2008 PLP 30 (MLD)

MAULVI ANWARUL HAQ, J.

On 15-6-2005 the respondent No.1 filed a suit against the petitioner and the other respondents. I will be referring to this plaint later. On 27-6-2006 the petitioner filed an application for rejection of the plaint stating that the suit is barred by time. The application was resisted. However, the learned trial court proceeded to reject the plaint on 24-2-2007. A learned ADJ, Faisalabad, has allowed the first appeal filed by the respondent No.1 and had remanded back the suit to the learned trial Court. Vide order, dated 27-8-2007 for trial on merits.

2. Learned counsel for the petitioner contends that the failure to pay court-fee was contumacious and further upon a plain reading of the plaint, the suit was barred by time as the agreement was to be performed within three months of the date of its execution i.e. 14-12-1993.

3. I have gone through the copies of the records. The learned trial court proceeded to reject the plaint on the ground that the plaint does not bear the court-fee on the value fixed i.e. Rs.60,

000. The second reason given was that the suit had been filed twelve years after the expiry of the said period of three months and it was barred by time.

4. It is but apparent on the face of the record that the learned trial court proceeded to reject the plaint vis-a-vis court-fee without availing the conditions precedent i.e. assessment of the court-fee and a direction thereafter to the plaintiff to pay the same and his consequent failure to do so.

5. So far as the question of limitation is concerned, by now it is well-settled that in order to attract the first Part of Article 13 of the Limitation Act, 1908, the date fixed for performance in the agreement has to be 'a date by calendar i.e. it has to be a particular date. Reference be made to the case of Inam Naqshbandi v. Haji Sheikh Ijaz Ahmad (PLD 1985 SC 314) where it was thus observed at pages 318 and 319 of the report:-- "The words "date fixed" in the first clause of the third column of Article 113 of the Limitation Act are of great significance. The "date fixed" means a particular date fixed expressly by the parties for the performance of the agreement. In the instant case, no particular date was expressly fixed by the parties. No doubt, the agreement was to be performed within one week from the date of agreement but this did not tantamount fixing a date for the performance of the agreement. So, it can safely be said that in the instant case no date was fixed for the performance of the contract within the meaning of first clause of the third column of Article 113 of the Limitation Act, So, the case as not governed by first clause of the third column of the Article." The suit could not have been declared to be barred by time for the reasons stated by the learned trial Court. The learned ASDJ has very correctly exercised his appellate jurisdiction in correcting the wrong done by the learned trial court. The civil revision accordingly is dismissed in limine. S.A.K./177/L Revision dismissed in limine.