P L D 1968 Lahore 1151 (PLP)

Kallar Syedan Ex‑Servicemen Co‑operative Multipurpose Society Ltd., Kallar (hereinafter referred as the Society) deposited a sum of Rs. 48,000‑4‑0 with the District Food Controller, Multan, for the purchase of wheat. The Society was supplied wheat of the value of Rs. 46,592‑10‑0 in two instalments, the last in point of time being of the 1st of November 1947. The Society claimed the refund of Rs. 1,583‑1‑

0. On the failure of the District Food Controller, Multan, to pay this amount, the Society instituted at Rawalpindi a suit for the recovery of this amount. The suit was resisted by the defendant, inter alia, on the ground that the Courts of Rawalpindi had no jurisdiction to try the suit and that the snit at any rate was barred by law of limitation. The learned trial Judge held the plaintiff‑respondent entitled to the amount, but dismissed the suit on the question of limitation. The finding of the trial Judge was reversed in appeal and the learned District Judge decreed the suit. This is the second appeal.

2. The last instalment of wheat was received by the respondent on the 1st of November 1947 and the suit was instituted on the 1st of October 1955 for the recovery of the amount which the plaintiff had deposited in excess. The learned District Judge, however, on the basis of letter dated the 5th of April 1953 (Exh. P. 5) which was written by the assistant Regis trar, Co‑operative Societies, Rawalpindi, to the District Food Controller, Multan, has held that the defendant‑appellant had, before the expiration of the period prescribed for a suit, made an acknowledgment of his liability and, therefore, a fresh period of limitation was to be computed from the time when the acknow ledgment was so signed. The relevant portion of the letter is to the following effect:‑ "

2. I shall be grateful for you kindly paying immediately a sum of Rs. 1,583‑1‑0 due from you to the Kallar Ex‑Servicemen Co‑operative Multipurpose Society Ltd., since so long. The details of the bill are noted below:‑ I. II. III. IV. V. Total recoverable from the D. F. C. 1,583‑1‑0 (Sd.) Adalat Hussain Shah." In order to appreciate whether the letter amounted to an acknowledgment within the meaning of section 19 of the Limi tation Act, it is necessary to reproduce subsection (1) of section 19 which is in these terms: "Where, before the expiration of the period prescribed for a suit or application in respect of any property or right, an acknowledgment of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed or by some person through whom he derives title or liability, a fresh period of limitation shall be computed from the time when the acknowledgment was so signed."

3. A bare reading of the above subsection would show that where an acknowledgment of liability is created under this sub section, it is necessary to show that the letter has been signed by the party against whom such property or tight is claimed or by some person through whom he derives title or liability. The Assistant Registrar, Co‑operative Societies, Rawalpindi, was not acting on behalf of the Food Department much less on behalf of the District. Food Controller. He was, in fact, espousing the cause of the plaintiff‑respondent and, therefore, the letter (Exh. P. 5) by no stretch of imagination can be said to be acknowledg ment within the meaning of section 19 of the Limitation Act. Raja Muhammad Akram, learned counsel for the plaintiff‑ respondent, very frankly conceded that this was the correct position.

4. It was, however, contended by the learned counsel for the respondent that the sum of Rs. 48,000‑4‑0 which the respondent deposited with the District Food Controller, Multan, was for the specific purpose of purchasing wheat and, therefore, it was in trust with him. On the basis of this contention, it was argued that the case of the respondent fell under section 10 of the Limitation Act and that being so, the suit was instituted within the period of limitation. The purpose of this section is to declare that, as a general rule, trust property shall not be subject to any law of limitation; that no length of time shall bar an action to recover such property the objection of the learned counsel for the appellant was two‑fold in opposing this argument. He firstly contended that in the Courts below the stand taken by the plaintiff ‑ respondent was that the plaintiff relied on various letters as acknowledgment and, therefore, it is not open to them now to rely on a different ground to get over the bar of limitation I am not impressed at all by the argument of the learned counsel for the appellant, for it is well‑established that Courts are bound to apply the law of limitation in suit whether it is pleaded or not and dismiss a suit which is apparently beyond time. Conversely they are bound not to dismiss, as barred, a suit which, on the face of it, is not barred. It is again well established that where a plaintiff has brought a suit beyond limitation but has relied on ground of exemption in the plaint, he can prove different ground to get over bar of limitation other than those stated in the plaint. This was so held in

8. Udeypal Singh v. Lakshmi Chand (AIR 1935 946) and Parmeshri Das, etc. v. Fakiria and others (AIR 1922 Lah. 230).

5. The question which still remains to be answered is whether section 10 of the Limitation Act did apply to the case in hand. It is an admitted fact that the amount in dispute was deposited by the plaintiff‑respondent for the specific purpose of purchase of wheat and that this amount was surplus and was lying deposited in the Imperial Bank in the name of the defendant‑appellant. In such a case surely section 10 of the Limitation Act was applicable and the suit for the recovery of money was not barren by any length of time. This point is directly covered by the case reported as Viziaramarazu v. The Secretary of State for India‑in‑Council (ILR 8 Mad. 525).

6. Lastly, as regards the contention that the Court at Rawalpindi had no jurisdiction as the amount was deposited with the Imperial Bank at Multan, the bargain was struck at Multan and the wheat was also despatched from Multan, it is true that the Court at Rawalpindi had no jurisdiction, but teen before this objection prevailed, it was necessary for the defendant‑appellant to show that the trial in the wrong Court has led to failure of justice. It was not shown. It is now well established that even if an objection has been raised at the proper time, it is still necessary, before an appellate or revisional court could entertain) such objection, to show that the trial in the wrong Court has led to failure of justice. It wits so held in Ismael v. Abdullah, etc. (P L D 1963 Kar. 161) I may add that the present objection was only with regard to territorial jurisdiction of the Court at Rawalpindi and in case the objection was taken in respect of the pecuniary jurisdiction of the Court, it would have been fatal. But in the present case the objection was in respect of the territorial jurisdiction and it was not shown that any failure of justice was occasioned by the trial at Rawalpindi. The objection, therefore, has no force.

7. Before I conclude, I may add that the Government was not expected to have contested the claim in this case. As observed by their Lordships of the Supreme Court in Muhammad Akbar Khan v. Province of West Pakistan (PLD1961SC17) "The Government is expected to be reasonable in a suit by or against its subject". The attitude adopted in this case by the Government was inconsistent with their public responsibilities to fight shy of admit ting even the patent facts that the amount in dispute was due. The respondent, I may further add, is a body working for the, good of Ex‑Servicemen and it was, therefore, not expected of the Government to have thought it fit to withhold the amount which was deposited by the Society with the Government for the specific purpose of purchasing the wheat. In the circumstances, one can only conclude that proper advice was not tendered to the Government by those who were in charge of the case.

8. For the foregoing reasons, the appeal fails and the judgment and decree of the learned District Judge is upheld and the suit of the plaintiff‑respondent is decreed with costs, throughout. S. A. H. Appeal rejected.