MASROOR AFZAL PASHA and another vs D.H.A., KARACHI and another

' MUHAMMAD MOOSA K. LEGHARI, J.--- Through this petition for leave to appeal the petitioners have assailed the legality and propriety of the order, dated 15-12-2006 whereby learned Division Bench of the High Court of Sindh dismissed High Court appeal filed by the petitioners and maintained the order passed by learned Single Judge on the application under Order VII, rule 11, C.P.C. Whereby plaint filed by the petitioners in Suit No,1205 of 2003 was rejected on the sold ground that he suit was barred by time.

2. The relevant facts as contained in the impugned order are that on 4-11-2003 petitioners filed a suit for declaration, permanent injunction, cancellation, mesne profit, damages and possession against the respondents in respect of Plot No,110, Khayaban-e-Hafiz, Phase-VI, D.H.A. Karachi, claiming title through their predecessor-in-interest late Mansoor Alam. The respondents Nos.l and 2 filed their written statements wherein maintainability of the suit was challenged inter alia, on the point of limitation. The respondent No,2 also moved an application under Order VII, rule 11, C.P.C.

After hearing the parties learned Single Judge concluded that the suit having been filed after 13 years to the cause of action occurring in favour of the petitioners/their predecessor-in-interest was barred by time and consequently plaint in the suit was rejected. High Court appeal filed by the petitioners was also dismissed.

3. It is contended on behalf of the petitioners that though allotment in favour of the petitioners was cancelled in the year 1990 but without notice to the petitioners therefore, the petitioners were not aware of such cancellation and that they only came to know about re-allotment of the plot to private respondents in the year 2003. In this view of the matter learned counsel contends that the order of cancellation of plot was void ab initio for which there will be no limitation and further that the petitioners came to know about subsequent allotment/lease to the private respondents in the year 2003 when he started construction on the plot as such the limitation would start from the date of knowledge. It is accordingly argued that the order of the learned Single Judge, as maintained by the Appellate Court, rejecting the plaint on the ground of limitation was illegal and unlawful. In support of above contentions learned counsel referred to certain authorities.

4. Convesely, it is contended on behalf of the respondents that the plaint was patently barred by time as the allotment and the lease in favour of the petitioners/predecessor-in-interest was cancelled in the year 1990. The petitioners also challenged the said action of respondent No,1 by filing a constitutional petition before the High Court but the same was dismissed for non- prosecution, and no efforts were made to get the same restored.

5. We have considered the arguments advanced before us, examined the relevant case-law on the subject and carefully perused the material available on the record.

6. On examination of the material on record we find that the arguments advanced on behalf of the petitioners are in contravention of the averments of the plaint and the documents annexed to the plaint, as such are devoid of force. The perusal of the averments made in the plaint reveal that the petitioners have mentioned therein the fact about issuance of show-cause notice to their predecessor-in-interest, submission of its reply and ultimate cancellation of the plot by the decision of executive board of respondent No,1 vide order, dated 22-7-1990. All such documents are available on record. Learned counsel for the petitioners has admitted that the predecessor-in- interest of the petitioners has challenged the above decision through Constitutional Petition No,D- 810 of 1990 against the cancellation of his entitlement in respect of disputed plot by respondent No,1 in the year 1990 which was ultimately dismissed in default. The argument that the present petitioners were unaware of filing of that petition as the litigation was being pursued by deceased Mansoor Alam is also not sustainable in law, as the petitioners could not claim lack of knowledge on this count. The facts make it abundantly clear that the action in respect of cancellation of allotment and the lease was taken by respondent No,1 in the year 1990. In the circumstances, the suit instituted by the petitioners after the lapse of more than 13 years from the date of such order was patently barred by time.

7. On scrutiny of the impugned order we have noted that a detailed, elaborate and lawful order has been passed wherein all aspects of the case have been taken into consideration. The rulings cited by the learned counsel for the petitioners in the facts and circumstances are of no help to the case of the petitioner. As a result of above discussion, we are of the view that the judgment impugned through this petition is legally valid and unexceptionable. Consequently, the petition is dismissed and leave refused.