1995 PLP 592 (PLC)

2. Briefly the facts are that respondent No. 1 whose date of birth is recorded as 1‑10‑1930 was duly retired from service having reached the age of superannuation which in the petitioner's establishment, is 60 years; respondent was retired vide order dated 5‑3‑1990, according to the order, respondent No. 1 was retired vide order dated 5‑3‑1990, according to the order, respondent No. 1 was retired with effect from 31‑10‑1990.

3. Respondent No‑1 claiming his date of birth to be 5‑2‑1936; on 14‑3‑1989 addressed a letter to the petitioner requesting that the entry pertaining to the date of birth be substituted to 5‑2‑1936 instead of 1‑10‑1930; in support to his request he referred to documentary evidence i.e. birth certificate.

4. The request of respondent was turned down as the respondent had himself applied to the Old‑Age Benefits Institution for pension on attaining the age of superannuation on the basis of his date of birth as 1‑10‑1930.

5. Learned counsel for the petitioner vehemently contended that the petition filed by the respondent No. 1 under section 25‑A, Industrial Relations Ordinance, 1969 before the learned Labour Court was time‑barred; hence the order passed by the learned Court is ab initio, illegal and void in the eye of law.

6. Learned counsel for the respondent agitated that the plea of limitation has been taken for the first time at this stage as neither it was raised before the. Labour Court nor at the appeal stage; hence this plea at this stage is not maintainable.

7. I have heard the arguments advanced by the learned counsel for the parties and have perused the record.

8. The plea raised by learned counsel needs consideration before going into the merits of the case. It is a well‑settled principle of law that where a Court lacks jurisdiction over subject‑matter of suit the same is duty bound to return the plaint and if time‑barred by limitation, then the issue of limitation be first decided. In section 3 of the Limitation Act, it has been expressly declared that whether the defence of limitation be pleaded or not, the Courts whether of first instance or of appeal, are bound to give effect to the law. The section is couched in peremptory language and is addressed to the Court making it its duty to take notice of the Limitation Act and give effect to it even though the same is not referred to in the pleadings. The above section 3 has to be obeyed in full. Therefore, an obligation is cast upon the Court to dismiss a suit, appeal or application if it is barred by limitation as held in case Muhammad Akram v. Aurangzeb and another (1989 CLC 1405 (Lahore) and further held that it is also well‑settled that a plea of limitation like a plea of res judicata is a plea of law which concerns the jurisdiction of the Court which tries the proceedings.

9. The issue whether the High Court is justified in re‑opening the question of limitation of the suit which has been given up by petitioner in appeal; it was observed in case Hakim Muhammad Buta and another v. Habib Ahmad and others (PLD 1985 SC 153); that the words of section 3 of the Limitation Act are mandatory in nature and that every suit instituted after the period of limitation shall, subject to the provisions of sections 4 to 25 of that Act, be dismissed although limitation has not been set up as a defence. The law, therefore, does not leave the matter of limitation to the pleadings of the parties as it imposes a duty in this regard upon the Court itself. The limitation being a matter of statute and the provisions being mandatory, cannot be waived and even if waived can be taken up by the party waiving it and by the Courts themselves.

10. In case in hand on 14‑3‑1989, the respondent, addressed the letter to the petitioner requiring that the entry pertaining to the date of birth be changed; which was turned down on 14‑6‑1989. According to section 25‑A of Industrial Relations Ordinance, 1969, it is mandatory that grievance notice must be given within 3 months; the period of 3 months expired on 13‑9‑1989 while the grievance notice under section 25‑A of the Ordinance was issued on 2‑10‑1990 after about one year being barred by limitation.

11. The contention of learned counsel for the respondent that time was to be computed from receipt of second reply of employer is misconceived as it was observed in Inam Ahmad v. Pakistan Steel through G.M. (1993 PLC 148) on the same facts of case as in case in hand; "This contention is absolute untenable as a fresh cause of action could not accrue by a repetition of an application at a later date".

12. The result of the foregoing discussion is that the petition is allowed, judgments and appeal orders dated 11‑3‑1991 and 24‑4‑1991 respectively are set aside being barred by limitation: I make no order as to costs of this petition. AA./A‑839/L ? ??????????????????????????????????????????????????????????????????????? Petition allowed.