Depriving the daughters in their inheritance share

 PLJ 2023 Lahore (Note) 108

Present: Ch. Muhammad Iqbal, J.

Mst. RASOOLAN BIBI--Petitioner

versus

PROVINCE OF PUNJAB through District Collector--Respondents

C.R. No. 24767 of 2017, heard on 12.4.2023.

Specific Relief Act, 1877 (I of 1877)--

----S. 42--Qanun-e-Shahadat Order, 1984, Arts. 17 & 79--Suit for declaration--Dismissal of--Concurrent findings--Entitlement for inheritation--Oral gift mutation by defendants--Depriving of daughters from their inheritance share--Non-compliance of mandatory provisions of law--Neither attesting witnesses of oral gift mutation in question nor Revenue Officers who entered gift mutation were produced in evidence to prove alleged oral gift mutation-- It is mandatory for beneficiary respondents to produce requisite number of witnesses of very oral gift transaction as well as gift mutation--Non-compliance of mandatory provisions of law which is considered fatal for case of respondents--Respondents tried to deprive petitioner from her legal share in estate of her deceased father by committing fraud and got entered alleged gift mutation in their favour--This Court is well within jurisdiction to reverse such illegal and perverse concurrent findings of learned lower fora in its revisional jurisdiction under Section 115 CPC.    

                                                     [Para 10, 12 & 15] B, C, D, E, F & G

PLD 2011 SC 241, PLD 2015 SC 187, 2015 SCMR 1044, 2022 SCMR 309, PLD 1990 SC 1, 2016 SCMR 24.

Muhammadan Law--

-----Para Nos. 149 & 150--Ingredients of valid gift--Three important prerequisites are described for a valid gift such as explicit offer of gift by donor, acceptance of gift by donee and voluntary delivery of possession to donee under very oral gift transaction.                                                         [Para 9] A

Ref. 2016 SCMR 662, 2017 SCMR 402, 2019 SCMR 1095.

Mian Tariq Hussain, Advocate for Petitioner.

Raja Muhammad Arif, Addl. Advocate General for Respondents No. 1 to 3.

Ch. M. Lehrasib Khan Gondal, Advocate for Respondent No. 4.

Date of hearing: 12.4.2023.

Judgment

Through this civil revision, the petitioner has challenged the validity of judgment & decree dated 23.02.2015 passed by the learned Civil Judge, Mandi Bahauddin who dismissed the suit for declaration filed by the petitioner and judgment & decree dated 16.03.2017 passed by the learned Additional District Judge, Mandi Bahauddin who dismissed the appeal of the petitioner.

2. Brief facts of the case are that Mst. Rasoolan Bibi, petitioner/plaintiff filed a suit the declaration against the respondents/defendants alleging therein that her father Khushi Muhammad was owner in possession of suit land measuring 227-Kanals 07-Marlas fully described in Para No. 2 of the plaint. He died as Sunni Muslim on 06.07.1978 at the age of about 82. The plaintiff being daughter of deceased is entitled to inherit from his estate to the extent of 1/7th share as per Sharia. That gift mutation No. 1943 dated 21.03.1972 was got attested fraudulently by the defendants in connivance of revenue official. That her father Khushi Muhammad (deceased) who was above 82 years age at the time of attestation of impugned mutation was illiterate and infirm mind person. That respondents /Defendants No. 4 & 5 used to give share produce to the petitioner/plaintiff but six months prior to institution of the suit they refused to give produce share. That she consulted the revenue record wherefrom it came to her knowledge regarding attestation of the impugned mutation then she filed suit within time.

Respondents/Defendants No. 4 & 5 filed contesting written statement with the assertion that their father from his own free will gifted the property and got sanctioned gift mutation in their names. That the plaintiff has no locus standi to challenge the gift. That the suit is time barred. Respondents /Defendants No. 6 to 8 filed contesting written statement. Out of divergent pleadings of the parties, the learned trial Court framed issues, recorded pro and contra evidence of both the parties and vide judgment & decree dated 23.02.2015 dismissed the suit for declaration filed by the petitioner. Appeal of the petitioner was also dismissed by the learned appellate Court vide judgment & decree dated 16.03.2017. Hence, this civil revision.

3. I have heard the arguments advanced by the learned counsels for the parties at full length and gone through the record with their able assistance.

4. The pivotal issues in this case are Issues No. 1 & 2 which are reproduced as under:-

“1.      Whether mutation of gift No. 1943 dated 21.03.1972 was result of fraud and misrepresentation and liable to be cancelled? OPP

2.       Whether the mutation No. 1943 dated 21.03.1972 was validly sanctioned? OPD”

To prove these issues, plaintiff/Rasoolan Bibi appeared as PW1 and in her statement she has stated that her father name is Khushi Muhammad who was owner of the suit land. That Ali Ahmad and Muhammad Azam are her brothers. She has not received any share from her father’s property, as such fraud has been committed with her. The gift mutation was fraudulently got entered by one Muhammad Hayat, her paternal uncle (چچا) on the basis of his interest to marry his daughter with Ali Ahmad. Her father aged about 80 years was illiterate and unsound mind person and his land was being cultivated by tenants. Her father never appeared before any Tehsildar or Halqa Patwari for sanctioning of gift mutation nor he imposed his thumb impression on the official document. Defendants used to give rice and clothes etc. in lieu of her share. For the last two years they did not give share of rice and clothes to her. Their father neither informed regarding depriving of his daughters from their inheritance share nor he disclosed about making of gift of property to his sons. Muhammad Hayat is her paternal uncle (چچا). In their family share was given to the daughters. That Tehsildar or Patwari never disclosed any information in the village that the property has been gifted to the defendants nor any relative ever discussed in respect of gift. In cross examination, she stated that

حیات ہمارا سگا چچانہ تھا تا ہم وہ برادری سے تھا۔۔۔۔۔ یہ درست ہے کہ دوسری بہنوں کو حصہ پیداوار وغیرہ مل رہا ہے اس لیے انہوں نے کیس نہ کیا ہے۔ مجھے انہوں نے چاول وغیرہ دینا چھوڑ دیئے ہے اس لیے میں نے دعوی کر دیا۔ ۔ ۔ ۔ مجھے پتہ ہے کہ دعوی میں جو کچھ لکھا میں نے اپنا حصہ لینا ہے۔

On the converse, Muhammad Azam /Defendant No. 5 appeared as DW1 who stated that plaintiff/Rasoolan is his sister and his father name was Khushi Muhammad who had four daughters namely Rasoolan Bibi, Salehan, Amina and Taleyan Bibi and two sons Ali Ahmad and Muhammad Azam. When mutation was entered his age was three years and Ali Ahmad was aged about 9/10 years. After attestation of mutation his father remained alive for about 5/6 years. The mutation was challenged only by the plaintiff whereas her other sisters have not challenged the same. In cross examination, he deposed that his father transferred total land through gift in his as well as in the name of his brother. Further deposed as under:--

جب والدم نے مجھے ھبہ کیا میں تحصیلدار کے پاس نہ گیا تھا کیونکہ میں اسوقت چھوٹا تھا۔ اور اسوقت میری عمر 3 سال تھی۔ بوقت ھبہ میں چھوٹا تھا میری عمر 3 سال تھی۔۔۔ یہ درست ھے کہ میں 3 سال کا تھا اسلیے والدم کی خدمت کرنے سے قاصر تھا۔ والدم نے اپنی مرضی سے ہمیں ھبہ کیا اور بہنوں کے نام نہ کیا۔ مجھے علم نہ ھے کہ ھبہ نامہ پر والدم نے کوئی دستخط یا انگوٹھا لگایا تھا یا نہیں کیونکہ میں اسوقت چھوٹا تھا۔ جب مجھے اراضی ھبہ ہوئی تو اسوقت میری جانب سے عدالت نے کوئی گارڈین مقرر نہ کیا تھا۔ مجھے علم نہ ھے کہ بوقت ھبہ نمبر دار کا بیان ہوا تھایا نہیں۔ مجھے علم نہ ھے کہ روبرو تحصیلدار والد م کا بابت ھبہ کوئی بیان ریکارڈ ہوا تھا یا نہیں ۔۔۔ مجھے علم نہ ھے کہ والدم روبرو پٹواری پیش ہوئے یا نہیں۔۔۔ یہ درست ہے کہ مدعا علیہ نمبر 5 انتقال کا گواہ تھا۔ یہ درست ہے کہ میرے سامنے انتقال کے گواہان نے انگوٹھے       کیے تھے یا نہیں۔۔۔ یہ درست ہے کہ محمد حیات کی بیٹی کی شادی علی احمد سے ہوئی ہے۔

Amina Bibi/Defendant No. 6 appeared as DW2 and in cross examination, she deposed that:-

میں ھبہ کی گواہ نہ ہوں۔ بوقت ھبہ میں موجود نہ تھی۔۔۔۔۔۔ یہ درست ہے کہ بوقت ھبہ میری عمر 21 سال تھی۔

5. Admittedly, Khushi Muhammad deceased contracted three marriages, one with Mst. Fatima Bibi, second with Mst. Jallan Bibi and third with Mst. Hakim Bibi. The detail of his wives as well as his progeny respectively is mentioned in the pedigree table which is as under:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

As per pedigree table, petitioner Mst. Rasoolan Bibi is daughter of Mst. Fatima Bibi whereas Mst. Jallan Bibi had one son Salehon deceased and two daughters namely Salehan Bibi and Taleyan Bibi. The deceased Salehon had two daughters namely Nasreen Bibi and Bilqees Bibi and one son Muhammad Nawaz. Mst. Hakim Bibi has one daughter Amina Bibi and two sons namely Muhammad Azam and Ali Ahmad.

6. Petitioner categorically stated that fraud has been committed by Muhammad Hayat only under the design to get solemnize marriage of her daughter with Ali Ahmad son of Khushi Muhammad and this fact is admitted by DW1 in his cross examination. Petitioner/plaintiff stated that fraud was committed by Muhammad Hayat only to deprive other heirs of the deceased Khushi Muhammad. Thus, onus was shifted upon the beneficiary/respondents/defendants to prove validity of oral gift as well as the gift mutation by describing exact information of date, time place and venue of the said transaction in their pleading (written statement) and same should have been proved by leading the affirmative evidence accordingly. Perusal of the written statement shows that the respondents /defendants neither furnished the requisite details in their defence regarding date, time, place of gift nor proved the making of any offer of gift and acceptance of the same by them or on their behalf, as such they had failed to prove the oral gift transaction of the suit land as well as the to valid incorporation of the impugned oral gift mutation in the revenue record. Reliance is placed on the case titled as Muhammad Akram & Another vs. Altaf Ahmad (PLD 2003 SC 688), wherein the Hon’ble Supreme Court of Pakistan has held as under:--

“8. It is a settled principle of law that a mutation confers no title. Once a mutation is challenged, the party that relies on such mutation(s) is bound to revert to the original transaction and to prove such original transaction which resulted into the entry or attestation of such mutation(s) in dispute. This oft repeated principle of law is quite logical because a mutation not being a title deed, is merely an evidence of some original transaction between the parties that had been struck somewhere prior to entry of a mutation. Respondent Altaf Ahmad has utterly failed to revert back to any transaction and bring on record any oral or documentary evidence thereof. The burden squarely lay on him to prove the transaction because the existence thereof has throughout been alleged by him in affirmative. He was bound to fail in the event of the non-proof of transaction. Only the trial Court realised it.”

Reliance is placed on the case titled as Amjad Ikram vs. Mst.Asiva Kausar and 2 others (2015 SCMR 1) relevant portion whereof is reproduced as under:-

“It is an equally settled principle of law that it is the duty and obligation of the beneficiary of a transaction or a document to prove the same. Reference in this behalf may be made from the judgments of this Court, reported as Akhtar Ali v. The University of the Punjab (1979 SCMR 549), Haji Muhammad Khan and others v. Islamic Republic of Pakistan and 2 others (1992 SCMR 2439) and Khan Muhammad v. Muhammad Din through LRs (2010 SCMR 1351). Thus, the contention of the learned counsel regarding non framing of specific issue qua fraud looses all significance, as no prejudice appears to have been caused to-the appellant. Even otherwise, during the course of proceedings before the learned trial Court, neither any effort was ever made by the appellant to claim any further issue nor such contention was raised before the learned High Court. Thus, such contention cannot be entertained at this belated stage before this Court.”

Reliance is placed on Muhammad Nazir vs. Khurshid Begum (2005 SCMR 941), Abdul Sattar and others vs. Muhammad Ashraf and others (2008 SCMR 1318), Khaliq dad Khan and others vs. Mst. Zeenat Khatoon and others (2010 SCMR 1370) and Phul Peer Shah vs. Hafeez Fatima (2016 SCMR 1225).

7. Respondents/Defendants No. 4 & 5 while filing written statement neither disclosed the ingredients of oral gift nor deposed while appearing as DW1 regarding making of any offer of the gift by the donor and acceptance of the same by the donee or by any person on their behalf as they were minors nor it is disclosed that who accepted the gift.

8. The oral gift mutation is at discord between the parties, as such it is mandatory for the beneficiary (respondents/defendants) to describe meticulous details of day, date, time, venue, presence of witnesses as well as making of gift, offer & acceptance and delivery of possession in the pleadings (written statement) whereafter such asserted fact should have been necessarily proved through corroborative, affirmative and trustworthy evidence but the respondents/beneficiaries have not mentioned the detail declaration of oral gift in their written statement. It was the primary duty of the beneficiary i.e. respondents /defendants, to prove the above mentioned constituents with elaborated specifications but no such evidence is produced in this regard. The absence of above material information in the written statement renders the statement of the defence witnesses (DWs) beyond the scope of pleadings and same can validly be excluded from the judicial consideration. Thus, non-proving of the asserted stance of oral gift transaction through corroborative, credible & trustworthy evidence is considered a material flaw which dismantles the very foundation of the stance of the respondents/defendants. Reliance is placed on the cases titled as Peer Baksh through LRs & others vs. Mst. Khanzadi & others (2016 SCMR 1417), Muhammad Nawaz & others vs. Sakina Bibi & others (2020 SCMR 1021), Atta Muhammad & others vs. Mst. Munir Sultan (deceased) through her LRs & others (2021 SCMR 73), Syed Ahmad vs. Ali Akbar & others (2021 SCMR 743) & Faqir Ali & others vs. Sakina Bibi & others (PLD 2022 SC 85).

9. As per Para Nos. 149 and 150 of the Muhammadan Law three important prerequisites are described for a valid gift such as explicit offer of the gift by donor, acceptance of the gift by the donee and voluntary delivery of possession to the donee under the very oral gift transaction. The above ingredients are mandatory in nature and absence of proof of any ingredient whereof render the very gift transaction as invalid. Here, in this case the above said ingredients have neither been pleaded in the written statement nor proved by producing any witness which is considered a material flaw and non-observance of law dismantled the validity of the oral gift mutation. The Hon’ble Supreme Court of Pakistan in a judgment titled as Mst. Saadia vs. Mst. Gul Bibi (2016 SCMR 662) held as under:-

14. Indeed, if a document in the form of memorandum of gift has been executed between the parties (donor and donee) as an acknowledgment of past transaction of oral gift, its non-registration will not have much bearing as regards its authenticity or validity, but the other important thing is the proof of fulfillment of three conditions of a valid gift “offer”, “acceptance” and “delivery of possession”.

Reliance can also be placed on the cases titled as Allah Ditta & others vs. Manak alias Muhammad Siddique & others (2017 SCMR 402), Naveed Akram & others vs. Muhammad Anwar (2019 SCMR 1095) & Muhammad Sarwar vs. Mumtaz Bibi & others (2020 SCMR 276).

10. Even otherwise, neither the attesting witnesses of the oral gift mutation in question nor the Revenue Officers (Patwari & Tehsildar) who entered/sanctioned the said gift mutation were produced in evidence to prove the alleged oral gift mutation. Under Article 17 & 79 of the Qanun-e-Shahadat Order 1984, it is mandatory for the beneficiary respondents to produce the requisite number of the witnesses of the very oral gift transaction as well as gift mutation; but the respondents have failed to produce the witnesses of the oral gift mutation. The non-production of the require witnesses is blatant non-compliance of the aforesaid mandatory provisions of law which is considered fatal for the case of the respondents. Reliance is placed on the cases cited as Hafiz Tassaduq Hussain vs. Muhammad Din through legal heirs and others (PLD 2011 SC 241), Farzand Ali and another vs. Khuda Bakhsh and others (PLD 2015 SC 187) and Farid Bakhsh vs. Jind Wadda & others (2015 SCMR 1044).

11. Respondents/defendants failed to produce the witnesses of oral gift mutation Patwari and Tehsildar who entered and sanctioned the impugned oral gift mutation nor any convincing reason has been expounded for non-producing them in evidence which amounts to withholding of the material evidence and it would be legally presumed that had the said witnesses produced in the evidence, they would have deposed against the respondents, as such presumption under Article 129 (g) of Qanun-e-Shahadat Order, 1984 clearly operates against them. Reliance is placed on the cases titled as Sughran Bibi vs. Mst. Aziz Begum & 4 others (1996 SCMR 137) & Jehangir vs. Mst. Shams Sultana & others (2022 SCMR 309).

12. As per available record the respondents /defendants tried to deprive the petitioner from her legal share in the estate of her deceased father by committing fraud and got entered the alleged gift mutation in their favour, whereas such like custom/practice of depriving of the females from their accrued share in the legacy of her prepositious has seriously been deprecated by the Hon’ble Supreme Court of Pakistan in its landmark judgment, cited as Ghulam Ali and 2 others vs. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1). Relevant part of the judgment (supra) is reproduced as under:

“……………As is discussed in the case of Haji Nizam (approved in Mohammad Bashir’s case) which was also a case of clash of Islamic principles against those of other systems-a widowed daughter-in-law, seeking maintenance for her minor child against the grandfather, it is the duty of the Courts within the permissible fields, as specified therein, to enforce Islamic law and principles. This case also required similar, if not better, treatment. The scope of rights of inheritance of females (daughter in this case) is so wide and their thrust so strong that it is the duty of the Courts to protect and enforce them, even if the legislative action for this purpose of protection in accordance with Islamic Jurisprudence, is yet to take its own time.

In the rural areas where 80% of the female population resides, the inheritance rights of the females are not as protected and enforced, as Islam requires. Cases similar to this do come up even to Supreme Court. In a very large majority of them the Courts act rightly and follow the correct rules. But it is a wide guess as to how many females take the courage of initiation or continuing the legal battle with their close one in matters of inheritance, when they are being deprived. The percentage is very low indeed. Neither the Courts nor the law as at present it stands interpreted, are to be blamed. The social organizations including those in the legal field are yet to show up in the rural area. They are mostly managed by Urban volunteers. When will they be able to move out of mostly managed by Urban volunteers. When will they be able to move out of sophisticated methods of American speech/seminar system and all that goes with it, in the enlightened urban society? It is a pity that while an ubranised brother, who is labourer in a neighbouring Mill, has the protection of such mass of Labour Laws; which sometimes even Courts find it difficult properly to count-right from the definition of ‘rights’, up to the enforcement’ even in homes, through ‘Social Security’ Laws, with web of network of ‘Inspectorates’ etc. who are supposed to be helping him at every step, his unfortunate sister, who is deprived of her most valuable rights of inheritance even today by her own kith and kin--sometimes by the urbanized brother himself, is not even cognizant of all this. She is not being educated enough about her rights. Nearly four decades have passed. A new set up is needed in this behalf. Social Organizations run by women have not succeeded in rural field. They may continue for the urban areas where their utility might also be improved and upgraded. At the same time they need to be equipped with more vigorous training in the field of Islamic learning and teachings. They should provide the bulk of research in Islamic Law and principles dealing with women. It is not the reinterpretation alone which is the need of the day but a genuine effort by them for the reconstruction of the Islamic concepts in this field. It cannot be achieved by the use of alien manner or method alone.”

The above said principle has been reiterated by the Hon’ble Apex Court in a recent judgment cited as Farhan Aslam and others. vs. Mst. Nuzba Shaheen and Another (2021 SCMR 179).

13. Further, on the query put to PW-1 regarding non-payment of any share of produce, she in cross examination has categorically explained the payment of share of produce as under:

یہ درست ہے کہ دوسری بہنوں کو حصہ پیداوار وغیرہ مل رہا ہے اس لیے انہوں نے کیس نہ کیا ہے۔ مجھے انہوں نے چاول وغیرہ دینا چھوڑ دیئے ہیں اس لیے میں نے دعوی کر دیا۔

The above statement shows that respondents were giving share of produce to the petitioner as well as other sisters. That the petitioner and respondents are step siblings and issue is regarding share in estate of their deceased father and in such like cases no limitation runs when women folk are deprived of the legal share and mere sanctioning of gift mutation does not create any right until and unless the basic transaction of the gift is proved through corroborative and trustworthy evidence. Even the Hon’ble Supreme Court of Pakistan has repeatedly held that no limitation runs against the inheritance matters. Reliance is placed on the latest judgment cited as Ghulam Qasim and others vs. Mst. Razia Begum and others (PLD 2021 SC 812) wherein the Hon’ble Supreme Court of Pakistan has held as under:

“4. Immediately on the death of a person, his/her legal heirs become owner of his estate under Muslim law. In the case of Ghulam Ali v. Mst. Ghulam Sarwar Naqvi it was held that:

The main points of the controversy in this behalf get resolved on the touchstone of Islamic law of inheritance. As soon as an owner dies, succession to his property opens. There is no State intervention or clergy’s intervention needed for the passing of the title immediately, to the heirs. Thus, it is obvious that a Muslim’s estate legally and juridically vests immediately on his death in his or her heirs and their rights respectively come into separate existence forthwith. The theory of representation of the estate by an intermediary is unknown to Islamic Law of inheritance as compared to other systems. Thus there being no vesting of the estate of the deceased for an interregnum in any one like an executor or administrator, it devolves on the heirs automatically, and immediately in definite shares and fraction.

The above-noted principle has been continuously affirmed, including in the cases of Mst. Reshman Bibi v Amir, Mirza Abid Baig v Zahid Sabir, and Farhan Aslam v Mst. Nuzba Shaheen.

5. Therefore, the contention that the possession of the land was with the petitioners and the suit filed in the year 2008 could not challenge the gift mutation stated to have been made in the year 1986, as it was beyond the limitation period, will not in itself make the suit time-barred. This is because the possession by an heir is considered to be constructive possession on behalf of all the heirs. In this regard reference may be made to the case of Ghulam Ali v Mst. Ghulam Sarwar Naqvi where it was held that:

The heir in possession was considered to be in constructive possession of the property on behalf of all the heirs in spite of his exclusive possession, e.g., the possession of the brothers would be taken to be the possession of their sisters, unless there was an express repudiation of the claims of the sisters by the brothers.

Circumstances may exist in which an inference of knowledge can be drawn, or in which the laches or negligence of the co-owners is so great that knowledge will be presumed but a case of that type would have to be exceptional. The law does not penalise a co-owner who relies on the honesty of his co-sharer, and therefore ordinarily the mere fact that he does not take the trouble to assert his rights as he may be entitled to, would not justify an inference of ouster.

The above-mentioned two-member Bench decision of this Court was also followed by a three-member Bench decision in the case of Khair Din v Salaman. Therefore, the cause of action would only accrue when the respondent was denied her rights, and it would be from such date that the time would start to run, the burden to establish this lay on the petitioners which they had also failed to establish. However, as observed in Mst. Grana v. Sahib Kamala Bibi, the law of limitation would be relevant when the conduct of the claimant demonstrates acquiescence and particularly when third party interest is created in the inherited property.

Another reliance is placed on the case titled as Khan Muhammad through L.Rs. and others vs. Mst.Khatoon Bibi and others (2017 SCMR 1476), wherein the Hon’ble Supreme Court of Pakistan held as under:-

“11 Similarly, in the cases of claiming right of inheritance, it is well settled that the claimant becomes co-owner/’co-sharer of the property left by the predecessor along with others the moment the predecessor dies and entry of mutations of inheritance is only meant for updating the revenue record and for fiscal purposes. If a person feels himself aggrieved of such entries, he can file a suit for declaration within six years of such wrong entries or knowledge. Any such repetition of the said entries in the revenue record would again give him afresh cause of action or when the rights of anyone in the property are denied it would also give fresh cause of action. Similarly, it is again settled by now that no limitation would run against the co-sharer. We for instance can quote few judgments covering all these aspects like Ghulam Ali and 2 others v. Mst. Ghulam Sarwar Naqvi (PLD 1990 SC 1), Riaz Ahmad and 2 others v. Additional District Jadge and 2 others (1999 SCMR 1328), Mst. Suban v. Allah Pitta and others (2007 SCMR 635), Muhammad Anwar and 2 others v. Khuda Yar and 25 others (2008 SCMR 905) and Mahmood Shah v. Syed Khalid Hussain Shah and others (2015 SCMR 869).

(emphasis supplied)

Reliance is also placed on judgments titled as Shabla and others vs. Ms. Jahan Afroz Khilat and others (2020 SCMR 352) & Faiz Ullah & others vs. Dilawar Hussain & others (2022 SCMR 1647). As such findings of the lower foras on Issues No. 1 & 2 are patently illegal and same are not sustainable.

14. Furthermore, it transpires from the record that Jamabandi of the year 2008 (Ex.D-1), copy of khasra gurdawari (Ex.D-2), copy of application (Ex.D-3 & D-4) as well as impugned mutation No. 1943 (Ex.D-5) were produced in the statement of learned counsel for the respondents, as such the same is considered as an invalid mode of tendering of document in evidence, which is inadmissible in evidence. It is settled law that the documents relied upon or on the basis of which the case has been filed should be produced in the evidence by party itself giving a fair opportunity to the other party to cross-examine the same as such the documents produced by the respondents’ counsel cannot be relied upon as valid evidence and such document could not be taken into consideration. Reliance is placed on the case title Mst. Akhtar Sultana vs. Major Retd. Muzaffar Khan Malik through his legal heirs and others (PLD 2021 SC 715). Similar view has been reiterated by the Hon’ble Supreme Court of Pakistan in its latest judgment cited as Rustam & others vs. Jehangir (deceased) throush LRs. (2023 SCMR 730) wherein it is held as under:

“7. As regards the other two documents i.e. Mutation No. 1836 (Exh.D-9) and Mutation No. 1837 (Exh.D-8), it is suffice to say that according to principle settled by this Court in the cases reported as Mst. Hameeda Begum and others v. Mst. Irshad Begum and others (2007 SCMR 996), Federation of Pakistan through Secretary Ministry of Defence and another v. Jaffar Khan and others (PLD 2010 SC 604), Province of the Punjab throush Collector. Sheikhupura and others v. Syed Ghazanfar Ali Shah and others (2017 SCMR 172) the document should be produced in the evidence by the party itself and a fair opportunity should be given to the opposite party to cross-examine the same, as such, the said two documents produced by the defendants counsel in his statement could not be taken into consideration.”

15. As the decisions of the learned lower fora on Issues No. 1 & 2 suffer from blatant misreading and non-reading of the evidence as well as mis-application of law, as such the findings of both the learned Courts below on Issues No. 1 & 2 being against the record, are hereby reversed and the same are decided in favour of the petitioner/plaintiff and against the respondents/defendants. This Court is well within jurisdiction to reverse such illegal and perverse concurrent findings of the learned lower fora in its revisional jurisdiction under Section 115 CPC. Reliance is placed on the cases titled as Nazim-ud-Din , & others vs. Sheikh Zia-tul-Qamar & others (2016 SCMR 24).

16. In nutshell, this civil revision is allowed. Judgment & decree dated 23.02.2015 passed by the learned Civil Judge, Mandi Bahauddin and judgment & decree dated 16.03.2017 passed by the learned Additional District Judge, Mandi Bahauddin are hereby set aside and suit for declaration filed by the petitioner is decreed. No order as to cost.

(Y.A.)  Civil Revision allowed

Public Functionaries are bound to obey direction of Wafaqi Mohtasib

 PLJ 1999 Lahore 947

Present: CH. IJAZ AHMAD, J. Rana MUHAMMAD USMAN KHAN--Petitioner

versus GENERAL MANAGER TELEPHONE etc.--Respondents

W.P. No. 25122/1998, decided on 26.1.1999.

Constitution of Pakistan, 1973--

—Art. 199-Telephone connection-Non-installation of-Petitioner appro­ached to Wafaqi Mohtasib for installation of telephone-Non-implementation of orders of Wafaqi Mohtasib^ffnt petition-President Order No. 1 of 1983 is that public functionaries are bound to obey direction of Wafaqi Mohtasib but action of respondents (Telephone Deptt.) is not in accordance with P.O. No. 1 of 83—Respondents (Telephone Department) failed to agitate the matter before High Court as well as before President of Pakistan-This brings case of petitioner in the area that respondents are not acting in good faith, therefore, action of res­pondents department is malafide-Writ petition accepted and respondent telephone department is directed to implement direction of Wafaqi Mohtasib in letter and spirit within 4 months. [Pp. 948 & 949] A & B

Petitioner in person.

Mr. Muhammad Raftque Shed, Advocate for Respondents.

Date of hearing: 26.1.1999.

JUDGMENT

The brief facts giving rise to this writ petition are that the petitioner submitted an application before respondents for connection of telephone but the respondents malafide did not provide the same to the petitioner and did not decide the application of the petitioner in true prospects. The petitioner further states that the respondents sent even bill to the petitioner qua the telephone number but the telephone was not installed at the premises of the petitioner. The petitioner was constrained by the circumstances and approached ( ^I <^-^£ ij>\Js ), who after providing opportunities to the respondents gave direction to the respondents vide order dated 7.9.98 in the following terms:-

"In view of the above, the Agency has been found guilty of mal­administration. The General Manager, LTR(N) is, therefore, directed to provide telephone connection to the complainant within 30 days, after receipt of these findings, without the cost of telephone posts and D/wire. With these observations, this case is closed."

The petitioner further states that respondents did not file any appeal against the aforesaid order of ($* ' ^l-^ J k_5 ) before the President of Pakistan. He further states that the order of Wafaqi Mohtasib Ahla was not agitated by the respondents before this Court. He further alleged that the respondents have provided telephone connections in the locality to other persons and the petitioner is penalized only; that the petitioner knocked the door of tyt<.J2 '<j(jf ). The contents of para 9 of writ petition is as follows:-

2.         The learned Legal Advisor for respondents contended that  espondents did not file any appeal against the order of ( <}*•' v"^ J ^5 ). He further states that the petitioner has alternative remedy of file contempt petition before the (^ i._--^ij U i ) and the writ petition is not maintainable. He further stated that petitioner failed to bring on record any instance; that the respondents installed telephone connection to other persons in the locality, therefore, action of respondents is in good faith. It is further stated that for the purpose to supply connection to the petitioner; the respondentshave to installed 14 Poles i.e. policy matter and this Court has no jurisdiction to substitute its own decision in place of policy maker.

3.   I have given my anxious consideration to the contentions of the learned counsel for the respondents and also heard the petitioner in person.It is admitted fact that the petitioner approached the Wafaqi Mohtasib who has given ample opportunities to the respondents to appear before him butthe respondents did not appear before him and the Wafaqi Mohtasib was constrained by the circumstances to give direction to the respondents toinstall   telephone  without  the   cost   of telephone   poles   D/Wire.   The respondents did not file any appeal against the said order. The respondents are public functionaries; they are bound to act within the framework of
Constitution and law and the respondents have no authority whatsoever under  any  provisions   of the   Constitution   and   law  to   frustrate   the recommendation   of   Wafaqi   Mohtasib   unless   and   until   the   public functionaries have agitated the matter before the President of Pakistan or to file writ petition for setting aside the recommendation of Wafaqi Mohtasib. The respondents failed to agitate the matter before this Court as well asbefore the President of Pakistan. This brings the case of the petitioner in the area that the respondents are not acting in good faith, therefore, the action ofrespondents are malafide as the principle laid down by the Hon'ble  Supreme ourt in the following judgments:-

Ghulam Mustafa Khar's case               (PLD 1989 S.C. 26);

Zia-ur-Rehman 's case                          (PLD 1973 SC 490); and

(PLD 1974 SC 151).

The President Order No. 1 of 83 is that the public functionaries are bound to obey the direction of Waqafi Mohtasib but the action of respondents is not in accordance v/ith the P.O. No. 1 of 83.

4. In view of above discussion, this writ petition is accepted with no order as to costs. The respondents are directed to implement the direction of Wafaqi Mohtasib in letter and spirit within four months.

(K.K.F.)                                                                       Orders accordingly.

 

Wafaqi Mohtasib awarding damages of Plaintiff

 PLJ 1999 Karachi 587

Present: RAStfEED A. RAZVI, J. SHIFAATULLAH QURESHI-Plaintiff

Versus

FEDERATION OF PAKISTAN through SECRETARY/CHAIRMAN,

'RAILWAYS, MINISTRY OF RAILWAYS (RAILWAY BOARD),

ISLAMABAD-

Defendant Suit No. 192 of 1992, decided on 20.3.1998.

 Limitation Act, 1908--

—-S. 14 Arts. 56 & 115-Limitation~Question of--Plaintiff after dismissal of his claim for recovery of amount of damage by defendant, instead of filing suit approached Wafaqai Mohtasib who accepting claim of plaintiff directed defendant to pay amount of damage to plaintiff-President of Pakistan, on appeal, set aside order of Wafaqi Mohtasib-Plaintiff filed suit for damages and permanent injunction after about 3 years and 10 months from dismissal of his claim by defendants-Plaintiff claimed that period spent in proceeding before Wafaqi Mohtasib should have been excluded-Held :~Period consumed during proceedings before Wafaqi Mohtasib or before President of Pakistan could not be excluded as provided under S. 14 of Limitation Act, 1908, because proceedings before Wafaqi Mohtasib and President of Pakistan did not constitute "civil proceedings"--In absence of any legal disability of plaintiff for not brining suit within time, suit was dismissed being barred by time.

[P. 593 & 595] A, B & C

Mr. Abdul Haleem Pirzada and Ghulam Gkous, Advocates for Plaintiff.

Mr. Akhlaq Ahmed Siddiqui, Advocate for Defendants. Dates of hearing: 10.12.1997 and 24.2.1998.

JUDGMENT                                                           

This is a suit for recovery of Rs. 8,69,000 for the work done by plaintiff for construction of Officers Flats at Karachi Cantt. Station and for damages for Rs. 38,69,000.

2.               The case of the plaintiff is that he is an approved Government contractor and registered with Pakistan Railways as an "A" class contractor; that on 14 10.1985, Defendant No. 2 invited offers for the construction of four units Officers Flats in staff quarters; that the quotations submitted by the plaintiff, being the lowest, were accepted on 2.1.1986; that the Plaintiff started construction work which was required to be completed by 2.8.1987; that due to shortage of funds with the defendants, the functionaries of Pakistan Railways directed the plaintiff to slow down the pace of construction work as they were awaiting re-appropriation of budgetary grant; that the plaintiff continued with the work but in a slow manner and submitted running bills with the Defendant No. 2; that in the early 1988, thedefendant refused to pay the bills of the plaintiff as a result of which several         J5t communications were addressed; that finally on 24.5.1988, the claim of the plaintiff was dismissed by the Defendant No. 2.

3.    It is further the case of the plaintiff that after refusal of the defendants to make the payments, he approached Wafaqi Mohtasib who, after detailed hearing, passed order, dated 31.12.1990 directing the defendant to pay Rs. 8,69,900 against which Defendant No. 2 preferred a review application, which was also dismissed vide order, dated 23.4.1991. Thereafter, an appeal was filed by the defendants under Article 32 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 (hereinafter referred as Order 1983) which was accepted by the President and the recommendation of Wafaqi Mohtasib was set aside. This fact was intimated to the plaintiff vide letter, dated 27.2.1992 by the Ministry of Law, Justice and Parliamentary. Affairs, Government of Pakistan, Islamabad. Being aggrieved with the order of the President, the plaintiff filed the instant suit praying for the following reliefs:-

"(a) Restraining the defendants, their servants, employees, attorney/ies and/or any other person or person claiming on their behalf or through them, from withdrawing the amount of Rs. 8,69,000 from the Muslim Commercial Bank, Maisam Plaza Branch, Gulshan-e-Iqbal, Block No. 3, Karachi.

(b) Directing the defendants to pay jointly/severally, an amount of Rs. 38,69,000 to the plaintiff on account of the actual claim, losses, damages sustained by the plaintiff.

(0

(d)

4. The defendants filed their joint statement denying the right of the plaintiff to claim the suit amount and other allegations of the plaint. Legal objections were also raised to the maintainability of the suit on the ground, inter alia, that the suit is barred under Article 29 of the Ombudsman Order, 1983. As a result of the above pleadings, on 27.9.1992, following issues were adopted with the consent of the parties:-

"(1) Whether the defendant by pressing urgency for completion of the subject Contract within twelve months, vide letter, dated 2.1.1P86 (at Annexure "P. 1 to the plaint) caused the plaintiff to deploy his entire resources at the site ?

(2)              Whether  the  functionaries  of the  defendants  directed  the plaintiff to slow down the pace of work for a few days on the pretext of non-availability of funds ?

(3)              Whether the plaintiff reminded the Defendant No. 2 and his sub-ordinates seeking instructions to accelerate the pace of work and whether the defendants responded ?

(4)              Whether    the    deliberate/intentional/negligent    acts    and omissions of the defendants and their functionaries caused severe mental torture/per plexities/material losses/damages/ embarassment to the plaintiff ?

(5)              Whether the defendants/their functionaries caused the plaintiff to suffer persistent/recurring payment of wages to labour employed for the subject job ?

(6)              Whether the plaintiff repeatedly required the defendants to arrange/supply funds for accomplishment of the subject job and whether the defendants failed to respond thereabout ?

(7)              Whether the Defendant No.   1  is liable for the acts and omissions of Defendant No. 2 and its employees ?

(8)       Whether the suit is not maintainable by virtue of Section 29 of the  establishment  of the  Office  of the  Wafaqi Mohtasib  (Ombudsman Order, 1983), since the plaintiff invoked the jurisdiction of Wafaqi Mohtasib ?

(9)      Whether the representation made to the President of Pakistan was accepted ?

(10)        Whether the suit of the plaintiff is frivolous and was filed with ulterior motives in order to restrain the defendants from encashing the Bank Guarantees ?

(11)        Whether the plaintiff is entitled to the relief claimed ?

(12)  What should the decree be ?"

 

5.          On 16.1.1998, when this matter came up for hearing, the parties were directed to satisfy as to how this suit is maintainable on the ground of limitation and, secondly, whether Article 36 or Article 115 to the 1^st Schedule of the Limitation Act, 1908 are attracted. In furtherance of the same, patties have filed,  in addition to their oral arguments, written arguments. Article 36 provides a period of two years for filing a suit for compensation if any malfeasance, misfeasance or non-feasance is caused, independent of the contract. Article 115 provides a period of three years for filing a suit for compensation for the breach of any contract, express or implied not in writing nor registered and not provided in the Limitation Act. Since the amount claimed in the suit are in the nature for recovery of the
work done and the remaining part is as an amount of damages for breach of contract, I am of the view that for the first amount Article 56 and for the damages Article  115 of the Limitation Act are attracted. Both these provisions provide a period of three years for filing a suit.

6.          It was contended by Mr. Abdul Haleem Pirzada that for filing of the instant suit, the date to be reckoned is not the date of refusal of defendant to pay the amount i.e. 24.5.1988 but it should be 10.3.1992 when the  plaintiff  received  letter  from  the   Ministry  of Law,   Justice  and Parliamentary Affairs through which the appeal filed by the defendants was accepted by the President. It was argued that since the matter was sub judice before the Wafaqi Mohtasib and thereafter, before the President of Pakistan, the intervening period should be excluded. Reliance was placed on the following cases:--

(i)   Jagnath Marwari v. Kalidas Raha AIR 1929 Pat. 245.

(ii)  R.M.N. Nagappa Chettiar v. Messrs Trojan and Company AIR 1948 Mad. 446,

(iii) Abdul Ghafoor v. The Thai Development Authority PLD 1958 Lah. 169,

(iv) F.A. Khan v. The Government of Pakistan PLD 1964 SC 520, and

 (v)   The Province of West Pakistan v. Muhammad Shraif PLD 1965 Lah. 513.

7.     In the first case cited above a suit was filed for recovery of compensation where defendant raised a plea that the suit is barred by Article 36 of the Limitation Act, 1908. It was held by a Division Bench of Patna High Court that in a suit for compensation governed by Article 36 arising independent of the contract, the time provided is two years and that the time will not run f'ruin the act for malfeasance or misfeasance but from the time when the injury results. In the present suit, plaintiff is claiming damages arising out of a contract and, therefore, it is Article 115 of the Limitation Act, which governs the plaintiffs case and, therefore, the case of Patna High Court is of no help to him. Likewise, the case cited at Serial No. (u) above AIR 1948 Mad. 446 is also of no help to the plaintiff as in that case a suit was filed for damages for malicious insolvency proceedings where it was held that the stalling point of limitation in such a case is the date of
order of annulment. In the case of Abdul Ghafoor (supra) the question involved was whether the suit was filed within the period of six months as
provided under Section 75(3) of the West Punjab Thai Development Act, 1949. In that case, plaintiff had filed a suit for declaration against dismissal of his services. Prior to filing the suit, he filed appeal before the competent authority and  after conclusion  of the  proceedings before the domestic tribunal, he filed the suit. It was held that the dismissal of his appeal by the superior authorities of the Thai Development gave him a fresh cause of action to maintain the suit. Reliance was placed on two Privy Council cases, namely Chandra Mani Saha and others v. Anarjan Bibi and others AIR 1934 PC 134 and Bassu Kaur and others u. Dhum Singh ILR XI (1889) All. 47.

8.   Mr. Abdul Haleem Pirzada has vigorously argued that the rule laid down by Honourable Supreme Court in the case of F.A. Khan (supra) is
fully attracted in the instant case. The question raised before the Supreme Court in that was that what is the time for a Government servant to challenge the legality of the order of his removal from service. In that case also as of Abdul Ghafoor (supra), the plaintiff before challenging his removal through a civil suit, preferred appeals and revisions before the departmental authorities.  It was  held that the starting point for limitation,  in the circumstances of that case, started from the dates of the appellate order of departmental authority which confirmed the original order of plaintiffs dismissal. Reference was made to the cases of Abdul Ghafoor (supra) and Chandra Mani Saha (supra) and the following three propositions were laid down for including the time in the cases where appeal was filed by a plaintiff:--

"(i) when an appeal is filed the matter becomes sub judice and is reheard by the Appellate Court which does not act merely as a Court of error;

 (ii) after there has been an appeal even through an Appellate Court simply affirms the order of the original Court the only decree or order in existence is the order of the Appellate Court;

(iii) the original and appellate proceedings are steps in one proceedings."

9.             The rule laid down in the case of F.A. Khan was followed by a Divisions Bench of Lahore High Court in the case of Muhammad  harif
(supra). All the cases as mentioned earlier were noted. In that case, suit for specific performance of the agreement of lease was filed by the  laintiff and in addition to the relief for damages. In that case, the grievance application of the plaintiff was dismissed by the concerned authority against which he filed review application before the Deputy Commissioner which was dismissed on 15.12.1953. It was agitated that the time will run from that day. It was held that second and fresh cause of action accrued to the plaintiff to sue the Government when his review was finally rejected and it was held that this suit falls within Article 115 of the Limitation Act. The ratio laid down in the cases as discussed hereinabove are not attracted in view of the facts of this suit as in those cases the plaintiffs were pursuing their remedy before the higher  officers  against  the  orders  of the  subordinates who  by  their subsequent orders endorsed the orders of their subordinates. These orders were passed in the same hierarchy. While in the instant case, the plaintiff approached the learned Wafaqi Mohtasib for redressal of his grievance. It was a different forum and authority invoked by the plaintiff and in no manner order of Wafaqi Mohtasib could be termed as an order of the superior Officer endorsing or setting aside his subordinate's order. This is a forum separately provided to such persons who are aggrieved with the acts or deeds of an agency. It is doubtful whether a claim in the nature of damages could be maintained before the authority of Ombudsman.

10.    Section 9 of the Limitation Act, 1908 provides that the time once commenced to run will not cease to do so for any inconvenience  r disability to sue or to be sued by reason of any subsequent event does not come within the saving of the statute. There is only one proviso to this section which provides that where letters of administration to the estate of a creditor have been granted to his debtor, the running of the time prescribed for a suit to recover the debt shall be suspended while the administration continues. Section 6 extends the period of limitation of a suit in case of legal disability. Similarly, in view of Section 18, time will run from discovery of fraud. Section 14 entitles a plaintiff for exclusion of time consumed in prosecuting  ny civil proceeding either in a Court of first instance or a Court of appeal
which was prosecuted with due diligence founded upon the same cause of action. Section 10 provides effect of acknowledgment in writing  hich
further extends time for brining any cause in a Civil Court. However, Section 23 provides that a fresh period will begin where there is a  ontinuing breach of contract and in t»se of continuing wrong independent of the contract. None of these principles are attracted for the purpose of calculating the period of limitation in filing this suit. Admittedly, the plaintiffs claim was dismissed on 24.5.1988 and the instant suit was filed on 12.3.1992. The plaintiff was required to file the suit on or before 23.5.1991. The period consumed during the proceedings before Wafaqi Mohtasib or before the President of Pakistan is not entitled to the excluded as provided under Section 14 of the Limitation Act as these do not constitute civil proceedings. The time to file suit started running from the date 24.5.1988. There was no legal disability on the part of plaintiff for not bringing the suit within time.

11.   The necessary conditions for applying provisions of Section 14 of the Limitation Act came up for consideration before a Division Bench of this Court in Kilachand Devechand & Co. (Private) Ltd. v. Messrs Sh. Mian Muhammad Allahbux PLD 1962 Kar. 510. The question in that case was as to whether the time started running from the date of the first award and whether the period spent in making the first award a rule of the Court and
thereafter, time spent in pursuing the application for the execution of the decree is to be counted. The appeal against the order of a learned Single Judge of this Court was allowed and it was held as follows :-

It will be seen, therefore, that Section 14 of the Limitation Act comes into play if the following conditions are fulfilled :—

(a)   That the plaintiff has been prosecuting another civil proceeding against the defendant;

Cb)   that he has been prosecuting it with due diligence;

(c)              that this proceeding is founded upon the same cause of action;

(d)              that it is prosecuted in good faith; and

(e)              that it does not bear fruit because the Court is unable to entertain it due to defect of jurisdiction or other cause of a like nature."

12.   In the case of Messrs Haroon Textile Mills Ltd. v. Allah Ditto PLD 1972 Kar. 57, a suit for damages was filed by the respondent, who was an employee of the appellant and who developed asthema while serving in the appellants'  Company. Earlier, the respondent initiated proceedings under the Workmen's Compensation Act, 1923, which was terminated by the judgment of this Court in Appeal No. 94 of 1964 disposed of on 9^th September, 1965, whereafter he filed the suit. Objection was raised that the suit is barred under Article 22 of the Limitation Act. It was held by a Division Bench of this Court that filing of an application with the Factory Inspector for claim in tort can be no stretch of arguments be said to be a bona fide proceedings fit for the condonation of the delay under Section 14 of the Limitation Act. The rule laid down in the case of Kilachand Devechand (supra) was followed in the case of Asmy Trading Company v. Shahadra Ltd. PLD 1975 Kar. 209 where it was held that the plaintiff was not prosecuting the suit in the lower Court with due diligence and in good faith as the said plaintiff failed to serve a prior notice on the Registrar which omission was held to be a clear case of lack of diligence. By now, it is well-settled that in order to avail of the provisions of Section 14 of the Limitation Act, the plaintiff must show that he was diligently pursuing another civil proceedings whether in the Court of first instance or in a Curt of appeal against the same party bona fidely and that the Court for defect of jurisdiction or other cause of like nature was unable to entertain the same, (see Imdad All and 4 others v. Abdul Rashid and 6 others 1983 CLC 1346).

13.   There is another way of looking at the matter. The plaintiff has based his suit on the cause of action accrued after grant of review application by the President and he is challenging the said order. It was pleaded by the learned counsel for the defendant that the suit is barred by Article 29 of the
Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 which reads as follows :--

"29.   Bar of jurisdiction.-No Court or other authority shall have jurisdiction          

(1)              to question the validity of any action taken, or intended to b  taken, or order made, or anything done or purporting to have been taken, made or done under this Order; or

(2)              to grant an injunction or stay or to make any interim order in relation  to  any  proceedings   before,   or  anything  done  or intended to be done or purporting to have been done by, or under the order or at the instance of Mohtasib."

14.   There are several cases wherein it was held that petition under Article 199 of the Constitution, 1973, challenging a decision/order of Wafaqi
Mohtasib is not maintainable. In the case of P. LA. Corporation v. Wafaqi Mohtasib and 2 others PLD 1994 Kar. 32, a petition was filed challenging the
order through which benefits were directed to be extended to an ex- employee of P.I.A. It was held by a learned Division Bench of this Court that there is a clear bar of jurisdiction of Courts under Article 29 of the Order, 1983 to question, among others, as to validity of any action taken by Wafaqi Mohtasib. Reference was also made to the case of International Cargo Handling Co. (Pvt.) Ltd. v. Port Bin Qasim Authority PLD 1992 Kar. 65 where an application under Order XXXLX, Rules, 1 and 2, C.P.C. filed in a suit was granted by a learned Single Judge of this Court wherein it was held, inter alia, that by virtue of Article 29 of the Order, 1983 jurisdiction of Courts is barred but where the order on the face of it is repugnant to law under which it was made or suffers for want of jurisdiction the Court may invoke its inherent jurisdiction in order to prevent injustice. In another case of a Division Bench of this Court, namely, Habib Bank Ltd., Karachi v. Messrs Pakistan Industrial Promoters (Pvt.) Ltd., Karachi and 2 others PLD 1996 Kar. 218, where a Constitutional petition under Article 199 of the Coosctution was filed challenging the orders passed by Wafaqi Mohtasib as well as President, the Court dismissed the same as not maintainable with tie foGowing observations :--

'11. In case where the matter falls within the jurisdiction of Respondent No. 2 and is resolved by invoking the provisions of the Order I of 1983, no Court would have jurisdiction to disturb such findings. When action is taken under a special statute it must fulfil the conditions of that statute in order to gain validity of the action so takpn. The instant case has been dealt with within the four corners of provisions of the Order No. 1 of 1983, as such, this Court, Article 199 of the Constitution, has no jurisdiction in the 15.  As a result of the above discussion, I am of the considered view the scat is barred by virtue of Article 115 of the Limitation Act. In the instant suit, the plaintiff is impliedly challenging the order passed in appeal by the Preaiieat of Pakistan by showing the dates i.e. 14.10.1985 when for the first P™H? cause of action accrued as a result of acceptance of plaintiffs bid and lasdy on 27.2.1992 when appeal was allowed by the President, (see para., 24 of the plain i. Upon conclusion of evidence, it stands proved that the eroda! dale wtien the cause of action as provided under Article 56 or 115 accrued was 24.5. 1988 when his claim was rejected vide Annexure "P. 11" wbick reads as follows  "It is also pointed out that in terms of Clause 25 page 4 of Special Conditions of Contract any increase in rate or any other compensation or price escalation or any claim is not admissible. Further as per Clause 16, page 3 of Special Conditions of Contract the claim has to be made within one week of the point arising whereas in his case it has not been complied with. The completion period of the word has also expired on 6.8.1987 and no extension in time limit has been granted In view of the above, the claim of the Contractor preferred by him vide his application No. Nil, dated 18.1.1988 is not tenable. The Contractor may, therefore, be informed accordingly and settled up as per Contract Agreement."

16.   Admittedly, this suit was filed on 12.3.1992 after expiry of more than three years.  I  am  of the  considered view  that the  time consumed in a proceeding before Wafaqi Mohtasib is not entitled to be excluded. As a result of this discussion, suit is dismissed with no order as to
cost

(T.A-F.)                                                                                Suit dismissed.