2019 PLP 1124 (CLC)

SHAKEEL AHMAD, J

By way of the instant petition, filed under Article 199 of the Constitution of Pakistan, 1973, the petitioner Pir Jalal Rahman Shah has called in question the order dated 04-07-2018, passed by the learned Additional Sessions Judge-V, Bannu, whereby the order dated 26-02-2018, passed by the learned Civil Judge-XII, Bannu dismissing the application for rejection of plaint, was affirmed.

2. Short facts of the case are that respondent No.1/plaintiff instituted a suit under Order XXXVII, C.P.C. for recovery of Rs.99,00,000/- (rupees ninety nine lacs).His claim was based on a cheque, allegedly issued by the petitioner for repayment of loan.

3. It was averred in the plaint that the cheque was issued in favour of the respondent No.1, which had been dishonoured when presented to the Bank concerned for encashment. In that back drop, the petitioner was tried by the learned trial court under sections 489-F/489-B, P.P.C. and the trial court had acquitted the petitioner of both the said charges. However, in appeal the High court had maintained the petitioner's acquittal to the extent of section 489-B, P.P.C., while convicted him to the extent of section 489-F, P.P.C., which was impugned before the august Supreme Court, whereby conviction and sentence was set aside by the august Supreme Court of Pakistan vide its judgment dated 13.05.2016, rendered in Criminal Appeal No.102 of 2016; that on the basis of judgment of the august Supreme Court of Pakistan, the petitioner moved an application for dismissal of summery suit which was pending before the learned Additional District Judge-III, Bannu. After receipt of replication, the learned trial court, after hearing arguments of learned counsel for the parties, rejected the plaint, vide judgment and decree dated 25.04-2017, whereafter the respondents Nos.1 to 3 filed another suit before the Civil Judge Bannu for recovery of the amount in dispute. During pendency of the suit, the petitioner submitted application for rejection of the plaint on the ground of non-maintainability and also on the basis of principle of res judicata. The learned trial court, after hearing arguments of learned counsel for the parties, dismissed the said application vide its order dated 26.02.2018. Not contented with the same, the petitioner filed Civil Revision Petition before the learned Additional District Judge-V, Bannu which too was dismissed vide judgment dated 04-07-2018. Hence this petition.

4. It was vehemently argued by the learned counsel for the petitioner that the suit is hit by the principle of res judicata and is also barred by limitation. He lastly contended that the cheque in question was given to the respondent No.1 as security, not for the purpose of repayment of loan of fulfillment of an existing obligation. In support of his contention, he relied upon the observation of the Apex court, recorded in para-3 of the judgment dated 13.05.2016, rendered in Criminal Appeal No. 02 of 2016.

5. Conversely the learned counsel appearing on behalf of the respondents Nos.1 to 3 argued that the suit is not hit by the principle of res judciata. Adverting to the limitation, he contended that the question of limitation being mixed question of law and facts, can only be resolved after recording pro and contra evidence, therefore the impugned judgment needs no interference.

6. We have examined the impugned order/judgment as well as material available on record in the light of arguments, so advanced by the learned counsel for the parties.

7. The objection raised by the petitioner is not sustainable. It is an admitted rule of law that the principle of res judicata is attracted only when the conditions laid down in section 11, C.P.C. are squarely satisfied. In the present case, admittedly, the earlier summary suit was dismissed on the preliminary point relating to non-appearance of cause of action in favour of the respondent No.1. However, while rejecting the plaint, it had been observed by the learned trial Judge/Additional Sessions Judge that the respondent No.1/maker of agreement could pursue or initiate proper proceedings available with them under the law. Thus the suit was dismissed on a technical ground and not on merits of the case. In such situation, the rule of res judicata was of course, not applicable. This view finds support from Abu Bakar's case (PLD 1977 Karachi 410) and Syed Inayat Ali Shah's case (PLD 1978 Lahore 859).

8. From perusal of the record, it reflects that earlier summary suit had been filed on 14.04.2015 which was dismissed on 24.04.2017, whereafter, the respondents Nos.1 to 3 brought the present suit in the court of Civil Judge Bannu on 25.11.2017. Perusal of the contents of paras Nos.7 and 9 of the plaint reveals that the respondents in paras 7 and 8 specifically states the respondent No.1 had instituted a summary suit in the court of the learned Additional District Judge, Bannu which was dismissed with the observation that the respondents may approach the appropriate forum for the redressal of his grievance. In para-9 of the plaint it was stated that the cause of action accrued to the respondents against the petitioner on 25.04.2017, after dismissal of summary sit and after refusal of the petitioner to pay the amount in dispute. The question of limitation has always been held to be mixed question of law and facts, which can only be answered after recording pro and contra evidence. It has been so held by the Honourable Apex Court in the case reported as Abdul Murad Khan v. Noshaba (1992 SCMR 1828), Muqaddar Khan v. Farid Khan and others (2011 CLC 59) and Tariq Muhammad Choudhry Kamboh v. Nazam-ud-Din (1999 SCMR 2396). In the latter case, the question of limitation was considered in the context of Order VII rule 11, C.P.C. and it was held that the suit in question could not be held to be out of time mainly on the basis of an application under Order VII rule 11, C.P.C. or assertion so advance in the written statement.

9. During arguments we were informed by the learned counsel for the respondents Nos.1 to 3 that the learned trial court has already framed the issues from divergent pleadings of the parties including the question of limitation. In our view, the learned trial court after having reflected the said controversy in issue would definitely decide the suit after recording the evidence on the issue, already framed. We have gone through the impugned judgments and find ourselves in agreement with the courts below that the plea agitated by the petitioner requires evidence to be adduced by both the parties. The learned counsel for the petitioner has not been able to point out any illegality or irregularity or jurisdiction defect in the impugned judgments of both the courts below, calling for interference.

10. The upshot of above discussion is that the instant Writ Petition being bereft of merits, is hereby dismissed with no order as to costs. MH/61/P Petition dismissed.