ALI MARDAN SHAH vs MUSHTAQUE O — 2024 PLD 121 KARACHI-HIGH-COURT-SINDH

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ALI MARDAN SHAH VS MUSHTAQUE O. VII, Rr. 11 & 13---Limitation Act (IX of 1908), S. 3---Specific Relief Act (I of 1877), Ss. 42 & 54---Suit for declaration and injunction---Rejecting of plaint---Limitation---Fresh plaint, filing of---Principle---Plaint filed by respondent/plaintiff was rejected by Trial Court but Lower Appellate Court set aside the order of Trial Court---Validity---Mere rejection does not preclude presentation of fresh plaint, provided the underlying defect remains uncured or is incapable of being cured---Rejection on account of limitation and/or res judicata is prima facie incurable defect, which precludes de novo agitation if the infirmity subsisted---Order passed by Lower Appellate Court addressed glaring defects in plaintiff's case in a perfunctory manner and then proceeded to allow appeal in absence of defects having been justifiably disapplied, cured or distinguished---Law required Court to first determine whether proceedings filed there before were within time and Courts were mandated to conduct such exercise regardless of whether or not any objection had been taken in such regard---Proceedings barred by even a day could be dismissed---Once time began to run, it would run continuously and bar of limitation created vested rights in favour of other party---Matter barred by time had to be dismissed without touching upon merits and once limitation had lapsed, door of adjudication was closed irrespective of pleas of hardship, injustice or ignorance---Provisions of O. VII, R 13, C.P.C. did not merit relief in presence of bar of limitation---Lower Appellate Court disregarded underlying facts and overriding interpretation of law, while rendering order in question and had exercised jurisdiction with manifest irregularity---High Court in exercise of revisional jurisdiction set aside order passed by Lower Appellate Court and restored that of Trial Court---Revision was allowed, in circumstances.

ALI MARDAN SHAH vs MUSHTAQUE O — 2024 PLD 121 KARACHI-HIGH-COURT-SINDH

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