1984 PLP 1120 (CLC)

‑‑‑ O. VII, r. 11 (d)‑Rejection of plaint as time‑barred‑Suit pray ing two reliefs separately valued‑One relief barred by limitation--Plaint, in circumstances, held, cannot be rejected as a whole --application for rejection of plaint, held, not maintainable. [Plaint‑Limitation]. P L D 1976 S C 785 and P L D 1956 Lah. 689 ref. Saleem Iqbal for Plaintiff. Khalilur Rehman for Defendants. This is an application under Order VII, rule 11, C.P.C. praying therein that the plaint be rejected on the ground that the suit is barred by time.

1. Admittedly, according to the Advocate for the defendant himself, this plea for rejection of the plaint relates to prayer made under clause (b) of the prayer clause (para. 18) of the plaint. The learned Advocate further invited attention to order, dated 31st October, 1982 wherein the following observation was made: " Mr. Salim Iqbal on the other hand states that he is claiming possession and Article 144 of the Limitation Act applies and as he has separately valued the two reliefs, the relief relating to posses sion can be claimed and Art. 144 will apply. Learned counsel relies upon P L D 1976 S C 785 and P L D 1956 Lah.

689. Even if the contention of the learned counsel is accepted, the result would be that the relief relating to the setting aside of the consent decree cannot be claimed as admittedly present suit has been filed after the expiry of six years of the order, dated 9th August, 1974 passed by the learned Additional District Judge, the question whether the plaintiff will himself drop the relief in relation to the setting aside of the consent decree and what will be the effect of this or the other relief relating to restoration of possession, requires, further research according to the learned counsel for the plaintiff and he requests for some time. By consent adjourned to 14th November, 1982."

2. I have considered the arguments of the learned counsel for the parties and being of the opinion that even if prima facie relief claimed in clause (b) whereby the plaintiff has sought declaration that the compro mise decree in Suit No. 236 of 1969 passed by the learned Civil Judge at Karachi was obtained by fraud and is not binding on the plaintiff, is barred by time the plaint as a whole cannot be rejected. The application under Order VII, rule 11, C.P.C. for rejection of the plaint thus being not maintainable is dismissed.

3. Mr. Khalilur Rehman, Advocate finally requested that it may be clarified that the plea raised by him during arguments that the other reliefs are consequential reliefs and cannot be granted by the Court may be left open to be decided at the trial of the suit. Mr. M. Salim Iqbal, Advocate for the plaintiff frankly conceded that since this plea is not the subject matter of the application it is open to the defendant to raise the said plea at the trial. He does not oppose the request thus made. Accordingly it is clarified that the dismissal of the application on technical ground, would not be construed as a bar to the defendant raising the above‑mentioned pleas, amongst others, permissible under the law at the time of trial of the suit. M. Y. H. Plaint dismissed.