Mst. QUDSIA BEGUM Versus HAZOOR AHMAD KHAN
This revision is directed against the order dated 12‑5‑1980 and ., judgment/decree dated 5‑3‑1981 passed by the learned XXIlth Civil Judge Ilnd Class, Karachi and the learned VIIth Additional District Judge, Karachi, in Suit No.997 of 1979 and Civil Appeal No.256 of 1980 respectively.
2. The brief facts lading to the filing of the above revision are that the respondents filed a suit for the recovery of Rs.10,000. 11 was decreed as ex parte on 20‑2‑1980. The applicant filed an application under Order IX, Rule 13, C.P.C. for setting aside the above ex parte decree on the ground that the decree was obtained by fraud. The above application was dismissed by the learned XXIIth Civil Judge IInd Class, Karachi by the aforesaid order dated 12‑5‑1980. Against the above order the applicant filed aforesaid Civil Appeal No.256 of 1980, which was also dismissed by the above judgment/decree dated 5‑3‑1981. The applicants, who are the legal heirs of Mst. Qudsia Begum widow of S.MAhmed, have therefore, filed the present revision against the above two orders as well as against the aforesaid original judgment and decree dated 20‑2‑1980.
3. I have heard the arguments of the learned counsel for the applicants, Mr‑Abrar Hassan and M/s. Amir Azam and Qazi Khalid Ali, learned counsel for the respondents.‑I was not inclined to set aside the two orders passed upon the above application under Order IX, Rule 13, C.P.C. but the learned counsel for the applicants has submitted that the above revision is also directed against the above ex parte judgment /decree dated 20‑2‑1980 on the ground that the learned trial, Court could not have passed the decree on the basis of the averments contained in the plaint, as the suit was tine‑barred. The reliance has been placed on para.7 of the plaint which reads as follows:‑
"That the cause of action arose in the year 1975, within the jurisdiction of Nazimahad P.S, .at the time of payment of the amount and the defendant has executed the receipts and undertaking in presence of. two witnesses."
4. A perusal of the above para. indicates that the alleged cause of action arose to the respondent in the year 1975 on the basis of the undertaking allegedly executed by deceased Mst.Qudsia Begum on 15‑8‑1975, whereas the plaint was presented to the Court of learned XXIIth Civil Judge find Class, Karachi on 12‑3‑1979.
On the other hand the learned counsel for the respondents have submitted that factually the suit was fled on 10‑8‑1978 in the Court of learned XVIIIth Civil Judge, who ordered the return of the plaint on 12‑8‑1978 for want of jurisdiction for presentation of the same to the proper Court. The plaint was presented in the Court of the learned XXIIth Civil Judge find Class, Karachi on 12‑3‑1979. if we were to exclude the period commencing from 10‑8‑1978 to 12‑3‑1979, the suit would be within the limitation period as the undertaking was executed on 1‑5‑8‑1975. However, if we were not to exclude the above period, as observed hcr6nabovc, the suit would be out of time.
5. The learned counsel for the applicants has relied upon the case of Miss Shama Ahsan v. Province of Sind and 6 others reported in P L D 1984 Kar. 195, in which a Division Bench of this Court after referring to the cases of the Supreme Court held that admission on the part of the counsel of one of the parties on the question of limitation could not absolve the authority from its statutory duty to examine the question of limitation in proper perspective and to decide the same correctly. On the basis of the above judgment which‑ is based inter alia on the Supreme Court judgment in the case of Ahsan Ali and others v. District Judge and others, P L D 1969 S C 167, it was urged by the learned counsel for the applicants that though the applicant had not raised this plea before the two Courts below but he is entitled to raise the same in this revision as it is purely a question of law and does not need recording any evidence.
On the other hand Mr.Amir Azam, learned counsel for the respondent has referred to the case of Mst.Hawabai and 6 others v. Abdus Shakoor and 8 others P L D 19.70 Kar. 367, in which it has been held that if the plaint is returned for representation, the party cannot amend the contents of the plaint without permission of the Court as the representation of the plaint is in continuation of the previous institution in the wrong Court. There cannot be any cavil with the above proposition of law but in the present case prima facie it seems that the plaint was represented on 12‑3‑1979 after the expiry of nearly 6 months from the date of the orders for the return of the plaint passed by the learned XVIIIth Civil Judge. There is no explanation on record as to the reason of the delay for representation.
6. In my view a party is supposed to represent the plaint in the proper Court within reasonable time and if there has been any lapse on his part, he cannot invoke section 14 of the Limitation Act without making out a case. The learned trial Court has not dilated upon this aspect.
7. I, therefore, allow the above revision and set aside the judgment and decree but would remand the case to the learned Civil Judge with the direction to provide opportunity to the respondents to explain the reason as to why there was delay in the representation of the plaint to his Court after it was ordered on 12‑8‑1978 by the learned XV111th Civil Judge that the plaint be returned fort presentation in the proper Court.
The revision stands disposed of' in the above terms‑with no order as to costs.
H.B T. /Q‑15,/K Order accordingly