1999CLC364 (PLP)

5. On 16‑1‑1998, when this matter came up for hearing, the parties were directed to satisfy as to how this suit is maintainable on the ground of limitation and, secondly, whether Article 36 or Article 115 to the 1st Schedule of the Limitation Act, 1908 are attracted. In furtherance of the same, parties have filed, in addition to their oral arguments, written arguments. Article 36 provides a period of two years for filing a suit for compensation if any malfeasance, misfeasance or non‑feasance is caused, independent of the contract. Article 115 provides a period of three years for filing a suit for compensation for the breach of any contract, express or implied, not in writing nor registered and not provided in the Limitation Act. Since the amounts claimed in the suit are in the nature for recovery of the work done and the remaining part is as an amount of damages for breach of contract, I am of the view that for the first amount Article 56 and for the damages Article 115 of the Limitation Act are attracted. Both these provisions provide a period of three years for filing a suit.

6. It was contended by Mr. Abdul Haleem Pirzada that for filing of the instant suit, the date to be reckoned is not the date of refusal of defendant to pay the amount i.e. 24‑5‑1988 but it should be 10‑3‑1992 when the plaintiff received letter from the Ministry of Law, Justice and Parliamentary Affairs through which the appeal filed by the defendants was accepted by the President. It was argued that since the matter was sub judice before the Wafaqi Mohtasib and thereafter, before the President of Pakistan, the intervening period should be excluded. Reliance was placed on the following cases:‑‑

(i) Jagannath Marwari v. Kalidas Raha AIR 1929 Pat. 245, (ii) R.M.N. Nagappa Chettiar v. Messrs Trojan and Company AIR 1948 Mad. 446, (iii) Abdul Ghafoor v The Thal Development Authority PLD 1958 Lah 169, (iv) F.A. Khan v. The Government of Pakistan PLD 1964 SC 520, and (v) The Province of West Pakistan v. Muhammad Sharif PLD 1965 Lah 513.

7. In the first case cited above a suit was filed for recovery of compensation where defendant raised a plea that the suit is barred by Article 36 of the Limitation Act, 1908. It was held by a Division Bench of Patna High Court that in a suit for compensation governed by Article 36 arising independent of the contract, the time provided is two years and that the time will not run from the act for malfeasance or misfeasance but from the time when the injury results. In the present suit, plaintiff is claiming damages arising out of a contract and, therefore, it is Article 115 of the Limitation Act which governs the plaintiff's case and, therefore, the case of Patna High Court is of no help to him. Likewise, the case cited at serial No.(ii) above AIR 1948 Mad. 446 is also of no help to the plaintiff as in that case a suit was filed for damages for malicious insolvency proceedings where it was held that the starting point of limitation in such a case is the date of order of annulment. In the case of Abdul Ghafoor '(supra) the question involves: was whether the suit was filed within the period of six months as provided under section 75(3) of the West Punjab Thal Development Act, 1949. In that case, plaintiff had filed a suit for declaration against dismissal of his services. Prior to filing the suit, he filed appeal before the competent authority and after conclusion of the proceedings before the domestic tribunal, he filed the suit. It was held that the dismissal of his appeal by the superior authorities of the Thal Development gave him a fresh cause of action to maintain the suit. Reliance was placed on two Privy Council cases, namely Chandra Mani Saha and others v. Anarjan Bibi and others AIR 1934 PC 134 and Bassu Kaur and others v. Dhum Singh ILR XI (1889) All. 47.

8. Mr. Abdul Haleem Pirzada has vigorously argued that the rule laid down by Honourable Supreme Court in the case of F.A. Khan (supra) is fully attracted in the instant case. The question raised before the Supreme Court in that was that what is the time for a Government servant to challenge the legality of the order of his removal from service. In that case also as of Abdul Ghafoor (supra), the plaintiff before challenging his removal through a civil suit, preferred appeals and revisions before the departmental authorities. It was held that the starting point for limitation, in the circumstances of that case, started from the dates of the appellate order of departmental authority which confirmed the original order of plaintiff's dismissal. Reference was made to the cases of Abdul Ghafoor (supra) and Chandra Mani Saha (supra) and the following three propositions were laid down for including the time in the cases where appeal was filed by a plaintiff:‑‑

"(i) when an appeal is filed the matter becomes sub judice and is reheard by the Appellate Court which does not act merely as a Court of error; (ii) after there has been an appeal even though an Appellate Court simply affirms the order of the original Court the only decree or order in existence is the order of the Appellate Court; (iii) the original and appellate proceedings are steps in one proceedings."

9. The rule laid down in the case of F.A. Khan was followed by a Division Bench of Lahore High Court in the case of Muhammad Sharif (supra). All the cases as mentioned earlier were noted. In that case, suit for specific performance of the agreement of lease was filed by the plaintiff and in addition to the relief for damages. In that case, the grievance application of the plaintiff was dismissed by the concerned authority against which he filed review application before the Deputy Commissioner which was dismissed on 15‑12‑1953. It was agitated that the time will run from that day. It was held that second and fresh cause of action accrued to the plaintiff to sue the Government when his review was finally rejected and it was held that this suit falls within Article 115 of the Limitation Act. The ratio laid down in the cases as discussed hereinabove are not attracted in view of the facts of this suit as in those cases the plaintiffs were pursuing their remedy before the higher officers against the orders of the subordinates who by their subsequent orders endorsed the orders of their subordinates. These orders were passed in the same hierarchy. While in the instant case, the plaintiff approached the learned Wafaqi Mohtasib for redressal of his grievance. It was a different forum and authority invoked by the plaintiff and in no manner order of Wa‑faqi Mohtasib could be termed as an order of the superior Officer endorsing or setting aside his subordinate's order. This is a forum separately provided to such persons who are aggrieved with the acts or deeds of an agency. It is doubtful whether a claim in the nature of damages could be maintained before the authority of Ombudsman.

10. Section 9 of the Limitation Act, 1908 provides that the time once commenced to run will not cease to do so for any inconvenience or disability to sue or to be sued by reason of any subsequent event does not come within the saving of the statute. There is only one proviso to this section which provides that where letters of administration to the estate of a creditor have been granted to his debtor, the running of the time prescribed for a suit to recover the debt shall be suspended while the administration continues. Section 6 extends the period of limitation of a suit in case of legal disability. Similarly, in view of section 18, time will run from discovery of fraud. Section 14 entitles a plaintiff for exclusion of time consumed in prosecuting any civil proceeding either in a Court of first instance or a Court of appeal which was prosecuted with due diligence founded upon the same cause of action. Section 10 provides effect of acknowledgment in writing which further extends time for bringing any cause in a Civil Court. However, section 23 provides that a fresh period will begin where there is a continuing breach of contract and in case of continuing wrong independent of the contract. None of these principles are attracted for the purpose of calculating the period of limitation in filing this suit. Admittedly, the plaintiff's claim was dismissed on 24‑5‑1988 and the instant suit was filed on 12‑3‑1992. The plaintiff was required to file the suit on or before 23‑5‑1991. The period consumed during the proceedings before Wafaqi Mohtasib or before the President of Pakistan is not entitled to be excluded as provided under section 14 of the Limitation Act as these do not constitute civil proceedings. The time to file suit started running from the date 24‑5‑1988. There was no legal disability on the part of plaintiff for not bringing the suit within time.

11. The necessary conditions for applying provisions of section 14 of the Limitation Act came up for consideration before a Division Bench of this Court in Kilachand Devechand & Co. (Private) Ltd. v. Messrs Sh. Mian Muhammad Allahbux PLD 1962 Kar.

510. The question in that case was as to whether the time started running from the date of the first award and whether the period spent in making the first award a rule of the Court and thereafter, time spent in pursuing the application for the execution of the decree is to be counted. The appeal against the order of a learned Single Judge of this Court was allowed and it was held as follows:‑‑

"It will be seen, therefore, that section 14 of the Limitation Act comes into play if the following conditions are fulfilled: (a) That the plaintiff has been prosecuting another civil proceeding against the defendant; (b) that he has been prosecuting it with due diligence; (c) that this proceeding is founded upon the same cause of action; (d) that it is prosecuted in good faith; and 0(e) that it does not bear fruit because the Court is unable to entertain it due to defect of jurisdiction or other cause of alike nature."

12. In the case of Messrs Haroon Textile Mills Ltd. v. Allah Ditta PLD 1972 Kar. 57, a suit for damages was filed by the respondent, who was an employee of the appellant and who developed asthema while serving in the appellants' Company. Earlier, the respondent initiated proceedings under the Workmen's Compensation Act, 1923, which was terminated by the judgment of this Court in Appeal No.94 of 1964 disposed of on 9th September, 1965, whereafter he filed the suit. Objection was raised that the suit is barred under Article 22 of the Limitation Act. It was held by a Division Bench of this Court that filing of an application with the Factory Inspector for claim in tort can by no stretch of argument be said to be a bona fide proceedings fit for the condonation of the delay under section 14 of the Limitation Act. The rule laid down in the case of Kilachand Devechand (supra) was followed in the case of Asmy Trading Company v. Shahadra Ltd. PLD 1975 Kar. 209 where it was held that the plaintiff was not prosecuting the suit in the lower Court with due diligence and in good faith as the said plaintiff failed to serve a prior notice on the Registrar which omission was held to be a clear case of lack of diligence. By now, it is well‑settled that in order to avail of the provisions of section 14 of the Limitation Act, the plaintiff must show that he was diligently pursuing another civil proceedings whether in the Court of first instance or in a Court of appeal against the same party bona fidely and that the Court for defect of jurisdiction or other cause of like nature was unable to entertain the same. (see Imdad Ali and 4 others v. Abdul Rashid and 6 others 1983 CLC 1346.

13. There is another way of looking at the matter. The plaintiff has based his suit on the cause of action accrued after grant of review application by the President and he is challenging the said order. It was pleaded by the learned counsel for the defendant that the suit is barred by Article 29 of the Establishment of the Office of Wafaqi Mohtasib (Ombudsman) Order, 1983 which reads as follows:‑‑ '

29. Bar of jurisdiction.‑‑‑ No Court or , other authority shall have jurisdiction‑‑‑ (1) to question the validity of any action taken or intended to be taken, or order made, or anything done or purporting to have been taken, made or done under this Order; or (2) to grant an injunction or stay or to make any interim order in relation to any proceedings before, or anything done or intended to be done or purporting to have been done by, or under the order or at the instance of Mohtasib."

14. There are several cases wherein it was held that a petition under Article 199 of the Constitution, 1973, challenging a decision/order of Wafaqi Mohtasib is not maintainable. In the case of P.I.A. Corporation v. Wafaqi Mohtasib and 2 others PLD 1994 Kar. 32, a petition was filed challenging the order through which benefits were directed to be extended to an ex‑employee of P.I.A. It was held by a learned Division Bench of this Court that there is a clear bar of jurisdiction of Courts under Article 29 of the Order, 1983 to question, among others, as to validity of any action taken by Wafaqi Mohtasib. Reference was also made to the case of International Cargo Handling Co. (Pvt.) Ltd. v. Port Bin Qasim Authority PLD 1992 Kar. 65 where an application under Order XXXIX, Rules, 1 and 2, C.P.C. filed in a suit was granted by a learned Single Judge of this Court wherein it was held, inter alia, that by virtue of Article 29 of the Order, 1983, jurisdiction of Courts is barred but where the order on the face of it is repugnant to law under which it was made or suffers for want of jurisdiction the Court may invoke its inherent jurisdiction in order to prevent injustice. In another case of a Division Bench of this Court namely, Habib Bank Ltd., Karachi v. Messrs Pakistan Industrial Promoters (Pvt.) Ltd., Karachi and 2 others PLD 1996 Kar. 218, where a Constitutional petition under Article 199 of the Constitution was filed challenging the orders passed by Wafaqi Mohtasib as well as President, the Court dismissed the same as not maintainable with the following observations:‑‑- "

11. In case where the matter falls within the jurisdiction of respondent No.2 and is resolved by invoking the provisions of the Order I of 1983, no Court would have jurisdiction to disturb such findings. When action is taken under a special statute it must fulfil the conditions of that statute in order to gain validity of the action so taken. The instant case has been dealt with within the four corners of provisions of the Order No. l of 1983, as such, this Court, under Article 199 of the Constitution, has no jurisdiction in the matter."

15. As a result of the above discussion, I am of the considered view that the suit is barred by virtue of Article 115 of the Limitation Act. In the instant suit, the plaintiff is impliedly challenging the order passed in appeal by the President of Pakistan by showing the dates i.e. 14‑10‑1985 when for the first time cause of action accrued as a result of acceptance of plaintiff's bid and lastly on 27‑2‑1992 when appeal was allowed by the President. (see para. 24 of the plaint). Upon conclusion of evidence, it stands proved that the crucial date when the cause of action as provided under Article 56 or 115 accrued was 24‑5‑1988 when his claim was rejected vide Annexure "P.11 " which reads as follows:‑‑ "It is also pointed out that in terms of Clause 25 page 4 of Special Conditions of Contract any increase in rate or any other compensation or price escalation or any claim is not admissible. Further as per Clause 16, page 3 of Special Conditions of Contract the claim has to be made within one week of the point arising whereas in this case it has not been complied with. The completion period of the work has also expired on 6‑8‑1987 and no extension in time limit has been granted. In view of the above, the claim of the Contractor preferred by him vide his application No. Nil, dated 18‑1‑1988 is not tenable. The Contractor may, therefore, be informed accordingly and settled up as per Contract Agreement. "

16. Admittedly, this suit was filed on 12‑3‑1992 after expiry of more than three years. I am of the considered view that the time consumed in a proceeding before Wafaqi Mohtasib is not entitled to be excluded. As a result of this discussion, suit is dismissed with no order as to cost. H.B.T./S‑180/K Suit dismissed