P L D 1959 (W (PLP)

In paragraph 14 of the plaint they have stated that in the agreement between them and Messrs Siemens there is a provision for referring their disputes to the arbitration of the International Chamber of Commerce, and that "the plaintiffs gave on 21st January 1954, the requisite notice to arbitration to Messrs Siemens but have not so far received any reply from them. Since the limitation period as against the defendants was about to expire, the plaintiffs had to institute the present suit and could not afford to wait for the reply from Messrs Siemens. On receipt of their reply the plaintiffs reserve the right to proceed against them by way of arbitration and/or otherwise". On the basis of the above mentioned allegations the plaintiffs instituted the present suit and filed the plaint in Court on the 22nd of March 1955. The Deputy Registrar passed the following order on it: "Admitted this 26th day of March 1955. Issue summons". The Registrar, O. S., has counter‑signed the order on the 28th of March 1955. The Government of Pakistan submitted their written statement on the 9th of April 1956 and have raised several objections to the suit of the plaintiffs. One of them is as follows: "The notice under section 80, C. P. C. was insufficient. It was delivered on 24th January 1955 and the suit was instituted on 22nd March 1955, before the expiry of the statutory period of two months. The suit is therefore not maintainable and the plaint is liable to be rejected. On the basis of the above objection a preliminary issue was framed as follows; "Whether the suit is bad for non‑compliance with the pro visions of section 80, C. P. C." The section provides that "no suit shall be instituted against the Government" "until the expiration of two months next after notice in writing has been delivered to or left" at the office of a Secretary to the Government in the case of a suit against the Central Government. The language of the provision is clear, emphatic and mandatory. Mr. Sharifuddin for the plaintiffs has conceded that in case the finding is that the suit was instituted earlier than the "expiration of two months next after" the delivery of the notice then it is bad. The plaintiffs have therefore sought to prove that the notice was delivered on the 21st of March, 1955 and their counsel has argued in the alternative that the date of the institution of the suit is not the date on which the plaint was filed in Court but the date on which it was admitted and registered as a suit. He has also argued that the expression "two months" used in the section should not be interpreted under the General Clauses Act to mean "two calendar months" but as "two lunar months" which expression according to the English law means two months of 28 days each. The last two arguments are of purely legal character and can be dealt with before discussing the evidence. Clause 33 of section 3 of .the General Clauses Act (Act X of 1897) has defined the expression "month" to mean "a month reckoned according to the British calendar". This definition according to the opening words of section 3 is to be assigned to the expression unless there is anything repugnant in the subject or context. Mr. Sharifuddin has contended that this meaning should not be assigned to the expression because two months of equal duration only could be reckoned from the date of the delivery of the notice, and not two months of unequal duration. 1n the present case, the notice was given in January 1954, and two months according to the British calendar would be the months of January and February, which are not of equal duration. Counsel contended that the intention of the legislature could not be that 31 days of January and 28 days of February should have been excluded, because the number of days according to the British calendar month can be reckoned only if the time commenced from the 1st day of a month and ended with the last day of that month. I do not see how the intention of the legislature to exclude the application of the General Clauses Act can be inferred only because the months of January and February are not months of equal number of days. No difficulty arises on account of unequal number of the days of the months. If for instance the notice was delivered to the defendants on the 24th January 1955, then the 1st month would expire on the 23rd of February 1955 and the second month would expire on the 23rd of March 1955. If his contention that the intention of the legislature was to exclude the application of the General Clauses Act for the purposes of section 80, C. P. C., is not correct then the rest of his argument on the basis of which he contended that the English law would be applicable and that according to it each month of 28 days is to be reckoned, is automatically excluded. I do not see any reason for coming to the conclusion that the 'legislature in tended that the definition of month as given in the General Clauses Act should not apply to section 80, C. P. C. Learned counsel's contention that the suit should be deemed to have been instituted on the, day on which the plaint was admitted and registered has been founded by him on section 27, C. P. C. According to this section, summonses are issued "where a suit has been duly instituted". Counsel has therefore argued that there is a close connection between the institution of a suit and the issue of summons on it. This contention is obviously incorrect in view of section 26, C. P. C. and Order IV, Rule 1, C. P. C. Section 26 lays down that‑ 'every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed." The language of Order IV, Rule 1, C. P. C. prescribes the manner of instituting suits. It says. "Every suit shall be instituted by presenting a plaint to the Court or such officer as it appoints in this behalf". There is thus no doubt that on the presentation of a plaint a suit becomes instituted. The date on which the plaint was, admitted does not change the date of the institution of the suit. The plaintiffs have alleged in paragraph' 13 of the plaint, as pointed out above, that they had given notice under section 80, C. P. C. on the 21st of January 1954. If this allegation is correct on facts then the present suit was rightly instituted on the 22nd of March 1955. But if on the contrary the notice was delivered to the defendants on the 24th of January 1955, as alleged by the defendants then the suit could not be instituted before the 24th of March 1955. I have, therefore to examine the evidence produced by the parties and decide when the notice was delivered to the defendants. The plaintiffs have produced three witnesses, Fateh Khan, P. W. 1, the despatcher who entered the notice on the peon. book ; Malik Ghulam Muhammad, P. W. 2, a clerk of the plaintiffs who is said to have delivered the notice ; and Ghulam Qadir, P. W. 3, a clerk of Mr. Brohi, advocate, who obtained the signatures of Mr. Brohi on two copies of the notice, closed them in envelope, attached the postal acknowledgment receipt to one of the covers, and handed them over to a representative of the plaintiff. Fateh Khan has stated that he made an entry in the peon book Exh. 6 on the page Exh. 6/1 on the 21st of January 1955 arid landed the cover over to Malik Ghulam Muhammad who was deputed by the Managing Director of the plaintiffs to deliver the letter. According to this witness, Malik Ghulam Muhammad returned the peon book on the same day to him and informed him that he had delivered the letter. This evidence is meant to establish the allegation that the notice was delivered on the same day on which it was entered on the peon book. Malik Ghulam Muhammad has said that he went to the Ministry of Communi cations with the notice in order to deliver it to the Secretary but was informed by a clerk that he could not see the Secretary. The clerk took the peon book and the letter from him, went inside the room in which presumably the Secretary was expected to be, and came back and returned the peon book to him. The witness has said that he looked up the peon book when it was returned to him and found that there was a signature on it indicating the delivery of the letter. He has said :‑ "I do not know the name of the clerk because I did not enquire his name. He did not tell me as to who had signed the peon book and therefore I cannot tell whether the Secretary or somebody else signed it". There is no date under the signature which purports to have been made on the peon book in acknowledgment of the delivery of the letter. The entry in the peon book therefore does not prove the date on which the notice is alleged to have been delivered. The statements of the two witnesses however fix the date on which the notice is alleged to have been delivered. Learned counsel for the defendants has objected to the production of the peon book on the ground that it was not produced in Court within the time which was given to the parties for producing their documents and remained in the possession of the plaintiffs until it was produced by witness Fateh Khan on the day of his evidence. It is true that the peon book ought to have been produced in Court within the time allowed for producing documents, but there is an allegation that it was shown to learned counsel for the defendants when he inspected the documents of the plaintiffs. This allegation has placed learned counsel for the defendants in a slightly awkward position because the allegation cannot be contradicted unless he himself appears as a witness. He, therefore, conceded that the allegation regarding its inspection may be presumed to be correct, and contended that inspection is not a substitute for the production of a document in Court. This may be so, but the peon book must have been known to be an important document and must have been examined with good care. If the defendants intended to question its genuineness they could have taken steps to get it examined by experts and to be ready with their criticism of it. 1, therefore, overrule the objection. Its evidentiary value depends entirely upon the credit worthiness of the witnesses Fateh Khan and Malik Ghulam Muhammad. I have, therefore, to examine as to how far they can be believed in view of the over‑writings which are found in the relevant entry on Exh. 6/1, and the documents which have been produced by the defendants to contradict their evidence. The relevant entry is clearly over‑written inasmuch as the word "communication" which is a description of the Ministry to which the notice purports to have been sent was allegedly written in the first instance by Fateh Khan to be "commission". The witness has admitted that he corrected the word "commission" after the letter had been delivered. His explanation is that he had written the letter "m" thrice in the word "commission" because of the hurry in which he was when he made the entry and that therefore he had to correct the word and corrected it by changing it into "communication". The defendants have produced the Inward Register of the Ministry of Commerce. The relevant entry on page, Exh, 12/1, of the Inward Register shows that the notice was received in the Ministry of Commerce on the 24th of January 1955. Abdur Rahman Khan, D. W. I, a clerk of the Ministry of Commerce has stated as follows :‑ "It was noticed that the letter was addressed to the Ministry of Communications and therefore it was sent by the Ministry of Commerce to the Ministry of Communications. It was sent to that Ministry on that date. The entry relating to‑ the issue of the letter to the Ministry of Communications is in my hand it is Exh. 12/2." The defendants have also produced the Inward Diary Register of the Ministry of Communications, Exh.

12. On its relevant page, Exh. 14/1, there is an entry showing that the letter was received from the Ministry of Commerce by the Ministry of Communi cations. The Ministry of Communications forwarded the notice to the Director‑General of Posts and Telegraphs. Exhibit 15 is the Inward Register of the Posts and Telegraphs Department. On the relevant page of this Register, Exh. 1511, there is an entry showing the receipt of the letter by Director General Posts and Telegraphs on the 25th January 1955. I accept the entries found in Exh. 12, Exh. 14 and Exh. 15 to be genuine and correct, and believe, as suggested by learned counsel for the defendants, that the notice was originally entered in the peon book as meant for the Secretary, Ministry of Commerce. I believe that Fateh Khan had originally written the word "Commerce" and not "Commis sion" on Exh. 6/1. The notice was, therefore, originally delivered to the Ministry of Commerce who forwarded it to the Ministry of Communications and the latter Ministry forwarded it to the relevant Department. There is no documentary evidence to support the allegation of the plaintiffs that the notice was delivered to the Ministry of Communications on the 21st of March, 1951. I cannot prefer the evidence of the witnesses of the plaintiffs as against the three registers produced by the defendants. The third witness of the plaintiffs, namely, Ghulam Qadir, a clerk of Mr. Brohi, has revealed that he and Mr. Brohi had advised the plaintiffs not to institute the suit on the 21st of January 1955. He has stated as follows :‑ "I had advised the plaintiffs to wait for two days more before instituting the suit but one Nasrullah on their behalf insisted that the suit be instituted earlier. I, therefore brought this matter to the notice of Mr. Brohi, but the plaintiffs' representative was insisting on instituting the suit and therefore Mr. Brohi instructed me to file the suit for the plaintiffs so want ed after seeing the peon book. I then rang up the Managing Director who brought the peon book. I saw it and felt satisfied that the suit could be instituted and therefore instituted it as it was the responsibility of the plaintiffs. I was satisfied because the Managing Director said that the letter was delivered on 21st January 1955, and I had to believe him because it was after all their case." The plaintiffs sent a copy of the notice by registered post, acknowledgment due. The acknowledgment receipt has not been produced. Ghulam Qadir has stated regarding it as follows :‑ "The postal acknowledgment receipt might have come to Mr. Brohi's office, but at that time one Mr. Jalil, stenographer was working with him and when I wanted to trace it for filing this suit I was not able to find it. I have never seen that receipt." Fateh Khan has produced a postal receipt marked "X/1" and stated that a letter containing a copy of the notice was sent by registered post by him. Mr. Farooqui has objected to the production of Exh. X/I on the ground that it was not produced within the time allowed for producing documents. The same reasoning, however, applies to this receipt also which applies to the peon book. I think, therefore, that it should not be excluded from evidence. But Exh. X/1 has not been prove properly by the production of any witness from the Postal Department. It has, therefore not been exhibited. It is, however, not of much value, because the letter which is sent by registered post acknowledgment due cannot reach the desti nation even if the addressee be in the same town on the date of its registration. The evidence produced by the defendants indicates that no notice was received in the Ministry 'of Commerce for the Ministry of Communications by registered post or in any manner on the 21st of January 1955. I see no difficulty in coming to the conclusion that the notice was not delivered to any of the two Ministries on the day on which it is alleged on behalf of the plaintiffs to have been delivered. Para 13 of the plaint is laconic on the facts regarding the despatch and delivery of the notice. According to it notice was given to defendants on the 21st of January 1954. There is no allegation in it that it was sent by hand as well as by post. The word "given" which has been used in the paragraph may not be insufficient as a plea for purposes of section 80, C. P. C. but it is imprecise and inade quate for conveying the sense that it was delivered by the two or by any one of the two methods alleged by the plaintiffs on the alleged date. The conclusion therefore is that the notice required by section 80, C. P. C. was not delivered to the defendants on the 21st of January 1954. There is no proof as to when the notice sent by registered post was delivered, if it was ever despatched by registered post and ever reached the destination. One notice which did reach the Ministry of Commerce and was passed on to the Ministry of Communications was delivered to the Ministry of Commerce on the 24th of January 1954. The method of delivery being immaterial, the conclusion is that the notice was not delivered before the 24th of January 1954 to the defendants. The suit is, therefore, bad in terms of section 80, C. P. C. Muhammad Hussain, D. W. 2, has stated that the plaintiff has filed another suit on the same claim as the present one and that the number of the other suit is 125 of 1958 which is pending in this Court. Mr. Sharifuddin learned counsel for the plaintiffs has admitted these facts to be correct. However that may be, the present suit being bad in law is dismissed with costs. A. H. Suit dismissed.