PEER BUKHSH BROHI Versus DHANI BUKHSH
ORDER
1. MUHAMMAD SHAFI SIDDIQUI, J.--- This is second appeal, filed against the current findings of two courts below on the very crucial point, which leads to application of Article 91 of the Limitation Act, 1908. It is claimed that the suit, as filed and framed, was barred by law.
2. Learned counsel for the appellant taken me to the contents of the plaint which reflect history in respect of the earlier litigation and, ultimately, counsel has taken me to para. 15 which pertain to the cause of action. It is argued that on the basis of pleadings itself the cause of action was shown as of 1998 and 09.07.2000. Counsel submits that though the issue of maintainability was framed, however, the trial court decided the issue as to its maintainability in affirmative on the count of the fact that application under Order VII, Rule 11, C.P.C. had already been dismissed for the rejection of the plaint and hence no further discussion is required after trial. Learned counsel submits that such issue was still open for discussion and after recording of evidence, it was the prime duty of the trial court to have considered as to whether the suit as framed and filed was within time. However, on this count of the dismissal of the application under Order VII, Rule 11, C.P.C. the issue was decided in affirmative as held by the appellate court as well. The counsel further argued that even if such ground had not been taken before the trial, it could have been urged here before this Court as to whether the suit as framed and filed is maintainable or within time.
3. On the other hand, learned counsel for the respondent No.1 has taken me to the history of the case as well as to the depositions of the witnesses and submits that it was a collusive registration of the instrument as could be seen from the evidence itself. Counsel submits that they have filed the suit in the year 2004, and prior to the filing of the suit, the appellant has also preferred a suit before the Civil Courts wherein they moved an application for their impleadment, however, the suit was dismissed. Learned counsel for respondent No.1 has relied upon the judgments 2013 CLC 499 (Mst. Ishrat Bibi v. Mst. Hashmat Bibi and others) and 2015 CLC 1711 (Abdul Rehman v. Syed Arif Hussain Shah and 5 others).
4. I have heard the learned counsel for the parties and perused the documents available on record.
5. At the very outset, I do not agree with the findings of the trial court while deciding the issue No.1 and as upheld by the appellate court. The findings of the trial court are as under:-
6. "It would be pertinent to mention here that during the proceedings of this case, the learned predecessor of this Court vide order dated 18.03.2005 dismissed an application under Order VII, Rule 11, C.P.C., for rejection of the plaint on legal grounds. The said order is still intact as the same has not been reversed from any appellate forum, therefore, the discussion on this issue in presence of declining of the points so raised on the non-maintainability of the plaint by the defendants, would not be justified. Hence, this issue is answered in affirmative."
7. The issue of limitation was intact at the time of the conclusion of the trial as well as at the time of the judgment. The issue No.1 could not have been answered on the strength of the dismissal of application under Order VII, Rule 11, C.P.C. Issue of limitation should have been decided on the basis of cause of action, pleadings and the evidence that have come on record. At times, the issue of limitation appears to be a mixed question of law and facts and since the evidence has already been recorded, the issue No.1 should have been answered on the basis of evidence and on the basis of the pleadings. This will not be dependent upon the decision of an order passed on the application under Order VII, Rule 11, C.P.C. I would score-off such findings of the trial court as well as of the appellate court while deciding this issue, however, since the respondents were not given the opportunity to assist the court as to whether the suit was otherwise within time, I deem it appropriate to remand. this case to the trial court to rehear the issue by applying Article 91 of the Limitation Act, 1908 and give reasoning as to decision one way or the other, preferably within six (6) weeks from today, with a report to MIT-II of the Court. Two impugned judgments are set aside and issues be decided afresh by the trial Court.
8. The appeal in view of the above is allowed.
9. SA/P-12/Sindh Case remanded.