Gul Zamin(Late) through L.Rs Vs Shehzad (Late) through L.Rs & others

JUDGMENT SHEET

IN THE PESHAWAR HIGH COURT,

MINGORA BENCH (DAR-UL-QAZA), SWAT

(Judicial Department)

C.R No. 506-M/2021

Gul Zamin (Late) through LRs.

Versus Shehzada (Late) through LRs and others

Present:

Mr. Shamsul Hadi, ASC for petitioners.

Mr. Abdul Hayat, Advocate for respondents.

Date of hearing: 26.03.2026

Date of announcement: 21.05.2026

JUDGME NT

QAZI JAWAD EHSANULLAH, J.- Through instant revision petition, the petitioners have assailed the judgment and order dated 15.09.2021 of the learned District Judge, Bajaur whereby the judgment and ruling dated 21.04.2021 of the learned Civil Judge-II, Bajaur was maintained and appeal of the petitioners was dismissed;

with that the execution petition filed by present petitioner was held to be so belatedly filed and hit by limitation as well as the principles of laches.

2.Briefly stated, the predecessor of the petitioners, namely Gul Zamin, instituted a claim in the year 1993 before the Assistant Political Agent, Nawagai, under Section 8 of the Frontier Crimes Regulations, 1901 (FCR), asserting his entitlement to possession of land allegedly usurped by the predecessors of the respondents. The said proceedings were conducted in accordance with the Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

mechanism provided under the FCR, culminating in a judgment and order dated 13.04.1995 whereby the claim of Gul Zamin was accepted and a decree for possession of the suit land was passed in his favour, which attained finality as it was never assailed before any superior forum. Thereafter, no steps were taken for execution of the said decree during the subsistence of the FCR regime.

Following the merger of erstwhile FATA into the Province of Khyber Pakhtunkhwa through the 25th Constitutional Amendment, the petitioners, being legal heirs of the decree-holder, initially approached the Deputy Commissioner, Bajaur in the year 2020 for enforcement of the said decree, but upon being directed to seek remedy before the civil court, they instituted an execution petition before the learned Senior Civil Judge, Bajaur which was transferred to the Court of learned Civil Judge-II, Bajaur for further proceedings. The respondents were put on notice, who on their appearance, preliminary raised the point of limitation. After hearing the arguments, the petition was dismissed by the learned executing court vide order dated 21.04.2021 primarily on the ground of laches. The appeal preferred thereagainst was also dismissed by the learned District Judge, Bajaur vide judgment dated 15.09.2021, thereby giving rise to the present civil revision.

3.Learned counsel for the petitioners contended that the impugned orders passed by both the Courts below are patently illegal and contrary to the settled principles governing execution of Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

decrees passed under the FCR. It was argued that the decree dated 13.04.1995 had been validly passed by the competent authority under Section 8 of the FCR and had attained finality, therefore, the petitioners, being legal heirs of the decree-holder, were legally entitled to its enforcement. It was further maintained that during the subsistence of the FCR regime, the Limitation Act, 1908 was admittedly not extended to the tribal areas; hence, no period of limitation could run against the petitioners for seeking execution of the said decree. Learned counsel submitted that Section 9(b) of the FCR merely provides the mode of enforcement of such decree and does not incorporate the law of limitation by implication. It was thus argued that both the Courts below have gravely erred in invoking the doctrine of laches to non-suit the petitioners, as the said doctrine is alien to proceedings governed by ordinary civil law, particularly where the legislature itself has not prescribed any limitation. It was further contended that after the merger of FATA into Khyber Pakhtunkhwa through the 25th Constitutional Amendment, the petitioners promptly approached the competent forum, initially before the Deputy Commissioner and thereafter before the civil Court, thus demonstrating due diligence. It was also emphasized that the execution petition was filed within three years of the merger, and therefore, even under the post-merger legal regime, the same was within time. Lastly, it was argued that valuable rights accrued to the petitioners through a valid decree Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

cannot be defeated merely on technical grounds, especially when the respondents themselves had admitted the claim to some extent during appellate proceedings.

4.Conversely, learned counsel for the respondents supported the concurrent findings recorded by the Courts below and contended that the execution petition filed after an inordinate and unexplained delay of about twenty-five years was rightly dismissed. It was argued that although the Limitation Act, 1908 may not have been formally extended to FATA, yet by virtue of Section 9(b) of the FCR, a decree passed thereunder is to be treated as a decree of a civil Court for all practical purposes, including its enforcement; hence, the general principles governing execution, including limitation, would apply. Learned counsel further contended that even if strict limitation is not attracted, the petitioners cannot be permitted to revive a stale claim after remaining dormant for decades without any plausible explanation.

It was submitted that the doctrine of laches, being a well- recognized principle of equity, squarely applies to such cases, as courts cannot extend discretionary relief to indolent litigants who have slept over their rights. Emphasis was laid on the maxim that “law aids the vigilant and not those who slumber over their rights,” and it was argued that the conduct of the petitioners clearly disentitles them from any equitable relief. Learned counsel also relied upon various precedents to assert that courts are under a duty Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

to examine delay and laches even where limitation is not strictly applicable, and that long, unexplained delay by itself is sufficient to non-suit a party. It was, therefore, contended that both the Courts below have correctly appreciated the facts and law, and the present revision petition, being devoid of merit, is liable to be dismissed.

5.Arguments heard and record perused.

6.Perusal of the record reveals that the predecessor of the petitioners had secured a decree dated 13.04.1995 for possession under the regime of Frontier Crimes Regulations, 1901, which has admittedly attained finality. The said decree, however, remained unexecuted for a considerable period and ultimately, after the merger of erstwhile FATA into the Province of Khyber Pakhtunkhwa through the 25th Constitutional Amendment, the petitioners approached the civil forum in the year 2020 for its enforcement. The execution petition so filed was entertained and notices were issued to the respondents, whereafter the learned executing Court, upon hearing the parties on the question of limitation, dismissed the same primarily on the ground of laches, holding that although the Limitation Act, 1908 was not applicable during the FCR regime, yet the inordinate delay of about twenty- five years disentitled the petitioners from relief. The said view was maintained by the learned appellate Court by adding further that limitation was fully attracted in the case in hand on the ground that Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

a decree passed under section 9 of the Frontier Crime Regulations, 1901 was akin to a decree passed by a civil court.

7.In order to appreciate the controversy, it would be advantageous to reproduce Section 9(b) of the Frontier Crimes Regulations, 1901, which governs the effect and enforcement of decrees passed thereunder:

“9. Effect of decree on finding of Council.– A decree passed under clause (a) of sub-section (4) of section 8 shall,--

(a)-------------

(b)have, to that extent and subject to the provisions of this Regulation with respect to the finding of appeal or revision as the case may be, the same effect as a decree of a Civil Court of ultimate jurisdiction, and be enforced by the Political Agent or the District Coordination Officer, as the case may be, as a decree of such Court.”

A bare perusal of the above provision makes it abundantly clear that while it accords the status of a civil decree to an order passed under the FCR and prescribes its mode of enforcement, it is conspicuously silent with regard to any period of limitation for its execution. The executing courts has held that since the Limitation Act, 1908 was not in force or extended in the erstwhile FATA, the execution could not be tested on the touchstone of limitation;

however, it proceeded on to non-suit the petitioners by invoking the doctrine of laches. Appellate court has also added to this and has held that execution of decree sought to be enforced by the petitioner was barred both by law of limitation and by the laches Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

too. The sustainability of such approach requires examination in the light of authoritative pronouncements of the superior Courts.

8.In the first place, regarding applicability of law of limitation, in Muslim Commercial Bank Limited v. Muhammad Nasim1, the Supreme Court of Pakistan had, while dealing with the issue of belated filing of execution of an eviction order in a rent matter arising out of Sindh Rented Premises Ordinance, 1979, which law did not prescribe any limitation, emphatically held:

“8. The Ordinance is a local and special law and in view of its scheme and purpose the intention of Legislature behind section 22 appears to be that final orders under the Ordinance should be executed by the Rent Controller in a manner which is simple and free from limitation-related complications. For this very reason perhaps it has not been provided therein that an order of eviction passed by the Rent Controller shall be executed as a decree as has been provided in Punjab/N.-W.F.P./Balochistan Rent Restriction Ordinance, 1959 and the Cantonment Rent Restriction Act, 1963. The High Court has not only overlooked the intention of Legislature behind section 22 of the Ordinance but by making Article 181 of the Limitation Act its integral part has also assumed the function of legislation and removed a defect or supplied an omission which can be done only by the Legislature. It would have been more appropriate if the omission or the defect had only been pointed out and the corrective action left to the Legislature because, it is not the function of the Courts to plug the gaps or remove the defects in an enactment. The significance of intention of Legislature underlying the Ordinance is amply highlighted in Abdul Ghaffar and others v. Mst. Mumtaz PLD 1982 SC 88 wherein it was held that condonation of delay in filing an appeal under section 21 of the Ordinance cannot be sought on the strength of the provisions of section 5 of the Limitation Act and the argument that the principles underlying section 5 of the Limitation Act should have been applied by the High Court was repelled with the

2001 SCMR 1191

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

observation, inter alia, that the intention underlying the Sindh Rented Premises Ordinance, 1979 is too clear to permit any serious discussion on the argument. An execution application under section 22 of the Ordinance is certainly not governed by Article 181 of the Limitation Act.”

9.The ratio decidendi of the aforesaid judgment squarely applies to the case in hand. Where the legislature, in its wisdom, has not prescribed any period of limitation for execution of orders under a special legal regime, it is not open for the Courts to import such limitation indirectly or to defeat substantive rights by applying the same. The approach adopted by the appellate court particularly, where it holds that limitation law was attracted to the situation, therefore, runs contrary to the settled principle that Courts cannot fill legislative gaps under the guise of interpretation.

10.Further guidance is available from Faqir Hussain v. Khan Sher2, wherein it has been held that the Limitation Act, 1908 was never applicable to the erstwhile tribal areas during the subsistence of Article 247 of the Constitution, and that the same became applicable only upon the merger of FATA into Khyber Pakhtunkhwa through the 25th Constitutional Amendment. This Court, while elaborating this principle, observed that retrospective application of limitation law would have the effect of extinguishing existing rights, which is not permissible in absence of express legislative intent. The gist of paragraph 8 of the said judgment is PLD 2025 Peshawar 221 Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

that the law of limitation cannot be applied retrospectively to the erstwhile FATA, as such application would unjustly extinguish vested rights; rather, the Limitation Act became applicable prospectively from the date of merger, i.e. from 31.05.2018.

Building upon this principle, it was conclusively held:

“9. Law of limitation Act, would also therefore have its effect from the date of promulgation of the 25th of Constitutional Amendment i.e. 31.5.2018. Execution petition in the case in hand had been filed on 07.10.2020 which was well within three (03) years of the date of merger, as provided in schedule 2 of Article 181 of Limitation Act,1908 and therefore, the execution petition had been filed within time.”

11.Applying the above principle, the period prior to the merger of FATA cannot be reckoned for the purposes of limitation, as the Limitation Act, 1908 was not extended in terms of Art. 247 of the Constitution to the said territory during the relevant time.

12.Coming now to the portion of the impugned

concurrent findings recorded by the Courts below, whereby the execution petition was dismissed on the basis of laches. The doctrine of laches, being essentially an equitable principle, cannot be invoked to defeat substantive rights arising out of a valid decree, particularly in proceedings governed by the special law where the legislature itself has not prescribed any limitation during the relevant period. It is to be noted and as observed in a case-law from Lahore jurisdiction, “the rigors of law of limitation and doctrine of Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

laches are distinct in scope and application. The former extinguishes the remedy by the force of statute and a valuable right accrues in favor of opposite side when the matter becomes barred under the Limitation Act or limitation prescribed by special statute, but principles of laches are invoked where statutory limitation is not prescribed but the court takes into account the conduct of a party involving indolence and excessive inactions equivalent to acquiescence or waiver of the remedy and which resulted in causing prejudice to the opposite side. Sometimes the interest of an innocent third party may have intervened on account of laches. In such like cases the court in equitable consideration and keeping in view the requirement of justice in circumstances of a case refuse to exercise its discretionary jurisdiction in favour of a person guilty of laches who approaches the court for discretionary relief. The rigors of law of limitation are rigid and courts insist upon explanation of each day”s delay beyond the period prescribed and sufficient cause must be established for extension of time whereas the decision of question of laches would depend on facts and circumstances of each case and the delay can be explained to the satisfaction of the court”3. In this very judgment the exposition of law on the subject of laches made by the Privy Council4, who also taken note of, which reads as follows;

Mst. Majidan Khanum vs. District Judge, Veehari (1984 CLC 3270) Privy Council in John Ojobo Agbeyegbe v. Fetus Makene Ikomi another PLD 1953 PC 19 Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

“In case of laches the law was stated by Lord Blackburn in Erlanger v. New Somberor Phosphate Company (1878 LR 3 A Cat p. 1279):- “In Lindsay Petroleum Company v. Hurd (2) it is said: The doctrine of laches in Courts of Equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct done that which might fairly be regarded as equivalent to a waiver of it, or where, by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases lapse of time and delay are most material. But in every case if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances always important in such cases are the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy”. I have looked in vain for any authority which gives a more distinct and definite role than. this; and I think, from the nature of the inquiry, it must always be a question of more or less, depending on the degree of diligence which might reasonably be required, and the degree of change which has occurred, whether the balance of justice or injustice is in favour of granting the remedy or withholding it. The determination of such a question must largely depend on the turn of mind of those who have to decide, and must therefore be subject to uncertainty; but that, I think, is inherent in the nature of the inquiry.”

[Emphasis supplied]

13.Likewise, in somewhat recent pronouncement in the case of “Umar Baz Khan vs. Syed Jehanzeb and others” reported in PLD 2013 SC 268, the Supreme Court of Pakistan has reiterated the above principles in the following words;

“7. The argument that where the fresh petition was filed three years after the withdrawal of the first and no explanation much less plausible was offered for such delay, it was liable to be dismissed on the ground of laches is not one of the universal application as could be applied in every case without examining the dictates of equity, justice Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

and fair play and circumstances of the case. Nor could it be treated at par with the Law of Limitation prescribing period for enforcing a right or liability and requiring the Court to dismiss a lis if not filed within such period. No Court would dismiss a lis on the ground of laches if it defeats the cause of justice and thereby perpetuates an injustice. If we consider the bar of laches, in the given facts and circumstances of this case, we would not feel inclined to interfere with the judgment of the High Court and thereby encourage the appellants who strove hard and are striving still to barricade the redemption of mortgage on purely technical grounds. This Court while dealing with the bar of laches in the case of "Pakistan Post Office v. Settlement Commissioner and others" (supra) held as under:-- "C. -- It needs to be emphasized that there is absolutely no justification to equate laches with statutory bar of limitation. While the former operates as a bar in equity, the latter operates as a legal bar to the grant of remedy. Thus, in the former, all the dictates of justice and equity and balance of legitimate rights are to be weighed; in the latter, subject to statutory relaxations in this behalf, nothing is left to the discretion of the Court - it is a harsh law. Thus, passage of time per se brings the statute of limitation in operation, but the bar of laches does not deny the grant of right, or slice the remedy unless the grant of relief, in addition to being delayed, must also perpetuate injustice to another party. It is also in this very context that the condonation of delay under section 5 of the Limitation Act will be on different harder considerations than those in a case of laches. For example, while it is essential to explain and condone the delay of each day vis-a-vis statutory limitation, there is no such strict requirement in cases of laches".

The same principle was reiterated in the case of Masood Begum through Legal Heirs v. Government of Punjab through Secretary Forest, Lahore and 9 others" (supra). Even otherwise, bar of laches cannot be over emphasized in the cases where the relief claimed is based on recurring cause of action.

14.Thus, from a careful analysis of the case-law on the subject of laches following principles could be deduced namely;

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

i)Delay per se in pursuing a remedy is not the sole factor to bar a remedy under the doctrine of laches;

ii)While examining delay on the touchstone of the above doctrine, the court has to see the peculiar facts and circumstances of each case and before subscribing to the bar against a remedy it is to be seen that;

iii)Whether, in the facts and circumstances of the case, it would be unfair or unreasonable to permit a party to avail the remedy, particularly where by his conduct he may be deemed to have waived it, or where his neglect and inaction have placed the opposite party in such a position that allowing the remedy at a later stage would cause prejudice or injustice.

iv)Creation of any innocent third party interest in the subject matter of the lis would fairly be regarded as an important factor so as to refuse a remedy;

v)Two circumstances always important in such cases are (a) the length of the delay and (b) the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other, so far as relates to the remedy.

vi)No court will dismiss a lis on the ground of laches if it defeats the cause of justice and thereby perpetuates an injustice.

vii)As the doctrine of laches is a bar in equity, therefore, all the dictates of justice, equity and balance of legitimate rights are to be weighed by the court. This is quite in contrast to the cases where bar of limitation applies as in the latter nothing is left to the discretion of the court.

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

viii)Bar of laches could not deny remedy unless, given the delay cause by one party, the grant of relief perpetuates injustice to another party.

ix)Laches become wholly in applicable where the claim is based upon a recurring cause of action.

x)While considering to grant or refuse condonation in matters of laches, unlike in cases where limitation applies, delay of each day is not to be explained as a strict requirement but overall circumstances of each case are to be seen in the light of the above principles.

15.Now reverting to the impugned judgments, that part of the judgment rendered by appellate Court, whereby the law of limitation was attracted to the present matter is clearly unsustainable in view of the discussion made in paragraphs 8 to 11 above. Likewise, the concurrent findings of the two Courts below, insofar as they non-suited the petitioners on the basis of laches, are also found to be mechanical and cursory. The learned executing Court, immediately upon noticing delay per se in seeking enforcement of the decree, proceeded to deny the remedy without undertaking the exercise mandated by the settled principles governing the doctrine of laches. Mere lapse of time, by itself, is not sufficient to non-suit a litigant under the equitable doctrine of laches. Rather, before declining relief, the Court is required to examine the peculiar facts and circumstances of the case and determine inter alia:

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

 whether the conduct of the petitioners seeking relief amounts to waiver or acquiescence;

 whether by reason of such inaction the opposite party has altered his position;

 whether any innocent third-party interest has intervened;

 whether any prejudice or injustice would be caused to the opposite side by allowing the remedy at a later stage;

 what acts, if any, were done during the intervening period affecting the balance of justice between the parties; and  whether refusal of the remedy itself would perpetuate injustice.

 Whether the right of the petitioners to obtain fruits of decree of possession etc. is continuing or recurring?

Likewise, all dictates of equity, justice and fair play are to be weighed while considering the question of laches, which doctrine cannot be applied in a rigid or mechanical manner akin to statutory limitation.

16.It is, however, clarified that this Court is not presently recording a conclusive finding that the execution petition is wholly free from the objection of laches or that the same must necessarily succeed. Certain factual aspects relevant to the equitable consideration of the matter still require proper examination by the learned executing Court in the light of the principles discussed in paragraph No.14 and the points highlighted in paragraph 15 above .

Therefore, if upon such examination it is found that the conduct of Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah

the petitioners amounted to waiver or acquiescence; or that any innocent third-party interest has intervened, if yes to what extent, or that the respondents have altered their position during the intervening period in such a manner that enforcement of the decree at this stage would result in prejudice, inequity or manifest injustice, then obviously the doctrine of laches may validly operate as a bar to the remedy. Conversely, if such factors are not shown to exist, mere delay would not be sufficient to defeat enforcement of a valid decree.

17.Consequently, the impugned judgments are set aside and the matter is remanded to the learned executing Court, which shall re- examine the objection regarding laches afresh in the light of the observations made hereinabove and thereafter pass an appropriate order strictly in accordance with law after affording proper opportunity of hearing to the parties. If the circumstances so require, it may also permit parties to lead evidence to establish their pleas regarding applicability or otherwise of laches. Parties are directed to appear before the learned Executing Court on 08.06.2026. Office shall transmit certified copy of this judgment to the said Court before the date fixed.

Announced Dt:21.05.2026 -Sd-

JUDGE

Tajamul/CS* (S.B) Hon’ble Mr. Justice Qazi Jawad Ehsanullah