Order Sheet

 

IN THE HIGH COURT OF SINDH KARACHI

 

Suit No. 1125 of 2006

 

Date

              Order with signature of Judge

 

Mr. Muhammad Nishat Warsi, advocate for the plaintiff.

 

M/S Khawaja Naveed Ahmed and Irfan Bashir Bhutta,

advocates for defendant No.9.

 

 

Dates of hearing  :  16.09.2015, 30.09.2015 and 13.10.2015.

 

 

ORDER ON C.M.A. No. 9601 of 2008

 

 

NADEEM AKHTAR, J. – This application has been filed by defendant No.9 under Order VII Rule 11 CPC seeking rejection of the plaint on the ground that the Suit is barred by time under Article 113 of Limitation Act, 1908, and the plaintiff has no cause of action for filing the instant Suit.

 

2.         The plaintiff has filed this Suit for specific performance of an agreement for sale dated 19.04.2004 in respect of Shop No.12, KDA Market, Block-3, Gulshan-e-Iqbal, Karachi (‘suit property’). He has also prayed for declarations that defendant No.9 is not a bonafide purchaser of the suit property and the sale transaction between him and defendant No.2 is illegal, and transfer order dated 27.12.2015 issued by defendant No.1 in favour of defendant No.9 is illegal and void ab initio and the same is liable to be cancelled. He has further prayed for a decree in the sum of Rs.2,500,000.00 against the defendants towards damages, and also for injunction restraining the defendants from dispossessing him from the suit property or from selling, transferring, etc. the suit property to any third party.

 

3.         The Suit is admittedly based on two agreements. The first one was purportedly executed on 19.10.2000 by Mst. Ameer Bano widow of late Nisar Ahmed Khan (‘the deceased’) in favour of the plaintiff, and the second one was executed purportedly on 19.04.2004 in his favour by seven legal heirs of the deceased, who are defendants 2 to 8 in the instant Suit. During the course of hearing, a copy of the death certificate of the deceased was placed on record according to which the deceased passed away on 27.06.2000. It is an admitted position that the suit property was owned by the deceased. Thus, after the death of the deceased, the suit property was inherited by all his legal heirs ; namely, his widow Mst. Ameer Bano and his six children (defendants 2 to 8). Despite the above, the first agreement of 19.10.2000, which was admittedly executed after the death of the deceased, was executed only by the widow and not by all the legal heirs. Mst. Ameer Bano, the widow of the deceased passed away on 31.12.2003 as per her death certificate placed on record during the course of hearing. In the second agreement dated 19.04.2004, which was executed after the death of Mst. Ameer Bano, defendants 2 to 8 acknowledged that the first agreement dated 19.10.2000 was executed by their late mother.

 

3.         In paragraph 9 of the plaint, the plaintiff has stated that prior to the filing of the instant Suit he filed Suit No.72/2006. Perusal of the order passed on 15.08.2006 in the said Suit by the learned VIIth Senior Civil Judge Karachi East shows that the plaint thereof was returned to the present plaintiff on the ground of pecuniary jurisdiction for presenting the same before this Court. The said order was challenged by the plaintiff in Civil Appeal No.242/2006 before the learned Vth Additional District Judge Karachi East, which was dismissed on 28.03.2012 for non-prosecution. Record shows that this Suit was instituted on 25.08.2006, that is, after the plaint was returned to the plaintiff for presentation before this Court. Learned counsel for defendant No.9 has argued that the plaint is liable to be rejected as it was filed by the plaintiff during the pendency of his appeal. With due respect to him, his argument cannot be accepted as filing of appeal by the plaintiff did not debar him from presenting the plaint before this Court in pursuance of the order passed by the learned Senior Civil Judge.

 

4.         The next submission of the learned counsel for defendant No.9 is that the Suit is barred under Article 113 of the Limitation Act, 1908. This contention is also not correct as this Suit was instituted on 25.08.2006 mainly against defendants 2 to 8 for specific performance of agreement dated 19.04.2004 executed by them. The Suit, having been instituted within the limitation of three years prescribed in Article 113 ibid, clearly appears to be within time.

 

5.         In view of the above, the application is dismissed with no order as to costs.

 

 

 

 

     __________________

               J U D G E