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Civil Petition No. 845 of 1982, decided on 31st January, 1983.

(From the order dated 29‑6‑1982 of the Lahore High Court passed in Civil Revision No.

404/D of 1982).

--Art. 185(3) read with Limitation Act (IX of 1908), Art. 95 Limitation‑Plaintiff‑respondent withdrawing suit with permission to file fresh suit‑Point of limitation with respect to fresh suit decided by trial Court against respondent and such order maintained in appeal High Court, in second appeal, without deciding question whether Art. 95, Limitation Act was applicable, remanding case to first appellate Court for giving findings on issues on merits without touching issue about bar of limitation‑Points raised with regard to limitation not found to have been specifically dealt with by High Court‑Leave to appeal‑Granted to consider, inter alia, question of limitation.

Haji Muhammad Anwar Buttar, Advocate Supreme Court instructed by Mahmood A. Qureshi, Advocate‑on‑Record for Petitioners.

Nemo for Respondent.

Dates of hearing : 29th and 31st January, 1983.

The petitioners had purchased the disputed land from Mst. Sheedi in pursuance of a decree of the Civil Court dated 30‑7‑1954. Mst. Sheedi, however, brought a suit on 22‑10‑1969 for recovery of possession alleging that petitioner No. 1 had occupied the land since last one year on the basis of some decree but that no decree had been passed against her and that even if any, the same was based on fraud and deceit and as such not binding on her. She, however, withdrew that suit on 2‑12‑1972 with permission to file another and accordingly filed the present suit on 18‑1‑1973. The question whether the suit was within time was one of the points in issue and the same was found against her by the trial Court by reference to Article 95 of the Limitation Act. Her appeal was dismissed on the basis of only that finding. In her regular second appeal, however, a learned Single Judge of the High Court without deciding the question whether the said Article 95 was applicable held that the same was dependent upon certain facts and as such "it was necessary for the learned Additional District Judge to give the findings on issues on merits before touching the issue about the bar of limitation. Hs could decide this issue only in the light of the findings given on the issues on merits". He, therefore, remanded the case to the appellate Court to decide the entire appeal afresh. In remand the appellate Court on the question of limitation held that as Mst. Sheedi had come to know of the decree on 29‑1‑1970 when the written statement had been filed in the earlier suit, the present suit was within limitation. The appellate Court, therefore, allowed the appeal and decreed her suit. The petitioners unsuccessfully moved the High Court in revision. Hence this petition for leave to appeal.

2. Learned counsel disputes that the respondent had come to know of the decree on 29‑1‑1970 when the written statement had been filed an contends that she had in fact come to know of it as early as 18‑8‑1969 when she bad obtained a copy of the mutation entered in favour of the petitioners, wherein the decree dated 30‑7‑1954 had been mentioned. The High Court has not specifically dealt with this point. We accordingly grant leave t appeal to consider, inter alia, the question of limitation. Security Rs. 2,500. Status quo shall be maintained subject to the petitioners furnishing security for the mesne profits to the satisfaction of the trial Court.

S.Q.

Petition accepted.

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