2007 PLP 717 (YLR)

JAWWAD S. KHAWAJA, J.

Haji Sakhi Muhammad petitioner plaintiff impugns the appellate judgment and decree dated 24-12-2005 whereby the decree of the learned trial Court dated 6-7-2005 was reversed and a suit filed by the petitioner for recovery of Rs.50,000 was dismissed.

2. The case of the petitioner-plaintiff was that he had paid a sum of ks.50,000 to the respondent for the joint purchase of vehicle. The respondent initially purchased the vehicle which he then sold. He refused to return the amount of Rs.50,000 to the petitioner, whereupon the petitioner filed a complaint before the Monitoring/Complaint Cell, District Khushab. Learned counsel for the petitioner contends that the respondent stated that he obtained Rs.45,000 and undertook to pay the said amount by means of a written acknowledgment. The acknowledgment, however, has not been exhibited on record although a copy thereof has been shown to me by learned counsel for the petitioner.

3. The learned Appellate Court has dismissed the petitioners suit on the short ground that it was time-barred. Learned counsel for the petitioner contends that the respondent had not raised any objection on the ground of limitation, and nor had the said issue been raised before the learned trial Court. It was argued that if any such objection had been raised and an issue had been framed, the petitioner would have proved the same by producing the written acknowledgment whereby the period of limitation was renewed, or secondary evidence of the same.

4. On the above basis, it is contended that the impugned appellate decree is- not 'legally sustainable as it proceeds on premises which were neither raised in the written statement nor agitated before the learned trial Court or through an appropriate issue framed in the case. If this submission is correct, the issue of limitation would become a mixed question of law and facts requiring evidence as to any acknowledgment whereby the period of limitation was extended.

5. Learned counsel for the respondent has, however, taken me through the record has firstly adverted to paragraph 2 of the written statement in which a preliminary objection specifically asserting that the suit was time-barred has been raised. Secondly Issue No.3 was expressly framed on the question of limitation in these circumstances, the contentions of learned counsel for the petitioner that no objection had been raised as to limitation and no issue had been framed in respect thereof are not in accordance with the record.

6. Learned counsel for the respondent also took the through the testimony of the petitioner Sakhi Muhammad who appeared - as D.W.2. Throughout his testimony he did not make any reference to the purported written acknowledgment which was allegedly executed by the respondent. On the contrary, the petitioner gave evidence of his application before the Monitoring Cell and the time which, according to him, was sought by the respondent to return the amount. No mention of any written acknowledgment has been made in the testimony of the petitioner. On the contrary, the respondent denied owing any amount to the petitioner.

7. Learned counsel referred to the case titled Khurshid Ali and 6 others v. Shah Nazar (PLD 1992 SC 822) to argue that mistakes of the parties should not result in the deprivation of their rights if they are found entitled to the same. I have gone through the cited precedent and find the same to be distinguishable on facts. In the cited case there were documents which had been duly exhibited on record but the original register, wherein the said documents were recorded, had not been produced. It is, in these circumstances, that the Honourable Supreme Court came to the conclusion that the trial Court had fallen in error by not summoning the original record. No such circumstances exist in the present case. The cited precedent, therefore, does not advance the case of the petitioner.

8. In the above circumstances, I find no merit in this petition which is, therefore, dismissed. H.B.T./S-213/L Revision dismissed.