P L D 2026 Sindh 65

 P L D 2026 Sindh 65

Before Amjad Ali Bohio, J

SABIR HUSSAIN---Applicant

Versus

Mst. HINA UROOJ and 4 others---Respondents

Civil Revision Application No. S-289 of 2024, decided on 10th April,

2025.

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

----Ss.8, 39, 42 & 54---Civil Procedure Code (V of 1908), O.VII, R.7---

Limitation Act (IX of 1908), S.5 & First Sched., Art. 152---Suit for

declaration, cancellation, possession along with permanent injunction---

Fraudulent sale of suit property by a family member---Absence of

express prayer in the prayer clause---Effect---Moulding of relief by

court---Granting of relief by court not specifically prayer for---Principle

stated---Appeal barred by time---Condoning the delay in filing appeal---

Sufficient case---Negligence of counsel alleged---Respondent

No.1/plaintiff filed a suit for declaration, cancellation, possession, and

permanent injunction concerning the suit property, alleging that the

petitioner (plaintiff s cousin) unlawfully sold her property---She

claimed that the petitioner fraudulently sold the suit property to

respondent No.2---First Information Reports were filed, and the matter

was brought to court, where the plaintiff sought cancellation of the

sale deed and recovery of possession---The petitioner and respondent

No.2 denied the allegations, asserting that the plaintiff had voluntarily

sold the property and received the full sale consideration---Trial Court

decreed in favor of the plaintiff, which was upheld on appeal, leading

to the filing of the present civil revision---Held: Despite the absence of

an express prayer, respondent No.1/plaintiff successfully established

her claim to the suit property during the course of evidence---Relief

granted by the Trial Court was well within contemplation of O.VII, R.7,

C.P.C., therefore, decree passed by the Trial Court did not suffer from

any illegality as it aligned with both the law and principles of natural

justice---Moreover, appeal filed by the petitioner was also barred by

time as no sufficient cause was substantiated to make a case for

condonation of delay as negligence of counsel was held not to be a

sufficient cause and the petitioner had to remain vigilant in pursuing

his case---Furthermore, petitioner failed to discharge the burden of

explaining the delay for each and every day---Civil revision lacked

both factual and legal merit and was dismissed, in circumstances.

Ghulam Sarwar v. Province of Punjab through District Collector,

Lodhran PLD 2025 SC 60 and Chief Engineer, Gujranwala Power Company (GEPCO), Gujranwala v. Khalid Mehmood and others 2023

SCMR 291 rel.

Sheikh Nadeem Rehmat v. Mrs. Zarqa Jahanzeb PLD 2025 Kar. 202

ref.

(b) Civil Procedure Code (V of 1908)---

----O. VII, R. 7---Relief not expressly sought in prayer clause---Powers of

court to mould relief---Scope---Courts are empowered to mould relief

in accordance with the scope and spirit of O. VII, R. 7 of C.P.C. which

allows for appropriate relief to be granted even if not specifically

prayed for, provided it is supported by the pleadings and evidence on

record.

Mst. Akhtar Sultana v. Major (R) Muzaffar Khan Malik through his

legal heirs and others PLD 2021 SC 715 rel.

(c) Limitation---

----Litigant must take proactive steps to ensure timely proceedings---

Burden of explaining the delay of each and every day must be

discharged by indolent party with a clear and full justification---It is

the duty of every litigant to diligently and vigilantly pursue their case,

keeping track of the progress at every stage and inquiring about its

status from counsel after each hearing.

Ghulam Sarwar v. Province of Punjab through District Collector, 2

Lodhran PLD 2025 SC 60 and Chief Engineer, Gujranwala Power

Company (GEPCO), Gujranwala v. Khalid Mehmood and others 2023

SCMR 291 rel.

Sheikh Nadeem Rehmat v. Mrs. Zarqa Jahanzeb PLD 2025 Kar. 202

ref.

Rana Raheel Mehmood Rajput for Applicant.

Zafar Hayat and Muhammad Sharif Solangi, Assistant A.G. for

Respondents.

Date of hearing: 14th March, 2025.

ORDER

AMJAD ALI BOHIO, J.---The applicant/defendant, Sabir Hussain son

of Nizamuddin (hereinafter referred to as "applicant"), has impugned

order dated 16-04-2024 passed in Civil Appeal No. 48/2024 by the

learned Additional District Judge-II, Sanghar, whereby the said appeal,

filed by the applicant against the judgment and decree dated 18-01 2023 and 19-01-2023 respectively in F.C. Suit No. 29/2018, was

dismissed as time-barred.

2. The facts giving rise to the instant revision application are that

respondent No. 1/plaintiff (hereinafter referred to as "respondent

No. 1") filed suit for declaration, cancellation, possession, and

permanent injunction against the applicant and other respondents. In

plaint, she stated that her father passed away in the year 2001, and

during his lifetime, he served as a Tapedar. Her mother, who was a

teacher by profession, suffered ill-treatment and maltreatment at the

hands of her paternal relatives, which caused her to lose her mental

stability. In this disturbed state, her mother went to Karachi, where

she was found wandering and was admitted by the police of P.S. Sir

Syed to the Edhi Welfare Centre for treatment. The applicant, who is

the cousin of respondent No. 1, later took her back from the Edhi

Centre and admitted her into Bilqees Edhi Home, North Karachi, for

shelter and treatment as a psychiatric patient. Subsequently, her

mother, sister, and son discharged her from the facility and brought

her home, where she was allegedly administered intoxicants and

injected with substances with the intention to usurp her property,

which includes:

i. Household articles in Sanghar home, valued at approximately Rs.

300,000/-

ii. House No. 40, Model Town, Sanghar

iii 10 tolas of gold and documents held in Meezan Bank.

iv. Saving certificates worth Rs. 2,322,000/-

v. Rs. 500,000/-deposited in Meezan Bank, Sanghar

vi. A house located in Kotri City

vii. Rs. 300,000/-in National Bank of Pakistan (NBP), Kotri

viii. Rs. 46,600/-in NBP, Sanghar Branch.

On 12-06-2017, the applicant brought respondent No. 1 to her house in

Sanghar, where she found her mother's dead body. It is alleged that

the applicant broke open cupboards and took away original

documents. On the same day, he took respondent No. 1 to Meezan

Bank, got the locker opened, and took away 10 tolas of gold and

various documents. Thereafter, he brought her back to Karachi. On 26-

07-2017, the applicant allegedly sold respondent No. 1's house

constructed on Plot No. 40, C.S. No. 5/40, admeasuring 1500 sq. ft.,

situated in Ward-A, Housing Society, Model Town, Sanghar, for a sale

consideration of Rs. 1,315,000/-, which he received from respondent

No. 2. Respondent No. 1 asserted that she never sold the property of her own free will or consent, and the applicant misappropriated the

sale proceeds. Eventually, respondent No. 1 managed to escape the

unlawful confinement of the applicant and, on 12-01-2018, took shelter

in the house of her stepbrother. On 14-01-2018, she narrated the entire

story before the members of the Press Club, Sanghar, and approached

the S.S.P. Sanghar for registration of an FIR against the applicant, but

the same was refused. FIR was later lodged upon the orders of the

learned Additional Sessions Judge-I, Sanghar. Consequently, she filed

the present suit with the following prayers:

i). To declare that the plaintiff is owner of suit property i.e. House

No. 5/40 situated in Ward-A Sanghar Town, Taluka and District

Sanghar.

ii). To declare that sale deed registered at No.847, Book No. SRO

Sanghar dated: 26.07.2017, DS: dated 23.08.2017 is null and void

ab-initio, creating no right and title in the name of defendant

No.01 and entries be cancelled from the record of Sub-Registrar,

Sanghar and City Survey Officer's record dated 02.08.2017 from

the name of defendant No.01.

iii). Delivery of possession of suit property to plaintiff.

(iii-A) That, defendant No.02 may be saddled to pay same

consideration amount.

iv). To grant permanent injunction restraining the defendant No.1

from transferring/alienating suit property in the name of any

other person with delivery and possession and restraining

Government defendants for issuing sale certificate in respect of

suit property.

v). That, Cost of the suit be borne by defendants.

3. After service of summons, the applicant and respondent No. 2

appeared before the court and filed separate written statements. In his

written statement, respondent No. 2 mostly denied the contents of the

plaint. He further stated that respondent No. 1, of her own free will

and while in a sound state of mind, sold the suit property to him by

executing a registered sale deed. He asserted that the respondent

received the entire sale consideration, including a demand draft dated

26-07-2017 in the amount of Rs. 1,200,000/- issued by MCB Bank, as

well as cheque No. CA06291847 dated 10-07-2017 in the amount of Rs.

100,000/-, both issued in the name of respondent No. 1. He stated that

the total sale consideration was duly paid and deposited into

respondent No. 1's bank account, and that she also handed over

physical possession of the suit house to him. Lastly, he claimed that the suit has been filed by respondent No. 1 merely to blackmail him and is

therefore liable to be dismissed with costs.

4. In his written statement, the applicant mostly denied the contents

of the plaint and further submitted that he had taken respondent No. 1

into his care and incurred substantial expenses for her medical

treatment. He also alleged that respondent No. 1, along with her

brother Shahid Bugti, committed theft of cash amounting to Rs.

3,000,000/- and gold ornaments from his house, for which he lodged

FIR No. 53 of 2018 against respondent No. 1 and her brother. He

asserted that the present suit has been filed by respondent No. 1 only

after lodging of the said FIR, with the sole purpose of pressurizing him.

He further stated that respondent No. 1 not only sold the property

voluntarily but also filed Succession Application No. 97 of 2018 along

with her supporting affidavit before the learned District and Sessions

Judge, Sanghar. In conclusion, the applicant prayed for the dismissal of

the suit with compensatory costs under Section 35-A of the Code of

Civil Procedure.

5. Out of pleadings the Court framed the following amended issues:

1. Whether the suit of the plaintiff is not maintainable?

2. Whether the suit of the plaintiff is time barred?

3. Whether the plaintiff has accrued no cause of action to file

present suit?

4. Whether the plaintiff is lawful owner of suit house No.5/40

situated in Ward-A Sanghar Town, Taluka and District Sanghar

on the basis of title?

5. Whether the registered sale deed No. 847 dated 26.07.2017, and

entries dated 02.08.2017 kept in record of rights in the name of

defendant No.01 are illegal and liable to be cancelled?

6. Whether the defendant No.02 Sabir Hussain the brother of

plaintiff received/collected sale price of suit property from the

account of plaintiff by fraud when she was not in presence of

mind?

7. Whether the plaintiff is entitled for the relief claimed?

8. What should the decree be?

6. Thereafter, respondent No. 1 and respondent No. 2 led their

respective evidence, and after hearing the arguments of learned

counsel for both parties, the trial court decreed the suit of respondent

No. 1 against the applicant for recovery, while dismissing the suit

against respondent No. 2, vide judgment and decree dated 18-01 2023 and 19-01-2023, respectively. The applicant challenged the said

judgment and decree by filing Civil Appeal No. 48/2024, which was

dismissed as time-barred by the learned Additional District Judge-

II/MCAC, Sanghar, vide order dated 16-04-2024 passed on application

under section 5 of the Limitation Act, 1908. Hence, this civil revision.

7. I have heard the learned counsel for the applicant, respondent

No. 1, learned counsel for respondent No. 2, and the learned

Additional Advocate General, Sindh, for the official respondents.

8. Learned counsel appearing on behalf of the applicant contended

that the impugned judgment, decree, and order passed by the courts

below are contrary to law, facts, and principles of equity. It was argued

that both the trial and appellate courts failed to properly examine the

oral and documentary evidence produced by the applicant and did not

appreciate the version of the applicant as placed on record. It was

further submitted that the trial court failed to frame issues regarding

the amount of Rs. 4,600,000/- and 04 tolas of gold: The appellate court

also failed to consider the merits of the judgment and decree passed by

the trial court and dismissed the appeal solely on the ground of

limitation. The appellate court, it was argued, committed a grave

illegality by upholding relief that was never prayed for by respondent

No. 1 in her plaint. Counsel further contended that there is no

limitation period for applying to set aside a void or ex-parte decree,

especially when such decree is manifestly void or voidable on the face

of the record. It was also argued that the executing court passed the

ex-parte order against the applicant without issuing any notice, which

is not only against the principles of natural justice but also a violation

of Article 10-A of the Constitution of the Islamic Republic of Pakistan.

It was further submitted that the findings of the trial court on the

framed issues are contrary to law and facts, and that the suit filed by

respondent No. 1 is impliedly barred under various laws. Therefore,

respondent No. 1 is not entitled to any relief, and her suit is liable to be

dismissed. The impugned judgment and decree, being a nullity in the

eyes of law, are liable to be set aside.

9. On the other hand, learned counsel for respondent No. 2

supported the contentions raised by the learned counsel for the

applicant. However, the learned Assistant Advocate General appearing

for the official respondents supported the impugned judgment, decree,

and order passed by the learned courts below, and prayed for

dismissal of the instant revision application.

10. Learned counsel for respondent No. 1 argued that the impugned

order was validly passed by the learned Additional District Judge-II,

Sanghar, as the applicant had filed a time-barred civil appeal. It was

contended that the decree was passed by the learned Senior Civil Judge on 19-01-2023, whereas the applicant filed the civil appeal on 11-

03-2024, beyond the 30-day limitation period prescribed under Article

152 of the Limitation Act, 1908. Furthermore, counsel submitted that

although the relief granted by the trial court was not specifically

sought in the prayer clause, respondent No. 1 had clearly pleaded in

the body of the plaint particularly in paragraph No. 7 that the

applicant had usurped the properties in question. Therefore, it was

argued that no illegality or irregularity was committed by the trial

court in passing the impugned judgment, and the instant revision

application is liable to be dismissed.

11. The suit filed by respondent No. 1 is for declaration, cancellation,

possession, and permanent injunction. In support of her case,

respondent No. 1 produced documentary evidence relating to her bank

account and also examined several witnesses, including the Operation

Manager of National Bank of Pakistan, Sanghar Branch; the Assistant

Vice President (Sales and Services Manager) of NBP, Sanghar, the

Branch Manager of Meezan Bank; and a messenger from the Board of

Revenue, M.F. Office, Mirpurkhas. Through this oral and documentary

evidence, respondent No. 1 successfully established the averments

made in her plaint, on the basis of which the learned Senior Civil

Judge decreed the suit as prayed, including with respect to the

properties mentioned in paragraph No. 7 of the plaint. As to the

contention raised by learned counsel for the applicant that the trial

court committed illegality by granting relief beyond what was

specifically prayed for in the prayer clause of the plaint, it is to be

examined whether the trial court erred in this regard, thereby

rendering the decision unlawful. In this context, it is pertinent to refer

to the provision of Order VII, Rule 7 of the Code of Civil Procedure,

which reads as follows:

"7. Relief to be specifically stated.---Every plaint shall state

specifically the relief which the plaintiff claims either simply or

in the alternative, and it shall not be necessary to ask for general

or other relief which may always be given as the Court may

think just to the same extent as if it had been asked for. And the

same rule shall apply to any relief claimed by the defendant in

his written statement."

12. In the present case, it is observed that the prayer clauses of the

plaint filed by respondent No. 1 do not specifically mention the relief

sought in respect of the properties listed in paragraph No. 7 of the

plaint. However, the pleadings of the parties clearly reflect their

respective assertions regarding the alleged fraud and the denial

thereof. Despite the absence of an express prayer, respondent No. 1

successfully established her claim to the said properties during the course of evidence, as held by the learned Senior Civil Judge. In such

circumstances, the courts are empowered to mould the relief in

accordance with the scope and spirit of Order VII, Rule 7, of the Code

of Civil Procedure, 1908 (C.P.C.), which allows for appropriate relief to

be granted even if not specifically prayed for, provided it is supported

by the pleadings and evidence on record. This principle is well-settled

in the case of Mst. Akhtar Sultana v. Major (R) Muzaffar Khan Malik

through his legal heirs and others (PLD 2021 Supreme Court 715),

wherein the Hon'ble Supreme Court of Pakistan held as under:

"Such an objection has earlier been agitated before, and decided by,

the superior Courts of our jurisdiction in several cases. And the

judicial consensus that has evolved is that courts are to look at

the substance of the plaint not its form. and in appropriate cases

the courts can mould the relief within the scope of the

provisions of Order VII, Rule 7, Code of Civil Procedure Code,

1908 (C.P.C.). The courts are empowered to grant such relief as

the justice of the cave may demand, and for purposes of

determining the relief asked for or the relief is which the

plaintiff is entitled, the whole of the plaint is to be looked. The

provisions of Order VII, Rule 7 of the C.P.C. empowers the courts

to grant an effective or ancillary relief even if it has not been

specifically prayed for."

13. In these circumstances, the relief granted by the trial court is

well within the contemplation of Order VII, Rule 7 of the Code of Civil

Procedure, 1908 (C.P.C.). Therefore, the decree passed by the learned

Senior Civil Judge does not suffer from any illegality, as it aligns with

both the law and principles of substantial justice.

14. Now, turning to the impugned order dated 16.04.2024, through

which the civil appeal filed by the applicant on 11.03.2024 was

dismissed as being barred by limitation, it is observed that the

applicant preferred the appeal against the judgment and decree dated

18.01.2023 and 19.01.2023, respectively, passed by the learned Senior

Civil Judge-I, Sanghar. To consider the matter further, it would be pertinent to reproduce Article 152 of the Limitation Act, 1908 as

follows:

Description of suit Period of

Limitation

Time from which

period begins to run

1 2 3

152. Under the Code of Civil

Procedure, (V of 1908), to

the Court of a District

Judge.

Thirty days The date of the

decree or order

appealed from.

15. The appellate court, while passing the impugned order dated

16.04.2024, considered the grounds mentioned in the application

under Section 5 of the Limitation Act, 1908, wherein the appellant

contended that he was not intimated by his counsel and was misled.

However, the Appellate court held that such a ground does not

constitute sufficient cause within the meaning of the law, as was

clearly established in the case of Ghulam Sarwar v. Province of Punjab

through District Collector, Lodhran (PLD 2025 Supreme Court 60). It is

the duty of every litigant to diligently and vigilantly pursue their case,

keeping track of the progress at every stage and inquiring about its

status from counsel after each hearing. This duty was affirmed in the

case of Sheikh Nadeem Rehmat v. Mrs. Zarqa Jahanzeb (PLD 2025

Karachi 202), wherein it was held that a litigant must take proactive

steps to ensure timely proceedings. In this case, the applicant has

failed to discharge the burden of explaining the delay for each and

every day. This principle was reiterated by the Hon'ble Supreme Court

in Chief Engineer, Gujranwala Power Company (GEPCO), Gujranwala v.

Khalid Mehmood and others (2023 SCMR 291), which emphasized that

the burden of explaining the delay lies with the applicant and must be

met with clear and full justification, as outlined below:

"The law of limitation reduces an effect of extinguishment of a right

of a party when significant lapses occur and when no sufficient

cause for such lapses, delay or time barred action is shown by

the defaulting party, the opposite party is entitled to a right

accrued by such lapses. There is no relaxation in law affordable

to approach the court of law after deep slumber or inordinate

delay under the garb of labeling the order or action void with

the articulation that no limitation runs against the void order. If

such tendency is not deprecated and a party is allowed to

approach the Court of law on his sweet will without taking care

of the vital question of limitation, then the doctrine of finality

cannot be achieved and everyone will move the Court at any

point in time with the plea of void order. Even if the order is

considered void, the aggrieved person should approach more

cautiously rather than waiting for lapse of limitation and then coming up with the plea of a void order which does not provide

any premium of extending limitation period as a vested right or

an inflexible rule. The intention of the provisions of the law of

limitation is not to give a right where there is none, but to

impose a bar after the specified period, authorizing a litigant to

enforce his existing right within the period of limitation. The

Court is obliged to independently advert to the question of

limitation and determine the same and to take cognizance of

delay without limitation having been set up as a defence by any

party. The omission and negligence of not filing the proceedings

within the prescribed limitation period creates a right in favour

of the opposite party. In the case of Messrs Blue Star Spinning

Mills Lid. v. Collector of Sales Tax and others (2013 SCMR 587),

this Court held that the concept that no limitation runs against a

void order is not an inflexible rule; that a party cannot sleep

over their right to challenge such an order and that it is bound

to do so within the stipulated/prescribed period of limitation

from the date of knowledge before the proper forum in

appropriate proceedings. In the case of Muhammad Iftikhar

Abbasi v. Mst. Naheed Begum and others (2022 SCMR 1074), it

was held by this Court that the intelligence and perspicacity of

the law of Limitation does not impart or divulge a right, but it

commands an impediment for enforcing an existing right

claimed and entreated after lapse of prescribed period of

limitation when the claims are dissuaded by efflux of time. The

litmus test is to get the drift of whether the party has vigilantly

set the law in motion for the redress or remained indolent. While in the case of Khudadad v. Syed Ghazanfar Ali Shah alias

S. Inaam Hussain and others (2022 SCMR 933), it was held that

the objective and astuteness of the law of Limitation is not to

confer a right, but it ordains and perpetrates an impediment

after a certain period to a suit to enforce an existing right. In

fact this law has been premeditated to dissuade the claims

which have become stale by efflux of time. The litmus test

therefore always is whether the party has vigilantly set the law

in motion for redress. The Court under Section 3 of the

Limitation Act is obligated independently rather as a primary

duty to advert the question of limitation and make a decision,

whether this question is raised by other party or not. The bar of

limitation in an adversarial lawsuit brings forth valuable rights

in favour of the other party. In the case of Dr. Muhammad Javaid

Shafi v. Syed Rashid Arshad and others (PLD 2015 SC 212), this

Court held that the law of limitation requires that a person must

approach the Court and take recourse to legal remedies with due

diligence, without dilatoriness and negligence and within the

time provided by the law, as against choosing his own time for

the purpose of bringing forth a legal action at his own whim and

desire. Because if that is so permitted to happen, it shall not only

result in the misuse of the judicial process of the State, but shall

also cause exploitation of the legal system and the society as a

whole. This is not permissible in a State which is governed by

law and Constitution. It may be relevant to mention here that the law providing for limitation for various causes/reliefs is not

a matter of mere technicality but foundationally of the "Law"

itself."

16. Having thoroughly examined all the contentions raised on behalf

of the applicant in the interest of justice, I find that the present

revision application lacks both factual and legal merit. The concurrent

findings recorded by the courts below do not warrant any interference

by this Court. Consequently, the revision application is dismissed for

the reasons set forth above. No order as to costs.

UN/S-36/Sindh Revision dismissed.