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Petitioner: ABDUL SUBHAN VS Respondent: Haji ASHIQ MUHAMMAD through Legal Heirs
Court Name: Lahore High Court Judge(s): Ghulam Mahmood Qureshi Title: ABDUL SUBHAN vs Haji ASHIQ MUHAMMAD through Legal Heirs Case No.: Regular Second Appeal No,11 of 1996 Date of Judgment:1998-05-10 Reported As: 1998 CLC 1557 Result: Order accordingly
Judgment ORDER ' Mr. Muhammad Hussain Jahania, Advocate, for respondents has raised a preliminary objection about maintainability of present Regular Second Appeal. According to the learned counsel after amendment made in section 102, C.P.C. Read with section 18 of Civil Court Ordinance, regular second appeal is not maintainable. 2. According to Ordinance X of 1980, which was amended on 26-3-1980 the jurisdictional value was enhanced from Rs,2,000 (two thousands) to Rs,50,000 (fifty thousands). However, another amendment was incorporated in section 102 of C.P.C. By the Act VI of 1992, which became operative from 30-5-1992. By way of this amendment the jurisdictional value of 1st Appellate Court was enhanced from 50,000 to Rs,1,00,000 (one lac). Subsequent thereof another amendment was introduced by Ordinance XXXIII of 1993 and jurisdiction value was further enhanced from Rs,1,00,000 (one lac) to Rs,2,50,000 (two lac fifty thousand) which became operative from 13-10-1993. It was later on made Act XIV of 1993 and became Operative from 31-7-1994. 3. It is contended by the learned counsel for respondents that the Statute providing change of forum pecuniary or otherwise would be procedural in nature and would have retrospective effect unless contrary is provided expressly or impliedly and effect the existing rule or cause injustice or prejudice. It is further contended that any Statute which enhances or reduces the pecuniary jurisdiction of the Court or provides forum other than where the case was pending the same would fall within the category of Procedural Law. In such a situation, according to the learned counsel, such amendments are procedural in nature and, therefore, operate retrospectively because no injustice will be caused to the appellants if the Act is treated to be operative with retrospective
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effect. The learned counsel has placed reliance upon the cases Bashir v. Wazir Ali (1987 SCMR 978) and Malik Gul Hasan & Co. And 5 others v. Allied Bank of Pakistan (1996 SCMR 4. Conversely the learned counsel appearing on behalf of appellants has contended that the amendment made subsequent to the filing of suit does not affect the rights enjoyed by the parties when right of second appeal was conferred on the parties by existing Statute and the mere fact that the right of second appeal was not conferred after institution of the suit did not effect the situation. It is further contended that the Proposition that institution of the suit carried with it the implication that all rights of appeal then in force were reserved to the parties concerned till rest of the career of the suit and these rights would be taken away only by subsequent enactment provided it so provided expressly or by necessary intendment and not otherwise and would not preclude the addition of the remedy of the second appeal if the litigation was pending before First Appellate Court or any Court subordinate to it when the second appeal was added. The learned counsel advancing his arguments further stated that the appeal is not a mere matter of procedure, but a substantive right and this right accrued to the plaintiffs, when he brought the suit and the suit would continue at all stages. Of litigation in spite of repeal of the Provisions which. Created rights. The learned counsel has referred the cases of Haji Muhammad Ibrahim and 3 others v. Mst. Surrayia un Nisa and 9 others (PLD 1992 Supreme Court 637) and Mst. Shohrat Bano v. Imail Dada Adam Soomar (1968 SCMR 574). 5. I have heard the arguments advanced by the learned counsel for parties and have also gone through the record with the help of learned counsel. The suit was instituted on 25-3-1992 before the learned Trial Court. It is necessary to point out that at the time of institution of suit the Ordinance X of 1980 was in force. According to above Ordinance, the amendment made in section 102(2), C.P.C., the jurisdictional value was enhanced from Rs,2,000 (two thousands) to Rs,50,000 (fifty thousands). Subsequent thereto the jurisdictional value was further enhanced vide amendment brought through Act VI of 1992, from Rs,50,000 (Fifty thousand) to Rs,1,00,000 (One lack) of First Appellate Court. The said Act became operative from 30-5-1992. Since the suit in the present case was instituted on 25-3-1992, therefore, the amendment made through Act VI of 1992, which came into force on 30-5-1992, was not at all applicable to the case. As held by their Lordships in 1968 SCMR 574 (ibid) that the right accrued to the plaintiff when he brought his suit and would continue at all stages of the litigation in spite of the repeal of the Provision, which created the right and since the appeal is in continuation of the suit, therefore, the principle laid down by their Lordship, in the above cited cases, would also govern the present case and subsequent amendment made after institution of the suit would not make any difference and the right of filing the second appeal before this Court, as existed at the time of institution of suit, would continue. In the present case the jurisdictional value of the suit is Rs,56,850 and according to law, which existed at the time of institution of the suit, would also govern the institution of appeal, therefore, the present regular second appeal being continuation of the suit is very much maintainable. ' 6. In the light of above discussion, the objection raised by the learned counsel is overruled. Since the present regular second appeal is still at motion stage, let it be fixed in motion. The status quo already granted shall continue in the meanwhile. [Karachi] Before Rasheed Ahmed Razvi, J USMAN A. GHANI and 3 others-Plaintiffs versus Suit No,792 of 1986, decided on 3rd March, 1998.Firri GHULAM NABI and another-Defendants-mstu arh (a) Specific Relief Act (I of 1877)--- ----S. 42---Civil Procedure Code (V of 1908), 0. III, R.2---Qanun-e-Shahadat (10 of 1984), Art.46(2), (5)---Factum of relationship of plaintiffs as sons of deceased landowner---Statement of
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deceased incorporated in general power of attorney in favour of her eldest son (plaintiff)---Effect- --Deceased owner of property in all cases filed by her or against her was represented by her son in dual capacity as her son and her attorney which status was never challenged or denied by defendants throughout those proceedings before Civil Courts and other quasi-judicial Authorities- --Denial of relationship of plaintiffs with deceased landowner was raised for the first time through counter-affidavit filed by defendant in 1987---Landowner by that time had expired, therefore, it was not possible for plaintiffs to produce her in rebuttal of plea raised by defendant---Evidence produced by plaintiffs on factum of relationship with deceased owner was consistent and convincing while defendants' evidence on that issue did not inspire confidence---Plaintiffs were, thus, successors-ininterest/legal heirs of deceased owner and were competent to claim property in question owned by her through suit filed by them. [p. 1568] A (b) Specific Relief Act (I of 1877)--- ----S. 42---Limitation Act (IX of 1908), S.14---Cooperative Societies Act (VII of 1925), Ss .64-A & 70- A---Terms "Civil proceeding" and "suit " -Connotation-- Benefit of S.14, Limitation Act, 1908, when to accrue to plaintiff---Case of multiple causes of action---Commencing of limitation---Term "civil proceedings" in S.14, Limitation Act, 1908 was used in reference to period of limitation in filing suit--- Use of words "civil proceeding" in S.14, Limitation Act, 1908, indicated that not only time consumed in prosecuting suits was entitled to be excluded but other proceedings of like nature which could be termed as "civil proceedings" would also come within purview of S.14, Limitation Act, 1908---To avail benefit of S.14, Limitation Act, 1908, plaintiff must show that he was diligently and with good faith prosecuting his case based on same cause of action, through some other legal proceedings in some Court or forum which was suffering from jurisdictional defect or any other cause of like nature, which included misjoinder of parties or cause of action---Where dispute between parties pending before Arbitrator was referred back by him for decision by Civil Court, fresh cause of action had accrued to plaintiff, therefore, question of benefit of S.14, Limitation Act, 1908 was of no consequence---Defendant had taken two different pleas before two different forums which were mutually destructive---Law would not permit anybody to blow hot and cold in the same breath by agitating before Arbitrator that it had no jurisdiction and then pleading before Court that Arbitrator had jurisdiction---Plaintiff's case was of multiple causes of action; first cause of action had arisen in 1977 when predecessor of plaintiffs was informed about transfer of property in question to private defendant which was made basis for initiating proceedings before Arbitrator which kept the matter sub judice till 1985, when plaintiffs were directed to approach Civil. Court for determination of their entitlement---Fresh cause of action, thus, accrued to plaintiffs to maintain suit---Plaintiff's suit was, thus, deemed to be within time. [pp. 1572, 1573, 1574, 1575] B, C, D, E & F Ramdutt Ramkissen Dass v. E.D. Sassoon & Co. AIR 1929 PC 103; Messrs 4ftab Medical Stores v. Commissioner of Income-tax PLD 1976 Lah. 1330; Messrs Haroon Textile Mills Ltd. v. Allah Ditta PLD 1972 Kar. 57; Saddar Din v. Allah Rakha 1984 CLC 1258; Kilachand Devechand & Co. (Private) Ltd. v. Messrs Sh. Mian Muhammad Allahbux PLD 1962 (W.P.) Kar. 510; Mirza Muhammad Saeed v. Shahab-ud-Din and 8 others PLD 1983 SC 383; Agricultural Development Bank of Pakistan Ltd. v. Noor Muhammad and 2 others PLD 1985 Quetta 74; Sher Muhammad and 8 others v. Ismatullah and 3 others 1996 CLC 206; Masud Ahmad and 2 others v. United Bank Limited 1992 SCMR 424; Purshottamdas Hassaram Sabnani v. Impex (India) Ltd. AIR 1954 Bom. 309; Maharaj Sai v. Kedar Nath and another AIR 1933 Nag. 130; Muhammad Aslam Mirza v. Mst. Khursheed Begum PLD 1972 Lah. 603; Mathora Singh v. Bhawani Singh and others ILR 22 A11.248; Choudhry Abdul Sattar and others v. Abdul Roshan and others 40 CWN 914; Oxford Companion to Law by David M. Walker Clarendon Press Oxford, 1980, p.224; Hussain Baksh v. Settlement Commissioner, Rawalpindi and others PLD 1970 SC 1; Stroud's Judicial Dictionary; Bradlough v. Clarks 8 AC'354; Sheikh Haider v.
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Registrar, Cooperative Societies, Karachi and others PLD 1966 (W.P.) Kar. 177 and F.A. Khan v. The Government of Pakistan PLD 1964 SC 520 ref. S. Afsar Abidi for Plaintiffs. Khalilur Rehman and Arif Bilal Sherwani for Defendants. ORDER ' This is a suit for declaration, permanent injunction and possession filed by some four plaintiffs who claim to be the successors-in-interest of Mst. Ayoor Bai W/o Noor Muhammad, who expired on 2- 4-1986 at Karachi. The subject-matter of this suit is an immovable property/open Plot bearing No,WS-3/B/7 and 8, Central Commercial Area, Karachi Cooperative Society Union, Karachi measuring 319 square yards (hereinafter referred to as the suit property). Defendant No,1 Ghulam Nabi claims to be the present owner of the suit property while defendant No,2 namely Karachi Cooperative Housing Society Ltd. (hereinafter referred to as Cooperative Society) is the authority which controls and administers the said property. 2. This case has a chequered history starting from 2-5-1965 when Mst. Ayoor Bai purchased the suit property in an open auction against the total amount of Rs,33,495. It is alleged in the plaint that on 3rd July, 1975, plaintiff No,1 while in transit from Dhoraji Colony to Jodia Bazar, lost his brief case which contained several documents including allotment order and possession order of the suit property; that an advertisement was published in daily Dawn (Gujrati) Karachi; that the Cooperative Society was also informed; that in December, 1977, plaintiff No,1 found that the defendant No,1 was raising construction on the suit property; that when he was asked to stop construction, he refused to do so; that on 19-12-1977 Mst. Ayoor Bai informed the Cooperative Society about the illegal acts of defendant No,1; that vide letter, dated 22-12-1977, the Cooperative Society asked Mst. Ayoor Bai to appear in person and produce original allotment and to clarify her position. 3. It is alleged in the plaint that since the Cooperative Society failed to resolve dispute between Mst. Ayoor Bai and defendant No,1 she filed a Suit bearing No,7 of 1977 in the Court of 14th Civil Judge Karachi seeking declaration, injunction and cancellation of documents and also for mesne profits against both the present defendants. The said suit was admittedly withdrawn with the permission to file a fresh one. Instead of filing a fresh suit, Mst. Ayoor Bai filed arbitration proceedings under section 54 of the Sindh Cooperative Societies Act, 1925 (hereinafter referred to as the Act, 1925) which was referred to the nominees of the Registrar Cooperative Housing Society. Meanwhile, plaintiff again filed another Suit bearing No,2651 of 1978 against defendant No,1 for injunction restraining him from raising any construction or in any manner creating mortgage or alienation on the property. However, the plaint was rejected by the Court vide order, dated 4-11-1978. Initially, the award was announced on 26-11-1978 by the nominee of the Registrar, Cooperative Societies in favour of Mst. Ayoor Bai declaring her to be the lawful owner of the suit property and directing the defendant No,1 to deliver the physical possession of the same to her. Against this award, defendant No,1 filed an appeal under section 56 of the Act, 1925 before the Deputy Registrar who by his order, rated 19-8-1979 set aside the Award and held that since the dispute involved complicated questions of law and facts, the parties should seek redress in a Court of appeal. Against the order of Deputy Registrar, Mst. Ayoor Bai filed revision under section 62 of the Act, 1925 before Government of Sindh which was heard and decided on 29-9-1981 through which the order of Deputy Registrar was set aside and the Award of the nominee was restored. This order of Provincial Government was challenged by the defendant No,1 through a Constitutional Petition No,D-1021 of 1981 which was allowed by a learned Division Bench of this Court vide order, dated 10-5-1982 and the order of Secretary, Labour and Cooperatives, Government of Sindh was set aside and the case was remanded for re-hearing by the concerned Provincial Minister. 4. After remand, the matter was heard by the concerned minister, Government of Sindh who, by order, dated 5-11-1985, upheld the order of Deputy Registrar and held that in view of the
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complicated questions involved in the matter, the same is required to be decided by a Civil Court. Mst. Ayoor Bai, being aggrieved with the said order, issued notice under section 70 of the Act, 1925 and filed the instant suit with the following prayers:--- 5. "(a) For cancellation of the mutation/transfer of the Plot No,WS-3/7 & 8, ' Central Commercial Area, measuring 319 square yards in Karachi Cooperative. Housing Society Union, Karachi in favour of Defendant No,1 in the records of the Defendant No,2 Society. (b) For a declaration that the Plaintiffs are the owners of the said plot. (c) For a direction/injunction to the Defendant No,2 directing it to enter the names of the Plaintiffs as owners of the said plot in its records and in the event of its failing to do so for an order directing the Nazir to do so and to issue documents of title/ownership in relation thereto to the Plaintiff. (d) For a Permanent Injunction against the Defendant No,1 restraining him from transferring, alienating, mortgaging and/or encumbering the said plot in any manner or raising any construction thereon and for removing any construction raised thereon. (e) For possession of the said plot to the Plaintiffs. (f) For Mesne Profits against the Defendant No,1 at the rate of Rs,4,000 per month till the delivery of possession to the Plaintiffs. (g) Such other relief as may be deemed appropriate by this Honourable Court. (h) Costs of the Suit." 5. The case of the defendant No,1 is that Mst. Ayoor Bai was not the predecessor-in-interest of present plaintiffs; that the name of deceased mother of the present plaintiffs was Mst. Hoor Bai whose husband was Abdul Ghani and father (maternal grandfather of present plaintiffs) was Noor Muhammad; that the present plaintiffs have no locus standi to raise any claim on the suit property; that defendant No,1 has purchased the suit property from Mst. Ayoor Bai Noor Muhammad against the sale consideration of Rs,52,000 and, as a result, both of them filed a joint transfer application before the Cooperative Society; that the present suit is barred by time; that no cause of action ever accrued to the plaintiffs to maintain the present suit. The case of defendant No,2/Cooperative Society is of neither denial nor admission. It was stated that the property was transferred to defendant No,1 by the then Chief Officer who is no more in the employment of the said society and that he has died. As a result of these pleadings, following issues were adopted by this Court by consent of the parties, vide order, dated 4-10-1987:--- "(1) Is the suit of the plaintiff barred by time? (2) Are the plaintiffs the legal heirs and successors-in-interest of Mst. Ayoor Bai wife of Noor Muhammad? (3) Whether Mst. Ayoor Bai Noor Muhammad never sold the suit plot to defendant No . 1 for sale consideration of Rs .52,000 or executed any documents transferring the same in favour of the Defendant No,1? (4) Whether the Defendant No,2 was informed by the plaintiff about the loss of original papers of the suit plot? If not, to what effect? (5) Was the transfer/mutation of the suit plot obtained by forging the signature of Mst. Ayoor Bai and whether the transfer/mutation of the suit plot in the record of defendant No,2 is liable to be cancelled? (6) Whether notice under section 70 of the Cooperative Societies Act was duly served upon the Registrar, Cooperative Societies? If not, to what effect? (7) Are the plaintiffs entitled to the cancellation of the mutation/transfer of suit plot by defendant No,2 in favour of defendant No,1? (8) Are the plaintiffs entitled to relief of declaration and injunction as prayed for? (9) Are the plaintiffs entitled to possession of suit plot and mesne profit as prayed for? (10) What should the decree be?"
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6. On 24th August, 1994 when this matter came up for arguments before an earlier Bench, it was stated by Mr. Afsar Abidi that the period, which has been spent by the plaintiff in perusing the proceedings under the Cooperative Societies Act and in the proceedings in other suits and writ petitions before different Courts, has to be excluded in view of the provisions of section 14 of the Limitation Act, 1908. It was further contended by him that if such period is excluded this suit would be within time whether the period of limitation is taken as three years under Article 91 or 6 years under Article 120 of the First Schedule of the Limitation Act. It was further submitted that if the benefit of section 14 of the Limitation Act is not available to the plaintiff then the suit as a whole would be barred by limitation and the plaintiff would not be able to obtain the relief of possession, which is dependent upon the other relief sought, namely, the relief of cancellation. On the same day, it was argued by Mr. Khalilur Rehman that the limitation commenced to run from 31st January, 1976 when the Cooperative Society informed the plaintiffs that the plot in question has been transferred, which fact was contested by Mr. Abidi, who was of the view that the limitation commenced to run in December, 1977. Again when this matter came up for hearing on 5-9-1994 and 14-11-1995, following orders were passed:--- 5-9-1994. "Mr. Abidi has concluded his argument on the question of limitation. He says that he will argue the question of merit only if the suit is held to be within the period of limitation. Mr. Khalilur Rehman agrees that it would be futile to argue the question of merit, if the Court comes to the conclusion that the suit is barred by limitation. Mr. Khalilur Rehman will, therefore, submit his argument in reply to Mr. Abidi on the next date. Adjourned to 14-9-1994." 14-11-1995. "On 24-8-1994 and 5-9-1994 it was agreed between the parties that first the question of limitation be decided as it will decide the fate of this suit. It is stated by Mr. Khalilur Rehman that the suit is barred by Article 91 of the Limitation Act. In the circumstances parties are directed to first argue the question of limitation. Adjourned to 11-12-1995 . " 7. As a result of the above orders, arguments were heard on the first two issues and vide a short order, dated 20th February, 1998, both the issues were answered in the following manner:- "In pursuance of this Court orders, dated 24-8-1994 and 5-9-1994 arguments were heard on the Issues Nos.1 and 2. For the reasons to be recorded separately both these Issues are answered as follows:--- ISSUE NO.1. Is the suit of the plaintiffs barred by time? FINDING: No, the suit is within time. ISSUE NO.2. Are the plaintiffs legal heirs and successors-in-interest of Ayoor Bai? FINDING: Yes, plaintiffs are legal heirs of Mst. Ayoor Bai. Parties are directed to make their submissions on Issues Nos.4 to 10 on the next date of hearing." 8. The arguments of Mr. S. Afsar Abidi, Advocate for plaintiffs, Mr. Khalilur Rehman, Advocate for defendant No,1 and Mr. Arif Bilal Sherwani, Advocate for defendant No,2 were heard at length. It was vehemently argued by Mr. Khalilur Rehman that the suit is barred by Article 91 of the Limitation Act, 1908 (hereinafter referred to as Limitation Act) as the time to file the instant suit rose from the day when the first suit was withdrawn or in the alternate when the plaint in Suit No,2651 of 1978 was, rejected, which date is 4-11-1978, while the instant suit was filed on 12th November, 1986, after a lapse of more than eight (8) years. In reply to this objection, it was argued by Mr. Afsar Abidi that since the arbitration proceedings as provided under the Act, 1925 were pending; such period is liable to be excluded while computing the period for limitation. Reliance is placed on section 14 of the Limitation Act. Again, it was contended by Mr. Khalilur Rehman that the plaintiffs are not entitled to the benefits provided under section 14 of the Limitation Act as they are not the successors/legal heirs of Mst. Ayoor Bai. In this view of the matter, I would first like to discuss Issue No,2 which involves
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the question of successorship of Mst. Ayoor Bai and then Issue No,1 which involves question of limitation as the plaintiffs are seeking exclusion of time consumed in the arbitration proceedings by relying on section 14 of the Limitation Act. The plaintiffs have admitted that they would be entitled for exclusion of the abovesaid period provided they succeed in establishing that Mst. Ayoor Bai was their real mother and predecessor in interest. Issue No,2. 9. In support of this issue, plaintiff No,1 Usman Abdul Ghani was examined as Exh.P.W.1. He has stated that Mst. Ayoor Bai was his mother who died in the year 1986 leaving behind all the four plaintiffs as her legal heirs. He has produced extract of entries of City Register of Deaths being maintained by Karachi Metropolitan Corporation which shows Mst. Ayoor Bai wife of Abdul Ghani died at the age of 87 years due to heart failure on 9-2-1986. The reporting date shown in Exh.P/1 is 2-4-1986. The initial order of allotment which was brought on record as Exh.P/2 shows the name of successful bidder as Mst. Ayoor Bai and in the column of address it is mentioned as C/o Usman Abdul Ghani, 254 Zia Manzil, Burns Road Karachi. The said person is now plaintiff No,1 who has also produced original of National Identity Card of Mst. Ayoor Bai as Exh.P/5 which is numbered as 518- 00-085-637 where her name is shown as Hoor Bai wife of Abdul Ghani, residing at Dhoraji Colony, Karachi. This identity card was issued on 28-5-1974. It is pertinent to note that during the arbitration proceedings, which commenced in the month of June, 1978 and were finally terminated by the order of Government of Sindh, dated 5-11-1985, plaintiff No,1 represented Mst. Ayoor Bai showing himself to be her attorney as well as her son. Even in the title of Suit bearing No,7 of 1978 filed in the Court of 4th Civil Judge Karachi, it is clearly…
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