2021 PLP 103 (CLC)

ATIR MAHMOOD, J.

This civil revision is directed against the order dated 27.02.2019 passed by learned Civil Judge, Rawalpindi.

2. Brief facts of the case are that respondent/plaintiff (herein after called as "respondent") filed a suit for recovery of Rs.100,960,065/- against the petitioner/defendant (herein after called as "petitioner") detail of which is well mentioned in the plaint. The petitioner resisted the suit by filing written statement. He also filed an application under Order VII, Rule 11 of C.P.C. which was contested by the respondent. Learned trial Court, vide order dated 27.02.2019 dismissed the application, hence, this revision petition.

3. Learned counsel for the petitioner contends that the impugned order is against the law and fact; that learned lower appellate Court has wrongly dismissed the application as the suit of respondent was time barred, however, this very aspect of the case has been overlooked by the learned trial Court. Prayed that this revision petition be allowed, the impugned order be set aside. He relied upon the judgments reported as "Agha Syed Mushtaque Ali Shah v. Mst. Bibi Gul Jan and others" (2016 SCMR 910), "Pakistan Refinery Ltd. v. Pakistan National Shipping Corporation and 2 others" (1986 CLC 644) and "Messrs Imperial Builders through Managing Partner and another v. Lines (Pvt.) Limited through Chief Executive and 3 others" (PLD 2006 Karachi 593).

4. On the other hand, learned counsel for respondents has seriously controverted the contentions raised by learned counsel for the petitioner and supported the impugned order.

5. Arguments heard. Record perused.

6. The sole ground taken by the petitioner is that the respondent filed the suit on 18.07.2018, after a lapse of 08-years from the date of accrual of the alleged cause of action i.e. October 2010, as such, same is barred by time.

7. Perusal of record shows that in Para No.22 of the plaint the respondent has deposed that: "Despite that, once again, plaintiff was made to wait for the balance amount (over Rs.100 Million). Therefore, he made desperate requests and appeals for payment in November 2013, then on 18.10.2014 and then on 15.09.2015. Every time, the plaintiff was made to 'wait in view of short payment with the Defendant' and that' 'dues of the Plaintiff would be cleared soon by the Defendant' and that the 'Plaintiff should cooperate with the Defendant', etc. In good faith and in reliance upon, commitment of payment by the Defendant, Plaintiff kept in waiting for final payment." It depicts from the afore-mentioned Para that there is a specific assertion on behalf of respondent that he was asked to wait. Therefore, the plea of the petitioner that cause of action arose w.e.f. October, 2010 requires to be ascertained through recording of evidence, especially when there is explicit acknowledgment on behalf of respondent that many times and finally on 15.09.2015, the petitioner was directed to make the payments, however, the needful has not been done, therefore, the date of occurrence of cause of action has been agitated by the respondent as 15.09.2015. The suit has been filed on 20.07.2018 which is apparently within time as per assertion of the respondent, however, the said assertion is to be proved through evidence. In question of limitation is a mixed question of law. I have perused the order of the learned trial Court which is a well-reasoned touching the very roots of the plea raised by the petitioner which order is based on the guidelines laid down by the superior courts. Under the revisional jurisdiction this court cannot set aside the order which is based on proper appreciation of points involved and agitated therein The judgments relied upon by the learned counsel for petitioner art distinguishable to the facts and circumstances of the instant petition.

8. Furthermore, the petitioner has not annexed all the documents, available on the file of learned trial Court submitted by the respondent along with the plaint whereas it was mandatory and the petitioner was required to file the copies of said letters/documents with the instant revision under Section 115 of C.P.C. and as such this petition is liable to be dismissed on this score alone.

9. For the aforesaid reasons, I do not see any merit in the instant revision petition which being bereft of any merit is hereby dismissed. MH/D-9/L Revision dismissed.