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Petitioner: USMAN A. GHANI VS Respondent: GHULAM NABI
1998 C L C 1559
1998 C L C 1559
[Karachi]
Before Rasheed Ahmed Razvi, J
USMAN A. GHANI and 3 others‑‑‑Plaintiffs versus GHULAM NABI and another‑‑‑Defendants
Suit No.792 of 1986, decided on 3rd March, 1998
(a) Specific Relief Act (I of 1877)
‑‑‑‑S. 42‑‑‑Civil Procedure Code (V of 1908), O. 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 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‑in -interest/legal heirs of deceased owner and were competent to claim property in question owned by her through suit filed by them.
(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.
Ramdutt Ramkissen Dass v. E.D. Sassoon & Co. AIR 1929 PC 103; Messrs Aftab 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 Born. 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 Al1.248; 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. 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. l 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 amoynt of Rs.33,495. It is alleged in the plaint that on 3rd July, 1975, plaintiff No. l 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.l 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.l; 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. l 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. l 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. l to deliver the physical possession of the same to her. Against this award, defendant No. l 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. l 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 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:‑‑‑
"(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. l 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. l 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. l 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. l 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. l 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 defendant No. l for sale consideration of Rs.52,000 or executed any documents transferring the same in favour of the Defendant No. l?
(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. l?
(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?"
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 hi6 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. l 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 N0.2. Are the plaintiffs legal heirs and successors‑in‑interest of Mst. 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. l 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 the question of successorship of Mst. Ayoor Bai and then Issue No. i 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. l Usman Abdul Ghani was examined as EXh.P.W.l. 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.l 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. l 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 mentioned as Mst. Ayoor Noor Muhammad ‑‑‑through her son and attorney Usman Abdul Ghani. Against the order of interim injunction passed in the said suit, an appeal was filed by the defendant No. l where in memo of appeal Exh.X‑1 he has impleaded Mst. Ayoor Bai Noor Muhammad through her son and attorney Usman Abdul Ghani. Even in the Constitutional Petition bearing number D‑1021 of 1981 filed by defendant No. l on 3‑11‑1981 a copy of which was exhibited as Exh.X‑2, he has again impleaded Mst. Ayoor Bai wife of Noor Muhammad as respondent No.4 through son and attorney Usman Abdul Ghani. For the first time in the year 1987, it was claimed by the present defendant No. l in this suit that Mst. Ayoor Bai was not the predecessor‑in‑interest of the plaintiffs. Admittedly, this plea was raised after expiry of Mst. Ayoor Bai which left no scope for the plaintiffs to rebut the same by producing Mat. Ayoor Bai in the witness‑box. In all the proceedings, whether it was Civil Suits bearing No.7 of 1978 or 2651 of 1978, or arbitration proceedings before the nominee of Deputy Registrar, Secretary Government of Sindh or even before the Minister, Government of Sindh, Mst. Ayoor Bai was represented by plaintiff No. l in the capacity as her attorney as well as her elder son. Plaintiffs have also filed a copy of general power of attorney as Exh.P/16 which is neither registered nor endorsed by Notary Public. However, it shows that this document was executed some time in December, 1977 at Karachi. It is pertinent` to note that it is one of the findings of the nominee of Deputy Registrar, Cooperative Societies, Karachi given as reasons of Award vide Exh.P/9 where it was held that Usman Abdul Ghani was also her son. However, these findings were not set aside by the Deputy Registrar while hearing Appeal No.62 of 1978. He only referred the parties to resolve the complicated questions of law and facts through a regular suit. It will be seen that during all this period, none else has appeared on behalf of Mst. Ayoor Bai claiming any right and interest in the property. If it is accepted that the mother of plaintiffs was Hoor Bai wife of Abdul Ghani and not Mst. Ayoor Bai then why have the defendants not denied that plaintiff No.l Usman Abdul Ghani is not the same Usman Abdul Ghani who was representing Mst. Ayoor Bai. This aspect of the case has not been denied by the defendants that the plaintiff No. l is not the same person who has represented Mst. Ayoor Bai Noor Muhammad as her legal attorney before the earlier round of litigation and before the arbitrators.
10. Defendant No. l has produced one Abdul Karim son of Ghulam Nabi as the witness who claimed to be his attorney.
This witness has also filed copy of initial allotment order as Exh.D‑1/6 which is same as Exh.P‑7/2. The contents of both these documents are same which indicate the address of Mst. Ayoor Bai as "C/o Usman Abdul Ghani." Even the signatures of the allottee is the same which appears on Exh.P‑6 and in the earlier pleadings. This witness has stated that at the time of transfer he was present when the then Chief Officer of defendant No.2 called the plaintiff No. l in presence of Mst. Ayoor Bai and asked the nature of relationship between them to which she stated that Usman Abdul Ghani is her caste fellow. According to this witness, the suit property was transferred in the name of defendant in the year 1976 and, therefore, it could be safely presumed that defendant No. l was in the knowledge that plaintiff No.3 was not the real son of Mst. Ayoor Bai. Then why was the claim of plaintiff No. l that he is son and attorney of the deceased Mst. Ayoor Bai has never challenged in the first round of litigation or in the proceedings before the arbitrator (till 1987) when plaintiff No. l was throughout claiming himself to be the attorney and son of Mst. Ayoor Bai. Thus, the evidence of this witness to this extent is not convincing. D.W.2 namely Muhammad Anwar, who, at the time, of his examination was the Chief Officer of defendant No.2, produced during his cross‑examination the Nominal Membership Form as Exh.D‑2/9 to be filed by a member of the Cooperative Society. Again, this document is signed by Usman Abdul Ghani on behalf of Mst. Ayoor Bai. It was admitted by this witness that he cannot say on the basis of record of the Cooperative Society whether Mst. Ayoor Bai ever appeared in the office at the time of this transfer. There is some discrepancy while printing the name of Mst. Ayoor Bai in several fcuments brought on record. In some of such documents she is shown 4o be wife of Noor Muhammad while in others, she is shown as daughter of Noor Muhammad. However, in nearly all such documents she was being represented by plaintiff No. l in dual capacity as her son and her attorney which status was never challenged or denied by the defendants throughout the proceedings before Civil Courts and before the authorities constituted under the Cooperative Societies Act, 1925. Such plea was raised for the first time through a counter‑affidavit filed by defendant No. l in January, 1987 and the status of the plaintiffs was challenged. By that time, Mst. Ayoor Bai had expired and it was not possible for the plaintiffs to produce her in rebuttal of the plea raised by the defendant No. 1. The evidence produced by the plaintiffs on this issue is consistent and convincing while the defendants' evidence on this issue does not inspire confidence. In these circumstances, I am inclined to hold that the present plaintiffs are the successors‑in‑interest/legal heirs of Mst. Ayoor Bai. Accordingly, Issue No.2 is answered in affirmative.
Issue No. 1.
11. Before dilating upon the question whether Article 91 or 120 of the Limitation Act is involved, I would like to deal with the provisions of section 14 upon which heavy reliance is placed by the plaintiffs. Section 14 of the Limitation Act reads as follows:‑‑‑…
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