1999 PLP 788 (MLD)

4. The learned counsel for the appellant, in support of this appeal, inter alia urged as under: Firstly; that the learned two Courts below had incorrectly applied provisions of Article 56 ibid., to the facts and circumstances of the case in hand. Accordingly to the learned counsel, the appellant was awarded contract to supply the articles and thereafter provide and fix street lights in section D-I, D-II, and C-I of Township, Lahore; that this part of contract was admitted by the other side. On these facts, it was represented that the suit filed by the appellant was covered by Article 120 in Schedule to Limitation Act and not Article 56 ibid Reliance was placed on Fakir Spinning Mills Ltd v. Abdul Aziz (1972 SCMR 129), Province of East Pakistan Abdul Haleem Nezamuddin (PLD 1968 Dacca 937). Secondly; that from the bare reading of Exh.P.2, it was quite clear that there was an undertaking by Sub-divisionsal Officer, Sub-Division Township Lahore to the effect that the balance of payment plus security will be paid after clearance from the Housing and Physical Planning Department, Lahore; that said clearance was made by the S.D.O. Who was competent to sign the said undertaking; Relying upon section 19 of the Limitation Act, it was urged that writing by Sub-Divisional Officer on Exh.P.2 was acknowledgement and so the appellant's suit Was within time prescribed by a Statute. Reliance was placed on Amritsar Municipality v. Ralia Ram (AIR 1936 Lah. 629). Thirdly; that the Limitation Act was procedural and that it did not extinguish the rights of parties. The learned counsel submitted that the Government was the custodian of the rights of the parties and so it did not lie in its mouth to plead the case on the ground of limitation to deny the vested right of its citizens. On the other hand the learned Assistant Advocate General supported the impugned decision. It was contended that the reading of the plaint clearly showed that the suit was for the recovery of the price of work done and so that suit was governed by Article 56 and not Article 120 in Schedule to Limitation t, Reliance was placed on Randal v. Commissioner of Tekari Municipality (AIR 1961 Pat. 485), Govt, of West Pakistan v. Zainul Ebad Rizvi (PLD 1977 Kar. 297). Jullundur (Improvement Trust v. Kuldip Singh (AIR 1984 Punjab & Haryana 185) and Sualeh Sons (Private) Ltd. v. Karachi Development Authority ,1997 CLC 893).

5. I have heard the learned counsel for the parties at considerable length, perused the record and attended to their competing submissions carefully. As regards the factual claim of the appellant, it was based upon Exh.P.2. It was stated therein that he had completed his work on 3-2-1977, has submitted the final bill which was shown as running bill vide voucher No.28 dated 14-7-1977; that on this date inspection was made and work was found satisfactory by the Sub-Divisional Officer, Township Sub-Division, Lahore and it was promised that the balance of the payment will be made after clearance from the Housing and Physical Planning Department. The respondent, no doubt, denied this document and took up the plea that it was framed with fraudulent device; that on I-7-1978 the contract had been rescinded. It was not disputed that order dated 1-7-1978 was never communicated to contractor. On the aforenoted material, the two Courts below concurrently concluded that the version of the Department was after-thought and was patently untrue. No cross objections were tiled before the First Court of appeal against the said finding and the respondent contended themselves in defending their cause on the sole plea of limitation.

6. Having noted broad outlines of litigation, I now turn to issue No.2. The first and the foremost task is to ascertain as to which of the Articles in Schedule to Limitation Act will apply to appellant's action. The allied to this task are that what is the date of accrual of cause of action and what are the applicable rules of construction of limitation Statute. All these points-tare interlinked and are different faces of the same coin. A perusal of agreement/Exh.P-1 indicates that the contract was composite one. The contractor was to supply the necessary articles and then fix these in section D-I, D-II and C-I of Town Ship, Lahore. Furthermore, under the agreement the contractor had to deposit security for satisfactory performance of the contract and had to be repaid after contract's 10mpletion Evidently, the contract was not confined to execution of fixing Poles and electric rights but he had to perform other parts noted above also. On these facts of the plaint, the question is whether Article 56 in Schedule to I-imitation Act was/is the applicable provision? A plain look at Article 56 ibid shows that it governs suits for recovery of the price of work done at the request defendant and where no time has been fixed for payment. Clearly, this Article Pertains to suits for recovery of price of work done. It does not relate to suits for the recovery of price of articles supplied by the contractor and for the recovery of the security deposited with employer. On this state of facts I reach Article 115 ibid. This seems to be relevant provision in Schedule to Limitation Act. In my humble view it was Article 115 which covered the appellant's action. The rule enunciated in Sualeh Sons (Pvt.) Ltd. v. Karachi Development Authority (1997 CLC 893) and Ramlal v. Commissioner of Tekari Municipality (AIR 1961 Patna 485) proceed on dissimilar facts and are not helpful in the instant appeal. The apt authority is the Full Bench case reported as Mohammad Ghasita v. Siraj Din (AIR 1922 Lah 198). In this case, the action was initiated by the plaintiff for recovery of balance of amount due to him on the strength of work done as a sub- contractor. The plaintiff was further required to do the flooring also. On the facts of the case the question was referred to Full Bench as to which was the Article in Schedule to Limitation Act that governed the suit after review of the pertinent Articles in Schedule to Limitation Act and the referred precedents it was held as under:- " It is, however, urged that the action comprises two claims, one for the price of the material supplied by the plaintiff, and the other relating to the price of the work done by him, and that these two claims should be dealt with separately and that they are governed by Article 52 and Article 56 respectively. The rule of law is, no doubt, firmly established that a combination of several claims in one action does not deprive each claim of its specific character and description. The Code of Civil Procedure allows a plaintiff, in certain circumstances, to combine in one action two or more distinct and independent claims, and it is quite possible that one of the claims may be barred by limitation, and the other may be within time, though both of them arise out of one and the same cause of action. In a case of that description there is no reason why the Court should not apply each claim the rule of limitation specially applicable thereto. It is nowhere laid down that only one Article should govern the whole of the suit, though it may consist of several independent claims, and that the suit should not be split up into component parts for the purpose of the law of limitation. " Continuing the learned Judge, speaking for the Full Bench, observed: "The question, however, is whether the action as brought by the plaintiff can be treated as a combination of two distinct claims. Now, the plaint makes no mention of the price of the materials as distinct from the price of the work, and contains no reference whatsoever to two claims. There is only one indivisible claim, and that is for the balance of the money due to the plaintiff on the basis of a contract, by which he was to be paid for everything supplied and done by him in, connection with the flooring of the building at a comprehensive rate. The claim as laid in the plaint is an indivisible one; it cannot be split up into two portions. We must therefore, hold that it falls neither under Article 52 nor under Article

56. The learned Judge continued:- Now, with all deference to the learned Judges, we are unable to hold that there is no other article governing a claim of that character. It seems that their attention was not drawn to Article 115, which governs every suit for compensation for the breach of contract not in writing registered and not specially provided for in the Limitation Act. It is beyond doubt that this article is a general provision applying to all actions ex-contract not specially provided otherwise; and the present claim certainly arises out of a contract entered into between the parties. The word "compensation" in Article 115 as well as in Article 116 has the same meaning as it has in section 73 of the Indian Contract Act, and denotes a sum of money payable to a person on account of the loss or damage caused to him by the breach of a contract. It has been held, and we consider rightly, that a suit to recover a specified sum of money on contract is a suit for compensation within Articles 115 and 116 vide Nabokoomar Mookopadhya v. Siru Mullick (6 CLR 579) and Hussain Ali Khan v. Hafiz Ali Khan (1881) 3 All.

600. We are accordingly of opinion that the present claim must be regarded as one for compensation for the breach of a contract and that there is no special provisions in the Act which governs the claim. It must, therefore, come under the general provisions contained in Article 115, which governs every action arising out of a contract, not otherwise specially provided for." Guided by the above rule I am clear in my mind that appellant had initiated an action for recovery of balance amount as price for work done, supply of articles payment of security deposited with the employer on successful completion of the contract. The action embraced three reliefs namely the recovery of the Face of articles supplied to employer; the balance of price in lieu of work done and the payment of security lying with the employer. This suit clearly fell within ambit of Article 115 having concluded, that Article 115 applied to the appellant's suit. It is to be seen that this is a residuary Article which applied to the actions arising out of contract which are not specifically provided otherwise. It lays down a period of three years for filing a suit commencing from the day when contract is broken or where there are successive breaches, when the "research, in respect of which the suit is instituted, occurs or where the breach is continuing when it ceases. The expression "breach" is used to indicate the accrual of cause of action. This expression is defined by Black's Laws Dictionary in following terms:- "A cause of action "accrues" when a suit may be maintained thereon. Dillon v. Board of pension Com'rs of City of Los Angeles, 18 Cal. 2d, 427, 116 P.2d 37,

39. Cause of action "accrues" on date that damage is sustained and not date when causes are set in motion which ultimately produce injury." It is also to be kept in mind that law of limitation is procedural law and falls within the branch of Adjective Laws. It neither creates nor demolishes any right. It only bars remedy to those who are negligent and do not come to Court in time. Therefore, laws of limitation are known as laws of peace and tranquillity. This statute is to be read as a whole and its provisions are to be construed harmoniously. Since the laws of limitation takes away the rights of the parties this must be construed liberally and without doing any violence to the intent of the Legislature. This must be applied for the benefit of the plaintiff. When there are more than one Articles applicable to a lis the Article favouring larger limitation should be applied. (See Kadir Bax v. Province of Sindh (1982 SCMR 582). Applying the above rules, to the facts of the case in hand, it is clear that the work was completed on 3-2-1977, was inspected by the competent Authority on the same day and was so certified by the competent Authority that undertaking was given in Exh.P-2 that the balance amount alongwith security will be paid to appellant after clearance from the Housing & Physical Planning Department; that on 1-7-1978 Department rescinded the contract on the allegation that it was not completed by appellant, that this circumstance was kept totally surreptitious and was never communicated to appellant; that D.W.2 and D.W.3 appeared in Court, admitted that execution of Exh.P-2 with a plea that it was got signed by them in routine and with deception; that this plea was not accepted by the two Courts below. On this material, I am clear in my mind that there was no substance on which it could be inferred that the contract had been rescinded correctly by the employer and had been brought to the notice of appellant as pleaded by him in the plaint. In view of the above, the resistible conclusion, I have no doubt in my mind that the execution accrued to the appellant a week before the filing of plaint and that Article 115 was applicable to the suit of the appellant. From the above conclusion, the finding of the two Courts below on issue No.2 are found to be totally devoid of legal efficacy and are hereby set aside. As a result of the above discussion, this second appeal is bound to succeed. The decisions of the two Courts below are hereby set aside and the suit of the appellant is hereby decreed against the respondents/defendants in accordance with prayer contained in the plaint. The respondents shall also bear the costs of the proceedings throughout. A.A./M-765/L Appeal accepted.