2007 PLP 2252 (YLR)

ANWAR ZAHEER JAMALI, J.--This appeal is directed against the order dated 20-8-2005 passed by the learned Single Judge of this Court, whereby plaint in the suit instituted by the appellant company, was rejected under Order VII, rule 11, C.P.C. on the sole ground that the suit of the appellant was barred by limitation.

2. In a nutshell, relevant facts of the case are that on 24-11-2004 the appellant had brought a suit for the recovery of Rs.17,45,323 with mark-up against the respondents, basing their claim, on the letter dated 16-6-2001 issued by respondent No.l, appointing them to place television advertising of their products "Baby Master Diapers"; subsequent advertisement got televised by them on behalf of respondent No.l its payments made by them to the electronic media as per details given in the plaint and the documents attached thereto; and refusal of respondents to make payment of such outstanding claim of the appellant company.

3. The learned Single Judge while passing the impugned order examined the averments made in the plaint in the context of the claim of the appellant only against the respondents Nos.1 and 2 and came to the conclusion that it was governed by Article 56 of the Limitation Act, providing three (3) years period of limitation from the date when the work was done, therefore, the suit having been filed beyond three years period from the date of last work done by the appellant on behalf of the respondents Nos.1 and 2 on 9-10-2001, was time-barred.

4. Ms. Naheed A. Shahid learned counsel for the appellant making detailed reference to the averments made in the plaint, vehemently contended that the conclusion recorded by the learned Single Judge, ordering rejection of plaint in the suit is based on entirely wrong premises, therefore it is liable to be set aside. Elaborating her contention she made following further submissions:-- (a) From the averments of the plaint, which are deemed to be correct for examining the question of rejection of plaint under Order VII, rule 11, C.P.C., suit for recovery instituted by the appellant was within time. (b) As per the contents of the plaint it was a debatable issue whether the suit of the appellant was governed by Article 56 of the Limitation Act or by Article 120 of the Limitation Act or any other Article of the Limitation Act applicable to the, facts of the present case. (c) A reference to the bunch of documents available with the plaint, also referred in the pleadings, makes it abundantly clear that the question of limitation involved in the suit was a mixed question of law and tact, which could not have been decided in a summary manner by the learned Single Judge by having recourse to the provision of Order VII, rule 11, C.P.C. (d) The claim of the appellant in the suit was outcome of the payments made by them on behalf of the respondent No.1 as per details given in the letter, Annexure E/1 showing the dates of payments as 13-12-2001, 25-1-2002 and 17-5-2002 and therefore the period of limitation was to be computed from the dates when such amount has become due and payable by the respondents. (e) Even if, not conceding to this position, it is presumed that the claim of the appellant against respondents Nos.1 and 2 was time-barred, still plaint in the suit could not have been rejected, as such legal impediment was not available to the claim of the appellant against respondent No.3, particularly with reference to their letter dated 14-2-2002, which was a clear acknowledgement of liability in terms of section - 1'9 of the Limitation Act. (1) The case of, the appellant against the respondent was that of an agent against the principal for recovery of sum clue, therefore, the period of limitation was to be computed from the date of refusal of such payment.

5. On the other hand, Mr. Khalid Lived learned counsel for the respondents Nos.1 and 2 has strongly supported the impugned order. He contended that the suit instituted by the appellant was governed by Article 56 of the Limitation Act which provides three years period of limitation for filing of such suit, which is to be computed from the date, when the work is done. For this purpose, he made reference to the contents of para.9 of the plaint to show that dates of invoices/bills forming the basis of alleged claim of the appellant, were beyond three years from the date of institution of the suit. However, he was unable to give' any satisfactory reply to the query made by the Court that even it, for the arguments sake, the suit instituted by the appellant was governed by Article 56 of the .Limitation Act, as regards their claim against respondents Nos. 1 and 2, how the plaint in the suit could be rejected against respondent No.3. also,. who had acknowledged the liability of the suit money in terms of their letter dated 14-2-2002. He also did not dispute that for examining the question of rejection of plaint the contents of the plaint are to be read as a whole and p the presumption of correctness is to be attached to the averments made in the plaint.

6. We have carefully considered the submissions made by the learned counsel and perused the case record, which shows that in the plaint, the appellant have unfolded all the relevant details of their claim against the respondents and have also placed on record relevant correspondence forming basis of their claim against them. The submissions made on behalf of the appellant, as noted above, have much force inasmuch as the cause of action for filing of the instant suit has accrued to the appellant when they have made payments to the concerned agency of electronic media, on behalf of respondents Nos.l and 2, as evident from the contents of the statement of account Annexure E/1 to the memo of appeal. To say the least the question of limitation involved in the case was thus a mixed question of law and fact which could only be decided by the Court after recording of evidence. Besides, by now it is well settled law that the plaint in a suit cannot be rejected in part, therefore, in view of the claim or the appellant against the respondent No.3, which totally skipped the sight of the learned Single Judge while passing the impugned order, the plaint in the- suit could not have been rejected, as ordered by the learned Single Judge. Even the question whether the instant suit against E the respondents, in the given facts and circumstances of the case, was governed by Article 56 or the Limitation Act or some other Articles of the Limitation Act was a debatable issue and proper adjudication this context was only possible after I recording of evidence.

7. This being the position, the impugned order dated 20-8-2005 is not sustainable in law.

8. Foregoing are the reasons for our short order passed today, whereby this appeal was allowed and the impugned order dated 20-8-2005 was set aside. S.A.K./M-74/K?????????????????????????????????????????????????????????????????????????????????? Appeal accepted.