Saturday, 25 January 2014

Limitation is six years where law is silent

PLJ 2009 Lahore 917
Present: Kh. Farooq Saeed, J.
AHMAD KHAN--Petitioner
versus
KAUSAR PERVEEN and another--Respondents
W.P. No. 12269 of 2008, heard on 12.2.2009.
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 5 & Schedule--Constitution of Pakistan, 1973--Art. 199--Suit for recovery of dowry articles--Factual controversy--Constitutional jurisdiction--Maintainability of--Whether the articles were taken away or not was concerned--Being factual matter could not be discussed in a writ jurisdiction such factual controversies were never brought to discussion unless there were some material irregularities or jurisdictional error--Petition was dismissed.  [P. 919] A
West Pakistan Family Courts Act, 1964 (XXXV of 1964)--
----S. 5 & Schedule--Constitution of Pakistan, 1973--Art. 199--Suit for recovery of dowry articles--Concurrent findings--Delay of 15 years in filing of suit--Non-challenging the point of limitation at early stage but challenged under constitutional jurisdiction--Applicability of CPC--Duty of Court--No objection with regard to delay in filing the petition had been raised either at the first stage or before the first appellate forum--It is the duty of Court to determine as to whether the petition or appeal is within time or not--It is the duty of Court to check the issue of limitation while on the other hand limitation plea cannot be waived and even if waived it can be taken by party waiving it and by the Court themselves--Such finding had been given while referring Rule 11 Order VII of CPC--Rest of the para deak with the exceptional cases, wherein, he was debarred from raising the plea of limitation--Such would be a general principle of estoppel arising from defendant conduct and the same becomes applicable where the issue involves an enquiry of fact--The issue as to whether the right to sue accrue years after the desertion and there were certain negotiations going on between the two parties or not, obviously was a factual controversy--After getting two judgments and decrees from the two subordinate forums and exhausting almost two years in litigation, raining a point of limitation at this stage in a mix question of law and facts could not be allowed while exercising a writ jurisdiction--Petition dismissed.      [Pp. 919, 920 & 921] C, D, E, F, G & H
Limitation Act, 1908 (IX of 1908)--
----S. 3--Limitation--Suit filed or an appeal preferred after limitation provided in law is without jurisdiction--Validity--It should be dismissed even if no body has pointed out such lacuna in filing the petition or appeal whatsoever.   [P. 919] B
Mr. Muhammad Rashid Chaudhary, Advocate for Petitioner.
Mr. Zulfiqar Ali Noon, Advocate for Respondents.
Date of hearing: 12.2.2009.
Judgment
The petitioner has challenged the order of the Judge Family Court as well as Addl. District Judge dated 23.4.2008 and 25.8.2008 respectively.
2.  The main argument is that the proceedings before the Judge Family Court were time barred. Besides, it is a case of non-reading and misreading of the evidence produced before the Judge Family Court. The claim of the petitioner is that the husband of the respondent died 15 years ago. The respondent was statedly asked to leave the house of her father-in-law six months after the said demise. The case having been filed in 2007 was late by almost 11 years which is hopelessly time barred. Furthermore, no receipts of dowry articles issued by the shopkeeper wherefrom the same were purchased were produced. Also that at the time of her second marriage she took away the said dowry articles with her.
3.  So far as the issued with regard to the controversy as to whether the articles were taken away or not is concerned, the same being factual matter cannot be discussed in a writ jurisdiction. Such factual controversies are never brought to discussion unless there are some material irregularities or jurisdictional error. The law with regard thereto is very clear, hence, no interference with regard thereto is required.
4.  Learned counsel for the petitioner main emphasis that the case is time barred, is based upon Article 120 of the schedule to the Limitation Act, 1908. The said Article has provided six years time to the suits for which no time has been provided within the law itself. The Article inter alia provides that the time shall start from the date when the right to sue accrues. The petitioner claim is that right to sue, if any, accrued on the date of her desertion which is statedly six months after the death of her old husband.
5.  He, however, was not in a position to point out the exact date. Relying upon (2008 C.L.C. 1570) re: "Mst. Khalida Vs. Raja Muhammad Khurshid Khan and 9 others" read with Section 3 of the Limitation Act, 1908, he urged that the judgment should now be set aside by this Court by holding then without jurisdiction.
6.  This Court is conscious of the fact and it would not require detailed discussion to say that a suit filed or an appeal preferred after the limitation provided in law is without jurisdiction. It should be dismissed even if no body has pointed out such lacuna in filing the petition or the appeal whatsoever. However, the facts of each case being separate this issue shall be decided after due appreciation of the facts of this case.
7.  The respondent case on the other hand is that during the entire intervening period she remained in contact with her earlier father-in-law. There were lot of meetings in between her and Punchayat was also made a party. She was continuously given the impression that the dowry articles shall be returned to her in due course of time after settling the exact number and description of the same. There was, therefore, no intentional delay in this case.
8.  Be that as it may, no objection with regard to the delay in filing the petition has been raised either at the first stage or before the first appellate forum. One may agree with the petitioner that it is the duty of the Court also to determine as to whether the petition or appeal is within time or not. However, where the same has neither been challenged nor the Court itself has considered it necessary to embark upon the same, the presumption would be that the same was not considered as an issue before it. The law with regard thereto is very clear. In fact even the judgment referred by learned counsel is not all in his  favour.  In  the  said  judgment  further  reliance  has been placed on
"Hakim Muhammad Buta and another Vs. Habib Ahmad and others" reported in (P.L.D 1985 Supreme Court 153), which reads as follows:--
"(a) Limitation Act-------
-----Sections 3, 4 to 25----Matter of limitation is not left to pleadings of parties. It imposes a duty in this regard upon Court itself As such if from statement in plaint suit appears to be barred by limitation, Court is obliged to reject plaint under
R. 11, Order VII, C.P.C. Similarly, limitation plea cannot be waived and even if waived it can be taken up by party waiving it and by Courts themselves. In exceptional cases, a defendant would, however, be debarred from raising plea of limitation. This would be a general principle of estoppel arising from defendant's conduct and would be particularly so if plea belatedly taken involves an inquiry on facts."
9.  Above para confirms that it is the duty of the Court also to check the issue of limitation while on the other hand limitation plea cannot be waived and even if waived it can be taken by party waiving it and by the Court themselves. However, this finding has been given while referring Rule 11, Order VII of C.P.C.
10.  Needless to mention that Civil Procedure Code has been made expressly inapplicable in the Family Court proceedings. The rest of the above para deals with the exceptional cases, wherein, he is debarred from raising the plea of limitation. This would be a general principle of estoppel arising from defendant conduct and the same becomes applicable where the issue involves an inquiry of fact. In the present case, above para is applicable with full strength. The issue as to whether the right to sue accrue years after the desertion and there were certain negotiations going on between the two parties or not, obviously is a factual controversy.
11.  In such circumstances, the action of the present petitioner of not challenging the same in any forum whatsoever also is of disadvantage to him. The principle that an issue should arise out of the impugned order shall also come into operation in the circumstances of this case. After getting two judgments and decrees from the two subordinate forums and exhausting almost two years in litigation, raising a point of limitation at this stage in a mix question of law and facts under the circumstances of this case, cannot be allowed while exercising a writ jurisdiction.
12.  The Hon'ble Supreme Court has very clearly held that when the question of limitation is of fact or mixed question of law and facts, it should be raised before the trial Court. Appellate Courts are not obliged to  examine  the  question which is not raised below. Reliance is on (1985 S.C.M.R 799) re. "Muhammad Ishaq and others Vs. Shah Muhammad and others", (1986 S.C.M.R 1957) re: "Allah Yar Khan Vs. Mst. Sardar Bibi and others" and (1988 S.C.M.R 1526) re: "Muhammad Rafiq and others Vs. Barkat Ali and others". Further not pressing before lower Court would amount option not to have finding thereof. Reliance is on (1989 C.L.C 482) re: "Ghulam Rasool and 5 others Vs. Zaheer Ahmad" and (1989 M.L.D 4820) re: "Meraj Begum Vs. Abdul Sattar".
14.  Keeping in view the discussion above case law referred and particularly the ambient circumstances of the case under discussion, this Court is not willing to entertain the objection of limitation at this stage of the proceedings. The writ petition, therefore, is considered without any merit, hence is dismissed.
 (N.I.)     Petition dismissed.

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