P L D 1993 Quetta 78 (PLP)

By this order I intend to dispose of Civil Miscellaneous Application No. 677 of 1992 riled by Mr. Mazharuddin, Advocate for defendant No. 3 (since dead) and defendant No. 4 on 27-6-1992. It was contended therein that the suit was apparently barred by law of limitation. It is further contended that since the plaint did not contain cause of action and when it arose as such the same is not a plaint in the eyes of law and should have been rejected suo motu. Learned counsel further pointed out that application in that behalf had already been moved as back as on 6-5-1984 before learned Additional District Judge, Quetta but the same was not disposed of. 2. 1 issued notice of this application in, consequence whereof reply was filed by the plaintiff raising several legal objections besides contesting the application on merits.

3. Heard Mr. Mazharuddin, Advocate for applicant No. 4, Mr. W.N. Kohli for applicant No. 5 Mr. M. Riaz, Standing Counsel for defendant No. 1 Mr. SA.M. Quadri appeared for plaintiff/respondent Mr. Yahya Bakhtiar.

4. Two-fold submissions have been made in this application, firstly, that suit be rejected under Order 7, Rule 11 (d), C.P.C. and secondly that the suit be dismissed under section 3 of the Limitation Act.

5. Attending to the first prayer, for the sake of convenience the relevant provision is reproduced hereinbelow:-- "7. . (1) to (10) 11) Rejection of plaint. The plaint shall be rejected in the following cases- (a) (b) (c) (d) ........ where the suit appears from the statement in the plaint to be barred by any law."

6. Mr. Mazharuddin, Advocate while referring to the aforementioned Rule firstly explained in detail the circumstances under which suit has been filed, details whereof are not much relevant for the purpose of disposal of this application. However, he contended that the Editorial which has been complained of had been published in Daily Jang, Karachi as well as Daily Jang, Quetta dated 24-6-1978; whereas the suit has been filed on 5-2-1984. It was strenuously urged that the period for compensation for libel under Article 24 of the Limitation Act is one year from the, date when the libel is published.

7. In order to appreciate the argument so advanced, it may be observed that while rejecting the plaint or dismissing the same on the point of limitation a duty is cast upon the Court to examine the entire plaint. The plaint is titled as suit for libel and malicious prosecution claiming damages. There is no cavil to the proposition that if from the plain reading of the plaint, the Court comes to the conclusion that the suit is barred by time then the plaint should be rejected/dismissed. But on the contrary if certain facts relating to limitation require proof and there is need for leading evidence then generally an issue is framed whether suit is barred by limitation or not and the parties are allowed to lead evidence in support or rebuttal of the said issue.

8. The question of rejecting the plaint under Order 7, Rule 11(d) shall arise only if from the statement in the plaint the Court comes to the conclusion that the suit is barred by any law and in the instant case the law of limitation. Thus the question of rejecting the plaint is related to question of limitation.

9. It would not be out of place to mention here that the learned counsel for applicant Mr. Mazharuddin referred to an earlier application under Order 7, Rule 11, C.P.C., dated 6-5-1984, which was moved before the learned Additional District and Sessions Judge, Quetta but the same had not been disposed of I have perused the said application. A prayer for rejecting the plaint has been made on various grounds including the point of limitation but it appears that the said application was never pressed. I Find sufficient force in the contention of Mr. SA.M. Quadri that in fact the learned counsel did not press the said application because he made his appearance in the proceedings on 24-12-1985 and thereafter did not appear till 7-6-1992. During this intervening period Mr. W.N. Kohli, Advocate claimed to appear for defendant No. 4 and defendant No.

3. So much so that when the case was withdrawn by this Court, issues were framed on 19-9-1989 in presence of the counsel for the parties. From perusal of issues it is clear that point of limitation has been framed as issue No.

3. There is substance in the contention that at the time of framing of issues no prayer was made that a sole preliminary issue be framed to determine that the suit is or is not barred by time or barred by any other law.

10. Thus the application filed in 1984 remained -out of the notice of the Court as the same was not pressed. With this background present application was moved on 27-6-1992.

11. Be that 'as it may, it is now well-settled that the question of limitation even if not raised in the written statement but otherwise comes to the notice of the Court then it will be the duty of the Court to dismiss a plaint if from the statement of the plaint it appears to be barred by time. Non-raising of question of limitation by the defendant, shall not be, a wiaver nor for that matter the question of estoppel-arises, because question of limitation is always a matter of statute and the provisions being mandatory no estoppel can be pleaded. 12. 1 am conscious of the fact that a: plaint can be rejected at any stag I e of the suit and even by the appellate Court but as already observed that it should appear to the Court from the statement in the plaint that the same is barred by any law including law of limitation.

13. Mr. Mazharuddin in reply to the objection of Mr. S.A.M. Quadri relied on the case of Pakistan v. Deve Chand Mu1jimal (PLO 1968 Karachi 107) and contended that it is incumbent upon the Court to 1. reject a plaint even if no objection in the Written statement in that behalf is taken. in the above referred, case Mr justice Qadeeruddin (as I he, then was), observed that if the plea , of limitation is not raised in the written Statement but is issued by an application it will not be rejected merely because of its commission in the written statement. Thus the Court can suo motu reject a plaint if any of the four ingredients of Order 7, Rule 11, Q.P.C. are attracted.

14. In the light of the arguments so advanced it appears that the counsel for the applicant did not lay much stre ss on rejecting the plaint on any other ground including lack of cause of action etc. but confined himself, mostly to rejecting the plaint under Rule 11(d) of Order 7, C.P.C. Thus it appears to me that the learned counsel wanted the suit, to be dismissed on. the point of limitation as the " suit was prima facie not barred on any other ground as mentioned under Order 7, Rule 11, C.P.C.

15. I, therefore, Attend to this argument which is crucial for disposal of the application. Referring to PLD 1968 Lab. 3 ' 67 learned counsel canvassed that if the suit is found to be time-barred after framing of issues on question of limitation, the same is ' liable to dismiss in accordance with, section 3 of Limitation Act. Order of rejection of plaint in ' such a case is in fact one of dismissal of plaint. From perusal of said judgment it seems that the main issue involved was whether after rejecting a plaint under Order 7, Rule 11, C.P.C. on the point of limitation, second suit was competent on the same subject-matter or not. Besides this learned counsel in support of the contention that the suit is liable to be dismissed under section 3 of the Limitation Act relied on the following cases:-- (1) PLD 1977 Kar. 747; (2) PLD 1985 SC 155; (3) '1989 MLD 902; and (4) PLD 1987 Quetta

189. The principles laid down in the authorities quoted hereinabove are well-settled but again the main question would be that if a suit is barred by time from the statement of the plaint, then it would be incumbent upon the Court to reject it, therefore, it is to be seen whether from the statement of the plaint and without recording any evidence the Court comes to the conclusion that the suit is barred by any law or law of limitation or not. From perusal of plaint consisting of 26 pages it appears that it is a suit for libel and malicious prosecution. For compensation for malicious prosecution Article 23 of Limitation Act prescribes one year when the plaintiff is acquitted or the prosecution is otherwise terminated. In the instant case the Hon'ble Supreme Court acquitted the plaintiff by its short order dated 10-2-1983 and suit has been filed on 5-2-1984, the same is, therefore, not barred by time as far as malicious prosecution is concerned. The plaintiff has described in detail the circumstances under which he was tried and convicted and then on appeal he was acquitted by Hon'ble Supreme Court. The starting point accrued from the date of his acquittal i.e. 10-2-1983. Thus the plaint cannot be rejected as barred by time.

16. As far as libel is concerned, a suit in that respect has to be filed within in one year when libel is published. However, in para. 48 of the plaint, the plaintiff has stated that despite the acquittal of the plaintiff by the Hon'ble Supreme Court and in spite of being called upon to publish apology the defendants in their replies dated 14-9-1983 and 27-9-1983' attempted to justify publication and thus a further cause of action arose. Besides this, . as per statement in the plaint the contesting defendants by their acts of commission and omission aggravated and abetted the prosecution against the plaintiff, thus seriously defaming him. Thus the plaintiff in the plaint alleged instigation and abetment of malicious prosecution by contesting defendants which prima facie constitutes a further cause of action. and attracts Article 23 of the Limitation Act. There can be hardly two opinions that it is not the title or the prayer alone but the substance and the statement in the plaint which should be kept in view while deciding whether the plaint is hit by Order 7, Rule 11(d), C.P.C. or not. From the above discussion I have come to the conclusion that keeping in view the statement of the plaint a definite conclusion that the suit is barred by law of limitation cannot be arrived at, therefore, the application is not maintainable and is, therefore, dismissed. I -pass no orders as to costs since complicated questions were involved. A.A.'/447/0 Application dismissed,