P L D 2007 Quetta 1 (PLP)

AKHTAR ZAMAN MALGHANI, J.

This Regular First Appeal is directed against the judgment and decree dated 1-7-2003 passed by Senior Civil Judge I, Quetta whereby suit filed by the appellant was dismissed on the point of limitation.

2. Briefly stated, facts of the case are that the plaintiff-Bank instituted a suit for recovery of Rs.80,08,087 with 20% liquidated damages and cost of suit against the predecessor-in-interest of the respondents i.e. Jalib Saeed with the averments that Jalib Saeed was posted in foreign exchange department of plaintiff-Bank City Branch who during tenure of his service committed fraud and misappropriation of R,s.80,08,087 for which an F.I.R. being No.6 of 1997 was registered and after investigation he was sent for trial. It was further averred that ultimately he was convicted vide judgment dated 30-9-1998.

3. After registration of suit notices were issued to Jalib Saeed who in response thereof submitted an application under Order 7, Rule 11, C.P.C. for rejection of plaint being barred by time. The learned Senior Civil Judge after hearing the arguments allowed the application and dismissed the suit on point of limitation vide judgment and decree dated 1-7-2003.

4. We have heard the learned counsel for the appellant as well as learned counsel for the respondent. The learned counsel for the appellant vehemently contended that the suit was not barred by time as Articles 120 and 135 of the Limitation Act were attracted under the facts and circumstances of the instant suit. He further contended that Article 90 relied upon by the learned trial Court for dismissing the suit was not attracted in the instant case. According to him the point of limitation being mixed question of law and fact could not have been decided without recording evidence, as such; the learned trial Court acted illegally by dismissing the suit without affording opportunity of leading evidence to the appellant. On the other hand the learned counsel for the respondent vehemently contended that Articles 120 and 135 were not attracted in the instant case as Article 120 being residuary Article is applicable only in those cases where no specific limitation has been provided, whereas; in the instant case Article 90 was attracted. He further contended that Article 135 was also not applicable because it was not a suit for possession of mortgaged property by a mortgagee but according to averments in the plaint the suit was filed against Jalib Saeed being agent of the plaintiff-Bank. He further argued that under Article 90 the period of limitation is to be reckoned from the date of knowlodg9 and according to plaintiff's own showing they came to know about' the fraud and misappropriation allegedly committed by Jalib Saeed on 8-10-1997, on. which date F.I.R. was lodged against him, therefore, the suit was hopelessly barred by time on the face of it and the learned Senior Civil Judge rightly dismissed the same as it did not require any further evidence. He further contended that prior to filing of the instant suit the appellant also filed suit for recovery of same amount before the Banking Judge which was returned to the appellant on 21-11-1998, even if the time is reckoned from that date the suit was barred by time.

5. We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the impugned judgment as well as original record of trial Court. It may be seen that the appellant filed suit for recovery of Rs.80,08,087 with 20% liquidated damages and cost of suit against Jalib Saeed on the averments that he misappropriated the said amount during his service with the bank as incharge of foreign exchange department and according to para. No.2 of the plaint such fraud came to the knowledge of bank on 8-10-1997 whereupon a case vide F.I.R. No.6 of 1997 was got registered with F.I.A. authorities. Thus; it is not disputed that the fraud allegedly committed by Jalib Saeed came to the knowledge of the plaintiff-Bank on 8-10-1997 thus; the time would reckon from that date being the date of knowledge, however, question arises which Article of Limitation Act would be attracted in the peculiar facts and circumstances of the instant case. According to the learned counsel for the appellant Articles 120 and 135 were attracted in the instant case. Bare reading of Article 135 which is applicable in the suits filed by mortgagee for possession of immovable property mortgaged in a Court other than a High Court, shows that the same was not attracted in the peculiar facts and circumstances of the instant case as the suit was not filed for possession of immovable property mortgaged but it was suit for recovery of money allegedly misappropriated by Jalib. Similarly Article 120 has also no relevancy being a residuary Article and applicable only to such suits which are not covered by a specific Article. The learned trial Judge dismissed the suit of the appellant by applying Article 90 of the Limitation Act which is applicable to suits filed by principal against the agent for neglect or misconduct and not governed by Articles 88 and

89. Admittedly Jalib 'Saeed was serving as incharge of foreign exchange branch with the