Case Note & Summary
The case involves a second appeal arising from a suit for possession filed by the appellants (plaintiffs) against the respondent (defendant). The suit house originally belonged to Mrs. Estafania Pinto, who died in 1943. Her daughter, Natalia Maria De Souza, inherited the property. Natalia gave a part of the suit house to the respondent on licence with a condition that he would vacate when he constructed his own house. The respondent constructed a new house but failed to vacate despite a letter dated 27/04/1972. Natalia left for Karachi in 1972, and the respondent took possession of the entire house. The appellants, as legal heirs of Natalia, filed a suit for possession. The trial court and first appellate court dismissed the suit on the ground of limitation. The second appeal was admitted on a substantial question of law regarding whether the courts below were justified in dismissing the suit on limitation without a trial on that issue. The High Court, after hearing counsel, found that the substantial question of law required consideration and that the suit could not be dismissed on limitation without a trial. The court set aside the judgments of the lower courts and remanded the matter to the trial court for fresh disposal in accordance with law, directing the parties to appear on 26/11/2012.
Headnote
A) Limitation - Suit for Possession - Dismissal on Limitation Without Trial - The courts below dismissed the suit on limitation without the parties having gone to trial on that issue. The High Court held that the substantial question of law framed at admission required consideration, and the suit could not be dismissed on limitation without a trial on that issue. (Paras 2-4)
Issue of Consideration
Whether the courts below are justified in dismissing the plaintiffs' suit on the ground of limitation, particularly in a case like this where the parties did not go to trial on that issue?
Final Decision
Second appeal allowed. Judgments and decrees of the courts below set aside. Matter remanded to the trial court for fresh disposal in accordance with law. Parties directed to appear before the trial court on 26/11/2012.
Law Points
- Limitation
- Licence
- Possession
- Substantial question of law
- Second appeal
- Trial on limitation issue
