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Constitutional Petition No. 19 of 1982, decided on 5th November, 1985.

‑‑‑S. 53‑‑Limitation Act (IX of 1908), Art. 120‑‑Adverse entry in record of rights‑‑Limitation to file suit‑‑Denial of title through adverse entry in record of rights‑‑Article 120, Limitation Act, 1908, held, was applicable.

Ahmad Din v . Muhammad Shaft and others P L D 1971 S C 762 ref.

‑‑‑0. VII, r. 1‑‑Limitation Act (IX of 1908), Art. 120‑‑Denial of title‑‑No averment in plaint of denial of title within six years‑‑Effect‑‑Absence of plea of denial of title within six years in plaint, _held, would not attract Art. 120, Limitation Act, 1908.

Ahmad Din v. Muhammad Shafi and others P L D 1971 S C 762 and Gul Khan v. Said Hassan Khan and others P L D 1968 Pesh. 148 ref.

‑‑‑S. 14‑‑Exclusion of time for bona fide proceeding in Court having no jurisdiction‑‑Plea of‑‑In order to press into service exclusion of time spent in another proceeding, plaintiff, held, was obliged to make averment as to material facts in plaint to show that he was prosecuting with due diligence and in good faith suit or any other civil proceeding being on same cause of action, which he could not succeed for want of jurisdiction or other cause of like nature.

‑‑‑Ss. 3 5 a 14‑‑Suit or proceeding filed beyond period, of limitation‑ Effect‑‑Court or forum before which suit or proceeding were instituted, held, would dismiss same though question of limitation had not been set up in defence if same had ‑ been filed after expiry of period of limitation‑‑Inaction, omission and negligence in not filing legal proceeding within prescribed period would create right in favour of opposite party‑‑Such right could not be snatched away lightly by extending period either under S., 5 or S. 14, Limitation Act, 1908.

Ahsan Ali and others v. District Judge and others P L D 1969 S C 167; Messrs Conforce Limited v. Syed Ali Shah and others P L D 1977 S C 599; Wali Muhammad and 2 others v. Inam‑ul‑Hassan Khan and 5 others P L D 1971 Lah. 332 and Ch. Muhammad Sharif v. Muhammad Ali Khan and others 1975 S C M R 259 ref.

‑‑S. 4(2)‑‑Reference of dispute to tribunal‑‑Requirement‑‑Such dispute would not be referred to Tribunal if same was barred by provisions of Limitation Act, 1908‑‑Deputy Commissioner or Authority exercising powers of Deputy Commissioner, held, was duty bound to decide question of limitation himself, without making reference to Tribunal‑ Where, however, question of limitation was mixed question of fact and law and same could not be decided without recording evidence, such question should be referred to Tribunal.

Ghulam Sarwar v. Member, Board of Revenue II, Baluchistan and 4 others P L D 1978 Quetta 34 ref.

‑‑‑Art. 9‑‑Limitation Act (IX of 1908), S. 3‑‑Constitutional jurisdiction, exercise of‑‑Orders of subordinate Court being in consonance with law and in terms of S. 3, Limitation Act, 1908, interference with such order, by respondent authority, held, was not justified‑‑Such inter ference suffered from infirmity of a nature as to warrant exercise of Constitutional jurisdiction‑‑Impugned order declared as without lawful authority and of no legal effect.'

Mir Dost Muhammad v. Government of Baluchistan and 3 others P L D 1980 Quetta 1 ref.

Iftikhar Muhammad for Petitioners.;

Besharatullah for Respondents Nos. 2 to 6 and 14 to 20.

Nemo for Respondents Nos. 7 to 13 and 21 to 22.

Date of hearing: 22nd October, 1985.

This petition is directed against the order, dated 15th October, 1981 passed by the learned Member III of the Board of Revenue, Baluchistan. The brief facts leading to the filing of the above petition are that late Ali Muhammad grandfather of the present petitioner purchased 244 Acres, 2 rods and 34 poles of agricultural land, situated in Mahal Karez Walgai and Mahal Surguzai, Mauza Woolgai in Tehsil Pishin as averred by the petitioner. Out of the above land, 153 Acres were mutated in the name of late Ali Muhammad, but the remaining land was not mutated. In 1965, said Late Ali Muhammad (the petitioner's grandfather) filed an application under section 145, Cr.P.C. in the Court of Assistant Commissioner Pishin, alleging interference by the private respondents' predecessor‑in‑interest with the possession of the land in dispute, whereas the respondents Nos. 2 and 3 (hereinafter referred to as the said respondents) filed a complaint under section 447/448, P.P.C. alleging that late Ali Muhammad and Dost Muhammad were interfering with their possession. Late Ali Muhammad's above application under section 145 Cr. P. C was referred to the Counciliation Court and so also the aforesaid complaint, which was dismissed on Ist May, 1966. The appeal against the above order was also dismissed on 26th July, 1966. However, late Ali Muhammad's above application under section 145, Cr.P.C. was allowed by an order, dated 15th March, 1967. After that, late Ali Muhammad and his three brothers made an application for mutation of the remaining land in their name. Thereupon, the Naib Tehsildar submitted his report, dated 6th February, 1967 stating therein, that the petitioner and his father were in possession of the land, but the Deputy Commissioner refused to mutate the same by his order, dated 15th July, 1967. Against the above order late Ali Muhammad filed an appeal, which was accepted by the Commissioner by his order, dated 16th September, 1968. In pursuance whereof, the mutation was effected on 19th October, 1968. The respondents Nos. 2, 3 and 4 alongwith four other persons filed a revision on 9th December, 1975 i.e. after the expiry of more than seven years from the date of the above mutation, which was resisted by late Ali Muhammad and was dismissed by an order, dated 13th June, 1977, against which, the above respondents filed Constitutional Petition No. 131 of 1977 , which was dismissed by a D . B . of this Court by a judgment, dated 21st September. 1978. It may be pertinent to quote the operative portion of the above judgment, which reads as follows: ‑‑

"Besides this Court would not be in position to award an efficacious remedy to the petitioners. Unless an efficacious remedy is not provided to petitioners, the High Court is always reluctant to issue writs of certiorari. Besides a petition under Article 199 of the Constitution is competent only when there is no other alternate remedy available to the person invoking the extra ordinary jurisdiction of this Court. Indeed the petitioners have an adequate remedy available to them in law. The petitioners evidently are aggrieved against the decision of the Revenue Officers. The Land Revenue Act provided remedy for such grievances. It is open to the petitioners to file a civil suit in a Court having jurisdiction for seeking declaration of his right, interest or title besides for possession of the land if they are so advised.

For the foregoing reasons, we see no reason to issue writ of certiorari in favour of the petitioners or declare the order of the Member Board of Revenue having been passed without lawful authority."

Thereafter, the said respondents and Messrs Abdul Karim and Muhammad Lal filed a suit on 31st January, 1979 in the Court of Assistant Commissioner. Pishin, to which, the present petitioner filed objections. Upon his application, the above case was transferred to the file of Deputy Commissioner, Pishin, who after hearing the parties by his order, dated 30th August, 1979 held that the suit was time‑barred. The operative portion of the above order reads as follows:‑‑

"It is an admitted position that after the entries were made in favour of defendant vide Mutation No. 29, dated 19‑10‑1968 the plaintiffs kept quite and did not agitate in respect of the same for a considerable long time and it was only in the year 1975 that they filed a revision petition before the Member Board of Revenue which was dismissed in view of the limitation and the plaintiffs were advised to agitate the matter in the civil Court, whereafter a writ petition was filed which also was dismissed and ultimately the present writ has been filed.

It is an admitted position that no action whatsoever, was taken by the plaintiffs between 13‑10‑1968 and (date of filing the suit) the basic principle of law regarding computation of limitation and enunciated under section 9 of the Limitation Act is that when once time has begun to run no sufficient event or inability to sue stops it. In addition to the same there is no explanation for such‑a long and inordinate silence of the plaintiffs. The plaintiffs could claim protection either under Article 91 of the Limitation Act where the period prescribed is three years from the date of actual cause of action for cancelling the instrument of mutation or ultimately at best that could claim six years as provided for under Article 120 of the Limitation Act. This contention of the counsel for the plaintiffs is strongly supported by the view taken in case of Ahmed Din v. Muhammad Shafi P L D 1971 S C 762."

Against the above order, the said respondents filed an appeal, which was dismissed by the Additional Commissioner, Quetta Division, Quetta by his order, dated 17th September, 1980, the operative portion of which, is as under:‑‑

" Although this was not a direction /decree V.T. Karezat on 19‑10‑1968 by Mutation No. ,29 transferred the disputed land in the name of Akhundzadas. After doing nothing for over 6 years present appellants on 9‑12‑1975 went in a revision before B.O. R . who by their second order, dated 13‑6‑1977 declared the matter time‑barred. Appellants went to High Court of Baluchistan who by their judgment, dated 21‑9‑1978 dismissed the appeal with the remarks:‑‑

'The petitioners evidently are aggrieved against the decision of the Revenue Officers. The Land Revenue Act provided remedy for such grievances. It is open to the petitioners to file civil suit in a Court having jurisdiction for seeking declaration on his right, interest or title besides for possession of the land if they are so advised.

For the foregoing reasons, we see no reason to issue writ of certiorari in favour of the petitioners or declare the order of the Member Board of Revenue having been passed without lawful authority.

In result, the petition stands dismissed.'

The lapse of a period of 10 years 3 months and 12 days is not covered under any relevant provision of Limitation Act. The present suit which was badly time‑barred was rightly dismissed by lower Court on the point of limitation. I, therefore, see no reason to interfere with the impugned order and the appeal is therefore, dismissed."

Against the above order, the said private respondents filed a revision, which was allowed by the respondent No. 1 by his impugned order, dated 15th October, 1981. It may be advantageous to reproduce the operative portion,, which reads as follows:‑‑

"After hearing the parties and perusal of records etc. 1 observe that the matter pertains to the entries made in the Revenue, record in favour of the respondent by the Patwari of the Halqa without any authority/orders by the competent Revenue Officers which has given rise to all this litigation and the parties have been even gone to the Honourable High Court. The Honourable High Court in their order, dated 21‑9‑1978 have given direction that the petitioner Noor Ahmed may have a recourse to the competent civil Court. When the petitioner Noor Ahmed preferred a civil suit in the Court of Deputy Commissioner, Pishin, the matter was adjudged as time‑barred vide his order, dated 30‑8‑1979. This order was upheld by the Additional Commissioner, Quetta vide his order, dated 17‑9‑1980. But, to my mind, the stand taken by these Courts is not proper for the obvious reasons that the petitioner when aggrieved by one order or the other has been approaching the Court higher than that making that order and as such, he cannot be deprived ultimately of having a redress from the competent civil Court and filing his suit in that Court for the obvious reasons, that the right continues even in shifting from one Court to other when the matter is not taken up and decided on its own merits. As such, the Revision Petition is accepted and the orders of the lower Courts are not set aside. The case may be referred to a fresh tribunal for ascertaining the facts and its expeditious disposal on merits. This may not prejudice would be caused to any party. Consignee to records."

The petitioner being aggrieved by the above order has filed the present petition.

2. In support of the above petition Mr. Iftikhar Muhammad, learned counsel for the petitioner was vehemently urged that a plain reading of the plaint of the suit filed by the said respondents will indicate that the suit was hopelessly time‑barred as the mutation was effected on 19th October, 1968, whereas the suit was filed on 31st January, 1979.

On the other hand, Mr. Basharatullah, learned counsel for the said respondents has vehemently contended that in terms of section 53 of the West Pakistan Land Revenue Act, 1967, if any person considers himself aggrieved by an entry in the record of rights or in a periodical record as to any right of which he is in possession, he may institute a suit for declaration and that as the said respondents were in possession and that as their title was denied, they filed a suit within time. It was further urged by him that in any case, the respondent No. 1 was competent to have remanded the case for decision by the Tribunal.

3. Adverting to the above contentions of learned counsel for the parties, it may be observed that both the learned counsel for the parties are unanimous on the question that Article 120 of the First Schedule to the Limitation Act is applicable, which provides a period of six years from the date when the right to sue accrues, for a suit for which no period of limitation is provided elsewhere in the said Schedule.

4. Mr. Iftikhar Muhammad, learned counsel for the petitioner has referred to the case of Ahmed Din v Muhammad Shafi and others reported in P L D 1971 S C 762, in which case also, the question of limitation was involved in respect of the suit challenging the mutation. The Hon'ble Supreme Court while dismissing the appeal of the plaintiff observed as follows: ‑‑

"We are also in agreement with the High Court that the suit was barred by limitation. The appellant could not take advantage of the fact that he had filed a time‑barred appeal from the mutation proceedings, for extending the period of limitation. The period spent by him in prosecuting such a time‑barred appeal cannot be excluded in computing the period of limitation under Article 120 of the Limitation Act. The suit which was filed in 1962 to challenge an order of mutation made in 1953 was, therefore, clearly beyond six years and was, therefore, barred by limitation. "

On the other hand, Mr. Basheratullah has referred to the case of Gul Khan v. Said Hassan Khan and others, reported in P L D 1968 Pesh. 148, in which, a learned Single Judge of the erstwhile High Court of West Pakistan at Peshawar Bench, held that the record of right does not create or extinguish title, but is merely evidence thereof. The learned Judge made the following observation on the question of limitation:

"Adverting now to the question of limitation, once it is held that the plaintiffs were in joint possession of the property on account of their being true owners thereof, notwithstanding the erroneous entries in the record of rights, the cause of action arose only when there was a denial of the plaintiffs' rights by the defendants, and that admittedly took place only with the commissioning of the Warsak Canal which was within six years of the institution of the suit prior to this the major portion of the land had been lying waste for the last ninety years and even the recorded owners had not made any effort at all to bring this vast area under cultivation. The commencing point for limitation under Article 120 must, therefore, be the open denial of the plaintiffs' rights by the defendants and not the first erroneous entry in the revenue records."

We had called upon the learned counsel for the said respondents, Mr. Basharatullah to show from the plaint any averment, which may bring the case of the said respondents within the compass of the above‑quoted observation of the learned Single Judge To put it precisely, we had inquired from him, as to where he had alleged the fact of denial of the title of the said respondents by the petitioner or his predecessor‑in‑interest on any date, which would bring the case within the limitation period. Thereupon, he had invited our attention to paras. 8 and 9 of the plaint, which read as follows:‑‑

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5. A perusal of the above paras. indicates that there is no averment to the effect that the petitioner or his predecessor‑in‑interest had denied the title of the said respondents on any date within six years prior to the filing of the suit. However, Mr. Basharatullah has submitted that he cannot do better than to urge that since in the above paras. it has been averred that the revision was filed in 1975, it should be inferred that the petitioner and his predecessor‑in‑interest should have denied the title of the said respondents in 1975. In our view, this ‑submission is not tenable. In this regard, reference may also be made to para. 13 of the plaint, which relates to the cause of action and which reads as follows:‑‑

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The abovequoted para.13 also does not support even indirectly the contention urged by Mr. Basharatullah. Admittedly, in the present case, the parties were litigating since 1965, inter alia, in respect of the possession inasmuch as, the petitioner's grandfather late Ali Muhammad filed a case under section 145, Cr.P.C. against the said respondents and/or their predecessor‑in‑interest, alleging interference with his possession, whereas, the said respondents had filed a complaint under sections 447 and 448, P.P.C. against late Ali Muhammad and one Dost Muhammad, which culminated in the passing of the aforesaid order in favour of the petitioner's predecessor‑in‑interest. The mutations in question were effected on 19th October, 1968. The said respondents) have not made any averment in their plaint as to make terminusaquo i.e. the starting point for the purpose of limitation other than the above date of mutation 19th October, 1968. It may be observed that the first revision was filed by the said respondents as pointed out hereinabove on 9th December, 1975 which was dismissed and which order was maintained by the High Court by the aforesaid judgment, dated 21st September, 1978 passed in Constitutional Petition No. 131 of 1977. When the said respondents filed the above revision in the Board of Revenue, the remedy of suit by then had already become time‑barred in the absence of any fresh cause of action accruing after the effecting of mutation. Apart from the above factual aspect. It may also be pointed out that even the time spent during the period which has elapsed from the date of filing of the above revision by the said respondents in 1975 and the filing of the above suit in 1979, the said respondents have not made any averment in the plaint, which may entitle them to the benefit of section 14 of the Limitation Act, which provides that in computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceedings, ‑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. In order to press into service the above provision of Limitation Act, a plaintiff is obliged to make averment as to material facts in the plaint to show that he was prosecuting with due deligence and in good faith a suit or any other civil proceeding on the same cause of action, which he could not succeed for want of jurisdiction or other cause of alike nature.

6. Mr. Iftikhar Muhammad, learned counsel for the petitioner has also referred to the following judgments in order to urge that the said respondents have no case on limitation:‑‑

(i) Ahsan Ali and others v. District Judge and others, reported in P L D 1969 S C 167, in which, the Hon'ble Supreme Court while dealing with a case of settlement under the Displaced Persons (Compensation and Rehabilitation) Act, 1958, held that "it is clear, therefore, that whether the plea of limitation was raised or not, it was the duty of the Settlement Court to notice the point of limitation. A waiver of the question of limitation is not permissible, even where the period of limitation is prescribed by a special or local law. Mere disposal of the appeal on merits is not sufficient to lead to the inference that the delay must have been condoned. There must be something in the order or judgment itself to show that the Court concerned was conscious of the fact that the proceeding was out of time and had applied its mind to the question of limitation before dealing with the proceeding on merits".

(ii) Messrs Conforce Ltd. v. Syed All Shah etc. reported in P L D 1977 S C 599. In the above case, the Honourable Supreme Court repelled the contention of the learned counsel for 'the petitioner while declining leave to appeal that the order was void as it was passed on a date not fixed for hearing. It was pointed out that the expression 'void order' or 'order without jurisdiction', in original sense compass the case of lack of competency of Court or tribunal to enter upon the inquiry in question.

(iii) Wali Muhammad and 2 others v. Inam‑ul‑Hassan Khan and 5 others, reported in P‑ L D 1971 Lah. 332, in which, a D.B. of the Lahore High Court held that wrong advice of a counsel is a sufficient cause for condonation of delay under section 5 of the Limitation Act, but the mistake committed on account of negligence in not studying law on the subject and not exercising due care and caution, is no excuse for condonation.

(iv) Ch. Muhammad Sharif v. Muhammad Ali Khan and others, reported in 1975 S C M R 259. In the above case, the Honourable' Supreme Court while declining a petition for leave held that failure to acquaint himself with relevant provisions of law relating to jurisdiction of court amounted to negligence on the part of the counsel and, therefore, the High Court had properly exercised discretion in refusing to condone the delay under section 14 of the Limitation Act.

7. Suffice to observe that there seems to be unanimity of view among the superior Courts that because of the mandatory nature of section 3 of the Limitation Act, the Court or the forum before which any suit, appeal and application is instituted, preferred and made respectively, is obliged to dismiss the same although the question of limitation may have not been set up as a defence, if the same have been filed after the expiry of the period of limitation prescribed in respect thereof by the First Schedule. There also seems to be consensus that inaction, omission and negligence in not filing ,a legal proceeding within the prescribed limitation period creates a right in favour of the opposite party, which right, cannot be snatched away lightly by extending the period either under section 5 or under section 14 of the Limitation Act. In the present case, as pointed out, that even no averment was made by the said respondents to justify to treat terminusaquo other than the date of mutation. The above question has been properly dealt with by the Deputy Commissioner as well as by the Additional Commissioner in their orders, the operative portions of which, have been reproduced hereinabove. However, the respondent No. 1 without adverting to the legal aspect took the view that merely the fact that the said respondents were prosecuting some legal proceedings and as the High Court had observed that the said respondents could file a suit, if so advised, the question of limitation was not involved. He set aside the above two orders, which were passed in consonance with law and remanded the case for decision on merits. In other words, he decided the question of limitation in favour of the said respondents without adverting to the legal aspect. The above order, therefore; apparently suffers from infirmity of the nature warranting exercise of I writ jurisdiction

8. It was then contended by Mr. Basharatullah learned counsel for the said respondents, as observed hereinabove that the respondent No. 1 has directed that the case be referred to the Tribunal and, therefore, he has not in fact violated any law, as the provision of subsection (2) of section 4 of the Civil Procedure (Special Provisions) Ordinance, 1968 (Ordinance I of 1968) (hereinafter referred to as the 'Ordinance'), is merely directory and not mandatory, whereas, Mr. Iftikhar Muhammad, learned counsel for the petitioner has contended that since the Deputy Commissioner had the jurisdiction to decide the question of limitation and so also the Additional Commissioner, the respondent No. 1 was not justified in interfering with the said orders, as his jurisdiction is confined to examining the correctness, legality or propriety of any decision in terms of section 12 of the Ordinance. Mr. Basharatullah has referred to the case of Ghulam Sarwar v. Member, Board of Revenue II, Baluchistan and 4 others, reported in P L D 1978 Quetta 34, in which, the facts were that the Assistant Commissioner without first deciding the question of limitation referred the matter to the Tribunal which, inter alia, recommended that the suit was time -barred. The recommendation of the Tribunal was accepted by the Assistant Commissioner, which order was maintained in appeal and revision by the Commissioner, Quetta Division and by a Member of the Board of Revenue. The petitioner filed a Constitutional Petition, in which, it was urged that since the mandatory provisions of subsection (2) of section 4 of the Ordinance were not complied with, inasmuch as, the Assistant Commissioner had not decided the question of limitation before referring the matter to the Tribunal, the proceeding stood vitiated. The above contention was repelled and it was held that in any case, the Assistant Commissioner after receiving the recommendation of the Tribunal decided the question of limitation and so also the Commissioner and the Member of the Board of Revenue. In that context, it was held that the above provision of subsection (2) of section 4 of the Ordinance lei directory

9. It may be observed that subsection (2) of section 4 of the Ordinance provides that a dispute shall not be referred to a Tribunal, if a civil suit in respect thereof would be barred by the provisions of the Limitation Act, 1908. The use of the word "shall" gives the impression that the above provision is mandatory.

In our view, when on the basis of the averments contained in a plaint of a suit, it is evident that the suit is time‑barred, a Deputy Commissioner or an Assistant Commissioner exercising the powers of Deputy Commissioner should decide the question of limitation himself without making a reference to the Tribunal and without causing wastage of time of the Members of the Tribunal and of the parties. But where I the question of limitation is a mixed question of fact and law and it cannot be decided without recording the evidence, it will be more appropriate to refer the matter to the Tribunal and after receiving its recommendation to decide inter alia the question of limitation.

10. However, Mr. Iftikhar Muhammad, learned counsel for the petitioner has referred to the case of Mir Dost Muhammad v. Government of Baluchistan and 3 others, reported in P L D 1980 Quetta 1, in which, a D.B. of this Court while dealing with a case under the West Pakistan Criminal Law (Special Provisions) Ordinance, 1968 (II of 1968) held that if an Assistant Commissioner does not follow the mandatory provisions of section 5 of the said Ordinance of hearing the accused, the proceedings taken before the Tribunal, order passed by it or in appeal or revision by any authority, appellate or revisional, would be deemed to be coram non judice. The above case has no application to the present case.

11. We are of the view that the respondent No. 1 was not justified in interfering with the two orders of the Courts below, which were in consonance with law and in terms of section 3 of the Limitation Act and, therefore, the impugned order suffers from infirmity of the nature warranting exercise of constitutional writ jurisdiction. Hence, we allow the petition and declare the impugned order as being without lawfull authority and of no legal effect. There shall be no orders as to cost.

A . A . Petition allowed.

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