GOVERNMENT OF SINDH Versus KHALIL AHMAD
1. SYED HAIDER ALI PIRZADA, J.‑‑‑ This High Court Appeal is directed against the judgment, dated 31‑10‑1990 passed by the learned Single Judge of this Court dismissing the application under section 12(2) read with section 151 of the Code of Civil Procedure filed by the appellants.
2. The facts leading to the filing of the above appeal are that Survey Nos. 51, 52, 53, 62 and 64 in Deh Bitti Amri, taluka and district Karachi East, were originally owned by one Lilaram. The case of appellants as set out in the application was that the said Lilaram migrated to India. Thereafter the said Survey numbers were treated as evacuee property until 1974 when the Settlement Laws were repealed. After the repeal of the Settlement Laws, the above said survey numbers which now fall within Sector 33, were transferred on 24‑8‑1982 by the first appellant to the Industries Department. However, survey No.64 which was reported to be in Sector No.54‑A of Scheme No.33, was allotted to some co‑operative societies.
3. The first respondent filed Suit No.433 of 1984 against the second respondent and the present appellants, for specific performance and permanent injunction by directing the second respondent to execute sale‑deed in favour of the first respondent after receiving a balance of rupees two lacs from him or in the alternative by directing the Nazir of this Court to execute the sale‑deed in favour of the first 'respondent. The first respondent also sought reliefs against the appellants by directing them to issue a No‑Objection Certificate for the execution of the sale‑deed and by restraining them from interfering with the possession of the first respondent in respect of the said survey numbers. The appellants resisted the suit on the ground that the land in question was an evacuee property. The appellants contended that survey numbers 51, 52, 53 and 62 in Sector No.1‑4 had been included in industrial area of Scheme No.33 and transferred to Industries Department and Survey No.64 in Sector 54‑A of Scheme No.33 had been allotted to various Housing Societies. The second respondent filed written statement wherein contents of para. 1 of the plaint are admitted to the extent of fact that he borrowed rupees two lacs from the first respondent and mortgaged the agricultural land bearing the survey numbers in question. The second respondent pleaded that the aforesaid property was declared as non‑evacuee by the then Custodian, South Zone under No.622 of 1951 dated 2‑6‑1950 and 24‑2‑1958. He further pleaded that he is a Pakistani National having National Identity Card No.503‑20‑000493 issued at Karachi on 17‑1‑1974.
4. It appears from the record that the first respondent and the second respondent settled their disputes and filed an application under Order XXIII, Rule 3, C.P.C. on 23‑9‑1985. On 18‑i1‑1985 learned counsel appearing for the parties were present. The application under Order XXIII, Rule 3, C.P.C. was granted by consent. The appellants were directed to issue No‑Objection Certificate before 23‑12‑1985. On 23‑12‑1985 the following order was passed:‑
5. "Learned counsel for the plaintiff states that the plaintiff had applied some time in early 1984 for issuance of No‑Objection Certificate but no final action has been taken so far by the office of the Deputy Commissioner East. The Deputy Commissioner states that he has not seen the file but he will call for the file and within the next 10 days final orders will be passed on any application moved by the plaintiff for grant of No‑Objection Certificate. It is further stated by Deputy Commissioner that in case all the formalities are complied with and there is no obstacle in the way of the plaintiff, the requisite No Objection certificate will be issued to the plaintiff within the next 10 days but in case there is some objection or some formalities are not complied with, the plaintiff will be communicated the same so that the formalities are complied with. No further orders are necessary in this regard.
6. It may be observed that by order, dated 18‑11‑1985, the compromise application between the plaintiff and defendant No.4 has already been granted. In view of the statement made by the Deputy Commissioner in Court today, no further orders are to be passed against defendants Nos. 1, 2 and 3.
7. Suit No.433/84 stands disposed of."
8. The appellants filed an application under section 12(2) read with section 151, C.P.C. stating therein that the first respondent has committed fraud with this Court and has misrepresented the actual facts. The appellants prayed that the judgment and decree are liable to be invalidated. The first respondent contested the application. The learned Single Judge, on consideration of the arguments advanced on behalf of the parties, dismissed the application on the ground that the application is time‑barred. Being aggrieved against the impugned order, the appellants have filed the present appeal.
9. Mr. K.M. Nadeem, learned Assistant Advocate‑General raised the following contentions:‑
(1) Decree was itself void being contrary to section 23 of the Contract Act.
(2) Being a void decree, the law of limitation would not apply for setting aside the void decree.
(3) Admittedly there were four defendants, compromise application was subscribed by only plaintiff and defendant No.4 and not by defendants 1, 2 and 3 against whom reliefs were sought.
(4) The application was filed under section 12(2) read with section 151, C.P.C.
10. On the other hand, Mr. Muhammad Sharif learned counsel appearing for the first respondent submitted that the application was barred by time. He supported the impugned order.
11. We have considered the submissions of the learned counsel for the parties. Mr. Nadeem contended with some amount of force that the compromise decree is void, as such no period of limitation is prescribed for filing an application or petition for setting aside the decree. The stand of Mr. Muhammad Sharif, as already indicated, is that Article 181 of the Limitation Act, 1908 (the Act for brevity's sake) is attracted to the instant case and in the light of the period prescribed therein, the application or petition under section 12(2) or section 151 of the Code of Civil Procedure could be filed by the appellants when the cause of action accrued to them. In order to sustain this argument of his, learned Assistant Advocate‑General has referred to certain judgments, but we find it wholly unnecessary to refer to those judgments, as we are firmly of the opinion that the controversy in hand practically stands resolved by the authoritative pronouncements of their Lordships of the Supreme Court in Muhammad Iqbal and others v. Muhammad Alamgir and others, 1990 SCMR 1377, Mst. Amtul Kabir and others v. State, Khatoon and others 1991 SCMR 1022, Mst. Nigar Bibi and others v. Salahuddin Khan and others PLD 1990 SC 76, Government of Sindh and another v. Ch. Fazal Muhammad and another PLD 1991 SC 197 and Mst. Afzal Begum and others v. Y.M.C.A. through its General Secretary PLD 1979 SC 18. In the last mentioned case, the Hon'ble Supreme Court observed at page 30 that:
12. "In the light of the above discussion I am of the considered opinion that the ejectment order, dated 9th of April 1974 was passed ex parte by the High Court in appeal under section 15(4) of the Urban Rent Restriction Ordinance, 1959. It was not a decree as such and therefore, Article 169 of the Limitation Act was not at all applicable to the application made by the petitioners to set aside the ex parte order and rehearing of the appeal. It was governed by the residuary Article 181 of the Limitation Act and the application for rehearing of the appeal could have been made within three years: The cause of action had accrued to the petitioners on the passing of the ex parte ejectment order on 9‑4‑1974 and therefore, the application filed by them in the High Court on the 23rd of February 1978 for rehearing of the appeal was clearly barred by time."
13. In Mst. Nigar Bibi and others v. Salahuddin Khan and others PLD 1990 SC 76, it was observed by the Hon'ble Supreme Court at page 79 as follows:‑
14. "As for the question of limitation, this case would not be governed by Article 162 of the Limitation Act. The order against the respondents was passed ex parte, therefore, the application under section 151, C.P.C. was fully competent for which period of limitation is three years as prescribed by Article 181 of the Limitation Act."
15. In Muhammad Iqbal and another v. Muhammad Alamgir and others 1990 SCMR 1377 it was observed on page 1382 para. 10 as under:‑
16. "In view of these decisions, so far as the leave granting order is concerned, it stands answered that no conflict seems to exist and Article 181 of the Limitation Act has been correctly applied to the proceedings under section 12(2) of the Code of Civil Procedure."
17. In Mst. Amtul Kabir and others v. Safia Khatoon and others 1991 SCMR 1022, the Hon'ble Supreme Court observed at page 1027 as under:‑
18. "Learned Judge in the High Court has also rightly taken the view that the application under section 12(2) of the Code was barred by time. In this behalf, this Court has already held in Muhammad Iqbal v. Muhammad Alamgir 1990 SCMR 1377 that the period of limitation for filing of an application under section 12(2) of the Code is three years under Article 181 of the Limitation Act."
19. In Government of Sindh v. Fazal Muhammad PLD 1991 SC 197, the Hon'ble Supreme Court observed on page 201 para. 15 as follows:‑
20. "The intention of the legislature in amending section 12, C.P.C. by adding subsection (2) is to provide substitute for such a suit against a judgment, decree or order obtained by fraud etc. Since no limitation period is specifically provided for such an application, but in view of the above object, we are of the opinion that this will be governed by Article 181 of the Limitation Act, which is a residuary Article for applications for which no period of limitation is provided elsewhere in the Limitation Act or by section 48 of the C.P.C. The period for such application, as provided in the Article is three years when the right to apply accrues i.e. the date when the judgment, decree or order was obtained by fraud, misrepresentation or without jurisdiction."
21. We are thus firstly of the opinion that the provisions of Article 181 of the Act clearly govern the situation and the appellants could file application within three years when the right to apply accrued i.e. the date when the compromise was recorded by misrepresentation or fraud.
22. Under the Article, the time begins to run when the right to apply accrues and one should have thought that there would be no difficulty in finding out the meaning of these words. Ordinarily the words of a statute have to be given their strict grammatical meaning and equitable consideration particularly in provisions of law limiting the period of limitation for filing suits or legal proceedings or applications. This was laid down by the Privy Council in Nagendra Nath Dey and another v. Suresh Chandra Dey and others AIR 1932 PC 165. In this case Privy Council observed that:
23. "The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship. But in construing such provisions equitable considerations are out of place, and the strict grammatical meaning of the words is, their Lordships think, the only safe guide."
24. In General Accident, Fire & Life Assurance Corporation Ltd. v. Janmahomed Abdul Rahim AIR 1941 PC 6 it was observed as under:‑
25. " ..a Limitation Act ought to receive such a construction as the language in its plain meaning imports. See the decision of this Board in 36 IA 148. As was well stated by Mr. Mitra in his Tagore Law Lectures, Edn. 6 (1932) (Vo.1, p.256):
26. A law of limitation and prescription may appear to operate harshly or unjustly in particular cases, but where such law has been adopted by the State . . . . . it must if unambiguous be applied with stringency. The rule must be enforced even at the risk of hardship to a particular party. The Judge cannot on equitable grounds enlarge the time allowed by the law, postpone its operation, or introduce exceptions not recognized by it. .
27. Very little reflection is necessary to show that great hardship may occasionally be caused by statutes of limitation in cases of poverty, distress and ignorance of rights; yet the statutory rules must be enforced according to their ordinary meaning in these and in other like cases."
28. The rule of limitation is based on public policy. These rules proceed upon the presumption that claims are extinct or ought to be held extinct whenever they are not litigated in the proper forum within the prescribed period.
29. In this view of the matter, we are not inclined to consider the various contentions raised by Mr. K.M. Nadeem as the application was hopelessly barred by time. In, our opinion, the learned Single Judge, therefore, was right,. in dismissing the application of the appellants.
30. In the light of what has been stated above, this appeal fails. Accordingly it is dismissed with no order as to costs.
31. AA./G‑285/K Appeal dismissed.