2002 PLP 418 (CLC)

IJAZ‑UL‑HASSAN, J.‑‑‑ This appeal is, directed against the judgment and decree, dated 11‑9‑2000 announced by .Senior Civil Judge, Haripur, whereby application moved on behalf of defendants Nos. 1. to 3 on 13‑7‑2000 was accepted and suit filed by the plaintiff‑appellant., was dismissed as time‑barred.

2. The facts relevant for the disposal of this appeal are, that Shah Nawaz Shah plaintiff, filed suit on 17‑2‑1997 against Younas‑ur‑Rehman and two other defendants, for recovery of Rs.15,00,000 as damages for malicious prosecution. The defendants appeared in Court and resisted the suit. Necessary issues were formulated and the plaintiff's evidence was recorded and closed on 2‑10‑1999. The plaintiff submitted an application on 11‑2‑2000 for adding Government of N.W.F.P., through Secretary, Services and General Administration, Peshawar as necessary party to the suit. The application was accepted by order, dated 9‑3‑2000 and the plaintiff filed amended plaint on 15‑3‑2000. The evidence of the plaintiff was recorded and closed on 3‑6‑2000 and the case was adjourned to 17‑7‑2000 for the defendants' evidence. The defendants Nos.1 to 3 submitted an application on 13‑7‑2000 seeking dismissal of the suit on the point of limitation. The Government of N.W.F.P. having been found included as party to the suit after expiry of limitation, the application was accepted and the suit dismissed, per the impugned judgment and decree, necessitating the filing of instant appeal.

3. Qazi Muhammad Ghazanfar, Advocate appeared on behalf of the appellant and assailed the impugned judgment and decree principally on the ground that the learned lower Court has misinterpreted the law of limitation and has drawn wrong conclusion. Additionally, it has been urged that the application for adding party having been accepted earlier the learned trial Judge had no justifiable reason to accept the subsequent application dated 13‑7‑2000 and made the same basis for dismissal of the suit on the point of limitation. The learned counsel also complained that the rulings cited in support of the appellant's case were not taken into consideration and ignored altogether which has prejudiced the appellants' cause. Reliance in this respect has been placed on Muhammad Yousaf v. Syed Ghayyur Hussain Shah and 5 others 1993 SCMR 1185, Malik Raza Khan v. Pakistan PLD 1965 (W.P.) Kar. 244, Muhammad Afsar and 6 others v. Shah Wali and 2 others PLD 1984 SC (AJ&K) 115, Muhammad Ashraf and 8 others v. Azad Government of the State of Jammu and Kashmir and 13 others PLD 1985 SC (AJ&K) 102, Mst. Bibi Lal Bibi v. Mir Balouch Khan and another PLD 1962 (W.P.) Quetta 28 and Shujaul Mulk v. Firm Abdul Ghafoor Abdul Qadeem PLD 1964 (W.P.) Pesh 110.

4. Mr. Muhammad Ismail Tanoli, Advocate, for respondents Nos.1 to 3 and Mr. Muhammad Ayub, Deputy Attorney‑General for respondent No.4, on the contrary. defended the impugned judgment and decree and contended that application for adding Government of N.W.F.P. as necessary party, having been filed after limitation the suit was rightly held barred by time in terms of Article 23 of the Limitation Act. To substantiate the contentions, reliance was placed on Northern Bank of India Ltd. v. Ramesh Chandar and another AIR 1932 Lah. 314, Devi Dayal v. Narain Singh and others AIR 1928 Lah. 33, Muhammad Khan v. Abdul Khaliq Khan PLD 1981 SC 155 and Hayat and others v. Amir P L D 1982 S C 167.

5. We have heard at length the arguments and submissions of learned counsel for the parties in the light of the material on file and case‑law cited at the bar.

6. A perusal of the record would reveal that pursuant to information supplied by Hamid Shah son of appellant Shah Nawaz Shah, two hand- grenades were recovered by the local police at the pointation of Hamid Shah from the house of the appellant and the same were taken into possession. A case under sections 3/4 of Explosive Substances Act was registered against the appellant vide F.I.R. No.168, dated 9‑6‑1995 Police Station Hattar District Hariptir. After completion of investigation the police submitted case‑for trial which culminated in the acquittal of the appellant under section 265‑K, Cr. P.C. vide order, dated 14‑10‑1996. Feeling aggrieved, the appellant instituted suit on 17‑2‑1997 seeking recovery of Rs.15,00,000 from defendants‑respondents as damages for malicious prosecution. It appears that when the proceedings were near completion, the appellant realized the mistake and made an application on 11‑2‑2000 for adding Government of N.W.F.P as necessary party to the suit. The application was accepted. Thereafter, defendants Nos. 1 to 3 submitted an application on 13‑7‑2000, for dismissal of the suit on the ground of limitation. Article 23 of the Limitation Act specially deals with cases of malicious prosecution and prescribes a period of one year, when the plaintiff is acquitted, or the prosecution is otherwise terminated. Hence provisions of this Article apply in preference to the general provisions of Article 2 (ibid) as held in "Chaudhry Abdul Ghani Guman v. Province of Punjab and 2 others PLD 1975 Lah. 1238. In the instant case we find that the application for adding party to the suit, having been made after limitation, it affected the entire suit and the learned Judge, seized of the matter, had justifiable reason to dismiss the whole suit treating the same as barred by time Learned counsel for the appellant has not been able to persuade us to hold that the point of limitation had been erroneously found against the appellant and the law of limitation has been misinterpreted. The case‑law cited on behalf of the appellant has no bearing on the facts of the present case and speaks of the different situation. The cited rulings are of no help to the appellant.

7. Based on the above discussion finding no substance in this appeal, we dismiss the appeal and maintain the impugned judgment and decree. We make no order as to costs. Q.M.H./M.A.K./413/P Appeal dismissed.