PLJ 2004 Lahore 671

Present: muhammad muzammal khan, J. KHAIRAT MASIH (deceased through legal heirs)-Petitioners

versus

AZIZ SADIQ-Respondent C.R. No. 2411 of 2003, decided on 23.12.2003. (i)

Civil Procedure Code, 1908 (V of 1908)--

—-O.VII R. ll Objection that suit was barred by time is a mixed question of
law and fact. [P. 673] A

(ii) Civil Procedure Code, 1908 (V of 1908)--

—S. 11-Principle of res judicata-Not applicable where earlier suit was
withdrawn and so was not decided on merits. [P. 673] B

(iii) Civil Procedure Code, 1908 (V of 1908)--

—O. II, R.2-Bar contained under the provision is not available where
decision has not been given on merits. [P. 673] C

2003 SCMR 1284 ref. 1999 SCMR 2396, 1988 CLC 1207 ref.

Ch. Muhammad Arshad, Advocate for Petitioners. Date of hearing : 23.12.2003.

order

This revision petition assails judgment/order dated 27.9.2003 passed by the learned Additional District Judge, Lahore accepting appeal of the respondent and remanding the case to the trial Court with a direction to frame all the necessary issues, to record evidence on merits to hear the parties and to decide the case afresh.

2. Precisely, relevant facts are that the respondent entered into a tie
of marriage with Mst. Barkat Bibi, mother of Khairat Masih deceased,
predecessor' of the petitioners, in the year, 1963. The said predecessor of the
petitioners' at that time, was a child of 4/5 years old, was born from earlier
husband of Mst. Barkat Bibi and respondent was his step-father. According
to the respondent, he brought up Khairat Masih deceased, like his own child,
during this brought up, he occupied a plot in Kachi Abadi,' Shah Jamal,
Lahore, 'in the year, 1966. Government of the Punjab, in the years 1979-80
decided to provide alternative accommodation to the inhabitants of Kachi
Abadi, Shah Jamal, Lahore, in LDA quarters, Township Scheme and price of
a quarter was fixed at Rs. 17,500/-, out of which, an amount of Rs. 7000/-
was subscribed by the Government of Punjab and the balance amount was
to be paid through loan of House Building Finance Corporation, arranged by
Lahore Development Authority, payable by the allottee through instalments.
In this manner, the respondent claimed ownership of quarter No. 171-A,
Township Scheme, Lahore, whereafter he claimed to have transferred it, out
of love and affection with predecessor of the petitioners, in his name, the
respondent claimed that transfer in favour of Kairat Masih was Benami and
real owner is the respondent.

3. The petitioner's predecessor being a defendant in the suit
contested it by asserting that the respondent has no cause of action to file the
suit, besides the objection of maintainability of the suit on account of earlier
withdrawal of a similar suit vide order dated 9.1.2002 wherein, no
permission was granted for filing fresh suit. The petitioners' predecessor on
merits, claimed that he purchased this quarter out of his own labour and
efforts. The suit of the respondent was also claimed to be barred by
limitation.

4. Pending this suit, an application under Order VII,-Rule 11 CPC
was filed by the deceased defendant that plaint is liable to be rejected as the
suit is barred by limitation, as well, under the principle of res-judicata. This
application was contested by the respondent and the learned trial Judge who
was seized of the matter, accepted the application of the petitioner and
rejected the plaint of the respondent under Order VII, Rule 11 CPC vide his
judgment/order dated 20.11.2002.

5. The respondent aggrieved of the decision of the trial Court dated
20.11.2002 filed an appeal before the Additional District Judge and
succeeded in having the said decision annulled, as his appeal was accepted
and the case was remanded vide judgment/order dated 27.9.2003, as noted
above. It appears that Khairat Masih, died in the meanwhile and petitioners
who are his heirs/legal representatives have now filed this revision petition,
challenging the appellate judgment/order, remanding the case to trial Court,
as noted above.

6. Learned counsel for the petitioners submits that suit of the
respondent was barred by limitation, as well as, under the principle of res-

judicata and Order II, Rule 2 CPC, as'such, plaint was rightly rejected by the learned trial Judge but on appeal, a well reasoned judgment, has erroneously been reversed by the appellate Court. He further submits that no fruitful purpose will be served on account of remand of the case, which cannot succeed on merits, as well, because the petitioners predecessor was not a Benamidar.

1. I have anxiously considered the arguments of the learned counsel for the petitioners and have examined the record appended herewith. Appellate Court has taken the view that both the grounds urged in support of rejection of plaint i.e. limitation and res-judicata cannot be decided without recording of evidence. Undeniably, limitation is a mixed question of law and facts and cannot be determined without recording of evidence. Under law, limitation for filing of a declaratory suit, the like one in hand, stalls from the date of denial of title of the plaintiff, which in the instant case was pleaded to be in the year, 1999; From this time, suit which was filed on 28.10.2001, appears to be within limitation. Be that as it may, if the petitioner can show at the trial, by evidence that from the very beginning their title had been hostile, obviously, thereafter the suit which can be held to be barred by limitation. The proposition that plaint cannot be rejected on the ground that it is barred by limitation, it being a mixed question of law and facts, is settled by this time. My this view gets support from the judgment in the cases of Tariq Mehmood vs. Najam-ud-Din (1999 SCMR 2396) and Abdur Rahim vs. Karachi Development Authority (1988 CLC 1207).

8. Coming to the other ground on which the plaint was rejected by the learned trial Judge that the suit is hit under the by principle of res-judicata, as the respondent earlier filed a suit for permanent injunction and withdrew it on 18.7.2001 without permission to file fresh suit, on the basis of same cause of action, second suit is barred. Since earlier suit was withdrawn and was not decided on merits, principles of res-judicata are not applicable. A reference can be made in the case of Punjab Board of Revenue, Employees Cooperative Housing Society, Limited versus Additional District Judge, Lahore (2003 SCMR 1284). The petitioner urged bar contained in Order XXIII, Rule 1(3) CPC or under Order II, Rule 2 CPC. Earlier suit was simplicitor for permanent injunction, on the basis of his ownership whereas this suit has been filed for declaration, challenging ownership of the petitioners as Benamidars. A suit which has not seen adjudication and decision on merits of the case, can in no manner, create bar, envisaged by Order II, Rule 2 CPC. Hence, bar contained in both these provisions of law, referred to above, are not applicable. Both the grounds on which the plaint was rejected by the trial Court, could only be determined by recording of evidence and has so been held by the Hon'ble Supreme Court of Pakistan. All the above findings are tentative in nature but plaint, in this case, does disclose a cause of action and prima facie, was not barred by any law hence, plaint, therein, could not have been rejected. The order of remand, subject of attack in this revision petition, has caused no prejudice to the petitioners as both these grounds, have been put to issues and after recording of evidence of the parties, shall be decided by the trial Court, on merits.

9. Learned counsel for the petitioner complains that determination
of suit on merits will delay the decision and since controversy between the
parties can be resolved on the basis of the above discussed to legal points,
those may be ordered to be treated as preliminary. Provisions of Order XIV,
Rule 2 CPC are clear on the subject whereunder the petitioners, after
framing of entire issues, as directed by the appellate Court, can move an
application to trial Court, for treating issues of law, as preliminary and to
decide those before proceeding with the merits of the case. These provisions
are mandatory in nature and can in no manner be ignored by the trial Court.

10. For what has been discussed above, I am of'the considered view
that the appellate Court has taken a rightful decision and has correctly
remanded the case for decision, as observed by it. No illegality or irregularity
has been committed by the appellate Court, in absence of which no
interference is called for in the revisional jurisdiction of this Court. This
revision petition has not merit in it and is, accordingly, dismissed in limine
with no order as to costs.

(J.R.) Petition dismissed.