2017 PLP 37 (CLCN)

MAHMOOD AHMAD BHATTI, J.

This revision petition is directed against the judgments and decrees dated 12.06.2010 and 20.09.2011 passed by the learned Civil Judge, Lahore and an Additional District Judge, Lahore, respectively, whereby the suit of Shabbir Ahmad, the respondent for the recovery of Rs.4,31,860/- was decreed, and the appeal preferred there against was dismissed as well.

2. The facts, in brief, are that Shabbir Ahmad, the aforementioned instituted a suit for the recovery of Rs.4,31,860/-, contending therein that the petitioner purchased butter from him in the years 2000 and 2001. In paragraphs Nos.2 and 3 of the plaint, it was averred that the defendant/petitioner started making payments on weekly basis. Thereafter, they made another arrangement as to the mode and manner of making payments, whereby the defendant was required to make payments on "monthly terms". Allegedly, an amount of Rs.5,51807/- became due from the defendant. In order to liquidate his liability, the defendant made out and issued 22 cheques to the plaintiff. Each cheque was of the value of Rs.5,000/-. However, the defendant did not make any payment for the months of June and November, 2002. Be that as it may, the defendant returned an amount of Rs.1,20,000/- to the plaintiff in all and he was still liable to pay the remaining amount of Rs.4,31,860/-.

3. The petitioner/defendant was proceeded ex parte. Ex parte evidence for the plaintiff was recorded. He produced Majeed Ahmad as P.W.2, Muhammad Saleem as P.W.3, and he himself appeared as P.W.1. In documentary evidence, he produced his register of sale of butter as Exhs. P-1 to P-21. He also tendered Exh. P-2/1 and Exh. P-2/10 in evidence.

4. Given the unrebutted evidence produced by the plaintiff/ respondent, the learned trial Court proceeded to decree the suit of the plaintiff as prayed for vide judgment and decree dated 12.06.2010. Feeling aggrieved by the aforesaid judgment and decree passed by the learned trial Court, the petitioner filed an appeal, which was also dismissed vide judgment and decree dated 20.09.2011 passed by an Additional District Judge, Lahore. Hence this revision petition.

5. In this revision petition, only one point was raised by Mr. Saeed-uz-Zafar Khawaja Advocate, learned counsel for the petitioner. He read out paragraphs Nos. 2, 3 and 6 of the plaint to urge that the suit instituted by the respondent on 21.04.2008 was absolutely barred by time. It has been emphatically argued by him that under section 3 of the Limitation Act, 1908, a duty was cast upon the learned trial Court to advert to the question of limitation irrespective of the fact whether the petitioner had occasion to contest the suit on merits or he omitted to make such a claim. He elaborated that even if the contents of the plaint are taken at their face value, the alleged default in making payments to the plaintiff was committed either in June, 2002 or in November, 2002. In the circumstances, the plaintiff could have filed a suit up to November, 2005 in view of Article 52 of the First Schedule to the Limitation Act, 1908. It was underscored by him that the suit was filed on 21.04.2008, meaning thereby that the respondent brought his claim before the Court some six years after the accrual of the cause of action. According to him, on the face of it, the suit instituted by the plaintiff was hopelessly barred by time, entailing its dismissal under section 3 of the Limitation Act, 1908.

6. Conversely, learned counsel for the respondent/plaintiff has supported the impugned judgments and decrees passed against the petitioners. He has vociferously argued that the contents of the plaint are being misinterpreted. He has urged that if the contents of the plaint are read as a whole and one paragraph or another is not read out of context, it would become evident that the cause of action accrued to the plaintiff at a point of time when the petitioner/defendant refused point-blank to make payments of Rs.4,31,860/- due from him. He concludes his arguments by making the submissions that the cause of action, initially, arose on the stopping of the due payment by the defendant, and, finally, when the petitioner did not respond to the legal notice issued to him, requiring him to discharge his debt.

7. I have heard the learned counsel for the parties at length and gone through the record appended to the revision petition with their assistance.

8. There are no two opinions as to the application of section 3 of the Limitation Act, 1908. The language used by the legislature therein is pre-emptory and mandatory as highlighted by the Hon'ble Supreme Court of Pakistan in the case of 'Hakim Muhammad Buta and another v. Habib Ahmad and others' (PLD 1985 SC 153). In a case where the contents of the plaint are unambiguous and categorical and admit of no two interpretations, the Court concerned is not vested with any discretion to overlook the same. It has per force to apply the provisions of the Limitation Act, 1908. It has been repeatedly held by the Supreme Court of Pakistan that the question of limitation is not one of technicality, and if a suitor does not bring his claim within time, his suit, appeal or revision for that matter is liable to be dismissed.

9. It is well-established law that the delay of each and every day in filing a suit or appeal or revision for that matter is to be explained. Suffice it to make reference to the authoritative pronouncement of the Hon'ble Supreme Court of Pakistan made in the case of 'Sheikh Muhammad Saleem v. Faiz Ahmad' (PLD 2003 SC 628) in which it was held as under:- "The argument of the learned counsel for the appellant that since valuable property is involved, therefore, delay be condoned, is least convincing as such a ground hardly constitutes a sufficient cause for condonation of delay. In Mst. Hajran v. Sardar Muhammad (PLD 1970 SC 287), it has been held that involvement of valuable rights does not furnish a proper ground for condonation of delay in a civil matter. In yet another case titled WAPDA v. Aurangzeb (1988 SCMR 1354), it has been laid down by this Court that after the prescribed period of limitation has elapsed, the door of justice is closed and no plea of injustice, hardship or ignorance can be of any avail unless the delay of each day is properly explained and accounted for." (Emphasis added).

9. In the case of 'Muhammad Islam v. Inspector General of Police, Islamabad and others' (2011 SCMR 8) it was held that:- "The question of limitation cannot be considered a "technicality" simpliciter as it has got its own significance and would have substantial bearing on merits of the case. The law of limitation must be followed strictly. In this regard we are fortified by the dictum laid down in Chairman, District Screening Committee, Lahore and another v. Sharif Ahmad Hashmi (PLD 1976 SC 258), S. Sharif Ahmad Hashmi v. Chairman, Screening Committee Lahore and another (1978 SCMR 367), Yousaf Ali v. Muhammad Aslam Zia and 2 others (PLD 1958 SC (Pak) 104), Punjab Province v. The Federation of Pakistan (PLD 1956 FC 72), Muhammad Swaleh and another v. Messers United Grain and Fodder Agencies (PLD 1949 PC 45), Hussain Bakhsh and others v. Settlement Commissioner and another (PLD 1969 Lah. 1039), Nawab Syed Raunaq Ali and others v. Chief Settlement Commissioner and others (PLD 1973 SC 236), Chief Settlement Commissioner, Lahore v. Raja Muhammad Fazil Khan and others (PLD 1975 SC 331), WAPDA v. Abdul Rashid Bhatti, (1989 SCMR 467), Federation of Pakistan v. Muhammad Azim Khan (1989 SCMR 1271), Inspector General of Police, Balochistan v. Jawad Haider and another (1987 SCMR 1606), WAPDA v. Aurganzeb (1988 SCMR 1354), Muhammad Naseem Sipra v. Secretary, Government of Punjab (1989 SCMR 1149), Muhammad Ismail Memon v. Government of Sindh and another 1981 SCMR 244), Qazi Sardar Bahadar v. Secretary, Ministry of Health, Islamabad and others (1984 SCMR 177), Smith v. East Elloe Rural District Council and others (1956 AC 736), Province of East Pakistan and others v. Muhammad Abdu Miah (PLD 1959 SC (Pak) 276 and Mehr Muhammad Nawaz and others v. Government of Punjab and others (1977 PLC (C.S.) 165) and Fazal Elahi Siddiqi v. Pakistan (PLD 1990 SC 692)".

10. To return to the facts of the instant case, the claim set out in the plaint is that the plaintiff deals in supplying butter. The defendant used to purchase it from him. They entered into a deal by which the petitioner/defendant was first required to make payments on weekly basis, and then on monthly basis. The defendant failed to make payments on time. As a result, the parties to the suit/revision petition allegedly worked out a settlement. Under this arrangement, the petitioner undertook to clear his outstanding dues in 22 instalments. In order to reassure the plaintiff, he made out and issued 22 cheques, each valuing at Rs.5,000/-. The plaintiff maintains that he received a sum of Rs.1,20,000/- in consequence thereof. Even so, he did not get any payment for the months of June, 2002 and November, 2002. Be that as it may, even after repayment of Rs.1,20,000/-, an amount of Rs.4,31,807/- was due from the petitioner/defendant. Despite repeated reminders, he did not carry out his obligations. Eventually, a notice was sent to him, but to no avail, obliging the plaintiff to institute the suit for the recovery of Rs.4,31,860/-. It bears repeating that this suit was brought on 21.04.2008.

11. Perhaps the stage is set to take a look at Article 52 of the First Schedule to the Limitation Act, 1908. It would be advantageous to reproduce the same for ready reference:- Article

52. Description of suit Period of Limitation Time from which period begins to run 1 2 3 For the price of goods sold and delivered, where no fixed period of credit is agreed upon Three years The date of the delivery of the goods.

12. Although the learned counsel for the respondent/plaintiff attempted to argue that the above-mentioned Article 52 is not attracted to the facts and circumstances of the case, yet he could not pinpoint any other Article of the Limitation Act, under which his case was covered. With utmost respect to him, I am of the opinion that the case of the plaintiff was, is covered under the provisions of Article

52. It is not in dispute that no specific date was fixed for the payment of the price of goods (butter). And if the payment was to be made on monthly basis, then on the expiry of every month, the cause of action accrued to the plaintiff. This being so, the limitation for instituting the suit for the recovery of price of goods commenced from the purported date of the delivery of goods and not from the date of the refusal on the part of the purchaser of goods. If the contents of the plaint are read in totality, the plaintiff did not supply butter to the petitioner after the year 2002. Even if the whole years of 2002 and 2003 are not reckoned in, the suit of the respondent filed on 21.04.2008 would still be barred by over 2 years. As noted hereinabove, the plaintiff was bound to explain the delay of each and every day. Furthermore, this would have been in consonance with the provisions contained in Order VII, Rule 6 CPC. The relevant provisions read as under:- "Grounds of exemption from limitation law-Where the suit is instituted after the expiration of the period prescribed by the law of limitation, the plaint shall show the ground upon which exemption from such law is claimed".

13. It stands established from the record that the suit instituted by the respondent was badly barred by time, calling for its dismissal. Since both the learned Courts below did not address themselves to the question of limitation, which stared in the face, the judgments and decrees passed by them are without jurisdiction. They did not exercise the jurisdiction conferred upon them in accordance with the law of the land. Consequently both the impugned judgments and decrees dated 12.06.2010 and 20.09.2011 passed by the learned Courts below are hereby set aside by allowing this revision petition, thereby dismissing the suit of the respondent, with no order as to costs. MM/L-3/L Revision allowed.