Fraud Knowledge Starts Limitation: High Court Sets Aside Technical Dismissal in Plot Allotment Dispute
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| Limitations of fraud . |
فراڈ کی لیمٹیشن فراڈ کے نالج سے سٹارٹ ھوتی ھے نہ کہ دستاویزکی تیاری سے۔
تمہید
Case Background — مختصر کہانی
High Court’s Key Findings — ہائی کورٹ کے اہم نکات
1. Limitation کا آغاز "فراڈ کے علم" سے ہوتا ہے
Final Judgment — چند لائنوں میں فیصلہ
Conclusion — نتیجہ
Must read judgement
2025 C L C 215
[Sindh]
Before Muhammad Iqbal Kalhoro, J
ABDUL KHALIQUE ---Appellant
Versus
NADEEM TARIQUE KHAN and others ---Respondents
IInd Appeal No. 121 of 2023, decided on 26th August, 2024.
(a) Limitation Act (IX of 1908)---
----First Sched., Arts. 91 & 120---Qanun-e-Shahadat (10 of 1984), Arts. 75 & 76---Specific Relief Act (I of 1877), Ss, 12, 39, 42 & 55---Civil Procedure Code (V of 1908), S.100---Second Appeal---Allotment of plot in Government Employees Housing Society---Execution of lease deeds in favour of two members qua one plot---Suit for declaration, cancellation, possession, injunction and damages filed by the appellant was dismissed on two counts i.e. filing of photocopies of documents and limitation---Appellant preferred an appeal, which was also dismissed on the same technical counts despite the fact that certified copies of the documents had been filed---Validity---Claim of the appellant had been declined on the point of limitation not only by believing the document, the genuineness of which he had challenged on the ground of fraud but also by not believing certified true copies of the documents, which he was allowed to file by the appellate court itself in order to defeat the observations of the Trial Court against him on filing of the photostat copies thereof---When the validity of the document in its entirety was challenged on the ground of being false and fabricated, then the date of its execution would not be taken up as a reference for determining limitation period for filing the suit against it in absence of a thorough enquiry by the Trial Court to determine its exactness first---Appellant was not aware of document challenged by him since its execution, or that the date of its execution was correct but contents had been distorted or manipulated, to make the date of execution as a reference point to decide limitation of the case---Plaintiff in his plaint asserted that he came to know of such manipulation in 2011 and he challenged it by filing the suit in 2013 i.e. within three years---Respondents had failed to pursue their case before the Trial Court and did not file any written statement to support their point of view---In absence of any evidence contradicting claim of the plaintiff about getting knowledge of the questioned document in 2011, there was no material before the courts to come to a conclusion that the appellant was aware of the document and he failed to question the same before any forum within time---Appellate court failed to appreciate that application under O.VII R.11, C.P.C., was rejected by the Trial Court for non-prosecution and the documents filed in support thereof were not looked into by the Trial Court either or held to be true or even confronted to the appellant to see his response, thus, presuming those documents to be genuine for determining limitation of filing the suit without an opportunity to the appellant to give his point of view or contradict them was apparently an illegality and at best a result of hypothesis---Findings of the Appellate court in respect of certified copies of documents produced by the appellant to establish his title on the property were cursory in manner---Court was not supposed to dismiss the matter on technicalities by considering some omission which was curable by a simple exercise of jurisdiction by it, as it was empowered to call the relevant officials and examine them for determining genuineness of the document produced by the appellant in support of his case particularly when it was a registered document---Court could not proceed in void by referring to the relevant articles of Qanun-e-Shahadat to affirm that its requirement had not been met and which had rendered the appellant's claim baseless especially when it was within jurisdiction of the court to rectify such omission and call relevant officials to decide the controversy once and for all; it should not choose to let the controversy simmer, and stay a bone of contention between the parties forever---Second appeal was allowed, in circumstances.
2002 SCMR 677; 2020 CLC Note 12; 1992 SCMR 2298; 2014 SCMR 513 and 1998 CLC 2070 ref.
(b) Civil Procedure Code (V of 1908)---
----S.100---Second Appeal---Concurrent findings recorded by courts below----Scope---Concurrent findings recorded by the courts below are not considered sacrosanct, if the record show that such findings are based on either misappreciation of evidence or on some material which is extraneous or the law has been misapplied, the same can be set-aside and either the case can be decided on merits or if there is some lacuna that has distracted the courts below to come to a just conclusion, by remanding the case to the original court to decide it afresh in view of the guiding principles laid down by the superior courts in that regard.
(c) Administration of justice---
----Court is not supposed to dismiss the matter on technicalities by considering some omission which is curable by a simple exercise of jurisdiction by it.
Mashooque Ali Soomro for Appellant.
Abdul Qadir Khan for Respondent No. 1.
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