P L D 1979 Quetta 63 (PLP)

"(1) Whether the amount of Rs. 7,217.50 is due to the plaintiff from the defendant? (2) Whether the deposit slip dated 30‑6‑1965 is incorrect? (3) Relief?" Issues Nos. 1 and 2 were jointly tried and ultimately the suit was decreed first in sum of Rs. 7,217.58 but the amount was later on corrected to read Rs. 7,875.50 being the amount claimed in suit excluding costs. The court-- fee was also ordered to be paid by the appellant.

6. The learned counsel for the appellant has assailed the judgment and decree of the trial Court on two grounds namely (a) that the suit was barred by time as the alleged cause of action could accrue to Rehmatullah on 21st July 1966 only when he had retired from service and not on 25th April 1967 when the part payment of the provident fund was made to him, as such, the calculation of the period of three years for the filing of the suit from the last‑mentioned date was illegally held to be correct, and (6) that the evidence on record had not been correctly appreciated by the trial Court. .

7. Submitting his arguments to substantiate his first contention the learned counsel stated that Article 62 of the Limitation Act applied to the case which provided only three years period for the institution of the suit from the date .on which the money was received. According to him the payment of money deducted from Rehmatullah became due on the date of his retirement from service, i.e. 21st April 1966 and such suit could be competently filed within three years from this date whereas he filed this suit on 6th April 1970 computing the period of three 1years from the date part payment of his claim on 25th April 1967. Khawaja Safdar Rashid, the learned counsel for the respondent however invited my attention to Article 115 of the Limitation Act which according to him was applicable to the case. In support of this contention he also placed reliance on the case of Asmy Trading Company, Karachi v. Shahdara Pioneer Co‑operative Multipurpose Mill Society Ltd., Lahore (P L D 1975 Kar. 209). In this case the plaintiff Company had deposited some amount by way of security with the defendant‑Society and it was agreed between them that after completion of the undertaking the amount be refunded to the plaintiff Company. However, the contract was somehow frustrated and the plaintiff Company made a demand for the refund of security. The defendant society made part payment which was received by the plaintiff‑Company under protest. The plaintiff‑Company accordingly filed a suit for the recovery of the balance amount beyond a period of three years from the date of commence ment of the contract, but within three years from the date of the breach of contract. Thereupon it was urged by the defendant‑Society that suit was governed by Article 62 of the Limitation Act which provided a period of three years for the filing of the suit from the date on which the cause of action initially, accrued and as the suit was filed beyond the prescribed period the same was not maintainable. The Court, however, held that the facts of the case attracted Article 115 of the Limitation Act which provides a period of three years for the filing of the breach of contract and not Article 62 thereof. Article 115 reads as under :‑ "

115. For compensation Three years When the contract is for the breach of any contract, broken, or (where there are express or implied, not in successive breaches when the writing registered and not herein breach in respect of which suit specially provided of. is instituted occurs, or (where the breach is continuing) when it ceases." It may be added here that while interpreting the word "compensation" it was held by the Court that by the use of this term the scope of Article 115 was not restricted to a claim of unliquidated damages but it also included a claim for a fixed or certain amount. I entirely agree with the learned counsel for the respondent, that this case applies in all the ours to the facts of the present case and that as the suit could be filed within three years from the date of the breach of the contact as provided by Article 115 of the Limitation Act, the same was well within time. The objection of the learned counsel for the appellant has therefore no force.

8. Dealing with the second objection raised by the appellant suffice it to say that the appellant has relied upon the receipts issued by appellant himself (Exhs. P/1 to P/16), and these receipts are not denied to have been issued by the appellant. All what they claim is that the account received from the Indian Railway had been misplaced and some one had added figure 2 with the amounts of Rs. 281, annas 11 and 279, annas 2 so as to increase the amount of provident fund by Rs. 4,

000. It was necessary for the appellant to have placed some reliable material on record to prove this contention but they absolutely failed to discharge their onus. The only two documents (D/1 and D/2) placed by them on record were also not proved in accordance with law and therefore the learned trial Court was perfectly justified in rejecting these documents as reliable pieces of evidence. If may further add that D/2 was copy of copy which is inadmissible in evidence and its production in the trial Court by a counsel of sufficient standing at the bar reflects on the reckless in which the case was conducted on behalf of the appellant. Be that as it may the learned counsel for the appellant, had, in these circumstances when there was almost no documentary evidence on record on behalf of the appellant his own limitations to prove any instance of mis-appreciation of evidence and this difficulty he could not obviously overcome. For the aforesaid reasons I find no substance in this appeal which is hereby dismissed with cost. Appeal dismissed with costs.