1997 PLP 545 (MLD)

Fariddudin for Appellant. Ghulam Rasool Warsi for Respondent. Date of hearing: 29th April, 1992. Appellants have challenged rejection of plaint in suit No.3091/85 (old No.1937 of 1983) filed by them on 12‑5‑1983 against the respondent for recovery of Rs.81,913.75 ordered by IVth Senior Civil Judge, Karachi, South on 15‑10‑1987. In their plaint the appellants mentioned about a contract between them and the respondent executed in March 1957 at Karachi. Under the contract the respondent was to construct 100 quarters in P&T Colony, Gizri Road, Karachi. For undertaking the construction work, the respondent was supplied by the appellants 215 tons of cement worth Rs.20,263.75. The cement was supplied in the jute bags numbering 30300 which were to be returned, after they were empty by the respondent to the appellants. Respondent was required under the contract, to submit fortnightly labour report in office of the appellant No.3 and for very default in submission of the report he was liable to be charged Rs.50. It was alleged that for 21 fortnights the respondent had failed to furnish the labour report and on this account he was liable to pay Rs.1,050 to the appellants. Respondent failed to return the empty jute bags numbering 30300 and on this account he was liable to pay to the appellants Rs.60,000 as claimed in the plaint. In this ' way the appellants claimed an amount of Rs.81,913.75 from the respondent with interest and costs of litigation. It was conceded that there was arbitration clause‑in the agreement between the parties and in 1972 the appellants appointed an arbitrator for settlement of the dispute but this appointment was revoked by a civil Court of Rawalpindi where such petition was moved by the respondent. Instead of filing written statement, the respondent moved an application under Order VII, Rule 11 of C.P.C. for rejection of the plaint, on the grounds that the construction work covered by the agreement was completed by March, 1958 and that full and final payments were made by the Department of Works on 31‑3‑1958 and that the security deposit of Rs.50,000 was also refunded to the respondent, after securing of no objection and clearance from all the relevant authorities and after due adjustment and settlement of the accounts, and that the suit filed by the appellants was false, frivolous and untenable. It was added that in pursuance of arbitration clause of the agreement, the appellants appointed M. Haseeb Khan Superintending Engineer, Structural as sole arbitrator to adjudicate upon the claim of the department against the respondent. Respondent filed a petition No.478/1972 in Court of the Senior Civil Judge Rawalpindi which was decided on 3‑6‑1975 and under the judgment and decree of the Senior Civil Judge Rawalpindi the authority of M. Haseeb Khan to act as arbitrator was revoked Respondent also took plea that the suit was hopelessly time‑barred and it was barred by section 11 of the C.P.C. and that the plaint had not been properly signed and verified. Under the impugned order dated 15‑10‑1987 the trial Court rejected the plaint. Hence this appeal , Mr. Fariduddin learned counsel for the appellants argued that the plaint was wrongiy rejected and that while considering rejection of plaint the trial Court could not have taken into consideration the judgment dated 3‑6‑1975 delivered by Senior Civil Judge Rawalpindi revoking authority of sole arbitrator to arbitrate between the parties and that the plaint was properly signed and verified and it contained the facts constituting the cause of action. In support learned counsel for the appellants cited the case of S.M. Faisal v. Additional Estate Officer 1989 CLC 2473. Mr. G.R. Warsi, learned counsel for the respondent argued that the suit filed by the appellants was barred by time, was res judicata and that the plaint was not properly signed and verified by all the appellants or by their authorised agent or attorney. It was further argued that no document was filed with the plaint although there was mentioned in para 7 of the plaint about the judgment by the Senior Civil Judge Rawalpindi. ‑It was also argued that the contract between the parties took place in March 1957 while the suit was filed on 12‑5‑1983 In the case of S.M. Faisal 1989 CLC 2473, it was held that every allegation made by the plaintiff in the plaint has to be accepted as correct, while rejecting the plaint under Order VII, Rule 11 of C.P.C. and the fact that the plaintiff may not ultimately succeed in establishing the allegations made in the plaint can not be a ground for rejecting the plaint. It was also held in the same case that a plea raised by the defendant in the nature of defence in the suit can. not be looked into, while considering the application under Order VII, Rule 11, C.P.C. There can be no cavil with the observations made in the cited case. Similar view has been taken in a number of cases from the case of Pahloomal Motiram v. Abdul Quddus Behari and others PLD 1971 Kar. 250 to the case of Abdul Rahim v. K.D.A. 1988 CLC 1207. In the instant case the very plaint shows that the agreement between the parties which was basis for claim of the appellants, was executed in March 1957 whereas the suit was filed on 12‑5‑1983 viz after more than 26 years, although a suit for recovery of money could be filed within a period of three years from the date of accrual of the cause of action, in view of Article 61 of the Limitation Act. Even if Article 120 of Limitation Act is applied then too the suit is to be filed within a period of six years from the date when the right to sue accrues. Hence on the face of it, the suit filed by the appellants was time‑barred. Learned counsel for the appellants argued that the suit was not time- barred because the construction covered by the agreement went on for a long period and that the appellants had no cause of action till the matter was finalised by the sole arbitrator. The authority of the sole arbitrator was revoked under judgment of a civil Court of Rawalpindi on 3‑6‑1975. After such revocation of authority of the sole arbitrator, it was for the appellants to file the suit within three years or six years from the date of revocation of the authority. Appellants took another period of over eight years in filing the suit on 12‑5‑1983. Viewed from any angle, the suit of the appellants was time‑barred. One can not agree with the contention raised by learned counsel for the respondent that the suit filed by the appellants was barred by res judicata due to the judgment dated 3‑6‑1975 delivered by the Senior Civil Judge Rawalpindi in case No.478 of _1972. The essential conditions for applicability of the rule of res judicata, are lacking in this case. The matter directly and substantially in issue in case No.478 of 1972 in Court of the Senior Civil Judge Rawalpindi is not directly and substantially in issue in the suit filed by the appellants at Karachi. Secondly Muhammad Haseeb Khan party in the case at Rawalpindi was not party in the suit at Karachi. Thirdly competency of the Court of Senior Civil Judge Rawalpindi to adjudicate the matter between the parties is open to question, as the construction in question was to be raised at Karachi, where the agreement between the parties was executed. The Court at Rawalpindi does not appear to have determined any issue, which can arise in the subsequent suit. In this way the judgment by the Court Rawalpindi would not operate as res judicata in the suit filed by the appellants at Karachi. I also disagree with the learned counsel for the respondent that the plaint was defective for having been signed by one of the appellants only. According to order VI, Rule 14 of C.P.C. every pleading shall be signed by the party and his pleader, provided that where a party pleading, is, by reason of absence or for other good cause, unable to sign the pleading, it may be signed by any person duly authorised by him to sign the same or to sue or defend on his behalf. In the instant case the suit was filed by the appellants, who are public functionary except appellant No. l viz Pakistan. On behalf of Pakistan the plaint could be signed by any functionary. In the present case the plaint was signed by Khurshid Ahmad, Executive Engineer who was plaintiff No.3 in the suit and in his verification he has stated that he was authorised by other plaintiffs to sign the plaint. Hence no exception can be taken to competency of the plaint. Even otherwise the plaint could not have been rejected for want of signatures of appellants Nos. l and 2 because such omission is only a defect of procedure and can not affect jurisdiction of the Court and it can be allowed to be corrected at any stage by way of amendment. The verification according to Order VI R.15 shall be by the party or by one of the parties or by a person acquainted with facts of the case. Since the suit filed by the appellants was time‑barred, the trial Court was right in rejecting the plaint. In this view of the matter I dismiss this appeal with costs. A.A./P‑2/K Appeal dismissed.