P L D 2005 Lahore 74 (PLP)

The Province of East Bengal v. Bakarganj Central Cooperative Sale and Supply Ltd. and another PLD 1960 Dacca 604 and Pakistan Railways v. Abdul Latif 1992 MLD 1379 ref. Sh. Javed Sarfraz, Standing Counsel for Petitioner. Hafiz Khalil Ahmad for Respondent. Date of hearing: 4th November, 2004. Through this civil revision the petitioner has assailed the judgment and decree dated 11-5-1998, passed by the learned Additional District Judge, Sialkot, whereby the appeal of the petitioner i.e. the Government of Pakistan was dismissed and the judgment and decree dated 23-11-1992 of the learned Civil Judge, dismissing the petitioner's suit for recovery of money was upheld, holding the petitioner's suit for recovery of money as barred by time.

2. The examination of the impugned judgment dated 11-5-1998 of the learned Additional District Judge, Sialkot shows that the learned First Appellate Court decided all the issues except issue No.3 (on suit limitation) against the respondent and in favour of the petitioner Government. The respondent did not challenge the findings on any of the issues decided against him by the learned Additional District Judge. The findings of .the learned Additional District Judge on the said issues thus became final.

3. Issue No.3 was as to whether the petitioner's suit was within time. The learned trial Judge held through the judgment and decree dated 23-11-1992 the petitioner's suit to be beyond the period of limitation. The findings of the learned trial Judge on issue No.3 (relating to limitation) were upheld by the learned Additional District Judge, Sialkot who dismissed the petitioner's appeal by concurring with the learned trial Court on the issue of suit limitation.

4. The learned counsel for the petitioner contended that the learned Courts below misapplied the law by presuming the period of limitation in the suits filed by or ' on behalf of the Federal Government or the Provincial Governments to be three years as in the suits filed by other persons. The learned counsel contended that the applicable Article in the present case was Article 149 of the First Schedule of the Limitation Act whereunder for suits by or on behalf of the Federal Government, limitation period of sixty years was prescribed. Reliance was placed on the case of The Province of East Bengal v. Bakarganj Central Cooperative Sale and Supply Ltd. and another (PLD 1960 Dacca 604) wherein an Honourable Division Bench of Dacca High Court held that the period of limitation applicable to the suits for recovery of loan filed by the Government was provided for in Article 149 of the First Schedule of the Limitation Act when loaning was an act incidental to the functions of the Government. Further reliance was placed upon the case of Pakistan Railways v. Abdul Latif (1992 MLD 1379) to state that in any suit by the Government, for seeking recovery of money, the period of limitation is 60 years under Article 149 of the First Schedule of the Limitation Act and not three years.

5. The learned counsel for the respondent in order to answer the above contentions stated that the question of applicability of Article 149 of the First Schedule of the Limitation Act was neither pleaded before the learned First Appellate Court nor was the same raised in the present civil revision. He supported the impugned judgments and decrees.

6. Considering the above submissions, I am of the opinion that it is for the Court to apply the correct law and to justly administer the rights and the remedies of the citizens. This duty is fundamental to and enshrined in the concept of the administration of justice. The learned Courts hearing a case have to carefully calculate the period of limitation on determining the applicable provision of the law or the Article of the Schedule of the Limitation Act. A declaration to bar a remedy should be carefully granted. A plaintiff should be non-suited on the limitation or other barring statutes upon deep and thorough consideration of the applicable provisions of law. Under section 3 of the Limitation Act a Court is itself obligated to take into account the period of limitation for a suit filed before it, even if no objection thereto has been raised. Attached therewith is also the duty to determine the correct period of limitation and the provision applicable thereto. The petitioner therefore, cannot be denied the right to show even at the revisional stage before the this Court that the law was incorrectly applied by the subordinate Courts and that the petitioner was non-suited under an inapplicable provision.

7. It appears that the learned Courts below were not even conscious of the provisions of Article 149 of the First Schedule of the Limitation Act. The suit and the appeal were decided under a presumption that the applicable period of limitation was three years and not sixty years even for the suits by a Government. Article 149 was neither considered nor has relied upon the above referred cases of "The Province of East Bengal v. Bakarganj Central Cooperative Sale and Supply Ltd. and another" and "Pakistan Railways v. Abdul Latif" which admittedly reinforce the case of the petitioner that period of limitation in suits filed by the Government is sixty years.

8. Both the learned subordinate Courts in the impugned judgments and decrees proceeded with the suit filed by the petitioner-Government oblivious of the provisions of Article 149 of the First Schedule of the Limitation Act and thus respectively dismissed the suit as well as the appeal. Non-consideration of the above provisions is a material irregularity as well as mid-exercise of the jurisdiction. The impugned judgments and decree on findings on Issue No.3 cannot therefore be sustained. Exercising powers as a revisional Court under section 115, C.P.C. this Court would abstain from converting the decrees of dismissal into the decrees of acceptance of the suit. This Court, therefore, without giving a definitive finding on the applicable period of limitation leaves the matter open for consideration of the learned First Appellate Court. Under the above explained discussion, the ruling in the impugned judgment and decree dated 11-5-1998 of the learned Additional District Judge, Sialkot on the question of limitation is set aside. The appeal is rerZanded for redecision by the learned Additional District Judge, Sialkot. The appeal filed by the petitioner shall be deemed to be pending before the learned Additional, District Judge, Sialkot for redecision in accordance with law. It is specifically recorded that the learned Additional District Judge while redeciding applicable period of limitation allow the parties to submit their respective case qua the applicable provisions of the law with specific reference to Article 149 of the First Schedule of the Limitation Act for the suit by and on behalf of the Government. The learned First Appellate Court shall consider and determine the applicable provisions as well as the period of limitation applicable to the petitioner Government's suit for recovery of money. It is also recorded that to absence of any challenge by the respondent to the findings of the learned Additional. District Judge on all other issues, such findings as were given in the impugned judgment dated 11-5-1998 on all issues except on Issue No.3 shall be treated as final. The impugned judgment and decree dated 11-5-1998 has been set aside only to the extent of observations on the question of limitation. This civil revision is accepted in the above terms with no orders as to the costs. All the pending Civil Miscellaneous Applications are also disposed of. M.B.A./G-92/L Order accordingly.