Saindad through his attorney Dodo Phulpoto. (Applicant) VS Walidad Mangrio and others. (Respondent)

ORDER SHEET

IN THE HIGH COURT

OF SINDH BENCH AT SUKKUR

R. A. No. S – 61 of 2005

Date of hearing

Order with signature of Judge

Hearing of case (priority)

For orders on statement dated 21.01.2009

For hearing of main case

For hearing of CMA No.224/2005

(Notice issued to respondents)

Mr. Sarfraz A.

Akhund, Advocate for the applicant.

Mian Mumtaz Rabbani, Advocate for respondent No.1.

Mr. Ahmed Ali Shahani, Assistant Advocate General Sindh.

This revision application is against the conflicting findings of two Courts below. The trial Court allowed the application under Order VII Rule 11, CPC, as suit being barred by time, whereas, the appellate Court has reversed the findings. It is the case of the applicant that the orders sought to be reversed or cancelled were passed on 14.07.1998, 29.09.1999 and 26.06.2000. The last order being final under the hierarchy of the Revenue Law was of Member Board of Revenue. It is that order which was challenged in the earlier Suit No.156 of 2000 somewhere on 08.04.2004. The said suit was withdrawn with permission to file fresh, which was granted subject to cost of Rs.5,000/- (five thousand). Immediately, the second suit for declaration, injunction and cancellation was filed whereupon an application under Order VII Rule 11, CPC, was filed. It is the case of the applicant that in terms of Article 14 of the Limitation Act, the suit was and is barred by time. Learned counsel has relied upon the provisions of Order XXIII Rule 2, CPC, containing therein that the second suit in the aforesaid circumstances shall be considered as if it is a first suit and, hence, the limitation would run as if this suit has been filed for the first time.

I have heard the learned counsel and perused the material available on record.

The first suit when filed, it challenged the orders passed under hierarchy of Revenue Law, and the last ultimate order is of Member Board of Revenue, which was passed on 26.06.2000. If that date is to be taken as a last date whereby the cause was triggered to the plaintiff / respondent, the first suit apparently was within time prescribed under the law. Though the subject suit was withdrawn, the latter suit was filed on the same day i.e. 08.04.2004 with the permission of the trial Court. Apparently, there appears to be no question involve as to whether respondent / plaintiff challenging the “ultimate order” of the revenue authority i.e. Member Board of Revenue is barred by time. However, if it was barred under any other law as being not maintainable, an issue could be framed by trial Court. In view of the above, I deem it appropriate to direct the trial Court to frame the issue of limitation as a preliminary issue as being mixed question of law and facts, and record evidence in the matter along with other issues and this issue of limitation shall remain open to be decided by the trial Court without being influenced by any of the observations of the appellate Court or this Court. It is expected that the trial Court shall dispose of the matter preferably within six (06) months from passing of the order.

The revision application is allowed with no order as to costs and trial Court is directed to proceed accordingly in the above terms.

J U D G

E

Abdul Basit