1986 PLP 2593 (CLC)

The learned trial Court framed six issues and decreed the suit for Rs.1,10,806‑11‑9 but the claim for interest was rejected as the respondent No. 1 plaintiff had itself delayed in moving the Court and payment to it was not withheld with mala fide intention. Mr. Syed Shakir Ali the learned counsel for the appellant has pressed two issues i.e. issues Nos. 4 and 5 which read as follows:‑ (i) Is the suit for maintainable under the provision of Displaced Persons Compensation and Rehabilitation Act, 1958? (ii) Is the suit time‑barred? As regards first issue the learned counsel has contended that the respondent had applied for creating a charge by the Custodian and, therefore, the procedure provided under law for satisfaction of the charge should have been followed and the suit is, therefore, not maintainable. The reference is to the satisfaction of Charge Rule, 1962 framed under the Displaced Persons Compensation and Rehabilitation Act. The admitted position is that the Company was not an evacuee concern and, therefore, the question of creating charge or seeking satisfaction through a procedure provided under the Rule was not applicable. On this plea maintainability of the suit cannot be challenged. Now coming to the issue relating to the bar of limitation the learned counsel for the appellant contended that as the coal was supplied upto 1951 under Article 53 of the Limitation Act suit should have been filed within a period of three years from that date. According to the learned counsel even if, letters Exh. 58, dated 6‑9‑1960 Exh. 59, dated 29‑11‑1960 and Exh. 61, dated 5‑10‑1981 are taken to be letters admitting and acknowledging the liability, the same were made beyond the period of limitation, and, therefore, the suit was barred by time. Mr. Iqbal Kazi the learned counsel for the respondent has contended that Article 51 or 53 will not be applicable to the present case. The main ground for such contention is that on transfer of the Company to the Government of Sind, under the Electricity Act liabilitites of the Company were also transferred to the Government of Sind and in terms of section 5(e) of the Electricity Act the debts and other similar liabilities of the Company were attached to the purchase money. Section 5(e) reads as follows:‑ "

5. Where the Provincial Government revokes under section 4, subsection (1), the licence of a licensee, not being local authority, the following provisions shall have effect namely, (a) ............................................................... (b) ............................................................... (c) ............................................................... (d) ............................................................... (e) where a purchase has been effected under any of the preceding clauses: ‑ (i) the undertaking shall vest in the purchasers free from any debts, mortgages or similar obligations of the licensee or attaching to the undertaking: Provided that any such debts, mortgages, or similar obligations shall attach to the purchase‑money in substitution for the undertaking; and (ii) ............................................................... In view of this legal position the obligations between the parties were completely changed and a charge was created on the purchase money whether it was in the hands of the appellant, or any other person. The respondent No. 1 was to follow the purchase money on which a lien was created for the claim of the respondent No.

1. In such circumstances the case could not be governed by Article 51, 52 or 53 of the Limitation Act, and as no provision has been made to cover such a situation, the residuary Article 120 shall be applicable. Under this residuary Article 1213 suit can be filed within six years from the date when a right to sue accrues. The right of the respondent No. 1 to the said amount of Rs.1,10,806‑11 independent of the transaction it had with the Company was never disputed. Right to sue could only accrue if there is infringement of right of at least a clear and unequivocal threat to infringe that right is made by the defendant. This interpretation of the words 'when the right to sue accrues' in Column 3 of Article 120 has been made by the Privy Council in Mai. Bolo v. Mst. Kiklan, ILR 11 Lah. 657 (PC), and Annamalai Chattiar v. A.M.K.C.T. Muthkaruppon 8 Rang. 645 (PC). In Akbar Allah v. Hasan Ali Khan, AIR 1937 Pesh. 94, Mehar Langah v. Mehar Allah Yar AIR 1938 Lah. 671 and Ramchandra Mulchand v. Bhagwan A I R 1947 Bom. 82 same view has been followed. The interpretation of the term 'when the right to sue accrues' depends upon the fact of the case and the relief sought by the plaintiff. A person seeking relief against a defendant has to allege some facts against him which has infringed his right. Therefore, in a suit the plaintiff has to allege not only accrual of a right, but its infringement by the defendants . In this regards reference can be made to Government of Azad Jammu and Kashmir v. Safdar Hussian P. L. D 1969 AJ & K I. The plaintiff was appointed as Sues‑Inspector of Police and was reverted to the post of Head Constable. The dispute ultimately was adjudicated by the Tribunal when the order of reversion was set aside and direction was issued to the inspector General of Police to examine the case of the plaintiff. The plaintiff after delivery of the order made several representations to I.‑G. Police for implementing the order of the Tribunal. From 29‑3‑1953 when the order for setting aside the reversion. was passed till 17‑11‑1964 no steps were taken for implementing the order. The application made by the plaintiff: was neither accepted nor turned down, therefore, the suit was filed ., 28‑8‑1965. When the plea of limitation was raised, while applying Article 120 it was observed that it would be ridiculous to say that the right to sue accrued to the plaintiff on 29‑3‑1952 which is the date of the appellate order of the Tribunal. The Tribunal had accepted the departmental Appeal of the plaintiff. The acceptance of his appeal would not give him the right to file a suit. All that he could do was that he should approach the Government for implementation of this appellate order which he did time and again but which representations all fell on deaf ears. In the end the plaintiff was forced to serve the Government with a notice under section 80, C . P. C . but the Government decided to contest the suit and this decision of the Government to contest the suit gives the plaintiff in our opinion the cause of action, and it shall be said that the right to sue accrued to him when the Government also turned dower the notice under section 80 and elected to contest. The notice was served on 17‑6‑1965 and after the expiry of the statutory period of two months the suit was filed on 25‑8‑1965 which is welt within, tuna." The principle enunciated in this judgment equally applies to the present case. On transfer of the undertaking to the appellant, the purchase money was charged the claim of the respondent. Thereafter, from the letters, dated 6‑9‑1960, 17‑6‑1961 and 5‑30‑‑1961 the appellant had admitted the claim and did not deny that the amount was not to be paid. For the first time WAPDA by letter, dated 26‑10‑1961 stated that as the money has been paid to the Additional Settlement and Rehabilitation Commissioner it has no concern with the creditor of the evacuee undertaking. It is strange how the undertaking i.e. the Company was treated to be evacuee. However, the appellants in its written statement has clearly admitted that the Company was not an evacuee undertaking. Again by Exh. 63 the Settlement and Rehabilitation Commissioner informed the respondent that the compensation amount remitted to him has been paid to the share‑holders and a further sum due from the appellant whenever received shall be paid to the respondent. In these circumstances, for the first time on 26‑10‑1961 the appellant denied the liability which throughout had remained undisputed. Even in this letter also the respondent's claim has not been disputed, only the liability to pay has been disputed. Finally the respondent served a notice, dated 7‑6‑1967 and filed a suit on 2‑10‑1967. In these circumstances, the suit was within time, as it had been filed within a period of six years from the date when first refusal was made on 26‑10‑1961. Mr. Iqbal Kazi the learned counsel for the respondent contended that where two interpretations are possible in construing a provision of limitation Act, one which is favourable to the plaintiff must be accepted. In this regard reference has been made to P L D 1958 Lah. 936 where the following observation was made:‑ "It is true that provision of the statute of limitation must be applied without regard to equitable consideration. Those provisions are founded on the policy of law which, in the interests of the community as a whole, requires that there should be some point after which old and ancient dispute should not be agitated. The periods of limitation prescribed in pursuance of such a policy must necessarily at least in some cases, be artificial and arbitrary and must be applied regardless of hardship in individual cases. These considerations, however, cannot apply to a case where a particular provision in a statute of limitation is not clear and definite. In construing such provisions "considerations of justice and equity cannot be ignored. When more than one interpretation is fairly and reasonably possible, that which leads to manifest absurdity or injustice must be avoided. It would be a lamentable and intolerable state of law if it were not so." Considering the facts and circumstances of the present case the interpretation sought to be placed by the learned counsel for the respondent No. 1 on the expression "when the right to sue accrues" appearing in column 3 of Article 120 is reasonable and possible meaning F which does not lead to any absurdity, but ensures and satisfies the principles of justice, equity and fair play. In these circumstances, the appellant's plea that the suit was barred by time is not tenable in law. The respondent has filed cross‑objection against the judgment and decree passed in the suit, as its claim for interest has been rejected. In the suit the appellant had claimed fts.83,850 as interest at the rate of 6% per annum from 9‑3‑1955 upto the date of the suit when charge was created by the Custodian. It has further claimed interest @ 6% per annum till recovery. So far interest from 9‑3‑1955 is concerned, it is based on the plea that in his order, dated 9‑3‑1955 while creating a charge the Deputy Custodian had also ordered for payment of interest at 6% per annum till recovery. The admitted position is that the Company was not an evacuee property, therefore, the Deputy Custodian could not have created charge of this nature. The claim for interest based on this order is, therefore, not maintainable. The learned counsel for the respondent then contended that by notice, dated 7‑6‑1967 served on the appellant before filing the suit claim was made for interest at 6% per annum. In view of section 1 of the Interest Act the respondent No. 1 is entitled to interest @ 6% per annum from the date of demand i.e. 7‑6‑1967 till filing of the suit. So far the interest from the date of the suit till payment is concerned, in view of section 34, C.P.C. the respondent No. 1 is entitled to it at the rate of 6% P.A. In the result the appeal is dismissed and the cross‑objection to the extent mentioned above is allowed and decree for payment of interest as mentioned above is passed with no order as to cost. M. Y. H. Appeal dismissed.