and on getting copies filed appeal on 8-5-1997, therefore, time spent in obtaining copies would be available to plaintiff for extending the same and as such appeal filed on 8-5-1997 was within time–Plaintiff offered no explanation as to why he did not apply even for the copy of Judgment, dated 28-9-1996 during that period–Copy of memo. of appeal filed before Appellate Court showed that Judgment and decree challenged therein, were shown to be passed on 7-5-1997, thus, showing glaring negligence on the part of appellant-­Plaintiff had obtained certified copies of Judgment and decree of connected case on 28-9-1996 and filed appeal in time, therefore, it seemed unplausible that he was not in the knowledge of passing of decree and Judgment in the case–Only in cases where decree Sheet was not prepared by Court and parties were not at fault for the same, they would be entitled to extension of time and that position could only be maintained when application for obtaining certified copy of Judgment, at least, had been made in time–Appeal against Judgment and decree, having not been filed in time, would not be maintainable. 1998CLC417

 

Where Order without jurisdiction : — Defence of defendant was closed on his failure to file written statement—Such order was assailed before First Appellate Court in exercise of revisional jurisdiction under S.115, C.P.C.—Revision petition after remaining pending for some time was returned to the defendant for lack of pecuniary jurisdiction—Defendant filed the revision before High Court—Delay in filing of the petition was condoned and the same was allowed—Contention of the plaintiff was that the High Court had wrongly condoned the delay—Validity—Mere wrong advice by a counsel in the matter by itself was not considered as sufficient ground for condonation of delay but each case had to be considered in which question of limitation was raised keeping in view peculiar circumstances of that case—High Court, in the present case, was seized of the revision petition and was exercising jurisdiction under S.115, C.P.C. under which a right had also been conferred on aggrieved person to file revision petition—High Court itself was vested with the power to call for record of any case to satisfy itself whether any order was valid and did not suffer from any irregularity amounting to illegality or was bad for want of jurisdiction—Such aspect of the case had been kept in view while deciding in the present case as to whether the order passed by the Trial Court for closing the defence of the defendant was valid and what was the extent of illegality attached to it—Where the High Court came to the conclusion that in the facts and circumstances of the case, the conditions laid down by the relevant law for applicability of penal provisions of O.VIII, R.10, C.P.C. had not been fulfilled and the order passed by the Trial Court was without jurisdiction, the High Court rightly proceeded to set aside the same by condoning the delay by holding that in such matters, the point of limitation would not stand in the way of Court to do justice—Condonation of delay by the High Court in the present case was based on valid and relevant considerations so that an order which was without jurisdiction and as such nullity in law might be perpetuated—S.C declined to interfere with the order passed by High Court—Leave to appeal was refused. PLD 2002 S.C  630  Mst. Hakumat Bibi v. Imam Din and others PLD 1987 SC 22 and Azad Hussain v. Haji Muhammad Hussain, PLD 1994 SC 874 distinguished. Sardar Sakhawatuddin and 3 others v. Muhammad Iqbal and 4 others 1987 SCMR 1365; The Secretary, Board of Revenue, Punjab, Lah.. and another v. Khalid Ahmad Khan 1991 SCMR 2527; Sherin and 4 others v. Fazal Muhammad and 4 others 1995 SCMR 584; Ghulam Ali v. Akbar alias Akoor and another PLD 1991 SC 957 and Mian Aizad Bakhsh v. Sheikh Muhammad Afzal 1985 SCMR 1003 ref.

 

Whether bonafide mistake or ill-advice by counsel is a sufficient ground for condoning delay. Section 5 provides that delay in filing of appeals can be condoned provided sufficient cause has been. put forth. Bonafide mistake or ill-advice by counsel does not constitute sufficient ground for condoning delay. Appeals are-not maintainable on account of being barred by limitation. PLJ 1994 Qta. 32 = PLD 1994 Qta. 88.

 

Whether delay in filing appeal is condonable. Reason given in application for condonation of delay is that appellant had been pursuing his remedy in civil court. It is settled law that grievance of appellant could be redressed only in appeal before Service Tribunal and civil court had no jurisdiction. Prosecution of case before another forum under wrong legal advice is no ground for condonation of delay.  PLJ 1994 Tr.C. (Services) 116 = .  1994 PLC(C.S.) 334

1) Where a person entitled to institute a  suit [or proceeding] or make an application for the execution of a  decree is, at the time from which the period of limitation is to be  reckoned a minor, or insane, or an idiot, he may institute the suit  [or proceeding] or make the application within the same period after  the disability has ceased, as would otherwise have been allowed from  the time prescribed therefor in the third column of the First Schedule  or in section 48 of the Code of Civil Procedure, 1908 Act (V of  1908). 

 

(2)        Where such person is, at the time from which the period of  limitation is to be reckoned, affected by two such disabilities, or  where, before his disability has ceased, he is affected by another  disability, he may institute the suit or make the application within  the same period, both disabilities have ceased, as would otherwise  have been allowed from the time so prescribed. 

 

(3)        Where the disability continues up to the death of such person, his  legal representative may institute the suit or make the application  within the same period after the death as would otherwise have been  allowed from the time so prescribed. 

 

(4)        Where such representative is at the date of the death affected by  any such disability, the rules contained in subsections (1) and (2)  shall apply. 

Illustrations
(a)        The right to sue for the hire of a boat accrues to A during his minority. He attains majority four years after such accruer. He may institute his suit at any time within three years from the date of his attaining majority.

 

(b)        A right to sue accrues to Z during his minority. After the accuruer, but while Z is still a minor, he becomes in insane. Time runs against Z from the date when his insanity and minority cease.

 

(c)        A right to sue accrues to X during his minority. X dies before attaining majority, and is succeeded by Y, his minor son. Time runs against Y from the date of his attaining majority.

 

Court Decision

 

Certain amount of court-fee, if and when adjudged, as proper fee as was visualised by S. 6, Court Fees Act, 1870 result would follow as provided in Ss. 10(ii), 12(ii) & 28 of Court Fees Act, 1870 and not as provided in S. 3, Limitation Act, 1908Validity mentioned in Ss. 10(ii), 12(ii) & 28, Court Fees Act, 1870 was vis-a-vis fiscal requirement (and consequences) as a measure of . prosecution of lis and not regarding physical institution of a document by act of presentation –Question of limitation arises if after determining “proper” court-fee document was returned and time was allowed for fresh presentation of same (after supply, of deficiency) and same was not refiled within specific period. P L D 1984 S.C 157

 

Land Reforms Regulation, 1972. Unless required amount of Court Fee chargeable on document (which term includes plaint also) as was indicated in schedules, was not paid, it shall not be taken to be of any validity Such rule however, does not lead to a necessary corollary that the plaint which was not adequately stamped was not a ‘proper plaint’ at all in the eyes .of law and further that for the limitation purposes suit shall be deemed to have been instituted only when proper and required Court Fee was paid on it. 1987 C L C 2428

P L D 1984 SC 289 ref.

Where  one of several persons jointly entitled to institute a suit [or  proceeding] or make an application for the execution of a decree is  under any such disability, and a discharge can be given without the  concurrence of such person, will run against them all; but, where no  such discharge can be given, time will not run as against any of them  until one of them becomes capable of giving such discharge without the  concurrence of the others or until the disability has ceased.

 

ILLUSTRATIONS

 

            (a)        A incurs debt to a firm of which B.C and D are partners, B is insane and C is minor, D can give a discharge of the debt without the concurrence of B and C, Time runs against B,C and D.

 

            (b)        A incurs a dept to a firm of which E,F and G are partners, E and F are insane, and G is manor, Time will not run against any of them until either E of F becomes sane, or G attains majority.

Nothing in section 6 or in section 7  applies to suits to enforce rights of pre-emption, or shall be deemed  to extend, for more than three years from the cessation of the  disability or the death of the person affected thereby, the period  within which any suit must be instituted or application made. 

Illustrations
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(a)        A, to whom a right to sue for legacy has accrued during his minority, attains majority eleven years after such accurer. A has under the ordinary law, only one year remaining with which to sue. But under Section 6 and this section an extension of two years will be allowed to him, making in all a period of three years from the date of his attaining majority, within which he may bring his suit.

 

(b)        A right to sue for an hereditary office accrues to A who at the time is insane. Six years after the accurer A recovers his reason. A has six years, under the ordinary law, from the date when his insanity ceased within which to institute a suit. No extension of time will be given him under section 6 read with this section.

 

(c)        A right to sue as landlord to recover possession from a tenant accrues to A, who is an idiot. A dies three years after the accrue, his idiocy continuing up to the date of his death. A’s representative-in-interest has, under the ordinary law mine years from the date of A’s death within which to bring a suit. Section 6 read with this section does not extend that time, except where the representative is himself under disability when the representation devolves upon him.

Where once time has begun to run,  no subsequent disability or inability to sue stops it: 

Provided that where letters or administration to the estate of a  creditor have been granted to his debtor, the running of the time  prescribed for a suit to recover the debt shall be suspended while the  administration continues. 

Notwithstanding anything hereinbefore contained, no suit against a  person in whom property has become vested in trust for any specific  purpose, or against his legal representatives or assigns (not being  assigns for valuable consideration), for the purpose of following in  his or their hands such property or the proceeds thereof, or for an  account of such property or proceeds, shall be barred by any length of  time. 

 

For the purposes of this section any property comprised in a Hindu,  Muhammadan or Buddhist religious or charitable endowment shall be  deemed to be property vested in trust for a specific purpose, and the  manager of any such property shall be deemed to be the trustee  thereof.

1) Suits instituted in [Pakistan  on contracts entered into in a foreign country are subject to the  rules of limitation contained in this Act. 

(2)        No foreign rule of limitation shall be a defence to a suit  instituted in [Pakistan] on a contract entered into in a foreign  country, unless the rule has extinguished the contract and the parties  were domiciled in such country during the period prescribed by such  rule.  

Court Decision

 

Condonation of delay. Time spent in prosecuting application for review cannot be excluded while computing limitation for filing appeal.  PLJ 1998 Lah. 191 = PLD 1998 Lah. 189.

            1) In computing the  period of limitation prescribed for any suit, appeal or application,  the day from which such period is to be reckoned shall be excluded. 

 

(2)        In computing the period of limitation prescribed for an appeal, an  application for leave to appeal and an application for a review of  judgment, the day on which the judgment complained of was pronounced,  and the time requisite for obtaining a copy of the decree, sentence or  order appealed from or sought to be reviewed, shall be excluded. 

 

(3)        Where a decree is appealed from or sought to be reviewed the time  requisite for obtaining a copy of the judgment on which it is founded  shall also be excluded. 

 

(4)        In computing the period of limitation prescribed for an  application to set aside an award, the time requisite for obtaining a  copy of the award shall be excluded. 

 

(5)        For the purposes of subsections (2), (3) and (4), the time  requisite for obtaining a copy of the decree, sentence, order,  judgment or award shall be deemed to be the time intervening between  the day on which an application for the copy is made and the day  actually intimated to the applicant to be the day on which the copy  will be ready for delivery. 

 

Court Decision

 

Exclusion of time :– Appeal filed by petitioner against decree of trial Court was dismissed being time-barred. Validity. Judgment of trial Court was recorded and decree was granted on 31.10.1993. Application for obtaining copies was moved on 16.12.1993. Copies were prepared on 23.1.1994 when copying fee was also deposited on that dated. Period between 16.12.1993 to 23.1.1994, when copies were prepared, was permissible to be deducted while computing limitation for purpose of appeals. Further period till 31.3.1994 when copies were received, however, could not be deducted being wilful negligence and carelessness on the part of appellant whose duty was to follow his application. No reasonable explanation has been offered for such delay justifying its condonation.  PLJ 2000 AJ&K 46. Where copy of dismissal of appeal was obtained, appeal filed .within thirty days after excluding time requested for obtaining copy of judgment, would be within time. PLJ 1998 Kar. 105 = NLR 1998 Lah. 64.

 

Mode of computing’ period of limitation. Period of added sub-Section (5) to section-12 Limitation Act, 1908 introduced vide Limitation (Amendment) Act XIII of 1991 reveals that it has changed complexion of sub­section (2) of Section 12 Limitation Act, 1908. According to old Act of 1908 “Time requisite” meant interval between date of application and date when same was ready for supply. However, according to amendment introduced in form of addition of sub-section (5) to Section 13 vide Limitation (Amendment) Act, XIII of 1991 “Time requisite” would be deemed to be time intervening between day on which application for copy is made and day actually intimated to applicant to be day on which copy will be ready for delivery. Thus according to Section 12(5) Limitation Act, as it now stands and holds field, “Time requisite” would not come to end, as soon as copy is ready for delivery, but it will start running as soon as applicant is actually intimated about day on which copy would be ready for delivery.  PLJ 1998 Lah. 880 = 1998 CLC 1123.

 

            Time requisite for obtaining copies. If there was delay in depositing, and delivering the stamps and folios after notification such delay could not be taken advantage of by a prospective appellant or applicant, as the time taken could not be said to be the time requisite for obtaining copy of order or decree under S. 12(2). Fact that appellant or applicant had made a delayed deposit and Court had accepted delayed deposit instead of rejecting the application, did not make any difference. PLJ 1999 Kar. 246 = 1998 CLC 2023.  Where Plaintiff’s suit having been dismissed on 28-9-1996, he applied for copies of Judgment and decree Sheet on 7-5-1997 and after obtaining copies filed appeal on 8-5-1997–Plaintiffs’ plea for condonation of delay was, that on coming to know that suit had been dismissed on 28-9-1996 he also came to know that decree Sheet had not been prepared for which he applied on 7-5-1997 and on getting copies filed appeal on 8-5-1997, therefore, time spent in obtaining copies would be available to plaintiff for extending the same and as such appeal filed on 8-5-1997 was within time–Plaintiff offered no explanation as to why he did not apply even for the copy of Judgment, dated 28-9-1996 during that period–Copy of memo. of appeal filed before Appellate Court showed that Judgment and decree challenged therein, were shown to be passed on 7-5-1997, thus, showing glaring negligence on the part of appellant-­Plaintiff had obtained certified copies of Judgment and decree of connected case on 28-9-1996 and filed appeal in time, therefore, it seemed unplausible that he was not in the knowledge of passing of decree and Judgment in the case–Only in cases where decree Sheet was not prepared by Court and parties were not at fault for the same, they would be entitled to extension of time and that position could only be maintained when application for obtaining certified copy of Judgment, at least, had been made in time–Appeal against Judgment and decree, having not been filed in time, would not be maintainable. 1998CLC417

Jagat Dhish Bhargava v. Jawahar Lal Bhargava and others AIR 1961 S( 832 ref.

 

Operation of S. 12 distinct from that of S. 5 :– Words “time requisite” in S. 12-Court required to exclude time requisite for obtaining copy of order appealed from-Such statutory provision of exclusion to be distinguished from power conferred on Court under S. 5 to admit appeal after period of limitation prescribed therefor if Court satisfied that appellant – bad sufficient cause for not preferring appeal within such period-Section 5 confers discretionary power on Court-No such discretion vests under S. 12 and party is entitled, as of right, to exclude period spent in obtaining copies-Section 12 confers a substantive right upon appellant to claim time as excluded and Court cannot impose upon statutory right of any appellant a restriction not warranted by Act Appellant must act with reasonable promptitude and diligence in order to satisfy Court that time which he claims to be excluded was properly required in obtaining copies-Question as to what was time requisite for obtaining copy must necessarily depend upon practice and Rules in force-No general principles on question could safely be formulated-Such question is one of fact to be determined on circumstances of each case in light of Rules framed on subject, P L D 1984 S.C  208

In computing the period of limitation  prescribed for any suit, the time during which the defendant has been  absent from [Pakistan] and from the territories beyond [Pakistan]  under the administration of [the [Federal] Government] [******]  shall be excluded. 

Court Decisions

 

Redemption. Mortgagee migrated to India in the wake of independence. Period of limitation i.e. 60 years stopped running at that time or not. Period of limitation stopped running with effect from 15/8/1947 -against evacuee mortgage in view of provisions of section 13.  PLJ 1997 Lah. 902 = PLD 1997 Lah. 716 = NLR 1997 Civil 552.

1) In computing the period of limitation prescribed  for any suit, the time during which the plaintiff has been prosecuting  with due diligence another civil proceeding, whether in a Court of  first instance or in a Court of appeal, against the defendant, shall  be excluded, where the proceeding is founded upon the same cause of  action and is prosecuted in good faith in a Court which, from defect  of jurisdiction, or other cause of a like nature, is unable to  entertain it. 

 

(2)        In computing the period of limitation prescribed for any  application, the time during which the applicant has been prosecuting  with due diligence another civil proceeding, whether in a Court of  first instance or in a Court of appeal, against the same party for the  same relief shall be excluded, where such proceeding is prosecuted in  good faith in a Court which, from defect of jurisdiction, or other  cause of a like nature, is unable to entertain it. 

 

Explanation I.—In excluding the time during which a former suit or  application was pending, the day on which that suit or application was  instituted or made, and the day on which the proceedings therein  ended, shall both be counted. 

 

Explanation II.—For the purposes of this section, a plaintiff or an  applicant resisting an appeal shall be deemed to be prosecuting a  proceeding. 

 

Explanation III.—For the purposes of this section misjoinder of  parties or of causes of action shall be deemed to be a cause of a like  nature with defect of jurisdiction. 

 

Court Decisions

 

Appeal against legality of judgments:– Appeal against basic order passed in revision was clearly time barred- Appellant whether entitled to benefit under S. 14, Limitation act in computing period of limitation. Appellants, plea that time spent in prosecuting review petition be excluded from computing period of limitation was not warranted. Appellants submission that he would no press against basic order dismissing revision petition would not advance his case at present point of time as said order would be a hurdle in way of appellant to get required relief as by efflux of time that (order in revision) had attained finality. PLJ 2000 SC 212 = PLD 2000 SC 63.

 

Bona fide mistake of law:– Appellant-plaintiff filing his first appeal before District Judge which was returned for presentation to proper forum–Appellant faced with a curious order passed by trial Court which placed him in a fix and he remained in hands of Advocate who was under a bona fide mistake of law qua value of suit and determination of forum of appeal which point was not free from difficulty–Delay condoned in circumstances. 1986 C L C 126

 

Civil appeal before High Court. Delay in filing of Whether time spent in wrong forum is extendable. Bare perusal of Section 14 marks it manifestly clear that time spent in pursuing remedy in a wrong appellate forum cannot be condoned. This section can be pressed, into service only where suit was pursued in a wrong forum. Civil Judge admittedly assumed jurisdiction under Civil Courts Ordinance, Section 18 whereof provides that appeals having valuation exceeding Rs. 50,000/- shall be instituted before High Court. Argument raised by appellants is not acceptable. PLJ 1994 Qta. 32 = PLD1994 Qta. 88.

 

Condonation of delay. Leave to appeal was granted;, inter alia, to consider; whether plaintiff was entitled to have delay condoned when decree dated 22.7.1974 was one of consent; whether plaintiff was not entitled to invoke provision of S. 14 of Limitation Act, 1908, when he had himself instituted suit in the Court of Civil Judge IIIrd Class and then consented to decree being passed; and whether suit stood automatically dismissed in view of the directions contained in decree dated 22.7.1994 to deposit pre-emption money on 7.10.1974 and that direction had not been complied with.  P.L.J.2001 SC 282 = PLD 2001 SC 476.

 

Conduct of Court and Parties :– Although appeal had been filed by appellant before District Judge on account of mistaken advice of counsel yet the conduct and act of District Judge and its office in entertaining appeals in earlier round when appeal was filed by respondents and then when the appeal was filed by appellant and District Judge deciding appeals on both occasions on merits and not raising question of maintainability and respondents conduct on both occasions were also factors which led to appellant in filing appeal before District Judge and pursuing the same there. Such facts and circumstances together constitute case of sufficient cause as per terms of S. 5, Limitations Act 1908. Appeal filed by appellant before High Court was, thus, not liable to be rejected on ground of’ limitation. Case was remanded to High Court for disposal of appeal on merits.  P.L.J.2000 SC 200 = PLD 2000 SC 94.

 

Delay in filing appeal before wrong forum.  S.C  confirmed its earlier view expressed in Sherin’s case (1995 SCMR 584) that despite S. 14, Limitation Act 1908 of appellant was able to establish that he followed remedy before wrong forum in good faith with due care and caution Court may condone such delay in filing of appeal treating it as sufficient cause -under S. 5, Limitation Act 1908. Court, however, reiterated that filing of appeal in wrong Court on account Of mistaken advice tendered by counsel for condonation of delay by itself would not attract S. 5, Limitation Act 1908. PLJ 2000 SC 200 = PLD 2000 SC 94.

 

Delay in filing grievance notice and grievance petition. Condonation of Prayer for. Section 5 of Act is applicable to grievance notice and grievance petition under Section 25-A of Ordinance. Although Section 14 of Act is not applicable, yet its principle can be applied while condoning delay under Section 5. Petition before NIRC against termination order was not competent at all but respondent patently acted negligently while petitioning to NIRC. There is no sufficient cause for condoning delay. Both grievance notice and grievance notice and grievance petition were beyond limitation and order of respondent holding that grievance notice and grievance petition were within time, is clearly illegal and without jurisdiction. PLJ 1996 Lah. 252 = 1996 PLC 162.

 

Delay in filing suit. Suit for pre-emption before Collector instead of civil court because pre-emptor did not claim preferential right on the basis of tenancy. Objection raised by defendant. Collector returned the plaint to plaintiff for presenting the same before Civil Court. Plaintiff filed it in civil court after more than two years from sale of land in dispute. Whether plaintiff was entitled to concession of S. 14 by excluding period spent in proceedings before Collector. Provisions of S. 14 would only be satisfied if plaintiff could show that there was some confusion about the state of law which occasioned filing of suit before a wrong forum. The mistake of a counsel was by itself not to be a ground for condoning the delay. No material produced before the courts below on the basis of which they hold that there was general state of confusion about law applicable while filing the suit before Rev. Court. PLJ 1996 Lah. 1468 = 1996 MLD 747.

 

Delay in filing suit. Suit for pre-emption before Collector instead of civil court because pre-emptor did not claim preferential right on the basis of tenancy. Objection raised by defendant. Collector returned the plaint to plaintiff for presenting the same before Civil Court. Plaintiff filed it in civil court after more than two years from sale of land in dispute. Whether plaintiff was entitled to concession of S. 14 by excluding period spent in proceedings before Collector. Provisions of S. 14 would only be satisfied if plaintiff could show that there was some confusion about the state of law which occasioned filing of suit before a wrong forum. The mistake of a counsel was by itself not to be a ground for condoning the delay. No material produced before the courts below on the basis of which they hold that there was general state of confusion about law applicable while filing the suit before Rev. Court.  P.L.J.1996 Lah. 1468 = 1996 MLD 747.

 

Essentials for condoning delay explained and illustrated.  P.L.J. 2002 SC 49  1975 SCMR 259; PLD 1977 SC 102; PLD 1993 SC 385; 1984 SCMR 890; 1068; 1985 SCMR 333; 1988 SCMR 2; PLD 1991 SC 102, 957; PLD 1992 SC 424; 1995 SCMR 584; 1998 SCMR 2296; PLD 2000 SC 94 ref.

 

Exclusion of time of proceeding bona fide in Court without  jurisdiction :– Although appeal had been filed by appellant before District Judge on account of mistaken  advice of counsel yet the conduct and act of District Judge and its office in entertaining appeals in earlier round when appeal was filed by respondents and then when the appeal was filed by appellant and District Judge deciding appeals on both occasions on merits and not noting or raising question of maintainability and respondents conduct on both occasions were also factors which led to appellant in filing appeal before District Judge and pursuing the same there. Such facts and circumstances together constitute case of sufficient cause as per terms of S. 5, Limitations Act 1908. Appeal filed by appellant before High Court was, thus, not liable to be rejected on ground of’ limitation. Case was remanded to High Court for disposal of appeal on merits. PLJ 2000 SC 200 = PLD 2000 SC 94.

 

Exclution of time under Section 14 :— Judgment and decree passed by District Judge was appealable and revision before -High Court was not competent U/S. 115 CPC. Learned Single Judge decided same -as appeal and condoned delay in filing appeal. Time prescribed for filing appeal was 90 days under Article 156 of Limitation Act. Appeal was admittedly barred by 203 days. Prosecution of review petition before District Judge and time spent therefor could not be excluded under Section 14 of Limitation Act. Discretion exercised by learned Single Judge in condoning delay was contrary to settled legal position and result of misreading record, which was rightly interfered with by D.B. of Lah. High Court. PLJ 1995 SC 598 = PLD 1995 SC 472.. Appeal against legality of judgment delivered in revision by High Court on 23.9.1992 and also the judgment dated 5,4.1993 passed in review. Appeal against basic order passed in revision was clearly time barred- Appellant whether entitled to benefit under S. 14, Limitation act in computing period of limitation. Appellants, plea that time spent in prosecuting review petition be excluded from computing period of limitation was not warranted. Appellants submission that he would no press against basic order dismissing revision petition would not advance his case at present point of time as said order would be a hurdle in way of appellant to get required relief as by efflux of time that (order in revision) had attained finality. PLJ 2000 SC 212 = PLD 2000 SC 63. Question of pecuniary jurisdiction and trial by a wrong forum would amount to technical error justifying benefit of S.14, Limitation Act, 1908 to be extended to affected litigant-Plaintiff alone being not responsible for pursuing his remedy in wrong Court but defendant and Court equally were responsible for continuation of lis in wrong forum, plaintiff would be entitled to benefits of S.14, Limitation Act, 1908. 1997 C L C 768  Appellant-plaintiff filing his first appeal before District Judge which was returned for presentation to proper forum-Appellant faced with a curious order passed by trial Court which placed him in a fix and he remained in hands of Advocate who was under a bona fide mistake of law qua value of suit and determination of forum of appeal which point was not free from difficulty-Delay condoned in circumstances. 1986 C L C 126 Appellant was pursuing his remedy diligently and some points of law are involved in his case. In the interest of Justice delay condoned by computing period spent in High Court. Moreover, limitation is not pressed by respondents as well.  P.L.J.1996 Tr.C. (Services) 142 =  1995 PLC (C.S.) 1207. It has been well settled that provisions of S. 14 cannot be invoked for seeking condonation of delay, in filing appeal. However, Section 5 of Limitation Act, can be invoked for said purpose, if sufficient cause is shown in perusing wrong remedy.    P.L.J.1999 Qta. 77 = PLD 1999 Qta. 3

 

Filing of appeal in wrong forum. Provisions of Section 5 and 14 of Limitation Act 1908, whether attracted. Sufficient cause. Connotation. Sufficient cause would differ from case to case and any action taken on advice by the counsel against any clear provision of law would not entitle the party to seek condonation of delay on the ground that he had acted bonafide on such advice. Where both the parties were legal heirs of deceased and appellant, in order to deprive respondents, took various steps to prolong the proceedings they were not entitled to claim condonation of delay for filing appeal in wrong forum. Appellant, having contested appeal emanating out of /is between them, after judgment of the same it had become clear that appeal arising from judgment of Trial Court was to be preferred before High Court and not the District Court. Appellant having filed appeal before District Court instead of High Court were adamant to claim that they had properly filed the same they were thus not entitled to’ claim condonation of delay in filing appeal in wrong forum and the time spent therein. Deliberate assertion of a plea, which to their knowledge was illegal/improper, could not be treated as sufficient cause for condonation of delay. Sufficient cause for delay having not been shown, appeal of appellants was rightly dismissed by the High Court.PLJ  2001 SC 248 = PLD 2001 SC 355.

 

Period consumed during proceedings before Wafaqi Mohtasib or before President of Pakistan:– Plaintiff after dismissal of his claim for recovery of amount of damage by defendant, instead of filing suit approached Wafaqai Mohtasib who accepting claim of plaintiff directed defendant to pay amount of damage to plaintiff. President of Pakistan, on appeal, set aside order of Wafaqi Mohtasib. Plaintiff filed suit for damages and permanent injunction after about 3 years and 10 months from dismissal of his claim by defendants. Plaintiff claimed that period spent in proceeding before Wafaqi Mohtasib should have been excluded. Period consumed during proceedings before Wafaqi Mohtasib or before President of Pakistan could not be excluded as provided under S. 14 of Limitation Act, 1908, because proceedings before Wafaqi Mohtasib and President of Pakistan did not constitute “civil proceedings”. In absence of any legal disability of plaintiff for not brining suit within time, suit was dismissed being barred by time.  P.L.J.1999 Kar. 587 = 1999 CLC 364 = NLR 1999 Civil 266.

 

Sufficient cause. Notwithstanding the fact that S. 14, limitation Act, 1908, in term, does not apply to proceedings of an appeal, if appellant is able to establish that he followed remedy before a wrong forum in good faith, the Court may condone such delay in filing of appeal treating same as “sufficient cause” under S. 5, Limitation Act, 1908. As to what would constitute “sufficient cause” in such cases would depend on facts and circumstances of each case. PLJ 1999 SC 208 = 1998 SCMR 2296.

 

Suit for specific performance of contract. Whether action for specific performance. initiated by petitioner was within time. Parties agree that Art. 113 in Schedule to Limitation Act applies to action/suit. Period of limitation prescribed is three years from time fixed for performance of agreement or if no such date is fixed from date when plaintiff has notice that performance is refused. There are two well known principles with regard to laws of limitation. Firstly, that laws of limitation take away right of parties and so these laws must be liberally construed and without doing any offence to intents of legislature. Secondly, when there is doubt in construction of relevant clause, benefit should be given to plaintiff. Refusal of defendant to perform contract must be clear unequivocal and unconditional for the purpose of starting period of limitation. It’is quite clear that petitioner had earlier filed suit for grant of mandatory and perpetual injunction on the basis of agreement to sell aforesaid suit was found incompetent and dismissed; Trial Court, while doing so.did not render its findings on issues relating to merits of claims of parties petitioner initiated action for specific performance after expiry of four days of that date; suit was brought on same cause of action and was between same parties. Suit/ action fell within ambit of Section 14 of Limitation Act and so was well within time.  PLJ 1998 Lah. 1000 = 1998 CLC 900.

 

Where Party and Court equally were responsible for continuation of lis in wrong forum:– Question of pecuniary Jurisdiction and trial by a wrong forum would amount to technical error Justifying benefit of S.14, Limitation Act, 1908 to be extended to affected litigant-Plaintiff alone being not responsible for pursuing his remedy in wrong Court but defendant and Court equally were responsible for continuation of lis in wrong forum, plaintiff would be entitled to benefits of S.14, Limitation Act, 1908. 1997 C L C 768

 

Whether relief could be extended to petitions :– During pendency of Constitutional petition of employees of Board of Secondary Education Kar., declaring employees of Corporation to be Civil Servants. Whether relief envisaged in S. 14 of Limitation Act could be extended to petitions. Section 14 of Limitation Act, even as it stands, would not have applied to cater relief in present category of cases. Section 14 extends rehefronly when suit or application is delayed because of pursuing another remedy in another forum, not having Jurisdiction, inspite of diligence and bonafides of pursuit. By definition in Limitation Act itself, suit does not include appeal to which (before Tribunal), thus, benefit cannot be extended. Even so, because section 5 of Limitation Act applies, principle in section 14 of Act can be resorted to for seeking condonation, if delay occurs.. Thus, if petitions were to encounter plea of bar on ground of limitation, they may, even fall back on broad rule in section 14 of Limitation Act, which would apply to their case much as section 5 of same Act should on parity of reasoning and even under Sindh Service Tribunals (Amendment) Act, XXXI of 1994. Petitions dismissed leaving petitioners to pursue such other remedies as he available to them under law.  P.L.J.1997 Kar. 627 = 1997PLC (C.S.) 1158.

 

Whether relief could be extended to petitions. Section 14 of Limitation Act, even as it stands, would not have applied to cater relief in present category of cases. Section 14 extends only when suit or application is delayed because of pursuing another remedy in another forum, not having jurisdiction, in-spite of diligence and bona-fides of pursuit. By definition in Limitation Act itself, suit does not include appeal to which (before Tribunal), thus, benefit cannot be extended. Even so, because section 5 of Limitation Act applies, principle in section 14 of Act can be resorted to for seeking condonation, if delay occurs.. Thus, if petitions were to encounter plea of bar on ground of limitation, they may, even fall back on broad rule in section 14 of Limitation Act, which would apply to their case much as section 5 of same Act should on parity of reasoning and even under Sindh Service Tribunals (Amendment) Act, XXXI of 1994. Petitions dismissed leaving petitioners to pursue such other remedies as  available to them under law. PLJ 1997 Kar. 627 = 1997PLC (C.S.) 1158

 

Whether time spent in wrong forum is extendable. Bare perusal of Section 14 marks it manifestly clear that time spent in pursuing remedy in a wrong appellate forum cannot be condoned. This section can be pressed, into service only where suit was pursued in a wrong forum. Civil Judge admittedly assumed Jurisdiction under Civil Courts Ordinance, Section 18 whereof provides that appeals having valuation exceeding Rs. 50,000/Shall be instituted before High Court. Argument raised by appellants is not acceptable.  P.L.J.1994 Qta. 32 = PLD1994 Qta. 88.

1) In  computing the period of limitation prescribed for any suit or  application for the execution of a decree, the institution or  execution of which has been stayed by injunction or order, the time of  the continuance of the injunction or order, the day on which it was  issued or made, and the day on which it was withdrawn, shall be  excluded. 

 

(2)        In computing the period of limitation prescribed for any suit of  which notice has been given in accordance with the requirements of any  enactment for the time being in force, the period of such notice shall  be excluded

In computing the period of limitation prescribed  for a suit for possession by a purchaser at a sale in execution of a  decree, the time during which a proceeding to set aside the sale has  been prosecuted shall be excluded. 

1) Where a person, who would, if he were living, have a right to institute a suit or make  an application, dies before the right accrues, the period of  limitation shall be computed from the time when there is a legal  representative of the decreased capable of instituting or making such  suit or application. 

 

(2)        Where a person against whom, if he were living, a right to  institute a suit or make an application would have accrued dies before  the right accrues, the period of limitation shall be computed from the  time when there is a legal representative of the decreased against  whom the plaintiff may institute or make such suit or application. 

 

(3)        Nothing in subsections (1) and (2) applies to suits to enforce rights  of pre-emption or to suits for the possession of immovable property or  of an hereditary office. 

Where any person having a right to institute a  suit or make an application has, by means of fraud, been kept from the  knowledge of such right or of the title on which it is founded. 

or where any document necessary to establish such right has been  fraudulently concealed from him. 

the time limited for instituting a suit or making an application— 

(a)        against the person guilty of the fraud or accessory thereto, or 

 

(b)        against any person claiming through him otherwise than in good  faith and for a valuable consideration, 

shall be computed from the time when the fraud first became known to  the person injuriously affected thereby, or, in the case of the  concealed document, when he first had the means of producing it or  compelling its production. 

1) Where, before the  expiration of the period prescribed for a suit or application in  respect of any property or right, an acknowledgment of liability in  respect of such property or right has been made in writing signed by  the party against whom such property or right is claimed, or by some  person through whom he derives title or liability, a fresh period of  limitation shall be computed from the time when the acknowledgment was  so signed. 

 

(2)        Where the writing containing the acknowledgment is undated; oral  evidence may be given of the time when it was signed; but, subject to  the provisions of the Evidence Act, 1872, oral evidence of its  contents shall not be received. 

 

Explanation I.—For the purposes of this section an acknowledgment  may be sufficient though it omits to specify the exact nature of the  property or right, or avers that the time for payment, delivery,  performance or enjoyment has not yet come, or is accompanied by a  refusal to pay, deliver, perform or permit to enjoy, or is coupled  with a claim to a set-off, or is addressed to a person other than the  person entitled to the property or right. 

 

Explanation II.—For the purposes of this section, “signed” means  signed either personally or by an agent duly authorised in this  behalf. 

 

Explanation III.—For the purposes of this section an application for  the execution of a decree or order is an application in respect of a  right. 

 

Court Decisions

 

Acknowledgment giving fresh start to the period of limitation :– Such acknowledgment must be made within the period of limitation. PLD 2002 Pesh. 1  Whether transfer of mortgagees’ rights from time to time would fall within purview of S. 19 of Limitation Act, 1908 (acknowledgment), so as to give fresh start of period of limitation in a suit for redemption. PLD 2003 SC 425  Where Mortgage of land in question, through mutation attested in 1908. Subsequent mortgage was effected in 1934. Mortgagee rights having been transferred, subsequent mortgagee of 1934 would be. deemed to acknowledge mortgage and accepting liability and right of redemption of mortgagor to redeem mortgage in fresh period of limitation after acknowledgment. Appellate Court had rightly found that period of limitation would be reckoned from 27.9.1934 and not from date of original mortgage. Impugned judgment and decree being based on correct appreciation of evidence on record and law on subject,. PLJ 1999 Pesh. 40 =‘ 1999 CLC 346.

 

Transaction of landed property through oral mutation—Provision of S. 42, West Pakistan Land Revenue Act, 1967, does not require the signatures upon the mutation either of transferor or the transferee—Such mutation does constitute acknowledgement within meaning of S. 19, Limitation Act, 1908. PLD 2003 SC 235

 

Suit for mortgaged land by prescription— Trial Court dismissed suit, but Appellate court decreed the suit—High court dismissed suit in revision filed by defendants. suit had been filed on 28-5-1979, thus, same would not be affected by judgment passed in Maqbool Ahmed’s case 1991 SCMR 2063—Appellants’ predecessor-in-interest by acquiring mortgagee rights from earlier mortgagee through mutation attested on 2-3-1962 had entered into a fresh agreement with predecessor-in-interest of appellants had acquired rights of mortgagee—Appellants could not claim themselves to be owner of mortgagee—Appellants could not claim themselves to be owner of land by prescription according to S. 28 of Limitation Act, 1908 from the date of acquiring of such rights till expiry of period of sixty years under Art. 148 of the said act—Supreme Court dismissed the appeal. PLD 2003 SC 425

1) Where payment on account of a debt or of interest on a legacy  is made before the expiration of the prescribed period by the person  liable to pay the debt or legacy, or by his duly authorised agent, a  fresh period of limitation shall be computed from the time when the  payment was made:] 

 

(2)        Effect of receipt of produce of mortgaged land.—Where mortgaged  land is in the possession of the mortgagee, the receipt of the rent or  produce of such land shall be deemed to be a payment for the purpose  of subsection (1). 

Explanation.—Debt includes money payable under a decree or order of  Court. 

 

Court Decisions

 

Redemption of mortgage:— Limitation—Payment of rent or interest by mortgagee to mortgagor could not only be considered extension in limitation for recovery of such amount, but simultaneously such acknowledgment would also be considered extension in period of limitation for instituting proceedings for redemption of mortgaged property. PLD 2003 SC 425

 

Recovery of money. Whether suit is time-barred or limitation was extended by part payment. Section 20 does not prescribe any particular mode of payment. Deceased defendant deposited in his account a cheque dated 19.10.1973, issued by Central Cotton Mills Ltd., in his name, with endorsement on it. He wrote letters dated 8.1.1974 and 18.3.1974 acknowledging his liability and made another part payment by a cheque dated 3.11.1975 in same manner. Period of limitation stood extended up to 3.11.1978 and it being Friday, suit filed on 4.11.1978 is within time. Suit decreed.  P.L.J.1994 Kar. 208 == PLD 1994 Kar. 248.

1) The expression “agent duly  authorised in his behalf,” in sections 19 and 20, shall, in the case  of a person under disability include his lawful guardian, committee,  or manager or a agent duly authorised by such guardian, committee or  manager to sign the acknowledgment or make the payment. 

 

(2)        Acknowledgment or payment by one of several joint contractors,  etc.—Nothing in the said section renders one of several joint  contractors, partners, executors or mortgagees chargeable by reason  only of a written acknowledgment signed or of a payment made by or by  the agent of, any other or others of them. 

 

(3)        For the purposes of the said sections— 

(a)        an acknowledgment signed, or a payment made, in respect of any  liability, by, or by the duly authorised agent of, any widow or other  limited owner of property who is governed by the Hindu law, shall be a  valid acknowledgment or payment, as the case may be, as against a  reversioner succeeding to such liability; and 

 

(b)        where a liability has been incurred by, or on behalf, of, a Hindu  undivided family as such, an acknowledgment or, payment made by, or by  the duly authorised agent of, the manager of the family for the time  being shall be deemed to have been made on behalf of the whole  family.

1)  Where after the institution of a suit, a new plaintiff of defendant is  substituted or added, the suit shall, as regards him, be deemed to  have been instituted when he was so made a party. 

 

(2)        Nothing in subsection (1) shall apply to a case where a party is  added or substituted owing to an assignment or devolution of any  interest during the pendency of a suit or where a plaintiff is made a  defendant or a defendant is made a plaintiff. 

 

Court Decisions

 

Effect of substituting or adding new plaintiff or defendant :–  Act only applies where a new defendant is substituted or added. A person already a defendant but his description as a minor is not given and sought to be corrected later, he does not become a new party hence section 22 of Limitation Act is not applicable. Similarly if a minor defendant attains majority during pendency of suit, the suit would not be deemed to be filed’ against him. Question of appointment of Guardian ad-litem must come after institution of suit. PLJ 1997 SC 120 = 1997 SCMR 134.

 

Impleading of party during pendency of appeal:– If party is added to suit which has already been instituted, then as regards newly added partly suit shall be deemed to have been instituted when it was so made party. Here in this case, it is not suit but appeal to which respondent No. 3 was added at instance of appellant after period of limitation. Order 41, Rule 20 of Civil Procedure Code empowers appellate court to direct that man who ought to be party in appeal to be made respondent. Rule 10 of Order 1, C.P.C. when had with Section 107 C.P.C. is applicable also to appeal. Order 1, rule 10 of . C.P.C. which empowers court to add person as party who ought to have been Joined or whose presense before court is necessary in order to enable court to adjudicate effectually and completely upon all questions involved in suit. According to Section 107 C.P.C. appellate court shall have same powers and to perform same duties as are conferred and imposed by C.P.C. on courts of original Jurisdiction in respect of suits. By reading these provisions together, then appellate court can add party to appear, if necessary. Court even otherwise, has got sufficient powers under S. 151 C.P.C. to add any party to appeal. Respondent No. 3, has been impleaded when period of limitation has rule out for filing appeal but that would be of no consequence in view of its subsequent impleadment in appeal. Provisions of S, 22 of Limitation Act are not applicable to appeals.  P.L.J.1997 Pesh. 120 = 1997 CLC 1046 = NLR 1997 Civil 490.

In the case of continuing breach  of contract and in the case of a continuing wrong independent of  contract, a fresh period of limitation begins to run at every moment  of the time during which the breach or the wrong, as the case may be,  continues. 

In case of a suit for compensation for an act which does not  give rise to a cause of action unless some specific injury actually  results therefrom, the period of limitation shall be computed from the  time when the injury results.

 

Illustration

A owns the surface of a field. B owns the sub-soil, B digs coal thereout without causing any immediate apparent injury to the surface but at last the surface subsides. The period limitation in the case of a suit by A against B runs from the time of the subsidence.

All instruments shall, for the purposes of this Act, be deemed to be made with reference to the Gregorian calendar.

Illustrations

(a)        A Hindu makes a promissory note bearing a Native date only, and payable four months after date. The period of limitation applicable to a suit on the note runs from the expiration of four months after date computed according to the Gregorian calendar.

 

(b)        A Hindu makes a bond, bearing a Native date only for the repayment of money within one year. The period of limitation applicable to a suit on the bond runs from the expiration of one year after date computed according to the Gregorian calendar.

1) Where the access and use  of light or air to and for any building have been peaceably enjoyed  therewith as an easement, and as of right, without interruption, 

and  for twenty years, and where any way or watercourse, or the use of any water, or any  other easement (whether affirmative or negative) has been peaceably  any openly enjoyed by any person claiming title thereto as an easement  and as of right without interruption, and for twenty years,

the right to such access and use of light or air, way, watercourse,  use of water, or other easement shall be absolute and indefeasible. 

 

Each of the said periods of twenty years shall be taken to be a period  ending within two years next before the institution of the suit  wherein the claim to which such period relates is contested. 

 

(2)        Where the property over which a right is claimed under subsection  (1) belongs to [the Government], that subsection shall be read as  if for the words “twenty years” the words “sixty years” were  substituted. 

Explanation.—Nothing is an interruption within the meaning of this  section, unless where there is an actual discontinuance of the  possession or enjoyment by reason of an obstruction by the act of some  person other than the claimant, and unless such obstruction is  submitted to or acquiesced in for one year after the claimant has  notice thereof and of the person making or authorising the same to be  made. 

 

Illustrations

(a)        A suit is brought in 1911 for obstructing a right of way. The defendant admits the obstruction but denies the right-of-way. The plaintiff proves that the right was peaceable and openly enjoyed by him, claiming title thereto as an easement and as of right, without interruption from 1st January, 1890 to 1st January, 1910. The plaintiff is entitled to judgment.

 

(b)        In a like suit the plaintiff shows that the right was peaceably and openly enjoyed by him for twenty years. The defendant proves that the plaintiff, on one occasion during the twenty years, had asked his leave to enjoy the right. The suit shall be dismissed.

Where  any land or water upon, over or from which any easement has been  enjoyed or derived has been held under or by virtue of the interest  for life or any term of years exceeding three years from the granting  thereof, the time of the enjoyment of such easement during the  continuance of such interest or term shall be excluded in the  computation of the period of twenty years in case the claim is, within  three years next after the determination of such interest or term,  resisted by the person entitled, on such determination, to the said  land or water.

 

Illustration
A sues for a declaration that he is entitled to a right of way over B’s land. A proves that he has enjoyed the right for twenty-five years; but B shows that during ten of these years C, a Hindu widow, had a life interest in the land, that on C’s death B became entitled to the land, and that within two years after C’s death he contested A’s claim to the right. The suit must be dismissed, as A, with reference to the provisions of this section has only proved enjoyment for fifteen years.

At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.

 

Court Decisions

 

Repugnancy to Injunctions of Islam—Provision of S. 28, Limitation Act, 1908 was declared to be repugnant to injunctions of Islam by the Supreme Court. PLD 2003 SC 650

 

            Extinguishment of right to property:– Claim of adverse possession of property in question for the last 42/45 years and that his possession was undisturbed, un-interrupted, hostile, open and adverse. S. 28 of Limitation Act, 1908, ‘was declared repugnant to injunctions of Islam in so far as the same provided for extinguishment of right in property at the determination of period prescribed for instituting suit for possession of property, by S.C  in Maqbool Ahmed’s, case reported as 1991 SCMR 2063 and that decision was to take effect from 31.8.1991, where after, the same would cease to have effect. S. 28 and Art. 144 of Limitation Act, 1908 having been omitted from statute by Act II of 1995, Appellate Court was not justified by observing that suit was barred by time as no limitation runs because of omission of S. 28 and Art. 144 of Limitation Act, 1908. Case was remanded to Appellate Court for decision afresh in accordance with law. PLJ 2000 Qta. 23 = PLD 2000 Quettd 61. Limitation Act bars remedy for execution of decree but does not extinguish right or title based on decree. Where an application for execution of decree’for possession had become barred by limitation it did not ipso facto extinguish right and title of respondent in respect of property.   P.L.J.1999 Lah. 503 = PLD 1998 Lah. 548.

 

            Res Judicata. Application U/S. 11 CPC against Acceptance of. Revision against. Previous suit was filed by Aurangzeb who is a proforma defendant in present case for whom relief of prescription is also sought by present petitioners/plaintiffs. Parties are litigating under same title. Present petitioners are proforma defendants in previous suit. Matter is fully hit by Section 11 of CPC. By passage of about eight years present petitioners have rejuvinated cause of action by bringing about a change only in name of plaintiffs and by substituting plaintiffs and proforma defendants for each other. Both Courts below have rightly given a decision that present suit is barred as res-Judicata.  P.L.J. 2000 Pesh. 46.

 

        Plaint–Court-fee.Unless required amount of Court Fee chargeable on document (which term includes plaint also) as was indicated in schedules, was not paid, it shall not be taken to be of any validity Such rule however, does not lead to a necessary corollary that the plaint which was not adequately stamped was not a ‘proper plaint’ at all in the eyes .of law and further that for the limitation purposes suit shall be deemed to have been instituted only when proper and required Court Fee was paid on it. 1987 C L C 2428  P L D 1984 SC 289 ref.

 

Adverse possession, – Provisions of Art. 144 of Limitation Act, 1908, would not be attracted in view of non-availability of plea of adverse possession – Where the case was of dispossession, provisions of Art. 142 of Limitation Act. 1908, would be attracted – Dispossession must be proved from the immovable property within 12 years preceding the date of suit. PLD 2001 Lah.390  PLD 1996 Central Statutes 1296; 1991 SCMR 2063 and 1987 SCMR 1791 ref.

1) Nothing in this Act shall affect section 25 of  the Contract Act, 1872. 

 

(2)        Where any special or local law prescribes for any suit, appeal or  application a period of limitation different from the period  prescribed therefore by the First Schedule, the provisions of section 3  shall apply, as if such period were prescribed therefore in that  Schedule, and for the purpose of determining any period of limitation  prescribed for any suit, appeal or application by any special or local  law— 

(a)        the provisions contained in section 4, sections 9 to 18, and  section 22 shall apply only in so far as, and to the extent to which,  they are not expressly excluded by such special or local law; and 

 

(b)        the remaining provisions of the Act shall not apply. 

 

(3)        Nothing in this Act shall apply to suits under the Divorce Act. 

 

(4)        Sections 26 and 27 and the definition of “easement” in section  2 shall not apply to cases arising in territories to which the  Easements Act, 1882, may for the time being extend

 

Replead

THE

FIRST SCHEDULE
 (See section 3)

FIRST DIVISION : SUITS

  

                                     Part I —- Thirty days

 

To contest an award of  the Board or Revenue under the Waste Lands (Claims)  Act, 1863

Thirty days

When notice of the award is delivered to the plaintiff.

 

Part II.—Six months

 

 

For compensation or doing or for omitting to do an act  alleged to be in pursuance of any  enactment in force  for the time being  in [Pakistan].

Ninety days

When the act or  omission takes place

 

Part III.—Six months

 

Part IV —One Year

 

Part V.—Two Years

 

32.	Against one who, having a right to use property for specific  purposes, perverts it to other purposes.	Two years	When the perversion first becomes known to the person injured thereby.
33.	Under the Legal Representatives’ Suits Act, 1855, against an executor.	Two years	When the wrong complained  of  is done.
34.	Under the same Act against an administrator.	Two years	-Ditto-
35.	Under the same Act against any other representative.	Two years	-Ditto-
36.	For compensation for  any malfeasance misfeasance or non-feasance independent of contract and not herein specially provided for.	Two years	When the malfeasance, misfeasance or nonfeasance takes place.
	PART VI.—	Three Years
37.	For compensation for obstructing a way for a watercourse.	Three years	The date of the obstruction.
38.	For compensation for diverting a watercourse.	Three years	The date of the diversion
39.	For compensation for   trespass upon immovable property.	Three years	The date of trespass.
40.	For compensation for  infringing copyright or any other exclusive privilege.	Three years	The date of the  infringement.
41.	To restrain waste.	Three years	When the waste begins.
42.	For compensation for injury caused by an injunction wrongfully obtained.	Three years	When the injunction ceases.
43.	Under the  [Succession Act, 1925,  section 360 or section 361,] by a person to whom an executor or administrator  has paid a legacy or distributed assets.	Three years	The date of the payment or distribution
44.	By a ward who has attained majority, to set aside a transfer of property by his guardian.	Three years	When the ward attains majority.
45 46	Omitted
47.	By any person bound by an order respecting the possession of immovable property made under the Code of Criminal Procedure Code, 1898,  or by any one  claiming under such person,  to recover the property comprised in such order.	Three years	The date of the final  order in the case
48.	For specific movable property lost or acquired by theft, or dishonest misappropriation or conversion, or for compensation for wrongfully taking or detaining the same.	Three years	When the person having the right to the  possession of the property first learns in whose possession it it is
48-A	To recover movable property conveyed or bequeathed in trust, deposited or pawned, and afterwards bought from the trustee, depository or pawnee for a valuable consideration.	Three years	When the same becomes known to the plaintiff.
48-B	To set aside sale of movable property comprised in a Hindu, Muhammadan or Buddhist religious or charitable endowment made by a manager thereof for a valuable consideration.	Three years	When the sale becomes known to the plaintiff]
49	For other specific movable property, or for compensation for wrongfully taking or injuring or wrongfully detaining the same.	Three years	When the property is wrongfully taken or injured, or when the detainer’s possession  becomes unlawful.
50.	For the hire of animals, vehicles, boats or household furniture.	Three years	When the hire becomes payable.
51.	For the balance of  money advanced in payment of goods to be delivered.	Three years	When the goods ought to be delivered.
52.	For the price of goods sold and delivered, where no fixed period of credit is agreed upon.	Three years	The date of the delivery of the goods.
53.	For the price of    goods sold and delivered to be paid for after the expiry  of a fixed period of credit.	Three years	When the period of credit expires.
54.	For the price of goods sold and delivered  to be paid for by a bill of exchange, no such bill being given	Three years	When the period of the proposed bill elapses
55.	For the price of trees or growing crops sold by the plaintiff to the defendant where no fixed period of credit is agreed upon.	Three years	The date of the sale.
56.	For the price of work done by the  plaintiff for the  defendant at his request,  where no time has been  fixed for payment.	Three years	When the work is done.
57.	For money payable      for money lent	Three years	When the loan is made
58.	Like suit when the lender has given a cheque for the money.	Three years	When the cheque is paid
59.	For money lent under an agreement that it shall be payable on demand.	Three years	When the loan is made.
60.	For money deposited under an agreement that it shall be payable on demand including money of a customer in the hands of his banker so payable.	Three years	When the demand is made.
61.	For money payable to the plaintiff for money paid for the defendant.	Three years	When the money is paid.
62.	For money payable by the defendant to the plaintiff for money received by the defendant for the plaintiff’s use.	Three years	When the money is received.
63.	For money payable for interest upon money   due from the defendant to the plaintiff.	Three years	When the interest becomes due.
64.	For money payable to the plaintiff for   money found to be due from the defendant to the plaintiff on accounts stated between them.	Three years	When the accounts are stated  in writing signed by the defendant or his agent duly authorized in  this behalf, unless where  the debt is, by a simultaneous agreement in writing signed as aforesaid, made payable   at a future time, and  then when that time arrives.
64A	Under Order XXXVII  of the Code of Civil Procedure.	Three years	When the debt becomes payable.
65.	For compensation for breach of a promise to do anything at a specified time, or upon the happening of a specified contingency.	Three years	When the time specified arrives or the contingency happens.
66.	On a single bond where a day is specified for payment.	Three years	The day so specified.
67	On a single bond where no such day is  specified.	Three years	The date of executing the bond.
68.	On a bond subject to a condition.	Three years	When the condition is broken.
69.	On a bill of exchange or promissory note payable at a fixed time after date.	Three years	When the bill or note falls due.
70.	On a bill of  exchange payable at sight or after sight, but not at a fixed time.	Three years	When the bill is presented.
71.	On a bill of exchange accepted payable at a particular place.	Three years	When the bill is  presented at that place.
72.	On a bill of exchange or promissory note payable at a fixedtime after sight or after demand.	Three years	When the fixed time  expires.]
73.	On a bill of  exchange or promissory note payable on demand and not accompanied by any writing restraining or postponing the right to sue.	Three years	The date of the bill or note.
74.	On a promissory note or bond payable by   instalments.	Three years	The expiration of the first term of payment as to the part then payable; and for the other parts the expiration of the respective terms of payment.
75.	On a promissory note or bond payable by instalment, which provides that if default be made in payment of one or more instalments, the whole shall be due.	Three years	When the default is made, unless where the payee or obligee waives the benefit of the provision, and then when fresh default is made in respect of which there is no such waiver
76.	On a promissory note given by the maker to a third person to be delivered to the payee after a certain event should happen.	Three years	The date of the delivery to the payee.
77.	On a dishonoured foreign bill where protest has been made and notice given.	Three years	When the notice is given.
78.	By the payee  against the drawer of a bill of exchange which has been dishonoured by non-acceptance.	Three years	The date of the refusal to accept.
79.	By the acceptorof an accommodation bill against the drawer.	Three years	When the acceptor pays the amount of the bill.
80.	Suit on a bill of exchange, promissory note, or bond not herein expressly provided for	Three years	When the bill, note or bond becomes payable.
81.	By a surety against the principal debtor.	Three years	When the surety pays the creditor.
82.	By a surety against a co-surety.	Three years	When the surety pays anything in excess of his own share.
83.	Upon any other contract to indemnify.	Three years	When the plaintiff is actually damnified.
84.	By an attorney or vakil for his costs of a suit or a particular business, there being no express agreement as to the time when such costs are to be paid.	Three years	The date of the termination of the suit or business, or (where the attorney or vakil properly discontinues  the suit or business) the date of such  discontinuance.
85.	For the balance due on a mutual, open and current account, where there have been reciprocal demands between the parties.	Three years	The close of the years in which the last item admitted or proved is  entered in the account; such year to be computed as in the account.
86.	[(a) On a policy of insurance when the sum insured is payable after proof of the death has been given to or received by the insurers.	Three years	(a) The date of the death of the deceased.
	(b) On a policy of insurance when the sum  insured is payable after proof of the loss has been given to or received by the insurers).	Three years	(b) The date of the occurrence causing the loss.]
87.	By the assured recover premium paid under a policy voidable at the election of the insurers.	Three years	When the insurers elect to avoid the policy.
88.	Against a factor for an account.	Three years	When the account is, during the continuance of the agency, demanded and refused or, where no such demand is made, when the agency terminates.
89.	By a principal against his agent for movable property received by the latter and not accounted for.	Three years	Ditto
90.	Other suits by principals against agents  for neglect or misconduct.	Three years	When the neglect or misconduct becomes known to the plaintiff.
91.	To cancel or set aside an instrument not otherwise provided for.	Three years	When the facts entitling the plaintiff to have the instrument cancelled or set aside become known to him.
92.	To declare the forgery of an instrument  issued or registered.	Three years	When the issue or registration becomes known to the plaintiff.
93.	The declare the forgery of an instrument attempted to be enforced against the plaintiff.	Three years	The date of the attempt.
94.	For property which the plaintiff has conveyed while insane.	Three years	When the plaintiff is restored to sanity, and  has knowledge of the conveyance.
95.	To set aside a  decree obtained by fraud, or for other relief on the ground of fraud.	Three years	When the fraud becomes known to the party wronged.
96.	For relief on the ground of mistake.	Three years	When the mistake becomes known to the plaintiff.
97	For money paid  upon an existing  consideration which afterwards fails.	Three years	The date of the failure.
98.	To make good out of the general estate of a deceased trustee the loss occasioned by a breach of trust.	Three years	The date of the trustee’s death, or, if the loss  has not then resulted the date of the loss.
99.	For contribution by a party who has paid  the whole or more than his share of the amount due under a joint decree, or by a sharer in a joint  estate who has paid the  whole or more than his  share of the amount of  revenue due from himself and his co-shares.	Three years	The date of the payment  in excess of the  plaintiff’s own share.
100.	By a co-trustee to enforce against the estate of the deceased  trustee a claim for  contribution.	Three years	When the right to contribution accrues.
101	For a seaman’s wages.	Three years	The end of the voyage during which the wages are earned.
102.	For wages not otherwise expressly provided for by this  Schedule.	Three years	When the wages accrue due
103.	By [Muslim] for exigible dower (mu ajjal).(where, during the continuance of the marriage no such demand  has been made) when the  marriage is dissolved  by death or divorce.	Three years	When the dower is demanded and refused or
104.	By a [Muslim] for deferred dower  (muajjal).	Three years	When the marriage is  dissolved by death or divorce.
105.	By a mortgagor after the mortgage has been satisfied, to recovery surplus  collections received  by the mortgagee.	Three years	When the mortgagor re-enters on the   mortgaged property.
106.	For an account and a share of the profits of a dissolved  partnership.	Three years	The date of the dissolution.
107.	By the manager of a joint estate of an undivided family for contribution, in respect of a payment made by him on account of the estate.	Three years	The date of the payment.
108.	By a lessor for the value of trees cut down by his lessee  contrary to the terms  of the lease.	Three years	When the trees are cut down.
109.	For the profits of   immovable property belonging to the plaintiff which have been wrongfully received by the defendant.	Three years	When the profits are received.
110.	For arrears of rent.	Three years	When the arrears become due.
111.	By a vendor of immovable property for personal payment of unpaid purchase-money.	Three years	The time fixed for completing the sale, or (where the title is accepted after the time  fixed for completion) the date of the acceptance.
112.	For a call by a company registered under any Statute or Act.	Three years	When the call is payable.
113.	For specific  performance of a contract.	Three years	The date fixed for the performance, or if no  such date is fixed, when  the plaintiff has notice  that performance is  refused.
114.	For the rescission of a contract.	Three years	When the facts entitling the plaintiff to have the contract rescinded first become known to him.
115.	For compensation for the breach of any contract, express or implied, not in writing registered and not herein specially provided for.	Three years	When the contract is  broken, or (where there are successive breaches) when the breach in  respect of which the suit is instituted occurs, or   (where the breach is  continuing) when it ceases.
	Part VII.—	Six years.
116.	For compensation for the breach of a  contract in writing registered.	Six years	When the period of limitation would begin to run against a suit brought on a similar contract not registered.
117 .	Upon a foreign judgment as defined in the Code of Civil Procedure, 1908.	Six years	The date of the judgment
118.	To obtain a declaration that an alleged adoption is invalid, or never, in fact took place.	Six years	When the alleged adoption becomes known to the plaintiff.
119.	To obtain a declaration that an adoption is valid.	Six years	When the rights of the adopted son, as such are interfered with.
120.	Suit for which no period of limitation is provided elsewhere in this schedule.	Six years	When the right to sue accrues.
	Part VIII.—	Twelve years.
121.	To avoid incumbrances or conclusive. under tenures in an entire estate sold for arrears of Government revenue, or in a patni taluq or other saleable tenure sold for arrears of rent.	Twelve years	When the sale becomes final and conclusive
122.	Upon a judgment obtained in Pakistan or a recognisance.	Twelve years	The date of the judgment or  recognizance.
123.	For a legacy or for a share of a residue  bequeathed by a testator,  or for a distributive share of the property of an intestate.	Twelve years	When the legacy or share becomes payable or deliverable.
124.	For possession of hereditary office	Twelve years	When the defendant takes possession of the office adversely to the Plaintiff.                                 Explanation.—An hereditary office is     possessed when the  profits thereof are   usually received, of  (if there are no profits) when the duties thereof are usually  performed.
125.	Suit during the life of a Hindu or Muslim female by a  Hindu or Muslim who,  if the female died at  the date of instituting  the suit would be entitled to the  possession of land, to  have an alienation of  such land made by the female declared to be void except for her  life or until her  remarriage.	Twelve years	The date of the alienation.
126.	By a Hindu governed by the law of the Mitakshara to set aside his father’s alienation of ancestral property.	Twelve years	When the alienee takes possession of the property
127.	By a person excluded from joint family property to enforce a right to  share therein.	Twelve years	When the exclusion becomes known to the plaintiff.
128.	By a Hindu for arrears of maintenance	Twelve years	When the arrears are payable.
129.	By a Hindu for a declaration of his right to aintenance.	Twelve years	When the right is denied.
130.	For the resumption or assessment of rent- free land.	Twelve years	When the right to resume or assess the land first accrues.
131.	To establish a periodically recurring  right.	Twelve years	When the plaintiff is  first refused the  enjoyment of the right.
132.	To enforce payment of money charged upon immovable property.	Twelve years	When the money sued for becomes due
	Explanation,— For the purposes of this article— (a) the allowance and  fees respectively called malikana and haqqs, and (b) the value of any  agricultural or other produce the right to receive which is  secured by a charge  upon immovable property, and (c) Advances secured by mortgage by deposit  of  title deeds shall be deemed to be money charged upon immovable property.
133	Omitted
134.	To recover possession of immovable property conveyed or  -bequeathed in trust or mortgaged and afterwards transferred by the trustee or mortgagee  for a valuable consideration.	Twelve years	When the transfer becomes known to the plaintiff.
134A	To set aside a transfer of immovable property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment made by a manager thereof for a valuable consideration.	Twelve years	When the transfer becomes known to the plaintiff.
134B	BY the manager of a Hindu, Muslim or Buddhist religious or charitable endowment to recover possession of immovable property comprised in the endowment which has been transferred by previous manager for a valuable  consideration.	Twelve years	The death, resignation or removal of the transferor
134C	By the manager of a Hindu, Muslim or Buddhist religious or charitable endowment to recovery possession of movable property comprised in the endowment which has been sold by a previous manager for a valuable consideration.	Twelve years	The death, resignation or removal of the seller.
135	Suit instituted in a Court other than a High Court by a mortgagee for possession of immovable property mortgaged.	Twelve years	When the mortgagor’s right to possession determines.
136	By a purchaser at a private sale for possession of immovable property sold when the vendor was out of possession at the date of the sale.	Twelve years	When the vendor is first entitled to possession.
137	Like suit by a  purchaser at a sale in execution of a decree when the judgment-debtor was out of possession at the date of the sale.	Twelve years	When the judgment-debtor is first entitled to possession.
138	Like suit by a purchaser at a sale in  execution of a decree  when the judgment-debtor was in possession at the date of the sale.	Twelve years	The date when the sale becomes absolute.
139.	By a landlord to recover possession from a tenant.	Twelve years	When the tenancy is determined.
140.	By a remainderman a reversioner (other than a landlord) or a  devisee for possession  of immovable property.	Twelve years	When his estate falls  into possession.
141.	Like suit by a Hindu or Muslim  entitled to the  possession of immovable  property on the death of a Hindu or Muslim female.	Twelve years	When the female dies.
142.	For possession of immovable property when the plaintiff, while in possession of the property, has been dispossessed or has discontinued the  possession.	Twelve years	The date of the dispossession or discontinuance.
143.	Like suit, when the plaintiff has become come entitled by reason of any forfeiture or breach of condition.	Twelve years	When the forfeiture is incurred or the  condition is broken.
144	Omitted
	Part – IX	Thirty years
145.	Against a depository or pawnee to recover movable property deposited or pawned.	Thirty years	The date of the deposit or pawn.
146.	Before a High Court in the exercise of its ordinary original civil jurisdiction by a mortgagee to recover from the mortgagor the possession of immovable property mortgaged.	Thirty years	When any part of the principal or interest was last paid on account of the mortgage-debt.
146A	By or on behalf of any local authority for possession of any public street or road or any part thereof from which it has been dispossessed or of which it has discontinued the possession.	Thirty days	The date of the dispossession or  discontinuance
	Part – X	Sixty years
147.	By a mortgagee for foreclosure or sale.	Sixty years	When the money secured by the mortgage becomes due.
148.	Against a mortgagee to redeem or to recover possession of immovable property mortgaged.	Sixty years	When the right to redeem or to recovery possession accrues:  Provided that all claims to redeem arising under instruments of mortgage of immovable property situate in Lower Burma which had been executed before the first day of May, 1863, shall be governed by the rules of limitation in force in that Province immediately before the same day.
149.	Any suit by “or on behalf of the Federal  Government or any Provincial Government] except a suit before the Supreme Court in the exercise of its original jurisdiction.	Sixty years	When the period of limitation would begin to run under this Act against a like suit  by a private person.
	Second Division	–Appeals
150	Under the Code of Criminal Procedure, 1898 from a sentence of death passed by a Court of Session or by a High Court in the exercise of its original Criminal Jurisdiction.	Seven days	The date of the sentence.
151	From a decree or order of a High Court in the exercise of its original jurisdiction.	Twenty days	The date of the decree or order.
152	Under the Code of Civil Procedure, 1908 to the Court of a District Judge.	Thirty days	The date of the decree or order appealed from.
153.	Under the same Code to High Court from an order of a Subordinate Court refusing leave to appeal to Supreme Court.	Third days	The date of the order.
154	Under the Code of Criminal Procedure 1898, to any Court other than a High Court.	Thirty days	The date of the sentence or order appealed from.
155.	Under the same Code to a High Court, except in the cases provided for by Article 150  and  Article 157.	Sixty days	The date of the sentence or order appealed from
156.	Under the Code of Civil Procedure, 1908, to a High Court, except in the cases provided for by Article 151 and Article 153.	Ninety days	The date of the decree  or order appealed from.
157.	Under the Code of Criminal Procedure, 1898, from an order of acquittal.	Six months	The date of the order appealed from.
	Third Division	-Applications
158.	Under the Arbitration Act, 1940, to set aside an award or to get an award remitted for reconsideration.	Thirty days	The date of service of the notice of filing of the award.
159.	For leave to appear and defend a suit under summary procedure referred to in section 128 (2) f) or under Order XXXVII of the Code of Civil Procedure, 1908.	Ten days	When the summons is served.
160.	For an order under the same Code, to restore to the file an application for review rejected in consequence of the failure of the applicant to appear when the application was called on for hearing.	Fifteen days	When the application for review is rejected.
161.	For a review of judgment by a Court of small Causes or by a Court invested with the jurisdiction of a Court of Small Causes when exercising that jurisdiction.	Fifteen days	The date of the decree or order.
162.     162A	For a review of judgment by a High Court in the exercise of its original  jurisdiction.     [Repealed].	Twenty days	The date of the decree or order.
163.	By a plaintiff for an order to set aside a dismissal for default of appearance or for failure to pay costs of service of process or to furnish security for costs.	Thirty days	The date of the dismissal
164.	By a defendant, for an order to set aside a decree passed ex parte.	Thirty days	The date of the decree or where the summons was not duly served, when the applicant has knowledge of the decree.
165.	Under the Code of Civil Procedure, 1908 by a person dispossessed of immovable property and disputing the right of the decree-holder or purchaser at a sale in execution of a decree to be put into possession.	Thirty days	The date of the dispossession.
166.	Under the same Code to set aside a sale in execution of a decree including any such application by a judgment-debtor.	Thirty days	The date of the sale.
167.	Complaining of resistance of obstruction to delivery of possession of immovable property decreed or sold in execution of a decree.	Thirty days	The date of the resistance or obstruction
168	For the readmission of an appeal dismissed for want of prosecution.	Thirty days	The date of the dismissal.
169	For the re-hearing of an appeal heard ex parte.	Thirty days	The date of the decree in appeal, or, where notice of the appeal was not duly served, when the applicant has knowledge of the decree.
170.	For leave to appeal as a pauper.	Thirty days	The date of the decree appealed from.
171.	Under the Code of Civil Procedure, 1908, by the legal representative of a deceased plaintiff or defendant for setting aside an order or judgment made or pronounced in his absence.	Sixty days	The date of the order or judgment.
172.	Under the same Code by the assignee or the receiver of an insolvent plaintiff or appellant for an order to set aside the dismissal of a suit or an appeal.	Sixty days	The date of the order of dismissal.
173.	For a review of judgment except in the cases provided for by Article 161 and Article 162.	Ninety days	The date of the decree or order.
174.	For the issue of a notice under the same Code, to show cause why any payment made out of Court of any money payable under a decree or any adjustment of the decree should not be recorded as certified.	Ninety days	When the payment or  adjustment is made.
175.	For payment of the amount of a decree by instalments.	Six months	The date of the decree.
176.	Under the same Code to have the legal representative of a deceased plaintiff or of a deceased appellant made a party.	Ninety days	The date of the death of  the deceased plaintiff or appellant.
177.	Under the same Code to have the legal representative of a deceased defendant or of a deceased respondent made a party.	Ninety days	The date of the death of the deceased defendant or respondent.
178	Under the Arbitration Act, 1940, for the filing in Court of an award.	Ninety days	The date of service of the notice of the making of the award].
179.	By a person desiring to appeal under the Code of Civil Procedure, 1908 to the Supreme Court for leave to appeal.	Ninety days	The date of the decree appealed from.
180.	By a purchaser of immovable property at a sale in execution of a decree for delivery of possession.	Three years	When the sale becomes absolute.
181.	Applications for which no period of limitation is provided elsewhere in this schedule or by section 48 of the Code of Civil Procedure, 1908.	Three years	When the right to apply accrues.
183.	To enforce a judgment, decree or order of any High Court in the exercise of its ordinary original civil jurisdiction, or an order of (the Supreme Court).	Six years	When a present right to enforce the judgment, decree or order accrues to some person capable of releasing the right:  Provided that when the judgment, decree or order has been revived, or some part of the principal money secured thereby, or some interest on such money has been paid, or  some acknowledgment of  the right thereto has  been given in writing signed by the person liable to pay such principal of interest, or his agent to the person entitled thereto or his agent, the twelve years shall be computed from the date of such reviver payment or acknowledgment or the latest of such revivers, payment or acknowledgments, as the case may be.

 

 

Court Decisions

Art. 10

 

Limitation-interpretation:– Contentions (1) that decision of S.C in case of Mst. Walayat Khatun P L D 1979 S C 821 and subsequent reported decisions by S.C has led to conflict of authority, thus leading to confusion, for litigant public and Bar which needed to be resolved, (2) that S.C in a Full Bench case of Shahna Khan v. Aulia Khan P L D 1984 S C 157 has pointed out that case of Mst. Walayat Khatun : was authority and law declared only to extent of common ratio of two separate judgments, rendered therein-Held: (1) Decision in Mst. Walayat Khatun’s case P L D 1979 S C 821 cannot be assumed to have dissented from S.C judgments in Muhammad Nawaz Khan’s case P L D 1970 S C 37 and Shah Nawaz’s case 1972 S C M R 179–Law laid down by S.C in cases of Muhammhd Nawaz Khan P L D 1970 S C 37 and Shah Nawaz’s case 1972 S C M R 179 continue to hold field and is law declared, notwithstanding judgment in case of Mst. Walayat Khatun P L D 1979 S C 821-No departure was ever made in any case from what was held in two cases of Muhammad Nawaz and Shah Nawaz to effect that it was obligatory to allow time for supply of deficiency in court-fee before rejecting plaint and regarding refusal of discretion under S. 149, C. P. C. only on grounds of contumacious and positive mala fide conduct ; (2) That this being not unusual for Court consisting of Bench of more than one Judge to render a decision consisting of more than one judgment, decision reached in Mst. Walayat Khatun’s case P L D 1979 S C 821 was undoubtedly common ratio of two separate judgments-Strict view in Mst. Walayat Khatun’s case expressed in second judgment was not common ratio of decision and has to be treated as individual opinion of one Judge. P L D 1984 S.C 289

 

Pre-emption:– Vendor sold out and delivered physical possession of a specific portion of Joint Khata to petitioner who was also a co-Sharer- Although each co-Sharer is to be deemed in possession of whole of Joint property, but land in dispute was actually delivered to petitioner. Provisions of Article 120 of Limitation Act being a residuary Article come into play only if provisions of Section 30 of Punjab Pre-emption Act or that of Article 10 of Limitation Act are not attracted. In a case where physical possession of whole property is taken by vendee period of one year is prescribed by Article 10 of Limitation Act for filing pre-emption suit. whereas under Article 120 of Limitation Act a period of six years is provided where no other period is prescribed by law. Suit for possession through pre-emption was filed on 3-1-982. whereas physical possession of suit land was delivered on 11-10-1980. Respondent did not produce any cogent evidence to prove that suit was within time. It was on basis of preponderance of evidence that trial Court rightly came to conclusion that suit by respondent was hopelessly time barred.  P.L.J.1997 Lah. 979 = 1997 CLC 1616.

            Suit barred by limitation on account of supply of deficit court-fee-Plaintiff not required to obtain statement of net profits before filing suit for pre-emption -Failure of plaintiff to obtain statement of net profits will operate against him when considering question of entertaining court-fee, if same was supplied after institution of suit on, (or even without) objection from defendant or Court-Right of pre-emption established-Court cannot refuse such right in exercise of discretion-Piaintiff cannot be deprived of his right for mere lapse of time unless there had been abandonment, acquiescence or waiver or at least, an alteration in position of defendant in that other party has been put in a situation in which it would not be reasonable to place him, if remedy were afterwards to be asserted-Mere fact that plaintiff waited till last day of limitation would not disentitle him to any relief, discretionary or otherwise simply because plaintiff availed of full period of limitation. P L D 1984 S.C 157

 

Art. 14

 

Settlement Scheme No. VIII. Deposit of 25% of auctioned price and non-deposit of remaining price of auctioned land within prescribed time. Notified Officer did not take any step till voluntarily appearance of legal heirs of auction purchaser for seeking permission in form of application to deposit remaining auctioned price of land. Cancellation of land and its resumption, Limitation. Article 14 applicable in cases where competent authority passed valid order-and limitation is 3 years. Null, and void and in-operative order passed by incompetent authority can be challenged within six years u/A 120. Decree or order passed in utter contravention of mandatory provisions of law is nullity and limitation did not run against. There is nothing wrong with conduct of petitioners when suit was within time. Notified officer directed to receive balance price of auctioned land and issue title document of land to petitioners.  PLJ 1999 Lah. 223 = 1999 MLD 833.

 

Allegation was that title to property had been procured by practising fraud, question of limitation could not be pressed as bar to maintainability of suit. PLJ 1997Kar. 861 = 1997 MLD 2444.

 

Art; 49

 

Dowry. Return. Whether Article 49 of Schedule to Limitation Act was correctly applied by first Appellate Court. Applying principle laid down in (AIR 1925 Rangoon 146), it is quite manifest that possession of (dowry) between appellant and respondent was joint when appellant and respondent used to lead a happy life. The moment she was turned out from house of respondent she still continued to exercise her constructive control over it. Learned counsel for respondent challenged only question of limitation and not concurrent conclusions of two courts regarding articles of dowry lying with respondent. Learned first appellate Court was erred in holding that suit of petitioner was barred by limitation and its finding cannot be sustained. PLJ 1997 Lah. 1325 = 1998 MLD 379.

 

Arts. 56

 

Limitation. Plaintiff after dismissal of his claim for recovery of amount of damage by defendant, instead of filing suit approached Wafaqai Mohtasib who accepting claim of plaintiff directed defendant to pay amount of damage to plaintiff. President of Pakistan, on appeal, set aside order of Wafaqi Mohtasib. Plaintiff filed suit for damages and permanent injunction after about 3 years and 10 months from dismissal oihis claim by defendants. Plaintiff claimed that period spent in proceeding before Wafaqi Mohtasib should have been excluded. Period consumed during proceedings before Wafaqi Mohtasib or before President of Pakistan could not be excluded as provided under S. 14 of Limitation Act, 1908, because proceedings before Wafaqi Mohtasib and President of Pakistan did not constitute “civil proceedings”. In absence of any legal disability of plaintiff for not brining suit within time, suit was dismissed being barred by time. PLJ 1999 Kar. 587 = 1999 CLC 364 = NLR 1999 Civil 266.

 

Arts. 58

 

Application for rejection of plaint on ground of limitation. Suit would not be deemed to be barred by law, for in order to reject plaint under O.VII, R.ll, C.P.C. contents of plaint were required to be accepted on their face value. Without taking into consideration merits of contentions which might prejudice cause of parties, application for rejection of plaint was dismissed with observation that issue on point of limitation should be framed alongwith issues of facts.   P.L.J.1997 Kamchi 871 = 1996 CLC 628.

Arts. 65

 

 Limitation, starting point of:— party claiming the compensation had obtained maintenance certificate in respect of the contracts from the engineers appointed by the other party – Certificate issued by the Engineers being final in view of the agreement entered between the parties, time for limitation was as per Art. 115 of the Limitation Act, 1908 and claim of the party asking for the compensation fell under Art. 115 of the Limitation Act, 1908.    PLD 2003 SC 301

 

Art. 72

 

Recovery suit on the basis of promissory note:— Such suit is to be filed within three years—Suit filed after the prescribed period is time-barred. PLD 2002 Pesh. 1

 

Art. 91

 

Void and voidable transaction.  While considering applicability of particular Article of Limitation, one has to keep in view as to how transaction or document is challenged. In cases where transaction is claimed to be void, party aggrieved therefrom need not seek cancellation thereof and it can simply apply for declaration that document or transaction, purportedly made is in-operative as against his rights. Situatiaon in case where execution is admitted and cancellation is sought, is different, as in such like cases, document or transaction is said to be voidable at option of aggrieved person who can challenge same on ground of fraud, misrepresentation, lack of consideration, coercion or other grounds as available in law. In cases, where document or transaction’s termed as void, one can file suit for declaration under Art. 120 of Limitation Act which provided for six years period from date when right to sue accures. However, in cases, where cancellation is sought by party to document or person claiming therefrom, then of course, Art. 91 of Limitation Act would apply. In case where one denies to be party to transaction, he can simply ask for declaration that document shall not be deemed to be operative as against his right and court need not give any relief of cancellation thereof.  PLJ 1998 Lah. 350 = PLD 1998 Lah. 183.

 

Art. 92

 

Specific Relief Act. Whether remedy lay in filing suit for declaration or cancellation of registered document when sale deed was clearly void able. Since plaintiff has sought cancellation of registered document, therefore, it will be fairly and squarely case covered by Art. 92 and not 91 of Limitation Act, which is general in nature and residuary Clause. Limitation would be governed by premier relief claimed in plaint and not by incidental and secondary relief. Art. 92 of Limitation Act, provided three years as period for Limitation when registration becomes known to plaintiff. Suit was barred by limitation. PLJ 1995 Lah. 309 = PLD 1995 Lah. 321.

 

Article 106

 

Rendition of accounts. Whether partnership had been dissolved or not, was a question of fact and issue of limitation was linked therewith. Trial court should not have framed issue of limitation only and decided suit by recording finding thereon. Issue of limitation was not an issue of pure law because it involved mixed question of fact and law. It deserved to be remanded for fresh decision. There is nothing wrong with decision of High Court.  P.L.J.1995 SC GG7 = PLD 1995 SC 639.

 

Art. 113

 

Specific performance. Whether suit was barred by limitation. Agreement did not fix any date or period for finalization of sale deed of land in dispute. Instead it was agreed to complete sale on conferment of proprietary rights in land on demand of promisee. Article 113 provides a period of 3 years for specific performance of a contract. Later part of Article 113 shall apply and in that eventuality, suit could not be found barred by limitation.  PLJ 1994 Note 8 at p. 5.

 

No specific date was mentioned in agreement for execution of sale deed. Starting point of limitation. No specific date was given for performance of agreement but execution of sale deed was dependent, either on decision of Board of Rev., or on attestation of mutation of inheritance and issuance of guardian Certificate. Case was thus covered by later part of Art. 113 which provided for three years limitation from date of notice of refusal of sale. It is neither case of respondents that notice was given to petitioners, for performance of obligation under sale agreement, after any decision by Board of Rev. or after attestation of mutation of inheritance and issuance of guardian certificate nor any evidence was led to prove any actual date of refusal. No evidence has been led to prove that respondents refused to execute sale deed with notice to petitioner. On the contrary, their conduct of selling land in favour of Respondents Nos. 8 & 9 can be assumed to be refusal on their part. Mutation of sale deed was made, on 10.11.1985 and in this way, suit could be filed within three years from said date. Suit having been filed on 20.11.1997 was within time and could not be adjudged as barred by Limitation.   P.L.J.1998 Lah. 444.

 

Whether suit was barred by time. Agreement was executed on 14.6.1955 and suit was filed on 22.10.1968. First appellate court relied on statement of appellant himself as in which he admits that notice was sent by plaintiff to him about 8/9 months prior to institution of suit, and as such held that suit is within time. PLJ 1995 Lah. 229 = 1995 CLC 309.

 

Whether action for specific performance. initiated by petitioner was within time. Parties agree that Art. 113 in Schedule to Limitation Act applies to action/suit. Period of limitation prescribed is three years from time fixed for performance of agreement or if no such date is fixed from date when plaintiff has notice that performance is refused. There are two well known principles with regard to laws of limitation. Firstly, that laws of limitation take away right of parties and so these laws must be liberally construed and without doing any offence to intents of legislature. Secondly, when there is doubt in construction of relevant clause, benefit should be given to plaintiff. Refusal of defendant to perform contract must be clear unequivocal and unconditional for the purpose of starting period of limitation. It’is quite clear that petitioner had earlier filed suit for grant of mandatory and perpetual injunction on the basis of agreement to sell aforesaid suit was found incompetent and dismissed; Trial Court, while doing so.did not render its findings on issues relating to merits of claims of parties petitioner initiated action for specific performance after expiry of four days of that date; suit was brought on same cause of action and was between same parties. Suit/ action fell within ambit of Section 14 of Limitation Act and so was well within time.  PLJ 1998 Lah. 1000 = 1998 CLC 900.

 

Art. 120

 

Recovery of damages on account of Qazf.. Since there is no specific article for cases of Qazf, residuary Article 120 of Limitation Act would be applicable. PLJ 1995 Kar. 362 = 1995 CLC 1332.

 

Suit being one for declaration, Under Art. 120 of Limitation Act it would have been filed within six years from date of cause of action. PLJ 1995 Lah. 279 = NLR 1995 Civil 686 =  PLD 1995 Lah. 313.

 

Suit for correction of date of birth in service record.  Limitation Act would apply to such suits. Starting point of limitation would be from time-when right to sue accrues.. Right to sue would accrue to plaintiff when he acquired knowledge of two dates of birth and he felt aggrieved with wrong entries. PLJ 1997 Kar. 1266 = 1997 MLD 2801 = 1997 PLC (C.S.) 1122 = Law Notes 1997 Kar. 128.

 

Suit filed after 31 years. Computation. Limitation will run against a cause of action from date of knowledge. Application of Article 120 ousted. Suit is within time from date of knowledge. PLJ 1998 Pesh. 315 = 1999 CLC 106.

 

Suit for declaration and permanent injunction on the basis of Inheritance, transfer of land to defendant. Limitation, framing of proper issue and mutation under customary law. Question of law and facts. Determination of- Petitioner, during trial had not objected to framing of wrong issue or not framing issue in accordance with objections raised in written statement. If they failed to raise objection in trial Court or to appellate Court, their objection could not be raised at revisional stage. It was incompetent on petitioners to establish on record that customary law was applicable to their tribe and daughter was deprived of inheritance of her father. There is no such evidence that deceased “L” had acquired land under any custom. He was already full owner of land. When inheritance was-opened. “P” and “M” were alive at time of enforcement of Punjab Muslim Personal Law Shariat Application Act. 1948. Word “deceased” is used for determination of dispute and deceased in instant case was “L” therefore, last male holder of property was “L” predecessor-in-interest of party. Plaintiff being legal heir of deceased “ “L” is co-Sharer and co-owner of property in case of decree of suit, her name would be entered in column of ownership of suit land and Rev. record would be corrected accordingly and all others subsequent mutations sanctioned after mutation of inheritance of deceased “L” he reviewed automatically. Right of plaintiff in inheritance of her father is continuous right and under Art. 120 of Limitation Act, time for filing suit for declaration will start when right to sue accrued to plaintiff, while right was denied by defendants/petitioners and they refused to pay Battai. Every denial of right would furnish plaintiff a fresh cause of action- Plaintiff “T” was- deprived of inheritance other father vide mutation of inheritance which was not legal and proper and entire structure built on it would crumble and limitation would not be hurdle in way of plaintiff. Plaintiff in such case is presumed to be co-Sharer being legal heir of “L” deceased and shall be presumed to be in possession of suit property alongwith other co-owner.  P.L.J. 2000 Lah. 701 = 2000 CLC 1018.

 

          Suit for declaration. Limitation. Plaintiff despite fact that he was aware of transfer of suit property in name of defendants, remained silent and did not avail legal remedy under settlement laws till June 1975 and filed suit on 18th December 1980. Suit is hopelessly time barred. PLJ 1997 Kar. 181 = 1997 MLD 472.

 

Art. 125

 

Limited interest of widow-Land allotted to widow in lieu of land left by her deceased husband in India was sold by her to defendants on 26-8-1963 through mutation–­Plaintiffs filed suit for recovery of possession on the ground that widow holding the estate as limited owner could not alienate the land under Custom of Zamindara by which she was governed-Trial Court decreed the suit, which decree was upheld by both the Appellate Courts-Validity-Widow sold the property on 26-8-1963, thus, the same was the date when title or right of the plaintiffs would be deemed to have been denied giving rise to a cause of action to file the suit-Before such date on termination of limited interest in the estate by virtue of the provisions of West Pakistan Muslim Personal Law (Shariat) Application Act, 1962, the parties had become joint owners of the land by way of inheritance-Widow after termination of her limited interest was entitled only to a share in land allocated to her under Islamic Law and was entitled to sell her own share only and not beyond that-Limitation started from the date when alienation was made as such suit had rightly been filed within 12 years therefrom-Findings of Courts below that widow was not full owner as such could’ not transfer the land by way of sale did not suffer from any illegality. 2002 S C M R 1000

 

Art. 127

 

Joint Family Property.  Predecessor-in-interest -of parties having died in 1957, plaintiffs and defendants had carried on business together and also lived in parental house. Parties’ mother having died in 1993, defendants-tried to misappropriate joint family property and tried, to exclude plaintiffs from such property. Period of limitation for filing suit would, thus, start run with effect from 1993 from refusal of defendants to allow plaintiffs to share joint family property. Defendant’s objection that Art. 127, Limitation Act, 1908 was applicable to joint Hindu Family alone, as misconceived. Word “Hindu” which was used in Art. 127, Limitation Act, 1871 was omitted “from Art. 127, Limitation Act, 1908, therefore, by such omission, Art. 127, Limitation Act, 1908 was made applicable to persons of all faiths. Defendants’ claim that suit having been filed beyound period of limitation and that causes of action in suit were multifarious, therefore, plaint was liable to be rejected in terms of O.VII, R. 11, C.P.C, was of no consequence, for, suit was within time in terms of Art. 127, Limitation Act, 1908 since causes of action joined therein were neither dissimilar, nor discordant. Even if causes of action were multifarious, Court could order separate trial but plaint could not be rejected on that ground. Application for rejection of plaint was not maintainable in circumstances.  PLJ 1999 Kar. 2218 = 1998 CLC 1425.

 

Partition of property. Whether suit was time-barred. Appeal has been preferred against concurrent finding of fact which cannot be gone  into unless they are shown to be perverse and contrary to evidence on record. Suit was filed in 1982 whereas admittedly, plot was leased out to appellant in 1978. Though succession opens on death of propositus, but in this case, all heirs constructively came into joint possession after death of their ancestor.. Article 127 of Limitation Act is applicable which provides for a limitation of 12 years from date of exclusion of plaintiff which took place, in 1978. Suit before trial court was very much within time. PLJ 1995 Kar. 73 = PLD 1995 Kar. 254.

 

Art. 129

 

Pre-emption suit. Limitation, Extension of time. Provisions of S. 30 of Punjab Pre-emption Act, 1991, are mandatory in nature. Period of four months from date of registration fixed by S. 30 of Punjab Pre-emption Act, 1991, cannot be extended because of S, 31 of Act as official act is presumed’to have been duly and regularly performed. Time of four months will run from date of knowledge of pre-emptor only if sale is not under clause (d) of S. 30 of Act. Time cannot be made to run from date of knowledge of giving of public notice as required by S. 31 of Act in case sale is through registration of deed.  PLJ 2001 SC 1232 = PLD 2001SC 499

 

Art. 142

 

Point involved was as to which of articles out of Articles 142 and 144 of Act would, be applicable. Claim of plaintiffs is that they purchased suit land in 1967 and were dispossessed 3 years prior to institution of suit. Defence was that defendants had acquired title by adverse possession. No objection about limitation was specifically raised by defendants in their written statement. In view of pleadings and arguments of parties, case falls within purview of Article 142 which provides period of 12 years from date of dispossession or discontinuation of possession. PLJ 1994 Note 23 dtp. 17= PLD 1994 SC (AJ&K) 41.

 

Adverse possession, plea of – Provisions of Art. 144 of Limitation Act, 1908, would not be attracted in view of non availability of plea of adverse possession – Where the case was of dispossession, provisions of Art. 142 of Limitation Act. 1908, would be attracted – Dispossession must be proved from the immovable property within 12 years preceding the date of suit. PLD 2001 Lah.390   PLD 1996 Central Statutes 1296; Maqbool Ahmad v. Government of Pakistan 1991 SCMR 2063 and Shah Sultan v. Abdul Khaliq 1987 SCMR 1791 ref.

 

Burden always lies on party who seeks relief from court, to establish that action has been brought within period prescribed by law. Respondents are bound to prove that their case is not hit by limitation. Article 142 prescribes period of 12 years for suit for possession in case of dispossession or discontinuance of possession. Appellants appear to be in permissible possession of plot. It would be legally presumed that respondents were themselves in constructive possession of property. For purpose of determination of starting point limitation, it would be after 1974 whereas suit was instituted in 1978. Calculating period of 12. years from any angle, it can safely be held that suit filed by respondents was within period of limitation. Plea of adverse possession being not available to appellants, they have no legal entitlement to remain in possession. PLJ 1994 Qta. 54 = PLD 1994 Qta. 92 = NLR 194 Civil 695.

 

Limitation--In earlier round of litigation plaintiff in her plaint had indicated that plaintiff as far back as the year 1959, had full knowledge of the fact that defendant had raised partition wall between the two portions of the plot in question, and had also constructed shops which were let out to tenants on rent–Plaintiff did not raise any objection in respect of the action taken by defendant till the year 1968, when she filed suit for declaration and injunction which was ultimately dismissed–Plaintiff was required to have filed suit for ejectment/possession against defendant in the year 1959, when she came to know about the illegal construction of residential portion, erection of partition wall and shops by defendant–Cause of action for filing suit for ejectment/possession having arisen in 1959, suit filed in 1979, was barred by time in terms of Art. 142, Limitation Act, 1908. 1993 C L C 1682

 

Possession of land. Whether suit was instituted in time. Appellate court erred in applying Art, 142 of Limitation Act as in absence of allegations of dispossession or dis-continuance of possession in plaint, said Article would not apply when factum of ownership of plaintiffs and that of defendants as tenants under them is proved on record. There was no justification to hold suit to be beyond time in terms of Article 142 of Limitation Act.  PLJ 1994 Pesh. 42 = PLD 1993 Pesh. 239 = NLR 1994 Civil 598.

 

Suit for recovery of possession of immovable property –­ Appellant/plaintiff was owner in possession of the suit land within 12 years of the institution of the suit-Period of limitation for recovery of such possession under Art. 142, Limitation Act, 1908 was 12 years from the date of dispossession or discontinuance-Both the Courts below had wrongly concluded from the evidence on record that the suit was time­ barred-Suit was within time and was properly valued-Judgments and decrees of both the Courts below were set aside. 1999 Y L R 1981

 

Art.144

 

Adverse possession – Person asserting ownership over a property by purchase would not be legally Justified at the same time to say that his occupation was hostile or adverse as against its real owner – Logic behind was that a person could not claim both hostile and adverse possession over a property, which he held in his own right. Pleas of adverse possession and title by way of gift being contradictory were irreconcilable. PLD 2002 S.C 581

 

Pleas of lawful title and adverse possession in same case are contradictory pleas and cannot stand together. By raising such contradictory pleas, party had not perfected its title by way of adverse possession which plea was not available to it as an alterative plea along witch plea that it had purchased suit land, being a benamidar. Person who asserts ownership over a certain property by purchase would not be legally ^ justified at same time to say that his occupation of the property was hostile or adverse as against real owner. Logic behind is that a person cannot claim hostile and adverse possession over a property which he holds in his own rights and such a possession lacks essentials of adverse possessions so far recognized for maturity of ownership on this count. Possession is not to be considered adverse if its origin can be referred to a lawful title, whenever that is possible, because, a person who claims to have entered into possession as a trespasser will be presumed not be have done so if at the time he so entered, -he had some lawful title of possession. This in reality is based on historical and jurisprudential aspects of adverse possession. A defendant entering into possession or being in possession on assumption of lawful title could not divest himself of that title “by pretending that he had no title at all. Possession was never adverse if it could be referred to a lawful title. It has to be kept in view that one of the most important elements in deciding whether possession is or is not adverse, is intention and knowledge of both sides. They have a decisive determining effect. It always depends upon intention at  start. If origin of possession is treated by person subsequently claiming to be in adverse possession as lawful, no adverse possession begins until denial to knowledge of owner. After a fair fight on the basis of lawful title if that claim is given up as caving finally failed, from that point .of time onward the adverse possession, if other conditions are satisfied, could start.  PLJ 1999 SO 1840 = 1999 SCMR 996.

 

Defendant, claim of adverse possession of property in question for the last 42/45 years and that his possession was undisturbed, un-interrupted, hostile, open and adverse. S. 28 of Limitation Act, 1908, ‘was declared repugnant to injunctions of Islam in so far as the same provided for extinguishment of right in property at the determination of period prescribed for instituting suit for possession of property, by S.C  in Maqbool Ahmed’s, case reported as 1991 SCMR 2063 and that decision was to take effect from 31.8.1991, whereafter, the same would cease to have effect. S. 28 and Art. 144 of Limitation Act, 1908 having been omitted from statute by Act II of 1995, Appellate Court was not justified by observing that suit was barred by time as no limitation runs because of omission of s. 28 and Art. 144 of Limitation Act, 1908. Case was remanded to Appellate Court for decision afresh in accordance with law. PLJ 2000 Qta. 23 = PLD 2000 Quettd 61.

 

Suit for possession and mesne profits decreed upto High Court.  Petitioners in earlier round of litigation were-adjudged to be licenses and that Judgment had attained finality. Plea of adverse possession raised on behalf of petitioners in second round of litigation being inconsistent with earlier finding of High Court (which had attained finality) could not possibly be accepted by High Court. Petitioners having declined to vacate disputed property and having asserted their own title they became liable for .payment of mesne profits on account of wrongful possession. Leave to appeal was refused in circumstances.   P.L.J.1999 SC 1498 =. 1999 SCMR 985.

 

Framing of issues. Duty of Court. Where respondents (plaintiffs) in body of plaint and prayer clause had specifically asserted title over property on basis of adverse possession for period beyond 60 years, Court was bound to frame issue on adverse possession. High Court thus, fallen in serious error about law and facts by interfering with Judgments of two Courts below on the ground that issue regarding adverse possession could not have been framed. Finding of High Court regarding defect in framing issues was, thus, not tenable.  P.L.J.1997 SC 2084 = 1997 SCMR 1849.

 

Title and adverse possession-Where title was claimed by a party, plea of adverse possession could not be put forth by such party–­Defendant’s illegal possession of ownership would fall down when proof of ownership was lacking. 1995 M L D 690

 

Art. 148

 

Suit for declaration by plaintiff claiming to have acquired ownership rights in mortgaged land by prescription— Trial Court dismissed suit, but Appellate court decreed the suit—High court dismissed suit in revision filed by defendants—Validity—suit had been filed on 28-5-1979, thus, same would not be affected by judgment passed in Maqbool Ahmed’s case 1991 SCMR 2063—Appellants’ predecessor-in-interest by acquiring mortgagee rights from earlier mortgagee through mutation attested on 2-3-1962 had entered into a fresh agreement with predecessor-in-interest of appellants had acquired rights of mortgagee—Appellants could not claim themselves to be owner of mortgagee—Appellants could not claim themselves to be owner of land by prescription according to S. 28 of Limitation Act, 1908 from the date of acquiring of such rights till expiry of period of sixty years under Art. 148 of the said act—Supreme Court dismissed the appeal. PLD 2003 SC 425

 

Redemption of mortgage:— Supreme court granted leave to appeal to consider as to whether transfer of mortgagees’ rights from time to time would fall within purview of S. 19 of Limitation Act, 1908 (acknowledgment), so as to give fresh start of period of limitation in a suit for redemption. PLD 2003 SC 425

 

Art. 156

 

Amended plaint in suit for declaration and possession. Whether appeal in forma pauperis is cpvered by Article 170 or Article 156 of Limitation Act. Article 170 is a special provision dealing with leave to appeal as pauper, therefore, this case will not be covered by general provision, i.e., Article 156. Leave, whether to appeal to District Court or to High Court, would be governed by Article 170 which covers both first and second appeals. PLJ 1995 Lah. 172= 1995 MLD 1042.

 

Judgment and decree passed by District Judge was appealable and revision before -High Court was not competent U/S. 115 CPC. Learned Single Judge decided same -as appeal and condoned delay in filing appeal. Time prescribed for filing appeal was 90 days under Article 156 of Limitation Act. Appeal was admittedly barred by 203 days. Prosecution of review petition before District Judge and time spent therefor could not be excluded under Section 14 of Limitation Act. Discretion exercised by learned Single Judge in condoning delay was contrary to settled legal position and result of misreading record, which was rightly interfered with by D.B. of Lah. High Court. PLJ 1995 SC 598 = PLD 1995 SC 472..

 

Art. 158

 

Objections to award:– Objections could be filed within 30 days under Art, 158 of Limitation Act, 1908 against award. Objections against award were filed beyond period of limitation and no application for condonation of delay was filed alongwith objections. No plausible ground was agitated by appellants for not filing objections against award within time, Grounds agitated by appellant, thus, could not be considered at appellate stage. Trial Court while making award rule of Court had rightly rejected objections being barred by time. Perusal of award and proceedings before Arbitrator reveal that many opportunities were given to appellants to lead evidence and after hearing both parties Arbitrator gave award. No illegality on the face of award was pointed out by appellants. Appellant’s objections to claim of respondent were duly considered by Arbitrator before making award and such award was in fact much less than the claim put forth by respondent. High Court granted specified amount to respondent on account of stoppage of work being carried on by him as compensatory costs in addition to award which was made rule of Court. PLJ 2000 Qta. 85.

 

Condonation of delay–Appellant-plaintiff filing his first appeal before District Judge which was returned for presentation to proper forum–Appellant faced with a curious order passed by trial Court which placed him in a fix and he remained in hands of Advocate who was under a bona fide mistake of law qua value of suit and determination of forum of appeal which point was not free from difficulty–Delay condoned in circumstances. 1986 C L C 126

 

Article 163

 

Suit dismissed for non-prosecution. Application filed after nine months of dismissal order. Contention that plaintiff is a lady and was not aware of date. No sufficient cause for restoration of suit is made out in application which otherwise hopelessly is time barred. Plaintiff has shifted blame other absence upon counsel so as to get scot from her own legal obligation to attend her suit-Applications dismissed.  P.L.J.1996 Kar. 505 = PLD 166 Kar. 164.

 

            Suit filed by plaintiff was dismissed in default and application for restoration of suit filed by plaintiffs was also dismissed by Trial Court as time-barred, but in appeal filed by plaintiff against order of Trial Court, Appellate Court allowed restoration of suit. Defendants had challenged order of Appellate Court below contending that application filed by plaintiffs for restoration of suit was to be governed by Art. 163 of Limitation Act, 1908 which provided thirty days for filing such application whereas application was filed by plaintiffs after 77 days from dismissal of suit. Defendants also alleged that application for restoration of suit having not been accompanied by an application for condonation of delay such application was not maintainable. Date on which suit was dismissed for non-prosecution having been given by Reader of the Court and not by Presiding Officer, such date could not be treated as a date of hearing within contemplation of ORDER IX, R.8, C.P.C.. Period of limitation for filing application for restoration of suit thus was to be determined in the light of Art. 181 of Limitation Act, 1908 . which provided period of three years for filing application and not Art. 163 of fhat Act. Application for restoration of suit filed after seventySeven days from dismissal of suit, therefore, was well within time. Even otherwise cause for non-appearance highlighted by plaintiffs in their application for restoration of suit being a “sufficient cause” within contemplation of ORDER IX, R.9, C.P.C., suit was rightly restored. In absence of any delay in filing application for restoration of suit there was no need to file application for condonation of delay and delay was condonable without a formal application in view of fact that act of Court should prejudice no one.   P.L.J.1998 Pesh. 106 = 1998 MLD 1075.

 

              Contention that Article 163 provides limitation of 30 days and application for restoration was hopelessly time barred. By virtue of amendment brought by Ordinance X of 1980, provisions of Section 5 of Limitation Act have been made applicable to application filed under Order DC Rule 9(1) ofC.P.C.. Delay condoned and suit restored.  P.L.J.1995 Kar. 378 = PLD 1995 Kar. 267.

 

Arts. 164

 

Ex parte decree – Restoration.  Where defendants were duly served with summons and they had taken definite stand in defence of suit, provision of Art. 164, Limitation Act, 1908, prescribing 30 days’ period from date of decree would be attracted for setting aside the same. Where summons were not duly served but defendant had gained knowledge of decree, period of limitation would commence from knowledge of decree. Article 181, prescribing period of 3 years for application for which no period of limitation was provided elsewhere in the First Sched. to Limitation Act, 1908 or by S. 48, C.P.C. when right to apply accrued would be applicable for setting aside ex parte decree. Defendants having been served with summons would be covered by Art. 164, Limitation Act, 1908 and not by Art. 181 of the Act   P.L.J.1998 Kar. 789 = 1998 CLC283.

 

              Trial Court refused to set aside same on the ground of limitation. Status. Period of limitation for setting aside ex parte decree having been specifically given in Art. 164. Limitation Act 1908, same would be applicable and not Art, 181. Limitation Act 1908 which was applicable only when no specific time has been prescribed else where in Limitation Act. Time for setting aside ex-parte decree having been prescribed as thirty days in terms of Art. 164. Limitation Act 1908. application for setting aside decree in question after lapse of more than one year of passing of decree was time barred. Trial Court had thus, correctly rejected the same. No interference with Judgment of Trial Court was warranted in circumstances.  P.L.J.1999 Pesh. 54 = 1999 CLC 117.

 

              Where suit was listed for recording evidence on behalf of defendant which he tailed to adduce, despite several opportunities given to him, ex parte decree passed in consequence of such default, would be unquestionable.   P.L.J.1998 Kar. 789 = 1998 CLC 283.

 

               Exparte decree having been drawn on 13.3.1995, period of limitation would start running from 14.3.1995 and expire on 12.4.1995. Application for setting aside exparte decree having been moved on 20.6.1995, same was barred by 68 days. Parly seeking condonation of delay was required to explain delay of each day beyond period of limitation. General and vague statement in support of condonation of delay would not be sufficient, Ground of oversight advanced by counsel for setting aside ex parte decree was neither bona fide nor tenable at law. To deprive decree-holder of his right under decree would be unjust and inequitable when plaintiffs plea for setting aside such decree was not substantiated by adequate evidence and failed to manifest any conscious discharge of duties. Application for setting aside ex parte decree was held not maintainable on ground of laches and being time-barred in circumstances.    P.L.J.1998 Kar. 795 = 1998 CLC558.

 

                 Whether application was- barred by time. Under Article 164 of Limitation Act, period of 30 days starts from date of decree where due service has been made. In case of due service having not been effected, limitation starts from date of knowledge. Appellant has sufficiently explained that due service was not effected on her. Taking period of knowledge under consideration, appeal shall be deemed to have been filed within time. PLJ 1994 AJK 1 = 1993, CLC 2303.

 

Whether application for setting aside ex parte decree was barred by time. Article 164 of Limitation Act prescribes period of thirty days for moving application for setting aside ex parte decree. Time would run from date of decree or where summons were not duly served, from date of knowledge. Petitioner not only filed written statement but also cross-examined respondent’s witness and became absent afterwards. Thus would run from date of decree. Trial Court had rightly decided suit on merits and application was barred by time. PLJ 1994 Kar. 86 = 1994 MLD 871.

 

Arts. 168

 

            Application for restoration of appeal dismissed for default. Re-admission of an appeal dismissed for non-appearance of appellant and his Advocate is governed by Article 168 of Limitation Act and not by Article 181. In such situation application under 0- 41 R. 19 is to be submitted within thirty days whereas, present application has been filed after about nearly six months. Sufficient cause has not been shown for non-appearance on the day on which appeal was called on. by applicant and his advocate. PLJ 1997 Kar. 510 = 1997 MLD 2884.

 

           Re-admission of appeal dismissed for non-prosecution. Time for readmission of appeal (30 days) dismissed for default runs from date of dismissal and not from . date of knowledge of dismissal. Application for restoration has been submitted after 8 months of dismissal of appeal in default. Application for re-admission of appeal is hopelessly barred by time. No sufficient cause has been established for condonation of delay. Law helps those who are vigilant in perusing their rights and not those who sleep thereon. Application for readmission of appeal is dismissed as barred by limitation.  P.L.J.1997 Lah. 710 = 1997CLC 1324.

 

Article 169

 

Ex-parte acceptance of appeal.  Two points were to be examined, namely whether applicant (appellant) was duly served and where petition for rehearing of appeal was made within time. Transferee Court issued notice Pairui to applicant (now appellant) but he could not be served in person. Application for rehearing of appeal decreed ex parts, could not be summarily rejected without holding enquiry into question of due service of notice and also sufficiency of cause given for condoning default in appearance. Question of limitation was closely linked with and dependent upon related important question of due service of notice in appeal. Since impugned decision was arrived at without investigation of disputed issues, it could not be upheld and allowed to be maintained. Appeal accepted and case remanded for fresh decision of appeal.   PLJ 1994 Lah. 119 = 1994 CLC 391.

 

Art. 174

 

Decree. Adjustment of. Notice.  When a decree was satisfied or adjusted, in whole or in part, out of court, it was enjoined upon decree holder to certify such adjustment or satisfaction to executing court within 90 days from time of adjustment or satisfaction of decree. Judgment-debtor was also under obligation to inform court of such adjustment or satisfaction and apply to issue notice to decree-holder to admit it so that it was recorded as satisfied. It was enjoined upon court not to recognise adjustment or satisfaction of decree if no such information is received within 90 days. PLJ 1994 AJK 25 = PLD 1994 AJ&K 18.

 

Art.176

 

Impleading of legal heirs:– Deceased appellant died on 23.7.1998 – Person claiming to be her brother and legal representative sought to be impleaded alongwith other legal Representatives on 29.6.2002–Application in question being barred by time in terms of Art.176 of Limitation Act 1908, which provides period of 90 days for impleading legal heirs, was dismissed.  P.L.J. 2002 Lah.1545

 

Arts. 178

 

Filing award in Court for making same rule of Court-Limitation-Appellant had contended that award which was filed by arbitrators in Court after more than three years, was time-barred under Art.181 of Limitation Act, 1908, and on that count same could not be made rule of Court-Earlier, issue of limitation was framed on objection of appellant by Trial Court, but such decision was not challenged by the appellant before High Court-Appellant, in circumstances, could not be allowed to raise that point before S.C since same had obtained finality-Even otherwise in view of Art. 178, Limitation Act, 1908, which governed application for filing of award to be made rule of Court under Arbitration Act, 1940, question of applying residuary Art. 181 of Limitation Act, 1908, would not arise. 1999 SCMR 2702 

 

Art. 181

 

Ex-parte decree–Setting aside of. Appellate court had rightly exercised Jurisdiction to set aside ex parts decree because if it had not exercised Jurisdiction, it would have led to injustice and there is no principle of public policy which forbids its exercise in particular circumstances. Impugned decree appears to have been passed under Order IX Rule 6(l)which is even otherwise not sustainable in law. Bare statement of next friend of plaintiff and entries in Rev. record showing his possession, was not enough to arrive at conclusion that allegations in plaint were proved, Courts are generally liberal in ordering restoration of cases dismissed m default, because law leans in favour of adjudication of cases on merits rather than their disposal on basis of technicalities. Order of appellate court setting aside exports decree cannot be interfered with. Petition dismissed.   P.L.J.1995 Note 22 at p. 16= PLD 1994 Pesh. 95.

 

            If suit is dismissed under Order XVII Rule 2 Article 181 of Limitation Act would be applicable. Limitation for filing such application is three years.  PLJ 1997 Kar. 829 = PLD 1997 Kar. 499,

 

Decree obtained by fraud.  Terminus-a-quo of period of three years provided in Article 181 of Limitation Act, commences upon discovery of fraud. There is sufficient evidence that respondents immediately applied to court after gaining knowledge of essential facts. Application under Section 12(2) could safely be held to have been filed in time prescribed in Article 181 of Limitation Act. PLD 1994 Lah. 505 = 1994 CLC 1135.

 

Civil revision :– There is no period prescribed for filing a civil revision but it is to be filed diligently within a period of 90 days. It can be filed after expiry of 90 days provided a case for condonation of delay is made out. High Court can exercise revisional Jurisdiction suo motu at any time without being bound by any period of limitation provided it fosters cause of Justice. Ground that Government takes longer period than a private litigant, is not sufficient to condone delay.  P.L.J.1995 SC 11 = 1994 SCMR 833.

 

 Setting aside ex-parte decree. When would be governed under Art. 161 or Art. 181 of Limitation Act. Date initially fixed by court being not date initially fixed upon institution of suit for service of summons on petitioners, who. failed to appear and consequently ex parte decree, limitation period of 30 days provided, in Art. 161 of Limitation Act, would not be applicable rather period of limitation prescribed in Art. 181 of Limitation .Act, 1908 would apply which provides three years period for application under Order, IX Rule 13 C.P.C. seeking for setting aside ex parte decree, to be reckoned from date when right to apply accrues. PLJ 1998 Qta. 49 = 1998 CLC 657.

 

Suit for possession, permanent injunction and damages . An order passed in violation of provision of law, would not follow that order passed was nullity. It cannot be said that impugned order is nullity, even this order is not illegal as court has jurisdiction to decide matter and it decided application under O. 7 r. 11 CPC in accordance with law. As per proviso of subsection 1 of section 115 CPC period of 90 days is fixed for filing revision application whereas applicants have filed a revision application after 19 months of order passed by lower Court. No good cause has been shown for condoning delay of more than one year. PLJ 1997 Kar. 351 = 1997 MLD 551.

 

Pre-emption decree becomes vested with property and even if execution petition was barred by limitation, revenue functionaries were bound to implement such decree in record. PLJ 2004 Lah. 35

 

Application u/S. 12(2), CPC, Limitation for. Although under Limitation Act, no specific time was prescribed for filing of application u/S. 12(2), CPC, therefore, Article 181 of Limitation Act being residuary would govern such proceedings, according to which maximum period of 3 years had been prescribed for filing application under Section 12(2), CPC. PLj 2001 SC 1134 = 2001 SCMR 1062.

 

Ejectment from rented premises granting six months time for vacation:— Whether execution petition filed by appellant was time barred. Respondent was granted six months time to vacate premises which period expired on 30.5.1992 and to right to file execution application arose to appellant after expiry of six months period, adding three years to it as required by Art. 181 of Limitation Act, appellant could file execution application by 30.5-1995 and execution application having been filed on 16.1.1995 would therefore be within time, Execution application is not barred by time. PLJ 1998 Kar. 446 = PLD 1998 Kar. 133.

 

Declaratory suit. Ex parte decree passed in. Decree challenged through a separate suit for possession. Suit dismissed but decree reversed in appeal. Ex-parte decree is only voidable. It can be challenged under Order DC Rule 13 C.P.C. within 30 days. Defendant chose to challenge it through a regular suit. Relevant Article 181 of Limitation Act provides a period of three years for filing such a suit, whereas respondents filed suit after lapse of 7 years. Suit for setting aside ex parte decree was hopelessly time barred and liable to be dismissed. PLJ 1995 SC (AJK) 81.

 

Execution application. Limitation. Decree sheet, admittedly, was drawn on 8.2.1983. First execution application could be legally moved within a period of three years from date of preparation of decree in terms of Art. 181. .First application was moved on 30,4.1983 and was dismissed on 2.4.1984. Second execution application moved on 28.7.1988 could not be ‘ dismissed as barred by time as period for filling second execution application wag six  years, to be counted from date of dismissal of first execution application. PLJ 1998 Lah. 375 = 1998 MLD 1600 = 1999 MLD 1432.

 

Foreign judgment. Execution. Whether execution hit by Art. 181 of Limitation Act. Period of limitation so prescribed would commence from date when right to apply accures. Right to apply in such cases would ordinarily arise from date of decree unless operation of decree is suspended, Decree was passed on or about 7th October, 1987 whereas execution was presented in office of High Court for first time on 13-8.1991 which on face of it was filed beyond period prescribed by law. Affidavit for obtaining certificate was sworn before prescribed officer on England Court only on 7th January, 1991 and filed before Court on 16th January, 1991 by which date execution itself had became barred by law. It may further he pertinent to observe that execution could be filed within prescribed period of 3 years and certificate with regard to non satisfaction of decree could be filed subsequently before executing court. Certificate alone would neither extend period of .limitation nor deferred commencement of period of limitation for making application for execution of foreign decree. PLJ 1999 Kar. 266 = PLD 1999 Kar. 104.

 

Suit for recovery of loan.  There is no cavil in provision that time limit for making petition for execution is 3 years, as provided under Art. 181 of Limitation Act. Appellant.bank was justified in not filing execution petition as decree passed on 30.9.1992 became subjudice because of application filed by successor of Judgment-debtor. Application. for setting aside ex-parte decree was rejected on 13.3.1996 and thereafter appellant .bank has filed execution petition which is well within time. Order of executing Judge set aside.  PLJ 1998 Pesh. 24 = 1998 CLC 690.

 

Execution. Limitation. Since Article 183 has been held not to apply to an application for execution of a decree of High Court, and since Article 182 has been repealed by Law Reforms Ordinance, 1972, only article applicable to this case is Article 181 which prescribes a period of 3 years. Section 48 of C.P.C. is not applicable as this is not a fresh application but a first application for execution of decree. Execution application is clearly barred by limitation. PLJ 1994 Kar. 267 = PLD 1994 Kar. 317

 

Art. 182

 

Art. 182,of Limitation Act was omitted from Act by Law Reforms Order, 1972 and so is no more in statute book. Art. 183 of Act plainly covers order of S.C .which modifies or affirms decree of High Court, whether passed in original or appellate Jurisdiction and its enforcement is sought. Applying this principle to facts and circumstances of case it is quite clear that first court had rendered decision on 1.3.1978; that this decision was verified by appellate court on 6.8.1988; that decision was affirmed by S.C .on 20.5.1991. Application for restitution was lodged within one year and so it was within time under Art. 183 of Limitation Act which prescribes period of 6 years for such applications.   P.L.J.1996 Lah. 994 = PLD 1996 Lah. 582.