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[Lahore]

Before Lehrasap Khan, J

Regular Second Appeal No. 224 of 1969, decided on 16th May, ' 1984.

S. 22 & 25--Affidavit/agreement of association--Execution of Rehabilitation Authority, held, was competent to pass orders about association on the basis of affidavit agreement of association executed by concerned parties--Party alleging fraud but specifying no details of such fraud and person against whom allegations of fraud were made having not been impleaded as party in suit was not entitled to relief of cancellation of document in circumstances.

Hamid Husain v. Government of West Pakistan and others 1974 SCMR 356; Barkat Ali v. Administrator, Thal Development Authority, Bhakkar P L D 1978 Lah. 867 Yousaf Ali v. Muhammad Aslam Zia and 2 others P L D 1958 S C 104 and Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi P L D 1965 S C 698 distinguished.

(b) Limitation Act (IX of 1908)--

---Art. 91--Limitation for suit for cancellation of instrument--Such cancellation, held, could be sought only within three years from date of knowledge of facts entitling plaintiff to have instrument cancelled- Plaintiff filing suit much beyond period of three years after dismissal of his constitutional petition by High Court was subject to bar of limitation in circumstances.

(c) Limitation Act (IX of 1908)--

---Ss. 9 & 91--Cancellation of document--Difference between suit for cancellation of instrument and one for declaration that such instrument was not binding--Plaintiff being party to affidavit; agreement of association, could establish his :isle with regard to property only after cancellation of such instrument--Plaintiff's suit being in substance suit for cancellation of document, held, was governed by Art. 9, Limitation Act, 1908.

Vellayya Konar and another v . Ramaswami Konar and another AIR 1939 Mad. 894 ref.

----Ss. 22 & 25--Civil Procedure Code (V of 1908), O. VII, r. 11-- Rejection of plaint--Judgments of Settlement Authorities having attained finality and suit challenging such judgments being also barred by time, no exception, held, could be take;; to rejection of plaint by trial Court,

Rafiq Ahmad Bajwa for Appellant.

Muhammd Nawaz Kasuri for Respondent No. 1.

Nemo for Respondents Nos 3 to 5.

Date of hearing: 16th May, 1984.

This second appeal is directed against. the judgment and decree dated 18-12-1968, passed by a learned Additional District Judge, Lyallpur, now Faisalabad, whereby he affirmed "the judgment dated 6-7-1968, passed by a learned Civil Judge; Ist Class, Lyallpur.

2. Siraj Din, appellant herein, who is admittedly a local resident of Faisalabad, was in occupation of a part of House No. 142--D, Ward No. 5, Lyallpur, as a tenant under an evacuee owner. He filed L.H. Form for the allotment of the said house in his favour. On 13-11-1959, the Settlement Authorities transferred the aforementioned house in favour of the appellant and his brother.

3. Subsequently, on the basis of affidavit /association deed, dated 17-12-1959, the Deputy Settlement Commissioner, Lyallpur, .passed an order whereby Sardar Muhammad, predecessor-in-interest of respondents Nos. 1 and 2, was declared as partner of the appellant and his nephew on the basis of the aforementioned agreement of association. The appellant preferred an appeal against the order, dated 23-12-1959, passed by the Deputy Settlement Commissioner, but his appeal was dismissed by the Additional Settlement Commissioner, vide his order, dated 18-9-1962. The appellant thereafter, went in revision before the Settlement Commissioner, but his revision was also dismissed on 1-9-1964. Subsequently, he challenged the orders passed by the Settlement Authorities before the High Court by way of a Constitutional Petition but his Writ Petition was dismissed in limine and his petition for special leave to appeal was also dismissed by the Supreme Court of Pakistan on account of being barred by limitation. Ultimately, the appellant filed a suit before the learned Civil Judge, Lyallpur, seeking a declaration to the effect that the affidavit /agreement of association, dated 17-12-1959, was bogus, illegal and void document and was thus ineffective as against the appellant's rights. As a consequential relief he sought cancellation of the said document. He also sought a declaration that the judgments passed by the Settlement Authorities were wrong, illegal, without lawful authority and void. He further sought to be declared that on the basis of transfer order, dated 13-11-1959, he was the sole owner of the house in question or in the alternative he was owner to the extent of one-half of the said house.

4. Alongwith the suit the plaintiff-appellant also filed an application under Order XXXIX, rule 1, Code of Civil Procedure, 1908, for temporary injunction. This application for temporary injunction was resisted by the respondents. While hearing arguments of the parties, for the disposal of the application for temporary injunction, the learned trial Court passed the order, dated 6-7-1968, rejecting the appellant's plaint on two grounds; firstly, that the suit was not competent before the civil Court as the orders passed by the Settlement Authorities, declaring the predecessor-in-interest of respondents Nos. 1 and 2 as joint transferee, on the basis of agreement of association, had attained finality by virtue of the provisions of sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and secondly, that the suit for cancellation of the document dated 17-12-1959, having been-filed in April, 1968, was clearly barred by time.

5. The appellant went in appeal before the learned Additional District Judge, who vide his impugned judgment and decree, dated 18-12-1968, dismissed the appeal and upheld the order of rejection of plaint passed by the learned trial Court. Hence the present second appeal.

6. It has been vehemently argued on behalf of the appellant that the orders passed by special tribunals can only attain finality if the same are passed in accordance with law, creating such tribunals and are not tainted with mala fide. The civil Court, being Court of ultimate jurisdiction, can look into the question as to whether an order passed by a special tribunal has been passed in accordance with law or is not based on mala fides. It has also been urged that fraud vitiates the most solemn act and the civil Court, a Court of general jurisdiction, can competently try a suit whereby it is challenged that an order passed by a special tribunal has been obtained by fraud. Reliance has been placed on Hamid Husain v. Government of West Pakistan and others 1974 S C M R 356, wherein it has been held theft even where the jurisdiction of civil Courts is barred and conferred upon special tribunals, civil Courts being Courts of ultimate jurisdiction will have the jurisdiction to examine the acts of such forums to see whether their acts are in accordance with law or are illegal or even mala fide.

7. There can, of course, be no second opinion about the proposition enunciated in the above judicial precedent but we cannot lose sight of the fact that in the circumstances of the present case, the Deputy Settlement Commissioner was competent to pass an order about the association of the predecessor-in-interest of respondents Nos. 1 and 2, on the basis of affidavit /agreement of association, executed by the appellant and his nephew in his favour. Needless to say that the appellant has not denied the affixation of his thumb-impression on the document in question. He has alleged that his thumb-impress:; -;n was obtained by fraud but no details of the alleged fraud have been given. He has made allegations of fraud etc. against his own nephew out the said nephew has not been impleaded as party in the suit. The Additional Settlement Commissioner and the Settlement Commissioner were competent to dismiss the appeal and revision filed by the appellant. In such circumstances, the under consideration case is distinguishable from the precedent case on merits

8. Barkat Ali v. Administrator, Thal Development ,Authority, Bhakkar P L D 1918 Lah. 867; Yousaf Ali v Muhammad Aslam Zia and 2 others; P L D 1958 S C 104 and Mr. Muhammad Jamil Asghar v. The Improvement Trust, Rawalpindi PLD 1965 S C 698 Have also been cited on behalf of the appellant but all these authorities are distinguishable on merits.

9. The appellant, admittedly, challenged the validity of the affidavit/agreement of association, dated 17-12-1959, before the Deputy Settlement Commissioner, Additional Settlement Commissioner and the Settlement Commissioner. All these Authorities recorded findings adverse to the claim of the appellant and gave effect to the deed it question. The appellant also filed a Writ Petition, challenging the orders of the Settlement Authorities. The learned Judges of this Court, while dismissing the Writ Petition in limine, found that no fraud was played upon Siraj Din (appellant herein) and that he had voluntarily entered into a genuine, agreement of association whereby he transferred the house in dispute to Sardar Muhammad, the predecessor--in-interest of respondent Nos. I and' 2. The other legal pleas raised in the Constitutional Petition were also decided against the appellant. His petition for special leave to appeal was dismissed by the Supreme Court. Jalal Din, brother of the appellant, challenged the transfer of the house in question in favour of the appellant arid subsequent transfer of the said house, on the basis of the agreement of association, in favour of Mukhtar Ahmad etc. on the ground that in fact the value of the house was more than Rs.10,000 but it was wrongfully shown to be Rs.9,936 in order to enable Siraj Din, a local, to obtain transfer of the said, house. The suit of Jalal Din failed before the trial Court as well as the lower appellate Court. His regular second appeal was dismissed by this Court on 2-2-1980. Jalal Din filed Civil Petition for Special Leave to Appeal No. 542 of 1980 before the Supreme Court of Pakistan. The said august Court dismissed the petition observing:--

"The judgment of the High Court that the civil Court had no jurisdiction to interfere in the circumstances of this case, is eminently reasonable and is quite consistent with the provisions of section 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958."

10. It has also been stated at the Bar, without contradiction by the appellant, that respondents Nos. 1 and 2 have obtained order of ejectment against the appellant from the Rent Controller. That order has been upheld by the appellate authority as also by the High Court and the Supreme Court in exercise of the Constitutional jurisdiction. In the ejectment proceedings the appellant has not challenged the title of respondents Nos. 1 and 2.

11. AB regards the question of 'limitation, the order on the basis of affidavit /agreement of association, dated 17-12-1959, was passed by the Deputy Settlement Commissioner on 23-12-1959, in favour of Sardar Muhammad, the predecessor-in-interest of respondents Nos. 1 and 2. The appellant challenged this order by way of appeal and the Additional Settlement Commissioner, vide his order, dated 6-8-1960, sent for comments and report from the Deputy Settlement Commissioner. This shows that the appeal was filed prior to 6-8-1960 and the appellant knew about the order, dated 23-12-1959 prior to 6-8-1960. His revision was ultimately dismissed by the Settlement Commissioner on 1-9-1964. The Writ Petition was also dismissed in limine by the High Court on 6-11-1964. He filed a time barred appeal before the Supreme Court. Even if he is allowed benefit of the time spent before the Settlement Authorities and the High Court, his suit which was filed on 29-4-1968, was barred by time, as virtually the suit sought cancellation of the document, dated 17-12-1959. Under Article 91 of the Limitation Act, the cancellation of an instrument can be sought only within a period of 1q three years, from the date of knowledge of the facts entitling the plaintiff to have the instrument cancelled. As stated above, the appellant filed suit much beyond the period of three years after the dismissal of his Constitutional Petition by the High Court.

12. It has been argued that as a matter of fact the appellant's suit was not for cancellation of document. He only sought declaration to the effect that the said document was ineffective as against his rights and, therefore, the suit was not covered by Article 91 of the Limitation Act. This, plea is without any substance because in the plaint the appellant has specifically asked that the document, dated 17-12-1959, which was bogus, without consideration, illegal and void, be cancelled as a consequential relief. In Vellayya Konar and another v. Ramaswami Konar and another A I R 1939 Mad. 894, difference between a suit for cancellation of the instrument and one for declaration that the instrument is not binding was explained as under:--

"There is a difference between a suit for the cancellation of an instrument and a suit for a declaration that the instrument is not binding upon the plaintiff. When plaintiff seeks to establish a title in himself and cannot establish that title without removing an insuperable obstruction such as a decree to which he has been a party or a deed to which he has been a party, then quite clearly he must get that decree or deed cancelled or declared void in toto and his suit is in substance a suit for the cancellation of the decree or deed even though it be framed as a suit for a declaration. But when he is seeking to establish a title and finds himself threatened by a decree or a transaction between third parties, he is not in a position to get that decree or that deed cancelled in toto. That is a thing which can only be done by parties to the decree or deed or their representatives. His proper remedy therefore, in order to clear the way with a view to establish his title, is to get a declaration that the decree or deed is invalid so far as he himself is concerned and he must therefore, sue for such a declaration and not for the cancellation of the decree or deed".

13. In the present case, admittedly, the appellant is a party to the affidavit /agreement of association, dated 17-12-1959. He can establish his title with regard to the house in question only after cancellation of this document. His suit is, therefore, in substance a suit for cancellation D of the said document. As already observed, he has in fact asked for a relief of cancellation of the document, dated 17-12-1959. The learned trial Court has, therefore, rightly found that the suit was governed by Article 9 of the Limitation Act.

14. In the light of the foregoing conclusions, no exception can be taken to the lower Courts judgments and decrees whereby the plaint of the appellant has been rejected under Order VII, rule 11, Code of E Civil Procedure, as the suit questioned the judgments of the Settlement Authorities which had attained finality by virtue of the provisions of sections 22 and 25 of the Displaced Persons (Compensation and Rehabilitation) Act, 1958, and the suit was otherwise also barred by time. In this view of the matter, the present appeal is dismissed with costs throughout.

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